Q. CONCLUSIONS ON THE SYSTEM CASE AGAINST THE COLLEGE
493 Thus far in these reasons for judgment I have set out much of the evidence and made factual findings on that evidence. It is now necessary to draw those findings together and analyse whether the ACCC's system case against the college is established. For that purpose it is worthwhile summarising some key findings.
494 During the earlier period and the relevant period, the college (through its key officers being Mr Cook, Mohammed Akbery and Ms Edwards) knew of the CA misconduct risk and the unsuitable enrolment risk. That is to say, they knew that there was a real risk, that regularly materialised, that CAs would use a range of prohibited or deceptive stratagems to pressurise or trick consumers to enrol in courses at the college with the result that unsuitable consumers became enrolled as students. The prohibited or deceptive stratagems might include making false and misleading statements to consumers to the effect that the online courses were free, failing to properly inform consumers that they would incur VFH debts if they enrolled in online courses or the circumstances in which the debts would have to be repaid, pressuring consumers to enrol in online courses, offering consumers inducements, such as free laptops or other devices, to enrol in an online course, completing consumers' enrolment documents including the PEQ for them, and coaching consumers during the course of the inbound QA call.
495 Consumers might be unsuitable for enrolment for various reasons including, for example, that they would not be contactable by the college, they would have no or minimal engagement with their online courses, they did not in fact wish to enrol in an online course, or by reason of lacking sufficient LLN skills, computer skills, or access to technology required to undertake online courses.
496 It was known by the college that the outbound QA call enrolment procedure and the campus driven withdrawal procedure, both of which were applied during the earlier period, provided important safeguards against CA misconduct risk and unsuitable enrolment risk. Notwithstanding the safeguard of the outbound QA call, and other safeguards such as CA training and monitoring, it was known to the college that a substantial proportion of applications for enrolment were in respect of consumers who were unsuitable for enrolment, in particular because they were uncontactable by the college and did not engage with their courses by logging in to the LMS at all. The result was that the safeguard of campus driven withdrawals before first census was a critical safeguard against the enrolment of such consumers as students, and those students incurring VFH debts for which they would get absolutely no benefit.
497 Notwithstanding that knowledge and appreciation, for the purpose of profit maximisation substantially driven by budget expectations set by Site, the college devised and introduced the enrolment process and withdrawal changes that were applied during the relevant period. Notably, the college knew that the inbound QA call procedure offered less of a safeguard against CA misconduct risk than the previous outbound procedure - indeed, the college knew that it increased that risk. Notwithstanding that, and notwithstanding the absence of the introduction of alternative rigorous safeguards which might mitigate that increased risk, the college abolished the campus driven withdrawal procedure.
498 To the knowledge of the college, the changes to the enrolment process and the abolition of campus driven withdrawals had a number of immediate consequences. In particular, the number of enrolments at the college increased very significantly, very quickly. The number and proportion of such enrolments that were unsuitable, in one or more of the ways already identified but in particular because they were uncontactable by the college and failed to login to the LMS or otherwise engage with their courses, rapidly escalated. To the extent that the college was not aware of the escalating numbers and proportion of unsuitable enrolments, it should readily have had that awareness. That arises from the fact that its systems meant that it could at any time see whether students were logging in to the LMS, it knew how many students were not able to be contacted, it knew of the increased risk of CA misconduct and unsuitable enrolment because of the enrolment process changes and the abolition of campus driven withdrawals, and it knew of the dramatic escalation in enrolments bringing windfall revenue and profits.
499 The result is that the college well knew that its dramatic increase in revenue and turnaround in profits was substantially built on VFH revenue in respect of students who may have been the victims of CA misconduct, were unsuitable for enrolment, should not have been enrolled and who would gain no benefit whatsoever from their enrolment, yet who incurred very substantial debts to the Commonwealth as a result of their enrolment.
500 In those circumstances, the college took advantage of the consumers who were enrolled as a result of CA misconduct or who were unsuitable for enrolment by maintaining their enrolment and claiming VFH revenue from the Commonwealth or both. That is particularly the case in respect of consumers who, subsequent to applying for enrolment through the inbound QA call process in the presence of a CA, were not able to be contacted by the college and failed to login to the LMS. By allowing such consumers to progress through census so that the college could claim the VFH revenue from the Commonwealth was to act against conscience; it was a sharp practice that was manifestly unfair to such consumers; it was driven by avarice without regard to the interests of such consumers; it preyed on their vulnerability (being their being prey to CA misconduct, their unsuitability or their uncontactability). In the result, the college engaged in a system of conduct in connection with the supply of services to consumers that was, in all the circumstances, unconscionable within the meaning of s 21 of the ACL.
501 There is also the question of what role the ACCC's case with regard to the college "claiming and retaining" VFH revenue plays in the analysis. Notwithstanding its knowledge identified above, through the latter part of the relevant period and thereafter, the college persisted in retaining and claiming such revenue from the Commonwealth with the result that those unsuitable students' debts were or would be maintained.
502 I accept, as submitted by the respondents, that the Commonwealth was well able to defend itself from any unjustified claim for revenue by the college, but that does not answer the contention that by claiming revenue from the Commonwealth to which it was legally entitled but which entailed a corresponding debt owed by unsuitable students to the Commonwealth who had been enrolled in the circumstances described above, the college was acting unconscionably vis-à-vis those students; it was seeking payment from the Commonwealth that would have the effect, if paid, of students being burdened with a corresponding loan debt (plus the 20% loan fee) notwithstanding that very substantial numbers (and proportion) of those students were unsuitable for enrolment and could derive no benefit from their debt. Site, on behalf of the college, continued to assert its legal entitlement to such payment in its 2018 and 2019 annual reports. [E464, E507, E578, E623]
503 The corporate respondents submit that insofar as the claiming and retaining of VFH revenue is concerned, the conduct complained of does not constitute unconscionable conduct for the primary reason that such conduct occurred within the detailed constraints and dictates of the HES Act, Sch 1A. They say that they followed the rules of the scheme that they were required to follow, and that after an audit by Deloitte the Commonwealth decided what to pay the college which must be regarded as the proper indebtedness of the Commonwealth to the college. On that basis, it is said that for the college to claim and retain that indebtedness cannot be unconscionable.
504 There is little evidence of just what the Commonwealth did by way of audit and on what basis it decided that certain amounts should be paid and others not. I nevertheless accept that the Commonwealth paid certain amounts which the ACCC says that it is unconscionable for the college to have claimed and to have subsequently retained, and the college continued to claim amounts which the Commonwealth has not paid and which the ACCC says it is unconscionable for the college to continue to claim.
505 There are two principal considerations why the corporate respondents' submissions on this part of the case are not a satisfactory answer to it. The first is that, as I have said, it is not clear just what exercise the Commonwealth undertook. It is nevertheless to be inferred that it may have approached the matter as one of debt, i.e., with regard to what the Commonwealth's indebtedness to the college was under the terms of the scheme, and not with regard to whether there was some basis with reference to the unconscionability of the college's system vis-à-vis consumers to refuse or resist payment. The exercise of a legal right can be unconscionable: Pittmore Pty Ltd v Chan [2020] NSWCA 344 at [135] per Leeming JA, Bell P and Brereton JA agreeing.
506 That takes me directly to the second consideration, which is that the ACCC's case is directed at the unconscionability of the college's system towards consumers. It is consumers who are saddled with considerable VFH debt, for no return, as a consequence of the conduct the ACCC complains of. It is no answer to that case that claiming and retaining revenue from the Commonwealth, which claiming and retaining causes consumers to have debts to the Commonwealth, to say that the Commonwealth can look after itself. The consumers do not have equivalent resources or ability to look after themselves, which is why the ACCC appeals to the Court for a remedy, and the Commonwealth has recourse against the consumers by calling in the VFH loans under the terms of the VFH scheme.
507 Although it adds little to the case at the end of the day, which may be reflected in any penalties that might be imposed, my view is that if the system of conduct or pattern of behaviour that is complained of is unconscionable, then to claim and retain the windfall benefits of that conduct is also unconscionable. That is because the unconscionability of the conduct could have been cured, or at least ameliorated, by not claiming or retaining the revenue derived from the conduct and thereby reverse the consumers' debts.
508 The corporate respondents advance a number of arguments which they say, both individually and in combination, demonstrate that there was not an unconscionable system of conduct, as alleged in the pleadings, by the college.
509 First, they say that the conduct complained of by the ACCC does not have the requisite character of being unconscionable by reference to societal norms of acceptable commercial behaviour or the statutory criteria in s 22(1). They submit that the ACCC's case amounts to an invitation to expand the conception of unconscionable conduct to apply to the present circumstances is heterodox and ought to be rejected as quite wrong.
510 In that regard, the corporate respondents emphasise that the use of the term "unconscionable" in s 21 of the ACL rather than terms such as "unjust", "unfair" or "unreasonable" reflects a deliberate legislative choice to proscribe a particular type of conduct: Kobelt at [118] per Keane J. They emphasise that a court is not authorised to "dilute the gravity of the equitable conception of unconscionable conduct so as to produce a form of equity-lite": Kobelt at [90] per Gageler J. Also, the court must not use the considerations in s 22 of the ACL to "allow the court to arrive more easily at an assessment that conduct amounts to exploitation": Kobelt at [90] per Gageler J.
511 The corporate respondents also submit that the absence of dishonesty or moral taint, and the absence of undue influence, pressure or unfair tactics, are material considerations in determining whether conduct involves such a departure from accepted community standards as to warrant the characterisation unconscionable: Kobelt at [58]-[59] per Kiefel CJ and Bell J.
512 I accept that in the present case no dishonesty was alleged or established. While that is a relevant factor, the absence of dishonesty does not mean that the conduct was not unconscionable.
513 It is not so easy to accept the notion that there was an absence of undue influence, pressure or unfair tactics. A form of CA misconduct risk was the risk that CAs might use undue influence, pressure or unfair tactics on unsuspecting consumers, and indeed the evidence bore out that that form of CA misconduct risk materialised from time to time. Moreover, the college knew of that. It nevertheless introduced enrolment and withdrawal process changes that weakened the protections against those risks materialising, or if they did materialise, against the college saving consumers from the debt consequences of being victims of such misconduct. For the reasons I have already given, the conduct of the college was sufficiently egregious to be unconscionable.
514 The corporate respondents submit that each of the process changes (i.e., the enrolment and withdrawal process changes) is characterised by features that are ordinarily acceptable aspects of everyday commercial life in Australia. They submit, for example, that there is nothing inherently unconscionable about selling an online course by telephone, and that the fact that the origination of a telephone call changes from an outbound call to an inbound call does not change the character of the call sufficient to convert the conduct from conscionable to unconscionable without reference to what is said on the call or the character of the conduct of the call.
515 That much may be accepted. But to analyse the conduct in that way is to fall into exactly the trap that elsewhere the respondents, correctly, urge the Court to avoid. That is the trap of considering any particular part of the overall system in isolation and deciding whether that particular part is unconscionable or not. It is the system as a whole - "in all the circumstances" - that must be considered. Of course, a system of enrolment that has an inbound QA call in materially the same form and circumstances as that adopted by the college in the relevant period would not on its own be unconscionable. However, it is that aspect of the system of enrolment taken together with a number of other factors, most notably, but not exclusively, being the knowledge of the college of the CA misconduct risk and unsuitable enrolment risk, the significant numbers and proportions of students who became enrolled who were unsuitable and who were not able themselves to withdraw, the abolition of campus driven withdrawals, and the knowledge of the consequences of those process changes, that lead inexorably to a conclusion of unconscionability.
516 The corporate respondents also submit that there is nothing unconscionable about the withdrawal policy that was applied in the relevant period (i.e., without a provision for campus driven withdrawals as there had been in the earlier period) which, they say, is borne out by the fact that the ACCC did not adduce evidence to suggest that consumers who enrolled in comparable online courses in other colleges were able to withdraw from their courses on more favourable conditions which founds an inference that the college's withdrawal policy was consistent with the withdrawal policy of every other VET provider in Australia.
517 I reject the submission that such an inference can or should be drawn. The corporate respondents sought to tender evidence of the withdrawal policies of other colleges which I rejected on the basis that it is irrelevant to the exercise of deciding whether the college's enrolment and withdrawal processes taken together (i.e., the "system") was, "in all the circumstances", unconscionable. To gain anything useful from an analysis of withdrawal policies of other colleges would require an analysis of their whole systems of enrolment and withdrawal, including supervision of agents and so on. That is because it may be that such other colleges also had unconscionable systems - the fact that something is a common practice in the particular sector of the market does not mean, necessarily, that it is not unconscionable. To put it differently, just because everyone is rorting a poorly designed and/or administered scheme does not mean that no one's rorting is unconscionable. Also, it may be that an identical withdrawal policy in another college is not unconscionable because of other aspects of its overall system of enrolment which offers better protection against CA misconduct risk and unsuitable enrolment risk than that of the college. In short, considering withdrawal policies of other colleges in isolation is unhelpful to the statutory task that must be undertaken in the present case.
518 The corporate respondents also submit that the withdrawal policy in the relevant period was consistent with the VET Guidelines and the HES Act, in particular because campus driven unilateral withdrawal has never been mandated. There are two responses to the submission. One is that just because particular conduct is not proscribed by particular rules applicable to it does not necessarily mean that it is not unconscionable. I accept that if particular conduct is not against the rules that may be relevant in the evaluative judgement with regard to unconscionability, but it is not determinative. That much is made clear by Gageler J in Kobelt (at [88], cited at [57] above) where his Honour characterised the statutory norm of unconscionability as preventing a person from relying on what are, in terms of the general law, their legal rights.
519 The other response is that the VET Guidelines proscribed any "barriers to withdrawal" and that an absence of awareness by a consumer that they have been enrolled or that they can withdraw is a barrier to withdraw. If, after having been enrolled through the inbound QA call process by which a CA made a telephone call on the CA's telephone to the college's admissions office, a student is thereafter uncontactable - which is to say that numerous telephone calls and emails go unanswered - and they have not themselves made contact with the college or logged in to the LMS, the probability is that they do not know that they have been enrolled or, if they do know that they have been enrolled, that they have not received and appreciated the information telling them that they can withdraw. That probability is borne out by the actual experience of the college. It is therefore not accurate to say that by abolishing campus driven withdrawals the college did not have or introduce any barriers to withdrawal.
520 The corporate respondents submit, with reference to what was said by McHugh J in a very different context in Perre v Apand Pty Ltd [1999] HCA 36; 198 CLR 180 at [114], that "one of the central tenets of the common law is that a person is legally responsible for his or her choices." On that basis they submit that consumers are generally imputed with a degree of personal responsibility and personal autonomy for their decisions and that it is the decisions of the so-called unsuitable students to enrol and then not withdraw that led to their VFH debts for which they derived no benefit, rather than the abolition of campus driven withdrawals.
521 Obviously, the personal responsibility and autonomy of consumers must be recognised; we are indeed free to make our own bad decisions. However, Parliament in its wisdom has imposed a particular standard of behaviour on suppliers of goods and services in trade and commerce, namely that they do not engage in conduct (or a system of conduct) that is unconscionable in all the circumstances. Where there is knowledge of CA misconduct risk and unsuitable enrolment risk, and significant numbers and proportions of consumers who are enrolled as students cannot thereafter be contactable by the college and do not engage in any way with their courses, it is very clear that something is remiss. It is that there are students for whom CA misconduct risk or unsuitable enrolment risk (or both) has materialised and those students have not, for one reason or another, which could include that they did not know that they were enrolled or did not know or properly appreciate that they could withdraw, withdrawn prior to census. To consciously take advantage of such students with that knowledge by not withdrawing them is to act unconscionably. Such a conclusion no more undermines notions of personal responsibility and autonomy than what Parliament requires by way of offering protection against a particular type of conduct, namely that which is in all the circumstances unconscionable.
522 The corporate respondents also make submissions about what the ACCC characterises as their profit maximisation purpose. They rightly draw attention to what Keane J said (at [117]) in Kobelt (identified at [62] above), namely that the pursuit by those engaged in commerce for their own advantage is an omnipresent feature of legitimate commerce and thus to say that someone was pursuing their own commercial interests with a view to profit is to state the obvious, but also to say very little as to whether they engaged in unconscionable conduct. I accept that in this case the profit maximisation purpose of the college, and indeed Site, says little about whether or not the conduct in question was unconscionable. But it does not say nothing about it. Had the purpose of the changes been to offer students better protection against the predations of unscrupulous CAs but they had been misjudged and had the adverse effect, the situation would have been quite different. "Well-intentioned conduct may have dire consequences for other people; malign conduct may be without consequence; adventitiously, it may have benign consequences": Director of Consumer Affairs Victoria v Scully [2013] VSCA 292; 303 ALR 168 at [39] per Santamaria JA, Neave and Osborn JA agreeing.
523 The relevance of the profit maximisation purpose in the present context is that it was because of that purpose that changes were made to the system which significantly weakened existing protections, even in the knowledge that that would be the result of the changes. The correspondence between Mr Cook and Ms Edwards on 18 August 2015 (described at [244]-[247] above) illustrates that the changes were adopted regardless of that knowledge. The changes were also maintained thereafter as their adverse results materialised and became apparent.
524 Secondly, the corporate respondents submit that the ACCC failed to identify the whole of the system that the college had in place for consumers enrolled during the relevant period. They submit that the process changes took place within a broader system that the college had implemented over an extended period of time, and that was characterised by measures designed to minimise the risk that students would be subjected to misconduct by CAs or that unsuitable students would be enrolled. As such, they say that the broader system "cannot be pigeon-holed into the false dichotomy between the earlier period and the relevant period", but instead represents a process of continuous development and refinement.
525 In particular, the corporate respondents point to a number of components of their overall system of enrolment which they say acted as important safeguards for consumers. These components are:
(1) the college's contractual terms with its marketing partners that required the latter to, for example, carry out sales honestly and fairly, to provide accurate information to consumers and to comply with all applicable legislation and regulatory obligations;
(2) the college's CA induction and onboarding process aimed at training CAs to do the right thing;
(3) the requirement that a prospective student speak with someone from the college (i.e., in the QA call, whether outbound or inbound) rather than to rely only on communications between the recruiting CA and the prospective student;
(4) the college's efforts to obtain some measure of prospective students' LLN capabilities and their understanding of the VFH scheme through the PEQ;
(5) the provision for an SSO to try to contact students after enrolment and before census; and
(6) the maintenance of the college's student complaints register, agent issues and complaints register and CA monitoring log.
526 None of these components of the overall system, individually or together, was sufficient to protect consumers and there was no evidence from the corporate respondents to support any finding that any officer on behalf of the corporate respondents believed that these components operated effectively to protect consumers. Moreover, each of these components was part of the system, in one form or another, in both the earlier period and the relevant period. The significance of the so-called dichotomy between the two periods is that because of declining market share in the earlier period the college undertook changes specifically aimed at reversing the trend. None of those changes was aimed at compensating for the key recognised consequences of the changed QA call procedure and the abolition of campus driven withdrawals, namely that there was a greater likelihood that unsuitable students would be enrolled and that they would progress to census without being withdrawn.
527 There were contractual terms requiring CAs to act promptly and honestly, and they received training in that respect, but it was known that there was a risk that they would not act as required. The protection offered by requiring that a prospective student speak with a college admissions officer prior to enrolment was common to both periods, yet such protection as it offered was weakened by the QA call process changes for the relevant period. The same is true of using the PEQ as an indicator of LLN capabilities. To the extent that it was so used in the relevant period, it was for the purpose of providing post-admission LLN support rather than as a filter to admission. Providing for an SSO to contact students after admission and before census was very important, and it did serve to identify a number of students who should not have been enrolled and who then asked to be withdrawn. However, it was useless in respect of students who could not be contacted. Moreover, as the evidence of Ms Stevens shows, the SSOs could not keep up with the increasing enrolments. The complaints registers relied on students contacting the college and making complaints, and as the evidence established in respect of those who only raised matters after census there was a limited ability to allow them to withdraw and reverse their debts.
528 I therefore reject the submission that the ACCC's case impermissibly focuses on aspects of the overall system in isolation from the others. The evidence in the case canvassed the system as a whole, and the corporate respondents had every opportunity to put on evidence, if they had it, of the efficacy of other measures in protecting consumers from CA misconduct risk and unsuitable enrolment risk, and in their belief at the relevant time in such efficacy. As indicated, there was no evidence with regard to belief and the evidence did not support any submission in favour of the efficacy of such measures. They were plainly ineffective in respect of substantial numbers and proportions of enrolled consumers.
529 Thirdly, the corporate respondents submit that the ACCC's case relies upon a false comparator for assessing unconscionability. They submit that the ACCC's comparison is between the college's conduct during the relevant period and its own conduct during the earlier period, rather than with reference to societal norms of acceptable commercial behaviour.
530 The corporate respondents are, of course, correct in identifying that any ultimate conclusion with regard to unconscionability must entail a testing of the identified conduct, in all the circumstances, against the statutory norm. Of course, the fact that a person changed their conduct with the consequence that it was less protective of consumers is not on its own sufficient to establish unconscionability because even the changed and less protective conduct may be well within the bounds of acceptable commercial behaviour. But that is not what the ACCC's case does. The relevance of the comparison between the system of conduct in the earlier period and the system of conduct in the relevant period is what it demonstrates with regard to the college's knowledge and intention, and the effect of the conduct on consumers. The fact that the system was changed in material respects and the reasons for those changes, as well as the knowledge and understanding of the college as to their predicted and subsequently realised effects, are all part of the relevant circumstances to be taken into account when making the ultimate evaluation.
531 Fourthly, the corporate respondents submit that the ACCC's allegation regarding knowledge, or reasonable foreseeability, of risk is indeterminate and in any event foreign to the law of unconscionable conduct. They submit that to the extent that the ACCC's case relies on the college knowing of, or that it should reasonably have foreseen, CA misconduct risk and unsuitable enrolment risk as a step in the reasoning to unconscionability is to introduce notions of tort-like duty of care or fiduciary duty between supplier and consumer which is novel to the statutory proscription against unconscionability.
532 There can be no doubt that the state of mind of the party who is alleged to have engaged in unconscionable conduct is relevant to the assessment of whether that conduct is unconscionable. That state of mind may be as to their intention or their knowledge, or even as to what they ought reasonably to have known. For example, in the context of unconscionability in equity, before there can be a finding of unconscientious taking of advantage it is also generally necessary that the other party knew or ought to have known of the existence and effect of the special disadvantage: Thorne v Kennedy at [38] per Kiefel CJ, Bell, Gageler, Keane and Edelman JJ, citing Commercial Bank of Australia Ltd v Amadio [1983] HCA 14; 151 CLR 447 at 462 per Mason J. To put it another way, the special disadvantage must have been sufficiently evident at the time of the transaction to make it unconscientious to procure or accept the assent of the innocent party: Thorne v Kennedy at [114] per Gordon J; Blomley v Ryan [1956] HCA 81; 99 CLR 362 at 428 per Kitto J; Amadio at 474 per Deane J; Louth v Diprose [1992] HCA 61; 175 CLR 621 at 637 per Deane J; Kakavas v Crown Melbourne Ltd [2013] HCA 25; 250 CLR 392 at [124] and [158] per French CJ, Hayne, Crennan, Kiefel, Bell, Gageler and Keane JJ. The above examples were all cited in the context of statutory unconscionability by Nettle and Gordon JJ in Kobelt at [148].
533 In the circumstances, the submission that to identify as an element of the college's unconscionable conduct what it knew or ought to have known is to impermissibly expand statutory unconscionability into the territory of tort and fiduciary duties is rejected.
534 Fifthly, the corporate respondents submit that the system of conduct alleged by the ACCC does not establish an intelligible system by reference to knowledge at any particular point in time that would render conduct capable of assessment by reference to conscience. They refer to paragraph [124] of the statement of claim (quoted at [44] above) which alleges the conduct of implementing the process changes in the relevant period and the conduct thereafter of claiming and/or retaining VFH revenue amounts to unconscionable conduct in the enumerated circumstances which includes knowledge in different time periods. On that foundation, they submit that the case is structurally flawed in that it relies on conduct over different times and conduct once the alleged risks had ceased as follows:
(1) the profit maximising purpose is relied on but it was no longer applicable once the college ceased enrolling new students on 18 December 2015, yet that period is relied on in respect of claiming and retaining;
(2) the college's knowledge, or the reasonable foreseeability, of certain risks which, if not established at the commencement of the period, could only be taken into account from the day from which such knowledge or reasonable foreseeability is held to be acquired, and which was no longer operative once the college ceased enrolling students on 18 December 2015 yet that period is relied on in respect of claiming and retaining; and
(3) the college's knowledge, or the foreseeability, of the process change results in circumstances where the process change results are particularised by reference to matters not arising until well into 2016 yet that period is not relied on for the system changes which ended when the college ceased enrolling new students on 18 December 2015.
535 The first two points lack validity because the college's profit maximising purpose and its knowledge of the risks continue to be relevant to the case after the end of the relevant period. The profit maximising purpose was self-evidently a continuing purpose in claiming and/or retaining VFH revenue in respect of students who had been enrolled subject to the risk that they had been enrolled as a consequence of CA misconduct and that they were unsuitable for enrolment. There is a similar answer to the third point, namely that the complaint about claiming and retaining is dependent upon, or builds on, the case about the process changes such that knowledge of the results of such changes, which only became apparent after the relevant period, is relevant to the ongoing claiming and retaining of revenue earned as a consequence of the process changes. In any event, in the case as I have analysed it, no reliance is placed on knowledge that was gained only after the relevant period.
536 Insofar as the third point is concerned, in my reasoning to the conclusion that the college operated an unconscionable system no reliance is placed on any results that only became apparent in 2016 and thereafter.
537 Sixthly, the corporate respondents submit that the ACCC's case against the college fails to take into account "all of the circumstances" as mandated by the statutory language. In that regard, they identify a number of matters which they say must be taken account of as being part of the relevant circumstances. They are the following:
(1) the regulatory environment, and in particular that the ACCC does not allege any contravention of the regulatory framework and it was an express purpose of the VFH scheme to make vocational education available to sections of the community who suffered disadvantages in terms of obtaining vocational education in the past; and
(2) the commercial context and environment, in particular (with reference to s 22(e) of the ACL) "the amount for which, and the conditions under which, the customer could have acquired identical or equivalent goods or services from a person other than the supplier" and that the enrolment process and withdrawal process changes were made to meet the conditions of the market as it changed in response to the changing regulatory environment.
538 I have already dealt with these submissions in other guises above.