Australian Competition and Consumer Commission v Productivity Partners Pty Ltd (trading as Captain Cook College) (in administration) (No 6)

This Federal Court decision is the remedies stage of a long-running ACCC case about Captain Cook College’s online vocational education business. By the time of this judgment, the core liability findings had already been made at first instance, tested in the Full Court, and then considered by the High Court. What remained for Stewart J in May 2025 was to settle the declarations, impose penalties, decide whether a disqualification order should be made, and deal with related relief.

The commercial setting matters. Captain Cook College supplied online VET courses under the Commonwealth’s VET FEE-HELP scheme. It used commission-based recruitment agents to bring in students. The Court recorded that the College knew there was a real risk, and one that regularly materialised, that some recruitment agents would recruit students unethically. That risk was not abstract. It meant students could be enrolled without willingly doing so and without fully understanding the obligations they were taking on, or could be enrolled even though they were unsuitable because of language, literacy, numeracy or technology barriers.

The Court said the College had previously used two controls to reduce that risk. One was an outbound quality assurance call made by the College itself after enrolment documents were submitted. The other was a campus-driven withdrawal process that removed students before census dates if they could not be contacted, were not engaged, or were otherwise unsuitable. During the relevant period, however, the College changed those processes. It stopped making outbound QA calls and instead allowed recruitment agents to make inbound QA calls to the College. It also stopped the campus-driven withdrawal procedure.

The reasons record that recruitment agents were dissatisfied with the College’s enrolment processes and had started referring students to other VET providers, with the result that the College began experiencing declining enrolments. Against that background, the Court found that the College implemented and maintained the process changes and claimed and retained course fees payable by the Commonwealth in respect of the affected students with the purpose of increasing enrolments and associated VFH revenue. That combination of known risk, weakened controls and continued revenue collection sat at the centre of the systemic unconscionability finding.

This judgment was not a fresh trial about whether the conduct occurred. Stewart J explained that the respondents’ appeals against the liability findings had been exhausted. In 2021, he had found that the College engaged in a system of conduct or pattern of behaviour in relation to people enrolled in online courses between 7 September 2015 and 18 December 2015 that was unconscionable in contravention of section 21 of the Australian Consumer Law. He had also found that Blake Wills and, through him, Site were knowingly concerned in that systemic unconscionable conduct.

The Full Court largely upheld the systemic unconscionability conclusion, although it initially altered the date from which Mr Wills and Site were knowingly concerned. The High Court later dismissed the appeals and restored the original first instance finding that their knowing involvement dated from 7 September 2015. Because the Full Court had set aside the earlier declarations on systemic unconscionability and remitted the question of relief, the matter returned to Stewart J for final orders on relief once the High Court process ended.

The reasons also note an important procedural point. The College and Site were placed into administration on 5 March 2025, less than a month before the penalty hearing. Stewart J granted leave under the Corporations Act for the proceeding to continue against them, on the condition that the ACCC did not enforce any relief without further leave of the Court. The administrators withdrew the companies’ solicitors’ retainer and the companies did not appear at the hearing, although the judge said he had regard to written submissions that had been filed on their behalf before the administrations.

The judgment also records some earlier procedural history that helps explain the shape of the final orders. The third respondent, Ian Cook, had settled earlier. In a separate 2021 judgment, it was declared that he was knowingly concerned in the same systemic section 21 contravention, he was ordered to pay a pecuniary penalty of $250,000, contribute $250,000 to the ACCC’s costs, and was disqualified from managing corporations for three years from 3 June 2020. That earlier settlement was not the subject of this 2025 remedies hearing, but it forms part of the broader story of how the Court dealt with senior management involvement.

The Court made declarations that the College engaged in unconscionable conduct in contravention of section 21 of the ACL in connection with the supply or possible supply of online VET courses to students whose enrolment was processed during 7 September 2015 to 18 December 2015. The declaration set out the key circumstances in detail. It recorded that the College used commission-based recruitment agents, knew there was a real and recurring risk of unethical recruitment, had previously used outbound QA calls and a campus-driven withdrawal process to reduce that risk, and then changed those processes during the enrolment period by ceasing outbound QA calls and ceasing the withdrawal procedure.

The declaration further recorded that those changes increased, to the College’s knowledge, the risk of students being enrolled without willingly doing so and with full knowledge of the obligations being incurred, or despite being unsuitable because of language, literacy, numeracy or technology issues. It also recorded that the College claimed and retained course fees payable by the Commonwealth under the VFH scheme in respect of those students with the purpose of increasing enrolments and associated VFH revenue.

The Court also declared that Blake Wills was knowingly concerned in, or a party to, the College’s contravention, and that Site was likewise knowingly concerned through his knowledge and conduct. The relief then imposed was substantial. Under the official orders, the College was ordered to pay a pecuniary penalty of $20 million in respect of the systemic section 21 contravention and a further $750,000 in respect of earlier contraventions of sections 21, 29, 78 and 79 that had been the subject of declarations made on 4 August 2021. Site was ordered to pay $10 million. Mr Wills was ordered to pay $400,000 and was disqualified from managing corporations for three years from the date of the order. The respondents were also ordered to pay the ACCC’s costs, to the extent not already covered by an earlier costs order.

Those figures are important because they show the Court was dealing with the case at a very serious level. They also show that the Court treated the parent company’s knowing involvement and the senior executive’s knowing involvement as matters warranting separate and substantial sanctions. For business readers, the practical point is that the Court did not confine relief to the operating company alone.

The reasons identify several features that made the conduct serious. First, the Court described the conduct as the result of a deliberate decision. Stewart J referred to the Full Court’s characterisation that the College changed its enrolment process knowing the foreseeable and likely consequences of that decision and the harm that would be occasioned. This was not framed as a one-off mistake, a rogue employee problem or a technical paperwork issue.

Secondly, the Court emphasised that the systemic unconscionable conduct had two components. One was implementing and maintaining the enrolment process changes. The other was claiming and retaining the course fees payable under the VFH scheme. In practical terms, the problem was not only that the College removed controls. It was also that it kept the revenue generated by the weakened system. The reasons say the College maintained a claim to dramatically increased VFH revenue that it knew was substantially built on revenue attributable to unwitting or unsuitable consumers who never should have been enrolled.

Thirdly, the Court pointed to the commercial benefit obtained from the process changes. The reasons record that the College’s VFH income and EBITDA rose from $326,125 and $138,458 respectively in August 2015 to $13,931,625 and $4,730,762 in November 2015. Those figures were used as part of the picture showing that the conduct was profitable and that the business enjoyed dramatically increased earnings as a direct consequence of the process changes.

Fourthly, the conduct was not isolated. The Court said the College persisted in applying the unlawful enrolment process for more than three months, and then continued to claim VFH revenue until September 2016 in respect of consumers enrolled as a result of that process as they remained enrolled and passed census dates. Courts generally treat sustained conduct more seriously than a single event because it shows the system was maintained over time.

Fifthly, the scale of harm was very large. The Court referred to harm to thousands of consumers who should never have been enrolled and who incurred substantial VFH debts while obtaining no benefit from their enrolment. The reasons record that of the 6,032 consumers enrolled in the relevant period who passed at least one census date, 86.5% never logged on to their online course, 98.9% never completed any unit of competency, and 99.7% did not complete the course. Those figures strongly supported the conclusion that the issue was systemic and harmful, not marginal.

Finally, very senior officers were involved. The reasons refer to the role of the College’s CEO and Mr Wills, who was the COO of the parent company and later acting CEO of the College. For business readers, that matters because courts often look closely at whether the conduct was driven, approved or tolerated at senior management level.

One of the clearest practical themes in the judgment is that courts look at the real operating model, not just the formal paperwork. Captain Cook College had previously built in controls that were meant to test whether students understood the VET FEE-HELP obligations and whether they were suitable to stay enrolled. Those controls were not peripheral. The Court treated them as meaningful safeguards against a known risk in a commission-based recruitment model.

That matters because many businesses assume that scripts, terms and conditions, training manuals or standard forms will carry most of the compliance burden. This case points the other way. If the business knows a sales channel creates a recurring risk, and then redesigns the workflow so the salesperson or agent effectively controls the verification step, the formal documents may do little to help. The Court focused on what the process actually allowed to happen and what management knew about the consequences.

The extract also gives a glimpse of how the individual consumer examples fitted into the broader case. Consumer A’s enrolment involved failures to explain cost, withdrawal rights and key aspects of the VFH scheme, as well as the recruiter filling out documents and directing answers during an inbound quality assurance call. Consumers B and C were also recruited through conduct that, on the face of the reasons, involved representations about free courses, free laptops or course outcomes. Although the publicly available extract cuts off during that discussion, it is enough to show that the systemic case sat alongside concrete examples of how the weakened process could operate in practice.

For a business owner, the lesson is that a compliance system needs to be operationally independent where the risk is highest. If the safeguard exists to test informed consent, suitability or understanding, it should not be left in the hands of the person whose incentive is to close the sale.

Even if your business has nothing to do with education or government-funded loans, the compliance message is broad. The ACL can reach the way a business structures its sales and onboarding system, especially where that system is designed or maintained in a way that takes advantage of vulnerable customers or creates a known risk that customers will sign up without real understanding. This is particularly relevant for businesses using lead generators, affiliates, brokers, telemarketing teams, franchise networks, field sales teams or outsourced onboarding providers.

If your business knows that a channel creates a recurring risk of poor conduct, and the response is to loosen checks because stronger controls reduce conversion rates, that can become evidence of deliberate wrongdoing. A court may ask what management knew, what controls existed, why they were changed, whether the replacement was genuinely equivalent, what happened to customer outcomes after the change, and whether the business kept the revenue generated by the riskier process.

This case also shows that distance from the frontline does not necessarily protect parent companies or senior managers. The Court made declarations against the parent company through the knowledge and conduct of Mr Wills, and imposed both a personal penalty and a management disqualification order on him. For founders, directors and senior operations staff, that means process design decisions can create personal exposure if they amount to knowing involvement in contravening conduct.

Another practical point is that documents and conduct must line up. A business may have terms, scripts, policies and training materials that look compliant on paper. But if the actual workflow allows the salesperson or agent to control the verification step, or if the business removes an independent suitability or cancellation safeguard, the paperwork may carry little weight. Courts will look at the real operating model.

Was the Court deciding liability again? No. The 2025 judgment was about declarations, penalties, disqualification and related relief after the liability findings had already survived appeal.

Did the Court say the conduct was only about one bad recruiter? No. The Court treated the conduct as systemic. The focus was on the College’s knowledge of recurring risk, the removal of controls, and the continued claiming and retention of VFH revenue.

Do the penalty figures on this page come from the orders? Yes. The $20 million penalty against the College for the systemic section 21 contravention, the additional $750,000 against the College for earlier contraventions, the $10 million penalty against Site, the $400,000 penalty against Mr Wills, and the three-year disqualification order are all taken from the Court’s orders dated 27 May 2025.

Does administration stop a regulator case? Not necessarily. Here, the companies were in administration before the penalty hearing, but the Court granted leave for the proceeding to continue, subject to a condition that the ACCC not enforce relief without further leave.

The judgment is dated 27 May 2025. It records that the penalty hearing took place on 1 April 2025. The relevant enrolment period for the systemic unconscionable conduct was 7 September 2015 to 18 December 2015. The reasons also state that the College continued to claim VFH revenue until September 2016 in respect of consumers enrolled as a result of that process as they remained enrolled and passed census dates.

This page is published as a review-stage explainer because the publicly available judgment is truncated. The key declarations, penalties, disqualification order, appeal history and core reasoning are clear from the published material, but some detailed discussion later in the reasons is not reproduced in the extract.