Australian Competition and Consumer Commission v Australian Institute of Professional Education Pty Ltd (in liq) (No 4)

In the case of Australian Competition and Consumer Commission v Australian Institute of Professional Education Pty Ltd (in liq) (No 4), the Australian Competition and Consumer Commission (ACCC) and the Commonwealth sought compensation from the respondent, Australian Institute of Professional Education Pty Ltd (AIPE), for the sum of VET FEE-HELP course fee payments made on behalf of consumers who did not complete a single unit of study in an online course. This was a follow-up to the earlier decision in Australian Competition and Consumer Commission v Australian Institute of Professional Education Pty Ltd (in liq) (No 3) (liability judgment), which found that AIPE had engaged in an unconscionable system of conduct or pattern of behaviour. The applicants contended that AIPE should compensate for the aggregate sum of VET FEE-HELP course fee payments made to it on behalf of the non-completion consumers, which was estimated to be around $198 million.

The primary issue before the Court was how to determine whether the enrolment of a consumer in an online course by AIPE was the result of the unconscionable system of conduct or pattern of behaviour found to exist. The applicants proposed that compensation should be awarded based on the fact that the non-completion consumers did not complete a single unit of study. However, AIPE argued that the necessary causal connection must be found before the compensation could be awarded under s 237 of the Australian Consumer Law. The Court found that an approach that limited the compensation based on a "but for" causation enquiry would not involve a full evaluative assessment of the appropriate relief. Instead, the Court determined that the salient question was whether AIPE’s unconscionable system of conduct or pattern of behaviour was in some way sufficiently causally related to all of the loss sustained by the Commonwealth.

The Court held that AIPE’s unconscionable conduct was a relevant and significant contributor to the loss sustained by the Commonwealth, and therefore, the Commonwealth was entitled to compensation for the VET FEE-HELP course fee payments made on behalf of the non-completion consumers. The Court ordered the parties to submit agreed or competing orders either to finalise this proceeding in accordance with this judgment, or to prepare for any further adjudication, by 27 January 2021, or such other date as may be fixed in consultation with the parties. The proceeding was listed for case management at 9.00 am on 29 January 2021, or such other date as may be fixed in consultation with the parties.