Federal Court of Australia

Master Wealth Control Pty Ltd v Australian Competition and Consumer Commission [2024] FCAFC 171

ORDERS

THE COURT ORDERS THAT:

1.    The appeals be dismissed.

2.    The cross-appeal be dismissed.

3.    The appellants pay the respondent’s costs of the appeals and the cross-appeal, to be taxed, if not agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

1    During the period between April 2017 and November 2022, the first appellant, DG Institute, promoted, sold, and delivered two programs to consumers, Real Estate Rescue (RER) and Master Wealth Control (MWC). The second appellant, Ms Dominique Grubisa, was DG Institute’s sole director during that period. She delivered the majority of the seminars for the programs, including where seminars were conducted live by delivering a substantial amount of the seminar content herself, and by recording the seminars for downloading or streaming.

2    The RER program was promoted in advertising and marketing materials, including videos, as offering to teach participants a strategy, among others, that would allow them to benefit financially from becoming involved in the sale of properties while assisting financially distressed homeowners to retain some of the value of the equities in those properties. The MWC program involved arming participants with a suite of documents (Transaction Documents) by which an “impenetrable Vestey Trust” (see In re Baron Vestey’s Settlement; Lloyd’s Bank Ltd v O’Meara [1951] Ch 209; Vestey v Inland Revenue Commissioners [1962] Ch 861; Vestey v Inland Revenue Commissioners [1980] AC 1148) would be established to enable participants to protect their assets completely from creditors. During the period, 1,900 consumers enrolled in the RER program, which generated revenue for DG Institute from that program in the financial years ended 30 June 2018 to 30 June 2021 of $8,876,025. In the same period, at least 1,800 consumers enrolled in the MWC program. For the same financial years, DG Institute earned revenue from that program in the amount of $9,223,457.

3    The respondent, the Australian Competition and Consumer Commission (ACCC), commenced proceedings against DG Institute and Ms Grubisa, alleging that DG Institute made false or misleading representations in the course of the promotion, sale, and delivery of the RER and MWC programs in contravention of ss 18, 29(1)(b), 29(1)(g), 29(1)(m) and 34 of the Australian Consumer Law (ACL), being Sch 2 to the Competition and Consumer Act 2010 (Cth). The first category of representations was alleged to have been made in the promotion of the RER program and were referred to as the “No Equity Representations”. The second category of representations were alleged to have been made in the promotion and delivery of the MWC program and were referred to as the “Vestey Trust Representations” and the “Authority Representations”. The ACCC alleged further that Ms Grubisa was accessorily liable for the contraventions.

4    In broad terms, the representations were alleged to convey the following. First, the No Equity Representations represented that if a property was sold by a bank as a mortgagee-in-possession, the homeowner would receive nothing, regardless of how much equity the homeowner retained in the property. The Vestey Trust Representations promised the establishment of a trust and represented that it would provide complete and immediate protection over all assets. The Authority Representations represented that there was a legal precedent for such a trust and that “the concept” had been tested by the Full Federal Court in Sharrment Pty Ltd v The Official Trustee in Bankruptcy (1988) 18 FCR 449.

5    In a judgment delivered on 9 April 2024 (Liability Judgment or LJ), the primary judge made declarations, inter alia, that:

6    By further judgment delivered on 19 July 2024 (Penalty Judgment), the primary judge ordered, in summary, that:

7    It is unnecessary to set out the remaining orders.

8    DG Institute and Ms Grubisa have appealed against the whole of both the Liability Judgment and the Penalty Judgment.

Were the appellants improperly conflated?

9    Ground 1 of the appellants’ Grounds of Appeal, pursuant to the Notice of Appeal filed on 1 August 2024, contends that, in relation to the primary judge’s findings that Ms Grubisa made the “No Equity Representations”, the “Authority Representations”, and had actual knowledge that her conduct was misleading and deceptive, his Honour erroneously conflated Ms Grubisa with DG Institute. In particular, the appellants point to [41] of the Liability Judgment where the primary judge said he was “comfortably satisfied … that Ms Grubisa had actual knowledge that the No Equity Representations, which she knew had been made by her, were in fact false and misleading … and having personally delivered the relevant statements with knowledge of their audience … I have inferred that Ms Grubisa had actual knowledge that her conduct was misleading and deceptive …”.

10    The appellants submitted that, it having never been contended by the ACCC that Ms Grubisa made any misleading statements on her own behalf, or engaged in any misleading or deceptive conduct, the learned primary judge had fallen foul of the distinction articulated in Anchorage Capital Master Offshore Ltd v Sparkes [2023] NSWCA 88; 111 NSWLR 304 by conflating the first and second appellants. As was said by the Court in that case, at [356], “it does not follow that where a corporation engages in contravening conduct through an officer or employee, the conduct is necessarily to be attributed to the employee as well as to the corporation”. Nevertheless, as indicated by cases such as Cassidy v Saatchi & Saatchi Australia Pty Ltd [2004] FCAFC 34; 134 FCR 585 at [26]-[27] and Gardam v George Wills & Co Ltd [1988] FCA 289; 82 ALR 415 at 417, “the question is whether the representee would reasonably regard the representation as being made by the director or employee as well as by the corporation”: Anchorage at [359].

11    In the present case, the No Equity Representations and the Authority Representations were made under the banner of the programs being offered by DG Institute. As the sole director of DG Institute, Ms Grubisa was the directing mind and will of the company and therefore its human embodiment. Whilst she articulated the representations, no representee would have misunderstood that any representation made by DG Institute would inevitably be made also by Ms Grubisa.

12    In fact, DG Institute and Ms Grubisa submitted below that if the primary judge interpreted the statements relied on in support of the No Equity Representations as “a blanket assertion covering all banks and all circumstances”, as indeed his Honour did (LJ at [29]), “then ‘the accessorial liability case would be difficult’ to defend” (LJ at [41]). As we conclude below, the primary judge did not err in his interpretation of the statements relied upon in support of the No Equity Representations.

13    In any event, his Honour did not find that Ms Grubisa was primarily liable for the representation. That would have been contrary to the case advanced by the ACCC. The primary judge’s findings (LJ at [41], [93], [106]) as to Ms Grubisa’s actual knowledge were each referable to his Honour’s consideration of whether it was necessary for him to reach a concluded view as between the “wide” or “narrow” view of accessorial liability as discussed in Productivity Partners Pty Ltd (trading as Captain Cook College) v Australian Competition and Consumer Commission [2023] FCAFC 54; 297 FCR 180 at [272] (Productivity Partners (FC)), the appeal from which was then reserved before the High Court.

14    Ground 1 must fail.

The no equity representations

Were the No Equity Representations made?

15    The No Equity Representations were found by the primary judge to have been made in the context of the RER program in which participants were taught to assist a distressed homeowner to sell their property but retain some of the value of the equity they held, in circumstances where, as it was presented in the Promotional Materials, if the mortgagee were otherwise to repossess the property, the homeowner would lose any remaining equity in the property.

16    By Grounds 2 to 7, the appellants contend that the primary judge erred in finding that the No Equity Representations were made in terms whereby an ordinary or reasonable member of the relevant class of consumers would understand the statements comprising the representations to convey their ordinary meaning, viz, that “banks don’t give change”.

17    Ground 2 of the Notice of Appeal contends that the primary judge’s finding (LJ at [27]) that the relevant class of consumers “would have comprised a varied audience with different levels of understanding concerning the market for real estate and the operation of mortgages and their enforcement” was a material error. To the extent that the appellants raised in written submissions that the primary judge failed to distinguish between customers of MWC and potential customers, no such error was raised in the Notice of Appeal, nor was the existence of two classes of consumers an issue at trial. In any event, in the circumstances of this case, it is a distinction without a difference.

18    The appellants contended that the primary judge ought to have found that the ordinary or reasonable member of the class ought to have been inferred to have had at least a lay person’s understanding of the process, which understanding would include that the mortgagee repossession process incurs fees and expenses, including those associated with lawyers, real estate agents, and courts, that can erode equity in a borrower’s property. It is difficult to read the primary judge’s words as conveying anything other than the finding for which the appellants contend. His Honour said expressly (LJ at 27]) that the class “would have comprised a varied audience with different levels of understanding concerning …the operation of mortgages and their enforcement” (emphasis added). His Honour’s finding that the ordinary or reasonable member of the class would not have had “any real understanding of the process for the enforcement of mortgages, including the manner in which mortgagees enforce their powers of sale” is not a finding that ordinary or reasonable members of the class would not understand that the mortgagee repossession process incurs fees and expenses. Rather, it is a finding as to a relative lack of understanding as to the technical processes that occur once there has been a foreclosure. It is a finding that was open to the primary judge and one which discloses no appealable error.

19    Ground 2 cannot be sustained.

20    It follows that the appellants’ contention that the primary judge erred by assuming the most ignorant member of the class to be the ordinary or reasonable member of the class, being the basis of Ground 3, cannot be sustained. The primary judge did not find that the ordinary or reasonable member of the class was ignorant of the operation of mortgages and their enforcement; merely that they brought no special knowledge or expertise to bear on how they should have understood the representations made in the Promotional Materials as to the loss of equity in a property the subject of a mortgagee-in-possession sale. That finding cannot be criticised. It follows that there was no error in the primary judge’s finding that the ordinary or reasonable member of the class would have taken the alleged representations in a purely literal way.

21    It is difficult to see how any other finding could have been made by the primary judge given the evidence before him, and to aspects of which were taken in the course of the appeal. For that reason, Ground 4 cannot be sustained. Four advertising and marketing videos were before the primary judge. These are referred to at [9]-[20] of the Liability Judgment. In those videos, Ms Grubisa made statements which included: “banks don’t give change”; “they load their bill and they keep everything for the drama of it”; “They’ve caused all this distress, plus they’re cleaning up and keeping any leftover equity in the deal”; “the clock starts running and that’s when insolvency experts and lawyers, and the whole system comes on board, there is no equity left”; “that will get chewed up in fees and costs and expenses, nothing left over for the homeowner”; “when you identify them coming into the legal system about to go through the process that scoops up everything, winner takes all, you’re able to then stop, intervene and abort that process”; “The way that the system works is that the banks, the lawyers, the powers that be take everything, the equity, there’s nothing left over for anyone else”; “People do have equity left in properties, but the problem is that when banks repossess, everything gets eaten up with fees and charges, default rates, legal costs, and it’s a fruitless exercise for the homeowner” (emphasis added).

22    Immediately prior to making those various statements, in each of the videos, Ms Grubisa commenced by outlining her legal qualifications and experience. In addition to referring to her formal degree qualifications, which included a Bachelor of Laws and a Master of Laws, and admission as a Barrister-at-Law, Ms Grubisa said variously that: she had “access to behind the scenes, insider knowledge”; as a practising lawyer she knew “the judiciary, the legislature”; “the laws are rapidly changing because of the way the world is”; “I’ll be sharing all those laws with you … I have an ASIC credit license, so that’s a money lenders license. That gives me the rights which the guys in the big banks have, to have the right to lend money to people”; “… I knew how to identify distressed properties in the system. As a lawyer all of this hits a legal radar. Banks can’t repossess unless they go to Court first and get an order … And I could see that as an insider. I knew banking and finance like the back of my hand. I knew exactly how it all worked” (emphasis added).

23    In the context of Ms Grubisa’s express differentiation of her own abilities, qualifications, and experience from what even a reasonably sophisticated person with a knowledge of mortgages may have understood, the primary judge’s finding that an ordinary or reasonable member of the relevant class would have taken the “No Equity Representations” at face value cannot be faulted.

24    Ground 5 challenges the primary judge’s characterisation (LJ at [26]-[30]) of the representations alleged to have arisen from the Promotional Materials. The appellant contended that the primary judge considered the various phrases in isolation rather than considering the “dominant message”. In oral submissions, Senior Counsel for the appellants argued that the representations made in relation to the “Equity” scenario, that “Banks give no change”, had to be seen in the context of the next scenario presented by the advertising and marketing materials, namely the “No Equity” scenario, which explained in some detail the costs and expenses likely to be incurred by a bank in proceeding with a mortgagee-in-possession sale. Contrary to the conclusion for which Senior Counsel pressed, the subsequent scenario described in the video rather reinforced the primary judge’s finding. The video clearly differentiated between the two scenarios, stating:

From your point of view as a property entrepreneur, there will be three types of distressed deals that will come on your radar. The first is an equity deal. “Equity” means there’s still some wealth of the home owner in the property. So the mortgage may be $500,000, the debt may be to the bank $300,000, there’s $200,000 of equity in that property that will get chewed up in fees and costs and expenses, nothing left over for the home owner. You’re able to assist with this type of deal.

The second type of situation you’ll come across of distress, from your point of view, is a no equity deal, that’s where the debt of the property exceeds the values of the property. So if the property’s worth $500,000 in this market, the debt may be 600 or 700,000, there’s a $200,00 shortfall there. You may have heard of that as underwater upside down negative equity. At the end of the day you can still assist the home owner and the lender in that situation for profit for yourself. And finally, there’s a deal, and this is the one that everyone loves the most, a deal you do with none of your own money. How good’s that? That’s an absolute game changer, very, very powerful, but we’re going to work through these in order.

(Emphasis added.)

25    Having outlined the way in which an “equity deal” works, Ms Grubisa explained what she described as “another situation”, being “when there’s no equity left in the deal”. It is in the course of explaining such a deal that Ms Grubisa explains getting “into the shoes of the bank” and outlines the variety of costs and expenses that a bank would incur in preparing a distressed property for sale and the role of a Loss Mitigation Officer. The evident purpose for describing the costs and expenses incurred by a bank (which included valuations, renovations, real-estate agency fees, ongoing interest accrual, council rates) was to explain how a student could calculate an offer to a bank to buy the distressed property before a bank incurred such costs, in order to “profit … from the bank’s loss”, as it was put.

26    Despite the descriptions of the two other deals that were being explained by Ms Grubisa, the dominant message in relation to the equity deal, in respect of which the No Equity Representations were made, was clear and was as found by the primary judge (LJ at [29]): “that if the mortgagee were to repossess and sell the property, the homeowner would lose all remaining equity as a matter of course, regardless of how much equity remained in the property”.

27    Ground 5 cannot be sustained.

28    The appellants criticise the primary judge for giving “improper weight” (LJ at [31]) to evidence produced on subpoena by the Commonwealth Bank of Australia, which showed 16 occasions within the relevant period in which surplus funds following the sale of residential properties were repaid to the borrower. The primary judge found that the material supported the expert witness’ oral testimony, “that in his experience it was simply untrue to say, ‘banks don’t give change’”. The primary judge was entitled to accord some weight to the evidence. The appellants have not established that the primary judge erred by observing no more than that the evidence was consistent with the expert testimony. Ground 6 cannot be sustained.

29    For these reasons, the appellants have not established that the primary judge erred (LJ at [35]-[38]) in finding that DG Institute contravened ss 18, 29 and 34 of the ACL. Grounds 2-7 must fail.

Did the primary judge fail to consider and apply s 140(2) of the Evidence Act?

30    By Ground 8, the appellants contended that the primary judge erred (LJ at [39]) in drawing an inference adverse to Ms Grubisa in relation to her involvement in the No Equity Representation on the basis that she did not give evidence, in circumstances where Ms Grubisa was the principal of DG Institute, a practising solicitor and barrister, and where a range of civil penalties were sought against both appellants. The appellants submitted that the primary judge failed to properly consider and apply s 140(2) of the Evidence Act 1995 (Cth) and the decision in Pereira v Director of Public Prosecutions (1988) 82 ALR 217.

31    Proceedings for recovery of pecuniary penalties under the ACL are civil proceedings. Accordingly, s 140 of the Evidence Act requires the Court in such proceedings to apply the civil standard of proof on the balance of probabilities. In arriving at a conclusion of satisfaction that a case has been proved on the balance of probabilities, s 140(2) provides:

(2)    Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:

(a)    the nature of the cause of action or defence; and

(b)    the nature of the subject-matter of the proceeding; and

(c)    the gravity of the matters alleged.

32    The mandatory considerations specified by s 140(2) reflect a legislative intention that a Court must be mindful of the forensic context in forming an opinion as to its satisfaction about matters in evidence. Ordinarily, the more serious the consequences of what is contested in the litigation, the more a Court will have regard to the strength and weakness of evidence before it in coming to a conclusion.

33    In the present case, the primary judge found that he was “comfortably satisfied” that Ms Grubisa had actual knowledge that the No Equity Representations were in fact false and misleading (LJ at [41]). This was for the following reasons. First, because of Ms Grubisa’s legal qualifications and experience, “she knew that it was untrue as a general proposition and without qualification that a distressed homeowner would lose any remaining equity in their property if the property were sold by a mortgagee”. Secondly, the primary judge held that the statements made in the four videos that “banks don’t give change”, “there’s no equity left”, and “everything else would have got chewed up in fees and charges”, would be understood by members in the relevant class of consumers as bearing their ordinary meaning (LJ at [29]). That being so, coupled with the appellants’ submission below that the No Equity Representations were “absurd” and “nonsense”, the primary judge inferred that Ms Grubisa had a level of knowledge greater than that of the reasonable consumer in the class and so must have known the representations she was making were not true (LJ at [41]).

34    The primary judge said that he drew the inferences as to Ms Grubisa’s actual knowledge that her conduct was misleading and deceptive, including with respect to the particular elements of ss 29(1)(m), 29(1)(g), and 34 of the ACL “with greater confidence in light of the fact that Ms Grubisa did not give evidence at the hearing” (LJ at [42]).

35    In written submissions, the appellants submitted that “an inference as to knowledge must be the only rational inference available”, in reliance primarily on the decision in Pereira. In oral submissions, Senior Counsel for the appellants placed significant emphasis on the sentence in Pereira at 220 which reads, “Finally, where knowledge is inferred from circumstances surrounding the commission of the alleged offence, knowledge must be the only rational inference available”. Senior Counsel maintained the position that the primary judge had erred in drawing an inference against Ms Grubisa as to the state of her knowledge because the drawing of such “an inference against the person that they had actual knowledge, requires that inference to exclude other possibilities which do not involve that state of knowledge”. In response to a question from the Bench, Senior Counsel clarified that he meant “all rational possibilities” must be excluded.

36    Two things must be observed immediately. First, Pereira was a criminal case. Secondly, it is important that the whole passage from Pereira be read and understood. The High Court said, at 219-220:

Even where, as with the present charges, actual knowledge is either a specified element of the offence charged, or a necessary element of the guilty mind required for the offence, it may be established as a matter of inference from the circumstances surrounding the commission of the alleged offence. However, three matters should be noted. First, in such cases the question remains one of actual knowledge. It is never the case that something less than knowledge may be treated as satisfying a requirement of actual knowledge … Finally, where knowledge is inferred from the circumstances surrounding the commission of the alleged offence, knowledge must be the only rational inference available. All that having been said, the fact remains that a combination of suspicious circumstances and a failure to make inquiry may sustain an inference of knowledge of the actual or likely existence of the relevant matter. In a case where a jury is invited to draw such an inference, a failure to make inquiry may sometimes, as a matter of lawyer’s shorthand, be referred to as wilful blindness.

(Citations omitted. Emphasis added.)

37    Although it has been referred to in cases involving civil penalties, including by the Full Court of this Court, in none of them has Pereira been relied upon directly for the purpose of requiring an applicant, in a civil case, to prove actual knowledge by excluding all other rational inferences. That would mean the burden on an applicant in a civil case is to establish knowledge beyond reasonable doubt. That is not the civil burden. To the extent that the appellants pointed to the Full Court’s recitation of the primary judge’s summary in Australian Competition and Consumer Commission v Productivity Partners Pty Ltd (trading as Captain Cook College) (No 3) [2021] FCA 737; 154 ACSR 472 (Productivity Partners No 3) of the applicable principles relating to “knowing involvement” in Productivity Partners (FC) at [272], it does not advance matters. The Full Court did not expressly endorse the primary judge’s reference to Pereira (Productivity Partners No 3 at [100]) in the context of accessorial liability for unconscionable conduct pursuant to the ACL, noting merely, at [271], that the appellants “largely accepted” the summary. The primary judge in Productivity Partners No 3 did not, in any event, make any finding as to whether the inference he drew in relation to knowledge was “the only rational inference available”.

38    The appellants did not demur from the proposition that a Jones v Dunkel inference is available in civil penalty proceedings (Jones v Dunkel (1959) 101 CLR 298 at 308 (Kitto J), 312 (Menzies J), and 320-21 (Windeyer J)). As his Honour observed, in reliance on Jones v Dunkel, an unexplained failure by a party to give evidence may lead to an inference that the uncalled witness would not have assisted the party’s case and permit the Court to draw, with greater confidence, any inference unfavourable to the party who failed to call the witness, if that uncalled witness appears to be in a position to cast light on whether the inference should be drawn. Ms Grubisa was the only person who was able to cast light on her state of mind. That she elected not to do so in a case as serious as this, leads inevitably to a conclusion that her evidence would not have assisted and, as a party facing the possibility of a civil penalty, she was not protected from the drawing of a Jones v Dunkel inference: Adler v Australian Securities and Investments Commission; Williams v Australian Securities and Investments Commission [2003] NSWCA 131; 46 ACSR 504 at [661]; Adams v Director of the Fair Work Building Industry Inspectorate [2017] FCAFC 228; 258 FCR 257 at [147].

39    Nevertheless, civil penalty proceedings are grave matters. Further, his Honour’s findings amount to ones that Ms Grubisa knowingly misled the public about legal matters whilst a practising legal practitioner, which would amount to professional misconduct. As the appellants submitted, such a serious finding requires proof in accordance with principles enunciated in Briginshaw v Briginshaw (1938) 60 CLR 336. Nothing suggests that the primary judge did not apply the appropriate standard of proof. His Honour referred expressly to s 140(2) of the Evidence Act, which is a statutory embodiment of the Briginshaw principles and said that he had “taken into account the gravity of the matters alleged and their potential consequences for Ms Grubisa” (LJ at [39]).

40    As the Full Court said in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing & Allied Services Union of Australia v Australian Competition and Consumer Commission [2007] FCAFC 132; 162 FCR 466 at [31]-[32]:

Even though he spoke of the common law position, Dixon J’s classic discussion in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-363 of how the civil standard of proof operates appositely expresses the considerations which s 140(2) of the Evidence Act now requires a court to take into account. Dixon J emphasised that when the law requires proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. He pointed out that a mere mechanical comparison of probabilities independent of any belief in its reality, cannot justify the finding of a fact. But he recognised that:

‘No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences. Everyone must feel that, when, for instance, the issue is on which of two dates an admitted occurrence took place, a satisfactory conclusion may be reached on materials of a kind that would not satisfy any sound and prudent judgment if the question was whether some act had been done involving grave moral delinquency.’ (Briginshaw 60 CLR at 361-362)

Dixon J also pointed out that the standard of persuasion, whether one is applying the relevant standard of proof on the balance of probabilities or beyond reasonable doubt, is always whether the affirmative of the allegation has been made out to the reasonable satisfaction of the tribunal. He said that the nature of the issue necessarily affected the process by which reasonable satisfaction was attained. And, so, he concluded that in a civil proceeding, when a question arose whether a crime had been committed, the standard of persuasion was the same as upon other civil issues. But he added, weight must be given to the presumption of innocence and exactness of proof must be expected (Briginshaw 60 CLR at 362-363).

(Emphasis added.)

41    Similarly to the conclusion reached by the Full Court in that case, because this is a civil, not criminal, proceeding, the civil standard of proof applies. Therefore, the ACCC had to establish that the circumstances appearing in the evidence gave rise to a reasonable and definite inference that Ms Grubisa had actual knowledge that the No Equity Representations were in fact false or misleading and of the flaws in the relevant Transaction Documents. Contrary to the submission put by Senior Counsel for the appellants, there was no requirement that the ACCC “exclude all other rational possibilities” as to why Ms Grubisa made the various statements comprising the various representations. The evidential basis for the inference drawn by the primary judge was clearly established on the facts before his Honour. There was no dispute about Ms Grubisa’s qualifications or experience, nor that she had been responsible for devising the various “deals” being offered as courses through DG Institute.

42    No error has been demonstrated. Ground 8 must fail.

Did the primary judge err as to the applicable test for accessorial liability?

43    The primary judge found (LJ at [44]), that, inter alia, Ms Grubisa had actual knowledge of the essential elements that made the conduct false and misleading, and so was knowingly concerned in and party to the contraventions of DG Institute. On that basis, the primary judge held (LJ at [41]), that it was not necessary for him to express any opinion as to whether, as a matter of law, the “wider view”, as it was characterised by the Full Court in Productivity Partners FC at [297]-[314], would be sufficient to establish accessorial liability. At the time, the High Court had reserved its decision on the appeal from Productivity Partners FC. In Productivity Partners Pty Ltd v Australian Competition and Consumer Commission; Wills v Australian Competition and Consumer Commission [2024] HCA 27; 419 ALR 30, the High Court held that knowledge of the “essential matters” or “essential facts” constituting the contravention, the “wider view”, was sufficient to found accessorial liability: at [82] per Gageler CJ and Jagot J; [270] per Edelman J; [339] per Beech-Jones J.

44    It is self-evident that actual knowledge of matters constituting a contravention is subsumed in the “wider view” now endorsed as correct by the High Court. Having found that Ms Grubisa had actual knowledge that the conduct was misleading and deceptive, including with respect to the particular elements of the relevant ACL statutory provisions, it was entirely unnecessary for the primary judge to determine whether the wider view also sounded in liability.

45    No error having been established, Grounds 9 and 10 must fail, as must Grounds 24 and 25.

The Vestey Trust Representations

46    The Vesty Trust Representations arise from the MWC program which was promoted as teaching strategies which would enable participants to protect completely their assets from creditors. The strategies taught included setting up a structure described by DG Institute as an “impenetrable Vestey Trust” using what was described as “legally binding documentation” (LJ at [45]). The basic effect of the documentation, described as the Transaction Documents, was summarised by the primary judge at [83]:

(a)    a discretionary trust would be created and controlled by the client;

(b)    all future income of the client was intended to be assigned to the trustee and paid into the trustee’s bank account, although as a matter of law that was only valid to the extent of existing debts at the time the Notice of Assignment was given;

(c)    the client would then withdraw money from time to time from the trustee’s bank account to meet personal expenses of the client, thereby borrowing money from the trustee free of interests and with no obligation of repayment for at least 50 years; and

(d)    the loan would be secured by the Equitable Mortgage, and would also be the subject of a caveat on the title of any real property and could be the subject of PPSR registration in respect of personal property.

Does Declaration 2 go beyond the concession?

47    Ground 11 challenges Declaration 2 made by the primary judge, which was in the following terms:

DG Institute, in trade or commerce and in connection with the supply or possible supply of services in Australia, in the period April 2017 to November 2022:

(a)    engaged in conduct that was misleading or deceptive or likely to mislead or deceive in contravention of s 18 of the ACL;

(b)    made false or misleading representations that the Master Wealth Control (MWC) program had a benefit which it did not have, being the benefit of equipping consumers with a strategy that was effective to protect all of their assets in a way that would provide complete protection from creditors, in contravention of s 29(1)(g) of the ACL; and

(c)    engaged in conduct that was liable to mislead the public as to the nature, characteristics or suitability for purpose of services, being that the strategy taught would enable consumers to protect all of their assets in a way which would provide complete protection from creditors, when it would not, in contravention of s 34 of the ACL;

by:

(d)    making statements in Promotional Materials for the MWC program and in the instructional material for the MWC program set out in Annexure B to the Concise Statement (Program Materials), that represented that the asset protection strategies called the “Vestey Trust” structure taught in the MWC program would enable consumers to protect all of their assets by setting up a specific trust called the Vestey Trust transaction documents provided by DG Institute, which would provide complete protection from creditors (Vestey Trust Representations) when that protection was not provided by the adoption of those strategies.

48    This ground is concerned with the terms of a concession made at trial by Senior Counsel for DG Institute and Ms Grubisa. The primary judge recorded (LJ at [82]), that “the concession was made on the express basis of the secondary line of argument advanced by the ACCC, namely that a debt was created but it was not a debt which was immediately sufficient to cover the value of the clients’ equity in the property and other assets being mortgaged”. As Senior Counsel had conceded, “taking it at its absolute highest for this structure, it could only be a loan, … that … doesn’t provide the complete protection necessarily in all cases immediately”.

49    The appellants contend that the primary judge erred in making the declaration in the form he did because he accepted an argument from the ACCC that did not accord with the Concise Statement, which pleaded that the representations conveyed that the MWC program would provide “complete and immediate” protection from creditors, rather than merely “complete” protection.

50    This ground of appeal cannot be sustained. First, Senior Counsel for DG Institute and Ms Grubisa had expressly conceded that a declaration in the terms of Declaration 2 should be made. Secondly, Senior Counsel for DG Institute and Ms Grubisa said at trial:

Insofar as the representation that’s made was suggested there was an immediate protection that was being offered. It may well have been over a period of time, there would have been an incremental increase in the debt position, so as to protect some assets but we accept that until that occurred, the mechanism was not sufficient to provide the protection that was represented.

51    There can be no suggestion that Senior Counsel for DG Institute and Ms Grubisa was under any misapprehension as to the scope of the concession he had made and that by that concession, an absence of “complete” protection necessarily meant that any protection achieved by the structure would not be “immediate” because of the design of the mechanism.

52    Ground 11 must fail.

The errors said to arise from [88]

53    In considering Ms Grubisa’s liability as an accessory, the primary judge held (LJ at [88]):

In my view, the flaw in the structure that the loan secured by the equitable mortgage would be most unlikely to reach the value of the client’s assets for a very substantial period of time (if ever) was so obvious that Ms Grubisa must have been aware of it when conceptualising, drafting and implementing the structure. While I have not formed a high opinion of Ms Grubisa’s legal competence, my reservations on that matter concern technical aspects of legal drafting, and also as to her knowledge of relatively advanced legal topics. Those matters concern the lack of the claimed prohibition in the Trust Deed on the trustee borrowing, the failure to appreciate that the assignment would be effective only in relation to existing debts and not in relation to all future income, and the infelicity of referring in the Declaration and Acknowledgment and elsewhere to a mortgage only over the client’s “equity in the property”. However, what I have referred to as the obvious flaw in the structure is an error of a very different kind from those matters of technical legal drafting and knowledge. That obvious flaw is a matter of commonsense which would be readily appreciated by anyone with elementary legal knowledge. Ms Grubisa had successfully undertaken both a Bachelor of Laws and a Master of Laws degree, and had practised as both a solicitor and barrister for some years. I am comfortably satisfied that Ms Grubisa did have actual knowledge of that obvious flaw, and accordingly had actual knowledge of the false and misleading nature of the Vestey Trust Representations. As with the No Equity Representations, I draw that inference more confidently in light of the fact that Ms Grubisa did not give evidence. In expressing those conclusions, I have again taken into account the gravity of the matters alleged and the consequences for Ms Grubisa of my findings.

(Emphasis added.)

54    Grounds 12-16 allege that three errors emerge from that paragraph.

Was there a flaw as described?

55    The first error is said to be the finding that the structure that the loan secured would be “most unlikely” to reach the value of the client’s assets “for a very substantial period of time (if ever)”. The appellants submitted that there was no basis for such an unqualified finding when each trust structure established will depend entirely on a client’s individual circumstances. As submitted by the ACCC, the finding was consistent with the basis for the concession made by the appellants below that “it may well have been that over a period of time, there would have been an incremental increase in the debt position”. Moreover, the basis for this finding was explained by his Honour (LJ at [84]) by reference to examples:

In the early stages of the structure, the amount of the loan will be relatively small. The amount of the loan will be limited by the amount of the existing debts which are assigned to the trustee, and will be limited further by the amount of the withdrawals from the trustee’s bank account to meet personal expenses of the client. For example, a person who earns and spends about $2,000 per week (ie about $100,000 per annum) might have a debt to the trustee at the end of the first week of the life of the structure of about $2,000, and at the end of the first year of about $100,000. However, most members of the relevant class would be likely to have net assets worth more than, say, $2,000 or $100,000. For example, if one takes a person with net assets of $500,000, and income and expenses of $100,000 per annum, the amount of the secured loan from the trustee to the client will not equal or exceed the net assets of the client for 5 years, even if one wrongly assumes that the assignment applies to all future income and even if one makes the unrealistic assumption that the value of the client’s net assets would not change at all over that period. However, the MWC program claimed to provide clients with complete and immediate protection from creditors to the extent of all their net worth.

56    No error can be discerned. Ground 12 cannot be sustained.

Was the flaw obvious?

57    The second error was said to be the finding that the “flaw” in the asset protection structure was “so obvious that Ms Grubisa must have been aware of it”. The appellants’ primary submission was that such a finding was incongruent with the primary judge’s adverse findings as to the level of Ms Grubisa’s legal competence and so his Honour ought to have found that she simply did not appreciate the flaw. However, his Honour distinguished between the view he had taken as to her ability with respect to matters of technical legal drafting and knowledge (such as her apparent ignorance of the law relating to the assignment of future property: Norman v Federal Commission of Taxation (1963) 109 CLR 9) and what his Honour described as “a matter of commonsense” as to how the structure was designed as exemplified by his description of it (LJ at [84]). Ms Grubisa was the architect of the structure. In the absence of any evidence by her to the contrary, the import of which has already been discussed above, no error can be demonstrated in the inference drawn by the primary judge as to her awareness of the flaw.

58    The appellants’ second contention, namely that because the ACCC’s case was posited on the structure providing “complete and immediate” protection, which was overtaken by the concession described above, Ms Grubisa should be held to a lesser degree of understanding than that found by the primary judge is difficult to comprehend. The concession can have no bearing on how Ms Grubisa understood the workings of the structure that she herself had devised. The fundamental flaw, as found by the primary judge, was a matter that “would be readily appreciated by anyone with elementary legal knowledge”. The primary judge did not err in his conclusion that Ms Grubisa, as a practising solicitor and barrister of some years’ standing, must at least have that level of knowledge.

59    Ground 13 is without foundation.

Failure to properly consider and apply s 140(2) of the Evidence Act

60    For the reasons already discussed above at [30]-[41], the learned primary judge did not err in failing to properly consider and apply s 140(2) of the Evidence Act to the facts of Ms Grubisa’s involvement in the Vestey Trust Representations. There was a sufficient evidential basis to enable the primary judge to draw the inferences which he did.

61    Grounds 14, 15 and 16 must fail.

Were the statements opinion rather than fact?

62    By Grounds 17 (and by Grounds 20-23, with respect to the Authority Representations), the appellants challenge the primary judge’s findings that the statements giving rise to the Vestey Trust Representations were statements of fact, rather than opinion. Specifically, the primary judge held (LJ at [91]) that, in the context in which the Vestey Trust Representations were made, “the audience would not have understood DG Institute’s statements to have been statements of opinion but ones of fact … I accept, that these were statements of fact as to the essential features of the proposed structure provided in the MWC program, rather than statements of opinion …”. The appellants contend that the statements cannot be statements of fact when they were statements of legal conclusions as to the level of protection that the MWC program would offer. They submit that the statements giving rise to the Authority Representations should be characterised likewise.

63    Alternatively, by Grounds 18-19, the appellants contend that the primary judge erred (LJ at [92]) in finding that even if they were statements of opinion, they were nevertheless misleading or deceptive on the basis of false and misleading implied representations, being that the opinion was based on rational or reasonable grounds and was the product of a reasonable application of the legal knowledge, expertise and skills of DG Institute.

64    As to Ground 17, the appellants conceded that Declaration 2 ought be made. It declared, inter alia, that the representations made in relation to the MWC program were misleading and deceptive. A submission to the contrary cannot now be prosecuted.

65    Regardless of the concession, the statements were clearly statements of fact and not of legal conclusion in the sense considered by the New South Wales Court of Appeal in Norton Property Group Pty Ltd v Ozzy States Pty Ltd (in liq) [2020] NSWCA 23. The characterisation of whether a statement is one of opinion or a matter of fact is to be viewed from the perspective of the person or “ordinary or reasonable” audience to whom the statement or representation was directed, rather than the maker of the statement: Ireland v WG Riverview Pty Ltd [2019] NSWCA 307; 101 NSWLR 658 at [30] (Bell CJ, with whom Barrett AJA agreed at [91]), applying Campomar Sociedad, Limitada v Nike International Ltd [2000] HCA 12; 202 CLR 45 at [102].

66    In Norton Property Group, the Court held that a claimed entitlement to fees, in circumstances where the parties were in dispute as to whether or not the contract which they had entered into required the payment of those fees, could not be understood as anything more than the expression of a view of the construction of the contract; in other words, an opinion (at [98]). Similarly, in Forrest v Australian Securities and Investments Commission [2012] HCA 39; 247 CLR 486, the High Court held that an announcement that a company “is pleased to announce that it has entered into a binding contract” was an opinion. The Court said, at [94], “The binding quality of an alleged contract is an inherently controversial matter of professional judgment”.

67    The present case is different. The statements giving rise to the Vestey Trust Representations were made in the context of offering an educational course through which students were to be taught the structure of the trust and the content of the Transaction Documents. The primary judge considered the statements in great detail, commencing at [48] of the Liability Judgment. They included an onboarding email upon enrolment in the program in which students were told, “Congratulations … You have taken control of your destiny and with my support you’ll have a time-tested, proven, airtight system that will protect any assets that are important to you” (LJ at [57]). Further, statements made in the Promotional Materials by Ms Grubisa included (LJ at [49]) that:

•    2% of people controlled 98% of the world’s wealth;

•    She had made it her life’s mission to focus and look at what the 2% do; and

•    “I did a lot of research. I had to go back almost a hundred years in history to find my answer. You may have heard of the impenetrable Vestey Trust. One tax department expert said it was like trying to hold rice custard to penetrate this Trust. It stood the test of time and preserved the wealth of the wealthiest family in England. Still to this day …”.

68    In explaining the structure of the trusts in the Promotional Material, Ms Grubisa made statements in the same or similar terms to the following (LJ at [50]):

So you have a caveat saying you owe money to this trust. Doesn’t own anything. It is owed. And the trust then ties up all of your equity in any property. It’s a friendly creditor. And that way you’re in control of the equity of your property because you’ve registered it first. So any other equity that comes after the first mortgage is paid, you know now stand in line and you have an early warning system. You’re in control of that equity there.

So how do we set that up and what we want to do here is we – we don’t want to lend the trust 300,000, borrow it back, or have any money moving. We want to effect this quickly and easily to protect you now. So what we’re going to do is use legally binding paperwork. First of all a “Deed of Trust” is set up. That sets up your friendly creditor. Your trust that doesn’t own anything, It is owed. A “Deed of Acknowledgement” reinforces that that debt is owed. An “Equitable mortgage.” “Equitable” means “unregistered”. So it is a mortgage – very normal kind of a mortgage. Don’t have to register mortgage. Mortgage just shows that a debt is owed. But that mortgage is recognised with a caveat lodged on the title. Caveats don’t state an amount. It just says that money is owed to this trust. We have a “Deed of Assignment” assigning your net worth across to the trust however you’re holding your wealth. A “Promissory Note” in law is like an IOU. It reinforces that there is a debt there. And ultimately a “Caveat”. The caveat — beware or be warned — is lodged on the title to tell the whole world as public record that money is owed to this trust.

So this is ground-breaking because there is no stamp duty payable …

It’s very flexible as you grow. So you only need to set this up once. It adjusts with your wealth. It’s a lifetime journey and this one trust protects all of your assets. Soaks up your equity. No matter how big you grow you remain that small target. And you will only have to set this up once. It protects your business, assets, all of your personal assets like your personal property, as well as real property.

And any portion or equity or share you have in anything of value basically. …

Business and other assets. Plant and equipment, stock in trade, that sort of thing, this will protect it. It will protect your cash in a bank. It will protect shares. It will protect vehicles. Other chattels. Your income. Basically, anything of value and ultimately your family’s future.

(Emphasis added.)

69    In a video made available to course participants after enrolment in the program, “Welcome to Master Wealth Control – Video 1 Welcome”, after referring to the history of the Vestey Trust, Ms Grubisa stated (LJ at [58]):

That’s how watertight the protection was. So, I’ve drilled down. I’ve researched all of that and I’ve applied that to Australian and Global law to protect your worldwide assets.

Okay, so let’s just run through what I’m going to be doing for you as part of this package. Remember, this package is for life. What I’ll be doing then, is be building an invisible force field around all of your wealth as it currently stands. We’re not going to change anything. We’re not going to change ownership. We’re not going to undo what’s already there. Everything stays as it is. Business as usual. It won’t change anything for you except it will stop anyone getting through and attacking what you have.

So, what you’re going to get is the Vestey Trust built from the ground up around your assets. That will protect everything you have for your lifetime … Your Vestey Trust will protect everything in your lifetime as you grow your wealth.

    (Emphasis added.)

70    The primary judge described the Transaction Documents (LJ at [61]-[66]). The covering letter, under which the documents were sent, stated, inter alia (LJ at [62]):

Once you have completed all nine steps there is nothing more to do unless you add further property or assets to your portfolio. We have outlined what to do in these circumstances – please refer to “Subsequent Assets Purchases and Disposals” in the Table of Contents for more details.

Congratulations! You have invested your time and resources into safeguarding your future and your assets are now fully protected. You can now get on with living your life and building your wealth with the peace of mind that comes with being bullet proof.

(Emphasis added.)

71    As the primary judge found (LJ at [91]), these statements were made in the context of providing information to consumers about a structure which provided complete protection as a matter of absolute certainty. They were made in the course of the promotion and sale of the MWC program, not in the context of the provision of legal services by either DG Institute or Ms Grubisa. They would have been understood by the participants to be, and were, statements of fact as to the essential features of the Vestey Trust structure alleged to be provided in the MWC program.

72    Ground 17 must therefore fail.

The Authority Representations

73    With respect to the Authority Representations, the primary judge identified (LJ at [95]), that they encompassed two categories of statements. The first comprised the following statement in three videos: “Property Success Summit Promotional Livestream” of 13 February 2021, and substantially similar statements in “Protect Your Wealth Masterclass” dated 27 July 2021, and “Master Wealth Control Promotional Video” of September 2021:

Next question that often comes up is, is there a legal precedent for this? Yes. It’s a full court of the Federal Court of Australia. So Australia wide jurisdiction. In a matter of Sharrment and the Official Trustee in Bankruptcy.

So that’s on Appeal. Three judges. What happened then was the worst and that was that bankruptcy occurred. And then what happened was that the Trustee in Bankruptcy went up to the Federal Court and said, “Oh, this trust is a sham. It’s all a scam. And no money has changed hands.” And the Court said, “No. This was set up at a time when they were solvent before bad stuff happened.” And it stood up in that respect. So that’s on Appeal Australia wide jurisdiction.

(Emphasis added.)

74    The second category comprised statements where the term “legal precedent” was not used but the words “tested” and “stood up on appeal” were used in a video entitled “Business Recovery Summit” dated 14 August 2021, and similarly in videos entitled “Asset Armour” dated 5 July 2022 and “Welcome to Master Wealth Control – Video 1 Welcome”:

This has been tested in a Full Court of the Federal Court, so this concept. Now, it’s a case called Sharrment v The Official Trustee in Bankruptcy. And what happened was this was all set up in good times for structuring and asset protection and then, the worst happened. So, there was actually bankruptcy, and the Trustee in Bankruptcy went to the Court and it went on appeal. So, the Federal Court is Australia-wide jurisdiction, a higher court, an appeal court, three judges. And what happened there was the Trustee in Bankruptcy said, “This is all rubbish. No money changed hands. This was set up to defeat creditors.” So, what they wanted the Court to do was remove any money that went back to the Trust and said, “Give it to us in bankruptcy.” And the Court said, “No. This was set up for a legitimate purpose, way before any bad stuff happened and the owner of the assets has the right to do that and indefeasibility of title, whatever happens first, whatever comes first is upheld.” So, it stood up on appeal Australia-wide in that case.

(Emphasis added.)

75    Immediately prior to the statements in each category, Ms Grubisa had been outlining the structure of the Vestey Trust. It is perfectly plain that the word “this” was intended to convey that it was the Vestey Trust structure which had been the subject of the decision in Sharrment. No other construction can reasonably be advanced. That was a statement of fact. The primary judge held as much (LJ at [99]) and was correct to do so. Grounds 17 and 19 must fail.

76    Similarly, Ground 20 must fail. No error can be shown in the primary judge’s finding (LJ at [98]), that the statements made by Ms Grubisa in relation to Sharrment clearly conveyed that it was binding legal authority for the legal efficacy of transactions described to the audience as The Vestey Trust. So much is plain from the words “this Trust” and “this concept” when read in the context of the video. No error having been shown in the primary judge’s finding that Ms Grubisa’s claim on behalf of DG Institute that Sharrment was a legal precedent, which had successfully upheld the trust structure proposed in the MWC program, was false and misleading, it follows that the primary judge did not err in law in finding (LJ at [103]-[105]) that DG Institute contravened ss 18, 29 and 34 of the ACL.

77    Ground 23 must fail.

78    As we have concluded, consistently with the findings of the primary judge, that the statements were statements of fact and not opinion, it is unnecessary to deal with Grounds 18, 21 and 22.

The consumer redress orders

79    By Ground 26, the appellants contend that the Orders made on 19 July 2024 in the Penalty Judgment (PJ) should be set aside because they were made on the basis of the errors identified in Grounds 1-25. Given the conclusions reached by this Court as set out above, that ground cannot succeed.

Was an order to refund all students manifestly excessive?

80    The gravamen of the appellants’ challenge to the Penalty Judgment is contained in Grounds 27-30 by which they contend that the complete refund of all students of all course fees was manifestly excessive. The basis for this challenge is, first, that the primary judge erred by finding (PJ at [36]) that the represented outcome of “complete” protection was likely to be the fundamental reason a consumer would be willing to pay for the MWC when the relevant misrepresentation identified by his Honour was that the product provided “complete and immediate” protection (LJ at [82]).

81    Further, it was contended that the primary judge erred by finding (PJ at [65]) that the course fees represented the loss and damage which was suffered, or was likely to be suffered, in circumstances where: students received the asset protection structure that had been paid for, and many were likely to have already established it; the primary judge found that the structure still offered some protection from creditors, albeit on an incremental basis; and students could be expected to have a range of protection depending on the amount gifted or assigned to the trustee and borrowed from it.

82    As has already been discussed above, no relevant distinction can be made between “complete” protection and “complete and immediate” protection. A consumer who set up the trust structure as taught in the MWC program would expect to be protected immediately. The primary judge’s finding (PJ at [36]) must be read in conjunction with his Honour’s immediately prior observations, where he said in respect of the Vestey Trust Representations (PJ at [34]):

This conduct was even more egregious than the No Equity Representations and warrants the imposition of a substantial penalty. The Vestey Trust Representations concern the core offering of the MWC course, which was the setting up of the Vestey trust structure. The structure was promoted as offering complete and immediate protection over all assets, when the structure did not and could not do so, and Ms Grubisa knew that it did not and could not do so. Consumers who enrolled in the MWC course therefore paid thousands of dollars for a service which did not offer the protection offered, when that protection was likely to have been the fundamental reason that consumers were willing to pay for that service.

83    The primary judge’s observations cannot be criticised. Following on from Ms Grubisa’s statements about Sharrment in the “Business Recovery Summit” video, she said:

So, all up, and this is done for you, you get the Vestey Trust and all the documents set up to protect you and make you a very small target in your lifetime …

So, total value there is $35,000. Can I ask you this? Would it be worth a on-off $35,000 to know that your [sic] financially secure forever?

….

So, all up, it’s the Vesty Trust with its documents to protect everything for your lifetime and give you control…

[after offering discounted price and a payment plan]

It means we start now. We do all the work now. We protect you now, so you’re protected from now with what lies ahead and you pay it off over time …

(Emphasis added.)

84    There can be no doubt that what was being promised was a structure that was providing “complete” protection, with immediate effect.

85    In any event, as was submitted by the ACCC, and is made clear at [67] of the Penalty Judgment, it was common ground that students should be offered a refund. The point of contention below was whether the students should be given the option of a refund, and be provided with a suite of documents which the appellants submitted would address the flaw in the MWC structure that had been identified in the Liability Judgment. However, as is recorded by the primary judge (PJ at [79]):

Counsel for [DG Institute and Ms Grubisa] conceded that the true position was that the proposed revised model falls a long way short of providing complete protection to the customer’s assets unless all of the customer’s assets are represented by cash in the customer’s bank account and wallet (so as to be capable of forming the subject-matter of the gift) … Counsel for [DG Institute and Ms Grubisa] later accepted that [their] proposed remedial program does not offer complete and immediate protection …

86    Given the concession below, the appeal from the Penalty Judgment must fail.

87    In any event, no error has been established in the primary judge’s assessment of the appropriate redress. The statutory scheme being as it is, requires the appellants to demonstrate House v The King (1936) 55 CLR 499 error. No such error has been alleged in the Grounds of Appeal, nor can it be established.

88    The ACL provides:

239 Orders to redress etc. loss or damage suffered by non-parties

(1)    If:

    (a)     a person:

(i)     engaged in conduct (the contravening conduct) in contravention of a provision of Chapter 2, Part 3-1, Division 2, 3 or 4 of Part 3-2 or Chapter 4; or

(ii)     is a party to a contract who is advantaged by a term (the declared term) of the contract in relation to which a court has made a declaration under section 250; and

(b)     the contravening conduct or declared term caused, or is likely to cause, a class of persons to suffer loss or damage; and

(c)     the class includes persons who are non-parties in relation to the contravening conduct or declared term;

a court may, on the application of the regulator, make such order or orders (other than an award of damages) as the court thinks appropriate against a person referred to in subsection (2) of this section.

Note:     The orders that the court may make include all or any of the orders set out in section 243.

 (2)     An order under subsection (1) may be made against:

(a)     if subsection (1)(a)(i) applies—the person who engaged in the contravening conduct, or a person involved in that conduct; or

(b)     if subsection (1)(a)(ii) applies—a party to the contract who is advantaged by the declared term.

 (3)     The order must be an order that the court considers will:

(a)     redress, in whole or in part, the loss or damage suffered by the non-parties in relation to the contravening conduct or declared term; or

(b)     prevent or reduce the loss or damage suffered, or likely to be suffered, by the non-parties in relation to the contravening conduct or declared term.

(4)     An application under subsection (1) may be made at any time within 6 years after the day on which:

(a)     if subsection (1)(a)(i) applies—the cause of action that relates to the contravening conduct accrued; or

(b)     if subsection (1)(a)(ii) applies—the declaration is made.

89    As was explained by Jackman J in Australian Competition and Consumer Commission v Dell Australia Pty Ltd [2023] FCA 588 at [31], s 239(1) does not require a Court to make a finding about the nature of the loss or damage that the conduct caused or is likely to cause, to persons who are non-party consumers in relation to the contravening conduct. His Honour referred to Colvin J’s observations in Australian Competition and Consumer Commission v Geowash Pty Ltd (Subject to a Deed of Company Arrangement) (No 4) [2020] FCA 23; 376 ALR 701 at [185]:

It is enough that the Court is satisfied that there has been loss or damage caused to a class of persons that includes non-party consumers. By inference, redress orders may be made on the basis that the nature of the conduct means that it is appropriate for redress to be ordered that will flow to the class of persons affected. There is no requirement that the Court be satisfied that there is a precise correspondence between the redress that might be received by a particular member of the class and the actual loss suffered by that member.

90    There is no question that the loss or damage for which a redress order may be made might be non-pecuniary, including the loss of an opportunity to make an informed choice about whether or not to purchase the goods or services being offered: Australian Competition and Consumer Commission v Coles Supermarkets Australia Pty Ltd [2015] FCA 330; 327 ALR 540 at [57] per Allsop CJ.

91    The touchstone for a Court making an order under s 239 is whether or not the order is “appropriate”. Such an order may, as provided for in s 243(d), include “an order directing the respondent to refund money or return property to the injured person”. The only mandatory requirement, relevantly in this case, is that the order must be one that the Court considers will redress the loss or damage suffered by the students, in whole or in part (s 239(3)). Section 240 explicates the breadth of the discretion available to the Court. It provides:

240 Determining whether to make a redress order etc. for non-parties

(1)     In determining whether to make an order under section 239(1) against a person referred to in section 239(2)(a), the court may have regard to the conduct of the person, and of the non-parties in relation to the contravening conduct, since the contravention occurred.

(2)     In determining whether to make an order under section 239(1) against a person referred to in section 239(2)(b), the court may have regard to the conduct of the person, and of the non-parties in relation to the declared term, since the declaration was made.

(3)     In determining whether to make an order under section 239(1), the court need not make a finding about either of the following matters:

(a)     which persons are non-parties in relation to the contravening conduct or declared term;

(b)     the nature of the loss or damage suffered, or likely to be suffered, by such persons.

92    Section 241 provides for an opt-in model for non-parties in favour of whom a redress order is made. Such non-parties may accept the redress, in which case no claim, action or demand may be made or taken against the contravening party. Alternatively, they may refuse the redress and take whatever action they so choose.

93    In the present case, the primary judge had regard to the mandatory consideration in s 239(3) of the ACL (PJ at [64]). His Honour said expressly (PJ at [65]) that he regarded “an order requiring DG Institute to offer a refund” to be “reasonable and adapted to the purpose of effecting redress”. Contrary to the appellants’ submissions, that was not a finding that “the cost of the course fees to all consumers represented the amount of the loss or damage regardless of circumstance or use of the structure by the consumer”. It was the consequence of his Honour’s proper performance of the evaluative task required by the statutory scheme.

94    As was permitted by s 240(1), the primary judge also had regard to the conduct of the appellants since the contravention occurred, observing (PJ at [79]) that:

[DG Institute’s and Ms Grubisa’s] proposed remedial scheme thus involves a false and misleading representation in further contravention of the ACL, and is manifestly inappropriate as the basis of any order by the Court. Moreover, by proposing a misleading and deceptive scheme, [DG Institute and Ms Grubisa] have demonstrated that they have learnt little or nothing from the Liability Judgment, and certainly have not demonstrated contrition or any other conduct which might mitigate the orders which the ACCC seeks.

95    In the context of a statutory scheme which has been designed to provide redress in circumstances where a contract has been brought into existence on a false basis through contravention of the statutory norm, and where the very scheme itself eschews precise correlation between the nature of the loss and damage suffered by non-parties and the redress considered “appropriate and adapted” to the contravening conduct, no error has been established.

96    Grounds 26-30 must fail.

97    It is therefore unnecessary to consider the cross-appeal.

Disposition

98    For the reasons given, the appeal from the Liability Judgment and the appeal from the Penalty Judgment must be dismissed with costs.

99    The cross-appeal is also dismissed, it being unnecessary to consider it.

Associate:

Dated:        20 December 2024