Unique International College Pty Ltd v Australian Competition and Consumer Commission [2018] FCAFC 155
Undesirable business practices; unconscionable conduct; pattern of behaviour.
Facts: Unique International College (UIC) was a provider of vocational education and training. It encouraged students to sign up for its courses by offering them a free laptop and helping them to take advantage of a scheme whereby the government paid the costs of the course as a loan to the student, repayable only if and when the student earned more than $50,000 per annum. UIC targeted prospective students in remote areas and among socio-economically disadvantaged groups. In 2015 UIC enrolled more than 4,500 students in its courses. Relying on the specific facts in six particular cases, the ACCC brought an action against UIC, alleging that its business practices amounted to an unconscionable ‘system of conduct or pattern of behaviour’.
Issue: Did the practices engaged in by UIC amount to an unconscionable system of conduct or pattern of behaviour in breach of s 21 of the ACL?
Decision: The ACCC had not provided sufficient evidence of a system of conduct or pattern of behaviour by UIC.
Reasons: A system or pattern of conduct may be shown to exist by relying on a representative and sufficiently large sample of individual cases. This can be a difficult burden of proof to discharge. A court may give more significance to sample cases if the alleged conduct is generic, and the unconscionability does not depend too greatly on the attributes of individual consumers. In the present case the ACCC relied on the facts of only six particular cases out of more than 4,500 enrolments. Although UIC’s conduct was found to be unconscionable in each of these individual cases, the cases were not shown to be properly representative of UIC’s general business practices, to establish a system of conduct or pattern of behaviour. The court said (at [136]): … in the present appeal, the vulnerabilities of the consumers were very much dependent on their individual circumstances: their levels of education, their literacy and numeracy, whether they had intellectual impairments, what was explained to each of them and what was not, and whether they had access to the internet and whether they understood how to operate a computer. These were not matters about which inferences could be drawn without sufficient evidence.