Rowe v Emmanuel College

In *Rowe v Emmanuel College*, heard in the Federal Circuit Court of Australia at Brisbane, the applicant, Mr. Chad Everett Rowe, sought various forms of relief against the respondent, Emmanuel College. The dispute arose from an enrolment agreement for the applicant's daughter, with the applicant alleging the contract was unfair, contained unfair terms, and that the college had engaged in misleading, deceptive, and unconscionable conduct. The applicant sought declarations, general damages of $750,000, a civil penalty of $1.1 million, and indemnity costs. The respondent opposed all claims.

The court was required to determine whether certain claims made by the applicant, specifically those relating to unfair contract terms under Part 2-3 of the Australian Consumer Law and unconscionable conduct, had reasonable prospects of success. The court also considered claims of misleading and deceptive conduct and the applicant's entitlement to civil penalties. A key issue was the applicability of the Australian Consumer Law to the enrolment contract, which was entered into prior to 1 January 2011.

The court reasoned that the claims concerning unfair contract terms under Part 2-3 of the Australian Consumer Law could not succeed because the relevant provisions only apply to contracts entered into, renewed, or varied after 1 January 2011, and the enrolment agreement predated this date. The court also found that the applicant's claim regarding the "separated parents' policy" failed as there was no evidence that this policy formed part of the enrolment agreement. Furthermore, the court determined that the applicant's claim of unconscionable conduct lacked merit, as the applicant had not demonstrated a special disadvantage or that the respondent had taken unconscientious advantage of such a position. The claim for a civil penalty was also dismissed, as only the ACCC can pursue such penalties. However, the court was not satisfied that the claim for misleading and deceptive conduct was devoid of prospect and allowed it to proceed.

Consequently, the court ordered the dismissal of specific orders sought by the applicant relating to unfair contract terms and unconscionable conduct. The applicant was ordered to pay the respondent's costs of the summary dismissal application. The remaining aspects of the application, including the claim for misleading and deceptive conduct, were adjourned for a final hearing. Directions were also given for the filing and service of affidavits and case outlines.