Productivity Partners Pty Ltd v Australian Competition and Consumer Commission

Productivity Partners Pty Ltd (the College) and Mr Wills appealed to the High Court of Australia following a decision of the Full Court of the Federal Court of Australia. The dispute concerned allegations that the College had engaged in unconscionable conduct in contravention of section 21 of the Australian Consumer Law (ACL) by altering its vocational education and training (VET) enrolment process. Mr Wills, as Chief Operating Officer and acting Chief Executive Officer of the College's parent company, was alleged to be knowingly concerned in or party to this contravention, making him liable for pecuniary penalties under section 224 of the ACL.

The High Court was required to determine whether the College had engaged in unconscionable conduct by removing safeguards in its enrolment process, thereby facilitating the enrolment of unsuitable or unknowing individuals to claim VET fees from the Commonwealth. A further issue was whether Mr Wills possessed the requisite knowledge to be considered "knowingly concerned in" or "party to" the College's contravention, thereby establishing his accessorial liability.

The Court upheld the findings of the lower courts. It was established that the College's actions constituted unconscionable conduct because it deliberately removed enrolment safeguards, knowing that this would lead to more students remaining enrolled beyond the census date, allowing the College to claim VET fees and incur debts for those students. This conduct was found to be a "sharp practice" driven by financial gain, preying on the vulnerability of students and disregarding their interests. Regarding Mr Wills' liability, the Court affirmed that to be "knowingly concerned" or "involved" in a contravention, a party must have knowledge of the "essential facts" constituting the contravention, but not necessarily knowledge of the legal characterisation of those facts as unconscionable. The Court found that Mr Wills had the necessary knowledge of the essential facts of the College's conduct.

Consequently, the appeals by Productivity Partners Pty Ltd and Mr Wills were dismissed with costs.