Australian Competition and Consumer Commission v Australian Institute of Professional Education Pty Ltd (in liq) (No 5)

The Australian Competition and Consumer Commission (ACCC) sued the Australian Institute of Professional Education Pty Ltd (AIPE), which was in liquidation, over its unconscionable conduct under the Australian Consumer Law (ACL). The Federal Court was tasked with determining the appropriate pecuniary penalties to be imposed on AIPE following a previous judgment on liability. The court was required to consider the factors relevant to the assessment of penalties, including the nature and extent of the contraventions, the culpability of AIPE, and the deterrent and remedial effects of the penalties. The court also had to consider whether any individual associated with AIPE's conduct should be held accountable, despite not being a party to the proceeding.

The court found that AIPE's conduct was deliberate, widespread, and systemic, and that it caused significant harm to consumers. The court noted that AIPE was in liquidation, and that no individual associated with AIPE's conduct was being made accountable. The court considered that the penalties should serve as a deterrent to others, and that the amount should reflect the seriousness of the contraventions. The court found that a penalty of $153 million was appropriate, taking into account the significant harm caused to consumers and the need for general deterrence. The court also considered the submissions of the liquidators of AIPE and the applicants, and declined to make an order that the applicants fund the liquidators to appear as a contradictor.

The court imposed a penalty of $153 million on AIPE, which was ordered to pay the penalty to the Commonwealth of Australia. The court also ordered AIPE to pay the costs of and incidental to the proceeding. The court vacated and replaced certain orders made in previous judgments, and ordered that the applicants not seek to enforce certain orders without first obtaining the leave of the Court. The court noted that the orders did not apply to action taken seeking to prove compensation and costs in the external administration of AIPE as unsecured creditors, for which no leave of the Court was required. The court made orders for the entry of the penalties and costs in accordance with the Federal Court Rules 2011.