A private college selling government-supported diploma courses has had its conviction of unconscionable conduct quashed by the Full Federal Court, throwing out the ACCC’s original win.
The Australian Competition and Consumer Commission (ACCC) had taken legal action against Unique International College, claiming that it had engaged in “systemic unconscionable conduct”.
In its judgement in June 2017, the Federal Court agreed that had been the case in NSW.
“The ACCC took this case as we believed Unique deliberately targeted vulnerable groups in the Australian community. Only 2.4 per cent of the people who signed up to and commenced Unique’s courses between 1 July 2014 and 30 December 2014 completed their course,” ACCC chair Rod Sims said.
Both sides then appealed that decision. Unique appealed the verdict against it for unconscionable conduct, while the ACCC and the Commonwealth of Australia (on behalf of the Department of Education and Training) appealed on the grounds that the finding only applied to NSW, and should have been extended to cover Victoria and Queensland, too.
However, the ACCC acknowledged defeat this week, as the Full Federal Court upheld Unique’s appeal and in doing so dismissed the counter appeal against it.
“This appeal concerns the unconscionability provisions in s 21 of the Australian Consumer Law (ACL), and in particular what it was necessary for the Australian Competition and Consumer Commission (ACCC) to prove in order to make out a case of a contravention or contraventions of s 21(1) by the appellant, Unique, based on allegations of a ‘system of conduct or pattern of behaviour’ as those terms are used in s 21(4) of the ACL,” the court found in handing down its verdict.
“We have concluded that there was an insufficient evidentiary basis before the primary judge to support the findings and declaration his Honour made that Unique engaged in a system of conduct or a pattern of behaviour in connection with the supply of online vocational education courses to consumers, and that the system or pattern of behaviour was unconscionable.
“Unique’s appeal must be allowed. The ACCC’s cross-appeal should be dismissed.”
The ACCC noted that Unique did not appeal the original findings that it had engaged in misleading and deceptive conduct in relation to five customers who gave evidence at the original trial.
In those instances, Unique was found to have represented that its courses were free, when they actually involved the accumulation of VET FEE-HELP debts of up to $25,000.
The ACCC is continuing to seek penalties for those instances, including redress for the affected students.
In a separate action, the Federal Court ruled in the ACCC’s favour that Cornerstone Investments (trading as Empower College) had misrepresented its offering and engaged in misleading, deceptive and unconscionable conduct.
Adam Zuchetti is the editor of My Business, and has steered the publication’s editorial direction since early 2016.