FEDERAL COURT OF AUSTRALIA

Australian Competition and Consumer Commission v Unique International College [2017] FCA 727

ORDERS

THE COURT ORDERS THAT:

1.    The parties are to bring in short minutes of order giving effect to these reasons within 21 days.

2.    Stand the matter over for a further case management hearing on Friday, 28 July 2017.

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

REASONS FOR JUDGMENT

PERRAM J:

1. Introduction

1    The Applicants are the Australian Competition and Consumer Commission (‘Commission’) and the Commonwealth of Australia (‘Commonwealth’). The Respondent ('Unique') is a vocational education and training provider operating from Granville in Sydney's west. The Applicants accuse Unique of having breached various provisions of the Australian Consumer Law (‘ACL’): by behaving unconscionably towards six persons it sought to enrol in its courses; by having a system for enrolling its students which was itself unconscionable; and by engaging in misleading or deceptive conduct. They also allege that Unique sought to have people enter into unsolicited consumer agreements without complying with the additional requirements of Division 2 of the ACL.

2    I have concluded that the Applicants have succeeded in proving most of these allegations.

3    The parties are to bring in short minutes of order giving effect to these reasons within 21 days.

2. Some matters of background

4    The Applicants’ case is confined to the period commencing on 1 July 2014 and concluding on 30 September 2015 (the ‘relevant period’). During the relevant period, Unique offered potential students courses in respect of which many students would be eligible for a kind of Commonwealth financial assistance known as ‘VET FEE-HELP’. The four courses relevant to this proceeding were: a Diploma of Management, an Advanced Diploma of Management, a Diploma of Salon Management and a Diploma of Marketing. Unique also offered other courses but these were not eligible for VET FEE-HELP.

5    VET FEE-HELP is a shorthand for Vocational Education and Training FEE Higher Education Loan Program. During the relevant period, which spanned some 15 months, the VET FEE-HELP scheme had these pertinent features:

    it was available to Australian citizens or holders of a permanent humanitarian visa who were resident in Australia, provided that they were enrolled in a full fee paying course approved for VET FEE-HELP (as Unique’s four courses were);

    the Commonwealth would pay in full whatever the tuition fee was for each unit of the approved course and would treat the combined amounts as a loan to the student;

    the loan would be repayable through the tax system once the student began to earn more than the ‘minimum repayment income’ ($53,345 for the period 1 July 2014 to 30 June 2015; $54,126 for the period 1 July 2015 to 30 June 2016) on the income above that amount at a sliding scale of between 4% to 8%. The highest rate became applicable at $99,070 during the relevant period;

    each person had a maximum lifetime amount which could be borrowed through this and other related schemes (such as HECS). This amount was indexed and was $97,728 for the 2015 financial year. The amount which the student had at any time borrowed was specified in an account maintained by the Commonwealth called the FEE-HELP balance;

    there was a 20% loan fee on top of the tuition fee which was also payable to the Commonwealth and which was debited to the student’s FEE-HELP balance; and

    the amount of the student’s FEE-HELP balance was indexed to the Consumer Price Index (‘CPI’).

6    An important plank in the Applicants’ case is the suggestion that Unique told prospective students that its courses were free or were free if the student did not earn more than the minimum repayment income. Such a statement, if made, would have been incorrect. Although a student did not have to pay any money upfront on enrolment, the effect of the scheme was that he or she would be left with a CPI indexed debt equivalent to the relevant tuition fee along with an additional 20% fee charged. Whilst it was true that the debt only became repayable once the student earned more than the minimum repayment income and was, at least in that sense, contingent, this is by no means the same as having no debt. Further, the debiting of the FEE-HELP account by the amount of the fee combined with the lifetime cap on that account (here, around $98,000) meant that the student incurring a VET FEE-HELP debt diminished the amount of VET FEE-HELP assistance available to him or her in the future. Those two features guarantee that it is wrong to suggest that a course in respect of which a student would be eligible for VET FEE-HELP was a course which was free. I hasten to add that it was Unique’s position that it had never made such statements.

7    Another important aspect of the Applicants’ case was Unique’s incentive procedures. Of these, there were three.

    Unique gave students who enrolled in any of its four courses approved for VET FEE-HELP a free laptop/iPad or, in some cases, a $1,000 cash gift with which to purchase such a device (or were promised an iPad and $200 cash as they progressed through their courses).

    It also conducted a student referral programme under which a student who referred another student who enrolled in a VET FEE-HELP course would receive at least a $200 reward and sometimes more (provided, of course, that the student lasted until the census date for their course, which triggered the Commonwealth’s payment obligation to Unique).

    Allied with that scheme, Unique also engaged third party contractors to carry out enrolments on its behalf on a commission basis. Following some government disquiet, these arrangements were terminated after 31 March 2015 (with the exception of some payments to Mr Christopher Bell, a Unique employee to whom Unique paid commissions up to 30 June 2015, allegedly because of an administrative oversight).

8    Unique commenced teaching operations some time shortly after October 2007 when it was granted registration under the relevant State and Federal regulatory regimes. For a number of years thereafter its operations were modest and consisted of training a mix of mostly overseas students, but also some who were local. Its enrolment numbers for the years 2008-2013 were as follows:

9    Until 2009, VET FEE-HELP had existed in a form which required that for courses to be eligible there had to exist credit transfer arrangements with another institution offering a higher education award. This was to encourage ‘pathways into higher education’. This required, in practice, VET providers to enter into course credit transfer arrangements with those other institutions. Unique actively sought out and secured such arrangements during the period 2011 to 2012. The institutions with which it entered into credit transfer arrangements during this period included the University of Ballarat, the Australian Catholic University and the University of New England. Even so, Unique did not obtain registration of any of its courses at that time for VET FEE-HELP. Because its courses were not approved under the VET FEE-HELP scheme, Unique was not able to offer VET FEE-HELP funding for its students.

10    Consequently, during this period the VET FEE-HELP scheme had no effect on Unique’s enrolments.

11    In 2012, however, there was a change in government policy following a review of the VET FEE-HELP scheme and it was decided by the Commonwealth that there would be a change in the laws under which VET FEE-HELP was provided. With effect from 1 January 2013, the requirement that a VET FEE-HELP eligible course count towards a course at another institution of higher education was removed. Having been apprised of these potential changes by the Department of Education and Training (‘the Department’) in June 2012, Unique commenced a process of obtaining registration of four of its courses for VET FEE-HELP under the revised scheme and it achieved that registration on 27 November 2013 (the cause of the one year delay in obtaining registration is of no present relevance). Its enrolment numbers now substantially increased as follows:

12    A factor which may have contributed to this dramatic increase in enrolments was Unique’s practice from 1 January 2014 of making its courses available online. Before that time, it had been necessary for students to attend at its Granville premises. However, once the four courses which were offered under VET FEE-HELP were made available online, this removed the necessity for any geographical link to Unique’s premises.

13    The increase in Unique’s enrolments directly increased its revenues. Those revenues and net profits after tax for the financial years 2013-2015 were thus:

14    The severing of the geographical nexus with Granville at the end of 2013 also allowed Unique to obtain enrolments from persons distributed widely across eastern Australia. It did so by sending staff members on road trips to various inland urban centres and conducting thereat ‘sign-up’ meetings at the homes of a chosen local resident. It is not disputed that these ‘sign-up’ trips were made across many regional areas of New South Wales, Victoria and Queensland and that many students were signed up via them.

15    With that background set out, it is useful now to turn to the Applicants’ pleaded case.

3. The Applicants’ Pleaded Case

16    At the risk of stating the obvious, the Applicants’ case was not that Unique had behaved unconscionably towards the Commonwealth. It was not said that the Commonwealth itself had been misled or that Unique should compensate the Commonwealth for bad loans made. Its case instead was focussed on the proposition that it was Unique’s students who had been the victims of the allegedly unconscionable or misleading behaviour. From time to time, the Applicants pointed to the very significant sums which Unique had received from the Commonwealth to buttress their substantive submissions. For example, it was put, not without force, that the possibility of deriving such enormous revenues could easily be seen as providing a motive for Unique to strive to increase the number of its enrolments. At other times, it seemed to be advanced as a form of forensic panacea for whatever difficulty of proof might, at any particular point in the trial, have been encountered by the Applicants.

17    But the Applicants’ case is not a case about the misappropriation of Commonwealth funds, nor is it a case, despite the way it was sometimes depicted outside the courtroom, about rorting by Unique of a Commonwealth scheme. The Applicants’ case was, from beginning to end, a case alleging the unconscientious exploitation and misleading of students. Such a case is by no means the same as a case which directly alleges that the Commonwealth has been defrauded. It is quite possible for the rorting of a scheme to happen without exploitation of students. It is also equally possible for exploitation of students to occur in the absence of rorting. One needs to be careful to distinguish the two and to ensure that one’s instinctive sense of outrage at one matter, which was not alleged or proved, does not affect one’s assessment of the other.

18    The Applicants’ case had two distinct elements although, as will be seen, they were to an extent intertwined.

19    The first element was located in Part 2 of its Amended Statement of Claim dated 9 May 2016 (‘ASOC’) and was focussed on Unique’s enrolment processes. In a nutshell, the allegation was that Unique had an enrolment process and that this process was inherently unconscionable. Paragraph 21 of the ASOC pleaded the nature of the enrolment process. Paragraph 22 pleaded the alleged failures which inhered within that process. Paragraph 23 pleaded the kinds of consumers who might be ensnared by such a process. Paragraph 26 pleaded that Unique had done this to maximise its revenues. Paragraph 28 alleged correlatively that it was likely also to have caused loss to the consumers. Paragraph 29 brought it all together and alleged, for various reasons, that the conduct thus disclosed was unconscionable.

20    These allegations may be summarised as follows:

21    It was alleged that Unique had targeted particular locations for enrolment purposes. These towns and cities were said to be situated in areas where inhabitants were generally people of lower socio-economic means and/or were comprised of a higher percentage of indigenous persons than the average eastern Australian town or city. These locations were said to include: Bankstown, Boggabilla, Bourke, Brewarrina, Emerton, Moree, Taree, Toomelah, Walgett, Wagga Wagga and Granville. At these locations it is then said that Unique conducted marketing operations by, inter alia, calling on consumers at their homes for the purpose of conducting group marketing activities. At these group marketing events, it is alleged that Unique’s staff told the attendees that its courses were free or free until they reached a particular level of income following completion of their chosen course. At the same time, free laptops were allegedly handed out to those who signed up. It is also alleged that the staff were on remuneration arrangements which were based on the number of students whom they were able to convince to enrol.

22    Against the backdrop of what the Applicants alleged was involved in the enrolment process, they went on to then allege a number of matters which they said that process did not include. It was said that Unique did not:

    ascertain whether the students had the capacity to pay the course fees;

    explain to the students the nature of the VET FEE-HELP scheme; in particular, the nature of their obligations to the Commonwealth if they received a loan under it or that they would be left with a contingent debt;

    ascertain whether the students intended to undertake the course;

    ascertain whether the students understood they were enrolling in a course; or

    ascertain whether the students had read and understood the forms they were asked to sign (and related allegations).

23    At the risk of oversimplification, the enrolment process alleged was therefore one involving group meetings at homes in particular areas at which consumers of educational services were given laptops if they signed up to courses and were told either that the courses were free or, at least, would be free until they achieved a certain level of income. This marketing was performed by Unique’s staff members who were paid by reference to the number of consumers they successfully enrolled. Forms were then filled out which were not explained and, at the same time, no effort was made to ascertain the suitability of any particular student for a course. No explanation of the VET FEE-HELP system was given.

24    The second part of the case was not concerned with Unique’s system. Instead, at paragraphs 31 to 143 of the ASOC, the Applicants set out their case that Unique had engaged in unconscionable behaviour towards six identified consumers. The allegations in each case related to the signing up of each of the six consumers to Unique’s courses at three separate signing up meetings conducted by its staff in outlying parts of New South Wales. The visits were to areas which the Applicants identified as being socio-economically disadvantaged and with a high proportion of indigenous members of the community. The three visits and the consumers involved were as follows:

    Walgett (on Friday, 10 October 2014) in respect of Ms Natasha Paudel (referred to in the Applicants’ pleading as Consumer E);

    Tolland, a suburb of Wagga Wagga (on Monday, 30 March 2015), in respect of Ms Kylie Simpson (Consumer A) and Mr Tre Simpson (Consumer F); and

    Bourke (on Wednesday, 10 June 2015) in respect of Ms Jaycee Edwards (Consumer B), Ms Fiona Smith (Consumer C) and Ms June Smith (Consumer D).

25    The thrust of the case was, subject to minor variations between the various consumers, three-pronged.

26    First, it was said that Unique had engaged in misleading or deceptive conduct in relation to each of the consumers (apart from Ms Natasha Paudel) because it had not informed any of them that the courses were not free and that each would be left with a debt to the Commonwealth under the VET FEE-HELP scheme. These were alleged to be ‘representations by silence’ which were false or misleading (or likely to mislead or deceive). In relation to some of the consumers, it was further alleged that direct representations of a misleading nature were made; for example, that the laptop and course itself would be free (June and Fiona Smith).

27    Secondly, it was alleged that Unique had behaved unconscionably towards the consumers because of its failure to explain the nature of what they were signing up to in circumstances whereby, putting it shortly, this was combined with an aggressive enrolment process and where there were elements of disadvantage in the circumstances of each of the individual consumers. I will delay explaining these individual circumstances for now save to say that they largely related to issues of literacy and education.

28    The third prong was a narrow allegation that Unique had engaged in the practice of seeking to procure entry by the six consumers into unsolicited consumer agreements without complying with the additional requirements of Division 2 of the ACL. This was also put forward as an element of the Applicants’ case on unconscionability.

29    An interesting aspect of the case alleged in relation to the individual consumers is that it relied, in part, on the Applicants’ more general system case pleaded in relation to Unique’s enrolment processes. This can be seen, for example, at paragraph 48 of the ASOC (in relation to Ms Kylie Simpson) which explicitly picks up the system case pleaded at paragraphs 21 and 22. A related curiosity is that the system case at paragraph 27 of the ASOC alleges that the individual consumers’ cases are to be seen as manifestations of the system case. It is possible this results in some circularity. However, it is best not to be distracted by these pleading issues in the abstract. This is because the pleadings do sufficiently identify the four principal areas of evidentiary dispute between the parties. These are:

    the nature of Unique’s enrolment system;

    the events at Walgett on 10 October 2014;

    the events at Tolland on 30 March 2015; and

    the events at Bourke on 10 June 2015.

30    The Applicants also relied upon some events at Taree although not in relation to individual consumers. Each of these topics is hotly in dispute between the parties. Unique says that its enrolment processes were proper and called witnesses from amongst its staff and officers to make good this point. These witnesses were cross-examined extensively by Senior Counsel for the Applicants to suggest that their evidence was unreliable. The basic thrust of the cross-examination, to strip it of much of its undoubted subtlety, was that the evidence produced by Unique of its proper processes was concocted after the event for the purposes of this proceeding.

31    Some of the witnesses called by Unique in relation to its systems also gave evidence about the events at Walgett, Tolland and Bourke. Their evidence was to the effect that the presentations to would-be consumers which Unique, through its staff, had conducted had been adequate and appropriate. The Applicants called a number of witnesses who were present at these meetings to give evidence about the deficiencies of what had occurred. These witnesses were cross-examined by Senior Counsel for Unique with a view to establishing, inter alia, that their recollection was not clear or that they did not know precisely what was going on.

32    The case therefore presented the unusual spectacle of most of the witnesses being subject to serious credit attacks. Both sides achieved a measure of success in this regard. The resolution of the factual debate in this case is, therefore, a very complicated affair and, if I may say with respect, much more complicated than either side’s submissions assumed. Both sides argued that most of their own witnesses were reliable and most of the other side’s were not. This was an overly simplistic approach to a much more complex situation. Many of the witnesses on both sides were plainly unreliable in one way or the other. A dose of realism in the parties’ submissions would have been helpful. I will start with the evidence before moving to my ultimate findings.

4. The Applicants’ Lay Witnesses

33    There were eight lay witnesses for the Applicants. There were also some formal affidavits read relating to enrolment data which do not need to be assayed. The eight lay witnesses were:

    Natasha Paudel;

    Margaret Simpson;

    Kylie Simpson;

    Jaycee Edwards;

    June Smith;

    Fiona Smith;

    Larissa Kidwell; and

    Penny Martin.

34    I deal with these in turn.

Natasha Paudel (Walgett)

35    Ms Paudel affirmed an affidavit in this proceeding of 29 March 2016. She gave oral evidence on the fourth day of the trial which was 9 June 2016.

36    The evidence of Ms Paudel relates to events which most likely occurred on 10 October 2014 (the date on her enrolment form) at Walgett. Ms Paudel is around 30 years old, Aboriginal and lives in Walgett with her family. At the time of the events which underlie this proceeding, she was living with her parents as she had been involved in a car accident and was in the process of recovering. This should be emphasised because her recovery from this car accident was a part of the Applicants’ case on unconscionability. I admitted evidence by Ms Paudel that at this time she thought she was in a ‘vulnerable headspace’ but only as evidence that that was her own opinion. There was no expert testimony that the sequalae of the car accident rendered Ms Paudel vulnerable or unable to understand what she was doing.

37    She completed year 12 at high school although not any further training. She has good computer skills and can use the internet. When she gave evidence in the proceeding she was employed as a school learning support officer at Walgett Primary School. She has also worked part time at a women’s refuge. She has had a number of other responsible positions such as the hostel manager for the Darungaling Hostel which assists Aboriginal people engaged in tertiary study in the Newcastle area. She has also worked at the Attorney-General’s Department assisting Aboriginal people involved in cases before the Local Court and the Victims Compensation Tribunal. As I relate below, she has previously earned more than $50,000 per annum.

38    Ms Paudel gave her evidence in a careful and considered fashion. Both sides submitted that she was a witness of credit whose evidence should, in general, be accepted. I agree with those submissions. She struck me as an impressive witness who was both intelligent and endeavouring to assist as much as she could by her evidence.

39    Mr Alan Tighe is a member of the extended family of Ms Paudel’s mother and is known to Ms Paudel. At some point in October 2014, Ms Paudel was driving with another person along Sutherland Street in Walgett when she saw a group of about four to five people standing outside a house she knew to be Alan Tighe’s. One of these persons was Mr Billy Jones, who was also known to Ms Paudel. She decided to pull over to the kerb and ask Billy Jones what was going on. He replied, in effect, that if she wanted to get a free iPad or laptop she should sign up for a Diploma of Management or Salon Management. Ms Paudel’s evidence did not include the suggestion that Billy Jones had said explicitly that the iPads and laptops would be free but I am satisfied that this was conveyed. Ms Paudel subsequently reported the conversation to her cousin, Trishy Anne Walford, and in that account of her initial conversation it is apparent that she attributed to Billy Jones the statement that the iPads and laptops would be free. As will become clear, iPads and laptops were being handed out at Alan Tighe’s house and it is altogether plausible, indeed likely, that Billy Jones would have said this.

40    Ms Paudel gave evidence that she also asked Billy Jones which course he was doing and he said that he was doing salon management. This made Ms Paudel laugh, I infer, because of the unlikelihood of Billy Jones being involved in salon management. It was probably at this point that Billy Jones told Ms Paudel that the courses being offered were also free. Ms Paudel did not mention this in her evidence in chief but she did mention it under cross-examination. She was challenged as to whether she was mistaken and that the reference to the courses being free was perhaps really a reference to the iPads and laptops being free but this she did not accept. Although, as I indicate below, she did not pretend to have a perfect recollection of the precise train of events, I am satisfied nevertheless that Billy Jones did say this to her.

41    The impression that this encounter between Ms Paudel and Billy Jones, which opens with a fragment of conversation about an unidentified course and free computer equipment, does not make terribly much sense is borne out, I think, by the fact that Ms Paudel was disinclined, at least initially, to take Billy Jones seriously.

42    In any event, by that evening it seems that Ms Paudel had understood that the deal being offered by whomever Billy Jones had himself been talking to was that she would receive a free iPad or laptop if she enrolled in a course and the course was free. She said as much to her cousin, Trishy, at least in relation to the iPad and laptop.

43    But the iPad and laptop were not her only motivations. Ms Paudel also gave evidence that she had some interest in doing a management course at this time. In fact, she claimed to have been in negotiations with another government provider possibly to ‘do a management role back in Newcastle’ at that time. I infer that her interest in returning to Alan Tighe’s house to explore the situation further was therefore twofold. On the one hand she was motivated by a significant interest in obtaining free computer equipment; on the other, she also had some interest in the subject matter of the courses being offered.

44    Ms Paudel and Trishy then decided to go back to Alan Tighe’s house the next day and to find out what it was all about. Ms Paudel did not explain in her evidence why she thought that the iPads and laptops would still be available the next day at Alan Tighe’s house but the most likely explanation is that something else to that effect may have been said to her by Billy Jones. Perhaps, alternatively, she did not know this but just thought it was worth a try. I do not need to resolve this issue, however, because there is no doubt that she did go back and that the iPads and laptops were still available when she did

45    It was Ms Paudel’s evidence that she and Trishy arrived at Alan Tighe’s house just after lunch on the next day. Upon entering the home, Ms Paudel saw two sales representatives sitting at a table, both of whom were Indian women. I interpolate at this point that I am satisfied that the two women involved were Ms Mandeep Kang and Ms Jasmeen Kaur (‘Jasmeen’), both employees of Unique. There was also a third male employee present who I am satisfied was most likely Guramrit Singh Jandu (‘Rubbal’). On the table were piles of forms with the words ‘Apply for VET’ written on them. There were also boxes filled with iPads and laptops.

46    The tableau was as follows: there were a number of people standing around the table some of whom were known to Ms Paudel; she saw people filling out the forms with the assistance of one of the sales representatives; and, upon completing the forms, being handed an iPad or laptop in a box. Ms Paudel described the room as one in which people were ‘coming and going’.

47    She very frankly agreed that her recollection of events was not perfect which was a reasonable concession to make and to her credit for so doing. Under cross-examination she agreed that the two women had said they were an ‘approved provider’. I suspect she really meant by this that they had said Unique was an approved provider. It would be natural for them to have said so and in her evidence Ms Paudel appeared to accept that someone had mentioned Unique at some stage during her time at Alan Tighe’s house. I accept that the following answer that she gave about this during cross-examination at T-331 was not as clear as it could have been:

‘Did they tell you – or someone tell you – I withdraw that. Did one of the Indian ladies tell you they were from Unique College?---I can’t remember if they said those words, but I just remember Sydney. So – yes.’

48    However, given the practical exigencies of the situation I think this would have been said and I take this answer to be some evidence, although perhaps not the best, that it was. In any event, I accept that Ms Paudel was informed by the two Indian women that the courses were being offered by Unique. It is very likely at around the same time that she was also told there were two courses on offer: the Diploma of Management and the Diploma of Salon Management. She had, of course, heard this the day before from Billy Jones in her initial encounter with him on Sutherland Street. The question of timing is an inference I have drawn but there is no doubt this was said and this seems to be the natural time at which it would have been said.

49    At some point, one of the sales representatives handed Ms Paudel one of the forms headed ‘Apply for VET’. She saw the words ‘Diploma of Management’ on the form together with a figure of around $20,000. The $20,000 was a reference to the tuition fees for the course in the Diploma of Management. Of course, she had been told by Billy Jones the day before that the courses were free. Ms Paudel herself was puzzled by why the course would cost $20,000 but did not think to ask about this at the time. In any event, as she accepted under cross-examination, whatever had been said about the courses being free, she knew by the time it came to considering the form that the course she was signing up to cost around $20,000.

50    It is necessary to pause here to observe that Ms Paudel did not give evidence that any of Unique’s representatives had told her that the courses were free. Her evidence about the courses being free was singularly derived from what Billy Jones had told her. And, contrary to her prior belief, she knew once she saw the forms that at least one of the courses actually cost $20,000. It is fair to say, therefore, that the only evidence about what Unique’s representatives said about the cost of the course was that which was contained in the forms she was handed. Ms Paudel’s evidence establishes that she knew that the forms said the course cost $20,000.

51    Some interim conclusions follow from this. First, no-one from Unique told Ms Paudel that the course would be free. Secondly, Unique – through its application form – told at least Ms Paudel, that the course would cost $20,000. Thirdly, Ms Paudel understood this.

52    Ms Paudel also accepted that she had been told that the $20,000 tuition fee would be paid by a loan from the government which would not be repayable until she earned more than $50,000 (although, as I have explained, the minimum repayment income was $53,345 at this time, I do not make anything of this discrepancy). During her cross-examination, Ms Paudel said that her understanding about VET FEE-HELP at this time was not complete (she understood it ‘a little bit’: T-323.11). In this, she is no doubt correct. I do not think, for example, that at the signing up session she understood that the loan would be paid back through the tax system. However, I am satisfied she understood that the tuition fees would be lent to her and that she would have to repay them when her income reached around $50,000.

53    Some other matters emerged during the cross-examination. It seems likely that she was told that the course was offered online which made it attractive to her and that it was possible to cancel enrolment prior to some date not made very clear in the evidence. I infer that the date in question was what is known as the census date. I explain this concept more fully below. For present purposes, I am prepared to infer that Ms Paudel was told she could withdraw up to the census date. It seems she was also told that a support person was offered by Unique who could be called in the case of query and that she would be sent further documentation by that person.

54    At some point during this process – most likely at its conclusion – Ms Paudel completed the paperwork encompassed in the forms she had been provided. It appears that the forms had asterisks next to sections which she was asked to complete but that employees of Unique filled out the balance of the form later on. In particular, there were several sections containing ticks which Ms Paudel said were not done by her (I accept Ms Paudel could recognise her own handwriting). Some of these ticks were next to statements acknowledging matters such as that particular information had been provided or that she had read and understood the obligations arising from the VET FEE-HELP scheme. I accept that Ms Paudel did not tick these boxes and had not been acquainted with these matters (although as I explain later, I am also satisfied that she understood what she was doing).

55    The forms also included a signed declaration in the following terms:

‘I acknowledge that I have been given the correct information on the total due fees for my chosen course which is ____________________ and understand that I have to start repaying the due fees plus the 20% loan fee back once I start earning above the minimum threshold __________________ as per VET FEEHELP Information for 2015.’

56    Ms Paudel did not recall the 20% fee being mentioned although she accepted that it was possible that it had been mentioned. I am not satisfied that the 20% fee was not brought to her attention.

57    Importantly, she did say, however, that one of the Indian ladies had said to her that if she started to earn more than $50,000 she would have to start repaying the government. For completeness, Ms Paudel had, at the time she signed the form, already previously earned more than $50,000, so I do not think that for her the possibility that repayment would become necessary was academic

58    All up the filling out of the forms appears to have taken about 15 minutes and she was otherwise present at Alan Tighe’s house for about half an hour. She described the form filling as ‘very quick’: T-320.14.

59    No evidence was led that Ms Paudel received a laptop. I infer, however, that she did. It was one of the reasons she had gone to Alan Tighe’s house and Unique’s representatives were in fact giving out laptops. I can see no reason why this would not have occurred.

60    Ms Paudel did not report seeing the representatives of Unique giving an introductory session during which they explained the details of the courses to the people present. I discuss this in more detail below but Unique’s witnesses gave evidence that such a detailed introduction did occur and that it was during that introduction that the nature of the courses and the VET FEE-HELP scheme were fully explained. Because Ms Paudel is a reliable witness I am confident that she did not see such an introduction being given whilst she was there. Had she done so it would have been mentioned in her evidence; but it was not. Counsel for Unique – correctly accepting with respect that she was a reliable witness – put to Ms Paudel that she may have arrived after the information session was given, with which she agreed

61    For present purposes, it is sufficient to accept that contention. There is no utility in asking, in relation to the case concerning Ms Paudel, whether the introductory session was in fact given if she was not there when it is said to have occurred.

62    After she left Alan Tighe’s house, Ms Paudel began to develop doubts over the legitimacy of the enrolment process and, in fact, that what was involved with the enrolment process was some form of ‘scam’. These doubts were inspired by a conversation she had with a relative of hers who warned her that enrolling in the course would merely leave her with a debt. She subsequently received an email from Unique and decided to call the college. During that telephone call she was told that Unique did not involve a ‘scam’. She subsequently received some emails from Unique about the courses but she has never taken any further step to pursue the course in which she had enrolled on that October day. As at the date of the hearing she was unaware whether she had a VET FEE-HELP debt or not.

Margaret Simpson (Tolland)

63    Mrs Simpson swore two affidavits in this proceeding; one of 25 January 2016 and another of 17 May 2016. She gave oral evidence on the fourth and fifth days of the trial which were 9-10 June 2016. Her being called was chiefly to give evidence in relation to two of the six consumers in the Applicants’ individual consumers case which, as I have explained, also bears on the Applicants’ system case.

64    Primarily, Mrs Simpson gave evidence of the difficulties encountered by her grandson, Tre Simpson, referred to hereafter as ‘Tre’. Tre is now a 22 year old Aboriginal man. He requires full-time supervision (for reasons which I shall explain) which Mrs Simpson has provided to him his entire life. Unique accepted in its written submissions that Mrs Simpson’s evidence of Tre’s demeanour and nature was credible and was the product of many years of close range observation. Tre’s conditions are many. He has neurofibromatosis, also known as Von Recklinghausen’s Disease, Attention Deficit Disorder, Attention Deficit Hyperactivity Disorder and Oppositional Defiant Disorder (Adolescent). Until just before the trial, he was taking Risperidone, an antipsychotic medicine, and at earlier times he has taken dexamphetamine, Ritalin and anti-depressants. A few months prior to the events which I am about to relate, he was diagnosed with depression as a result of which he did, on occasion, take Mirtazapine. I note in passing that he no longer does so, although he continues to be prescribed Risperidone.

65    According to Mrs Simpson, although Tre is 21 he acts like he is 15. He cannot manage money or handle change. He does not talk much and particularly not to strangers. When he does speak (usually to friends or family) Mrs Simpson said it is often very difficult to follow what he is saying. He speaks without thinking, has no patience and cannot concentrate. He becomes abusive without provocation. Because of his difficulties, Mrs Simpson is unable to leave Tre unsupervised and has to attend meetings with him as she said he cannot look after himself. The evidence suggests that Tre can read, at least to an extent. He left school after completing year 10 at high school and Mrs Simpson gave evidence that he had used a computer in the past. I accept this evidence.

66    Tre was not called to give evidence before me. Although no explanation for this was given, I am prepared to infer that Tre was unwilling to travel to Sydney for the hearing. Certainly Mrs Simpson gave evidence that he was too scared to do so. Unique made no criticism of the decision by the Applicants not to call Tre. I think it reasonably plain that his various difficulties would have made the eliciting of evidence from him very difficult.

67    Nevertheless, that leaves me in something of a quandary. Although I am aware from Mrs Simpson’s evidence of the various difficulties which Tre faces, I am not aware of the extent to which these problems may be obvious to others. I say that having particular regard to Mrs Simpson’s evidence that he is silent around strangers. She also gave evidence that he could answer simple questions.

68    It has not been shown to my satisfaction that Tre’s difficulties would have been obvious to Unique’s staff. Accepting Mrs Simpson’s evidence that he did not look healthy because he did not eat properly, he might merely have seemed at the sign-up meeting an unhealthy and silent youth; perhaps a not unrecognisable condition to those used to dealing with young adults in Tre’s situation. Although Mrs Simpson gave evidence that he could be abusive at times it was not her evidence that he was abusive during the meeting.

69    Turning then to what Mrs Simpson said happened at the meeting (which was not the only topic she addressed in her testimony), it was largely unhelpful to Unique. For that reason Unique submitted that this aspect of her evidence was unreliable whilst not going so far as to submit that Mrs Simpson was dishonest. I think it useful to begin with what Mrs Simpson’s account was, then to address these criticisms.

70    Lavina Merritt (whom Mrs Simpson calls Aunty Vennie) had driven over to Mrs Simpson’s house following a chance encounter in the street. This occurred as Mrs Simpson was en route home after visiting her daughter’s house. Aunty Vennie had pulled up in a car driven by a man with whom Mrs Simpson was not familiar. She said that that he ‘looked Indian in appearance’. A short discussion ensued which involved, in a similar fashion to the conversation between Ms Paudel and Billy Jones in Walgett, the topic of free laptops. Mrs Simpson gave evidence that she then walked home, soon after which she again met with Aunty Vennie and that same man whom she now believed to be ‘some kind of salesman because he was not from around my area’. This occurred out the front of Mrs Simpson’s house.

71    Mrs Simpson then invited the two of them into her home, which provided Aunty Vennie with an opportunity to remark to Tre that a free laptop was available to him. Mrs Simpson’s evidence was that Tre then ran through the house and said “Aunty Vennie’s got laptops’. He was to Mrs Simpson’s observation excited. This was not a novel situation for Mrs Simpson. On a prior occasion, Tre had obtained a free laptop from some other vocational entity. When Tre mentioned the free laptop on this occasion she remarked ‘Oh Tre, not again.’

72    At this point, Tre was running through the house looking for his tax file number and pension card (he receives the disability support pension). It seems likely that he was told that he would need these and it seems to me that it is most likely Aunty Vennie who told him this.

73    The three of them then drove from Mrs Simpson and Tre’s house in Wagga Wagga to Aunty Vennie’s house at Tolland. When they arrived, Mrs Simpson saw about 10 people there which she said caused her to remark to Aunty Vennie ‘What a line up, it’s like Centrelink’. The people who were there were all signing application forms. As will be seen, this is apt to suggest that Mrs Simpson and Tre had arrived at an event which had already commenced.

74    When she arrived, Mrs Simpson saw two women sitting at a long table who were of Indian appearance. It is clear from evidence led later in the trial that these must have been Mandy Kang and Jasmeen. They did not identify themselves or where they were from. According to Mrs Simpson, one of these women immediately handed her some papers and a test to complete. At the time this occurred, Mrs Simpson said that no explanation was provided for what this paperwork was. In any event, she and Tre went to the front of the house and sat on some tables and chairs on the front lawn.

75    Before turning to what Mrs Simpson and Tre did with this paperwork, it is useful to describe what it was. The paperwork was comprised of eleven separate forms:

1.    A pre-enrolment questionnaire;

2.    A pre-enrolment test;

3.    An acknowledgment form headed ‘Information session’;

4.    An enrolment application and agreement form;

5.    An Australian government form entitled ‘Request for VET FEE-HELP’;

6.    A consent form giving permission to Unique to apply for a ‘Unique Student Identifier’;

7.    An acknowledgment form acknowledging that online students had received an orientation program;

8.    A consent form consenting to the use by Unique of still photographs or videos of the applicant in its promotional materials;

9.    An evaluation form assessing the student induction process;

10.    An acknowledgment form acknowledging that the cost of the course had been disclosed; and

11.    A student feedback form.

76    In her affidavit, Mrs Simpson said that she filled out these forms as best she could for Tre. This included his name, age and address. In relation to the second document mentioned above (a pre-enrolment test) she said that she obtained assistance from a friend of hers who was present at the meeting, called Mel Connors. I shall call her Mel. During her cross-examination, Mrs Simpson gave additional evidence that Mel might have assisted with filling out some of the other forms too.

77    During her cross-examination, Mrs Simpson was taken to a number of the documents referred to above. In a number of instances she denied the writing was hers although in others she accepted it was.

78    The forms are, nevertheless, interesting and by themselves throw light on what was taking place. I deal with each in turn:

Pre-enrolment questionnaire

79    The first form was that entitled ‘Pre-Enrolment Questionnaire’. Its front page said this:

‘(The purpose of this questionnaire is to determine the potential student’s suitability to the course.)

Unique International College (UIC) delegate will use this form to conduct an interview with each applicant to assess suitability into the qualification. The SMD179 Local Student enrolment application and agreement form will be completed and signed by all local students after an interview has been successfully completed. Students who wish to enrol under VET FEE-HELP program must complete additional documents e.g. Request for VET FEE-HELP assistance forms, VFHD 2 information session acknowledgement form etc.

A Student meets the entry requirements in line with SMP 133 Student entry requirements, enrolment and orientation policy if the student provides satisfactory answers to all the following questions asked by Unique International College (UIC) Delegate.’

80    Mrs Simpson’s affidavit evidence was that she filled the form out with Tre. According to her affidavit evidence, Mel did not help with this form but only with the maths questions which were in the second form, the pre-enrolment test. In cross-examination it appeared that Mel’s role might have touched upon other forms. In any event, the critical point is that Mrs Simpson gave no evidence of any person from Unique conducting the test as this form suggested should have happened.

81    The evidence led by Unique in relation to Mrs Simpson and Tre consisted of the testimony of Ms Kang, Jasmeen, Mr Christopher Bell and his partner, Thea Merritt (‘Thea’). As will be seen, these witnesses gave evidence of an allegedly invariable practice of Ms Kang’s of conducting a presentation at the start of each meeting. It was during this presentation that she imparted what was said to be an adequate explanation of the nature of the course and, more generally, the VET FEE-HELP scheme to the assembled potential students. Jasmeen and Mr Bell gave corroborating evidence of this practice. Ms Kang gave evidence of having given assistance to Tre in completing some of the paperwork by filling out his student feedback form (form 11 in my list above). As I discuss when dealing with Ms Kang’s evidence, I reject this. Ms Kang completed this aspect of the paperwork without consulting him when she discovered it was incomplete. Later in these reasons I conclude that the evidence of all four of these witnesses on the topic of Ms Kang’s presentation is unreliable.

82    Something additional should also be said of the evidence of Thea. She is Aunty Vennie’s granddaughter. She was present at the same meeting at Vennie’s house. She corroborates Ms Kang’s evidence that a presentation was given at the outset of that meeting. However, that may be irrelevant because Mrs Simpson’s evidence suggested that she and Tre arrived at a time when the 8 or 9 people present at the meeting had begun filling out the forms, that is to say, after the time at which Ms Kang would have allegedly given the presentation to which she testified.

83    If that be so, there arises no direct collision between Ms Kang’s evidence about her presentation and Mrs Simpson’s evidence about the meeting because they can be reconciled by the fact that Mrs Simpson and Tre arrived late.

84    Thea’s evidence complicates this, however. During her cross-examination at T-1241 Thea gave evidence that Mrs Simpson and Tre had arrived with Mrs Simpson’s daughter, Kylie Simpson (‘Kylie’) and that Kylie had been present during Ms Kang’s presentation. This carried with it the further implication that Mrs Simpson and Tre had been present for the presentation. Thea also contradicted Mrs Simpson’s evidence that she and Tre had filled out the forms outside the front of the house. She said, rather, that she had seen them filling the forms out inside the house with the others.

85    How may this conflict be resolved? It has not yet been necessary to deal with the evidence of Kylie who was also present at the meeting. Kylie, like Tre, is one of the persons in the Applicants’ individual consumers case and it will be necessary to deal with her evidence in relation to that aspect presently. However, she also gives evidence which has ancillary relevance to the case about Tre. This is because she too came to Aunty Vennie’s home.

86    Kylie’s affidavit evidence about this was that she had been at home with Mrs Simpson and Tre. One might have taken from this at least that Kylie lived in the same home as Mrs Simpson. However, Mrs Simpson’s evidence was that Kylie lived around the corner. I think that Kylie’s evidence simply means therefore that Kylie was at Mrs Simpson’s home. Kylie said that Aunty Vennie came around and took Mrs Simpson and Tre to Aunty Vennie’s home in Tolland. She then said that Aunty Vennie returned about 20 minutes later and took her and Regina, who is her sister, to Aunty Vennie’s home at Tolland.

87    Unique submitted that Kylie’s evidence contradicted Mrs Simpson’s as to whether both were present at the house at Tolland at the same time citing T-430.1 and T-464.21.

88    Mrs Simpson’s evidence was, at T-430, that Aunty Vennie took the two of them to her home. When they returned to Mrs Simpson’s home afterwards, Kylie was there and it was then that Aunty Vennie took Kylie to her home. Kylie’s evidence was that the three of them (Mrs Simpson, Tre and herself) were at Mrs Simpson’s house, Aunty Vennie picked up Mrs Simpson and Tre and took them to her house. It was at this point that Aunty Vennie returned and took Kylie and Regina to her house. On this view, Mrs Simpson and Tre were still at Aunty Vennie’s house along with the Unique employees when Kylie arrived. Consistent with that version of events, Kylie said she saw Mrs Simpson and Tre there.

89    Kylie was cross-examined by Senior Counsel for Unique. I will expand on this later when I deal with her direct evidence about her own dealings with Unique. However, I formed a strong view during her cross-examination that, with respect, she had very little grasp of what was going on around her. For example, she was asked during her examination in chief about the forms she had signed at the sign-up meeting. The exchange with counsel is reproduced below:

‘Did anyone read the following text to you:

“John and Emily are the directors for the company called JE Houses. In year 2009, John and Emily bought 5 houses in Kingspark. After two years they purchased one more house in the same area.”

1. How many houses do JE houses have in total?’

(errors in original)

90    At T-452, Kylie answered this question ‘Six’ (the question was whether anyone read her the question). This was not an isolated example of her comprehension difficulties. In her affidavit of 25 January 2016 at paragraph 35 she said that she thought that she might be signing up to a course but during her oral evidence at T-460 she said that no one said anything about a course to her and she did not think she was signing up to one. She then agreed at T-460 during oral evidence that her affidavit evidence in this regard was incorrect (i.e. she had not thought she was signing up to a course) but then moments later during oral evidence she indicated at T-461 that she may have been signing up for a course.

91    She was asked whether she understood the course was offered online. During her cross-examination at T-471 this exchange occurred:

‘See, well, did you understand the course that was being offered was online course? --- Online?

Yes, online? --- I’ve got no internet at home. I couldn’t do nothing at home because I’ve got no internet.

But did you understand the course being offered was online? --- No. This one here, all the ticks on here, I never ticked all these ones here.

What was that, I’m sorry? --- This one here.

Yes? --- 4 to 6.

Yes? --- I never seen this one, I never ticked all these ones here.’

92    She also gave evidence about her signature which I cannot accept. She was taken to the forms that were filled out in support of her application to enrol in a Unique course. During cross-examination at T-474 she acknowledged that the signature contained in one of the forms was hers but she denied earlier in her cross-examination at T-455 and T-457 that other signatures in related forms were hers. For privacy reasons, I will not set out a copy of the signatures on those pages. However, I will record that the signatures are all the same so that Kylie’s evidence makes no sense.

93    In addition to these matters, I should record that Kylie presented as a witness who seemed to have little grasp of what was being said to her. She appeared emotionally flat and unengaged. Like her brother, Tre, Kylie has Von Recklinghausen Disease and suffers from severe migraines. She cannot read or write very well. Although 44 years of age she has never worked because of her disabilities. It was my impression that Kylie is a person of very limited capacities. It is also clear that this would be obvious to anyone who spoke with her.

94    In making those remarks I have taken into account the fact that in many cases indigenous people find it difficult to give evidence in the context of a courtroom so that what sometimes appear to be demeanour related issues are in fact cultural artefacts.

95    Despite that, I do not think that I can rely upon Kylie’s evidence. This is not because I think she was seeking to deceive the Court. I do not think that to be the case. Rather, it is because I found it very difficult to extract any coherent narrative from it. Her affidavit evidence did present a clear narrative but the disjunct between it and her oral evidence is such that the obscurity of the latter causes me to doubt the apparent coherence of the former.

96    Consequently, Kylie’s evidence is of little use in resolving the conflict between Mrs Simpson and Thea. On balance I have come to the view that I should prefer Mrs Simpson’s evidence about this over Thea’s. The reason is that I think it more likely that Mrs Simpson would recall who she attended the meeting with, particularly when Tre and Kylie are close relatives. As I later explain about Thea, there is also reason to doubt her reliability as a witness.

97    I therefore conclude that Mrs Simpson and Tre did not arrive with Kylie. Further, I accept Mrs Simpson’s evidence that she and Tre did not see a presentation by Ms Kang.

98    Returning then, perhaps at length, to the pre-enrolment questionnaire handed to Mrs Simpson and Tre, it will follow, if it did not already appear clear, that the interview by Unique’s delegate referred to in it certainly did not happen in Tre and Mrs Simpson’s case. So far as the filling out of the questionnaire itself was concerned the evidence was a little unclear. It seems Tre wanted Mrs Simpson to fill it out for him in its entirety but she pointed out that parts of it called for his signature. In filling out the questionnaire and, so it seems, the other forms, Mrs Simpson derived no assistance from the Unique staff who were present.

99    There were six questions on the first page of the questionnaire accompanied by a series of ticks in fields alongside those questions. The questions seem to have been intended to gauge the suitability of the candidate for the chosen course. This is apparent from part of question 3 which, relevantly, was as follows.

‘If yes, does the student meet the minimum entry requirements? (Please answer this question in conjunction with the question in the questionnaire).”

100    Mrs Simpson’s evidence was that, apart from question 4, all of the ticks on this page had not been placed there by her. Question 4 asked what the intended mode of study was and there Mrs Simpson said she had ticked a box marked ‘online’. Why she decided to tick that box was not established in the evidence. At best one can surmise that she may have thought that this might justify the apparently free iPad or laptop.

101    But the other questions are instructive. Question 2 asks what course was to be studied and here there is a tick next to ‘Diploma of Management’. Question 5 poses a series of questions which may be summarised as questions asking whether the student has sufficient computer skills to use Word, email, Excel, PowerPoint and Skype. Next to all of these there are ticks in the column marked satisfactory. Because I accept Mrs Simpson’s evidence about the writing on this form, it follows that these marks were placed there by someone not being her or Tre. Under cross-examination, Mrs Simpson agreed that her friend Mel had joined her to help her with filling out the form at the time the questionnaire was being completed. Mrs Simpson accepted that the ticks on the questionnaire which were not in her own handwriting might have been done by Mel. At other parts of the evidence, Mrs Simpson suggested that Mel helped with the maths questions (which are not located in the questionnaire).

102    The second page of the form includes in the same unidentified hand an indication that Tre has ‘advance’ technical skill, a proposition for which there can be no foundation. Mrs Simpson accepted that she had indicated on this second page that Tre had access to a computer and the internet at home (which does not, in fact, appear to have been correct) and he did not require extra assistance or have medical conditions. Tre’s signature appears on this page and her evidence was that it was his signature.

Pre-enrolment test

103    The second form was entitled ‘pre-enrolment test’. It consisted of a series of questions. There are six questions on the first page.

104    They, and the hand written answers appearing under them, were as follows:

‘Student Name: TRE SIMPSON

Please indicate in 200 words or less why you want to undertake study in this course? NEED EDUCATION

Please indicate any issues in 200 words or less that you believe may affect your studies (e.g. illness, disability, family commitments, works commitments, etc).

NO

What career path would you like to enter into on the completion of this course? Explain briefly in 200 words or less.

MANAGER

Are you currently employed in industry of your chosen study? Explain briefly in 200 words or less.

NO

Why have you chosen to do complete your studies through online study mode?

NO

Why have you chosen to study at Unique International College?

EASY FOR ME’

(Italics indicate handwriting)

105    Mrs Simpson’s evidence was that she filled in Tre’s name and the words ‘need education’ but the other answers were not in her handwriting. It is clearer in the case of this second form that Mel assisted in its completion (because it is this form which contains the maths questions). I conclude that some of the other answers were written by Mel. I say ‘some’ because, in fact, it may be that there are three different handwriting styles evident on this page. The identity of the third person is unclear.

106    The following page of the test involves questions intended to show the student’s aptitude for the course. For example:

107    The answers to ‘1’ and ‘2’ are correct. The answers 1(b) and 2(a) have been circled correctly. Mrs Simpson said she did not see this page and I conclude that it was completed by Mel. Similar remarks may be made about the balance of this test, that is to say, parts of it were completed by Mrs Simpson, some by Mel, perhaps some by someone else. No-one suggested that Tre had much input into the process, apart from applying his signature.

Acknowledgment form headed ‘Information session’

108    The next document was a pro forma certification in this form:

(italics indicate handwriting)

109    The ticks in the boxes were handwritten but Mrs Simpson’s evidence was that the handwriting was not hers. The signature is Tre’s and Mrs Simpson wrote his name at the top of the form. There are some other matters which should be observed about this form. First, for the reasons I have given, is the fact that none of the matters which Tre is taken to have certified were explained to him on this form, were explained either to him or Mrs Simpson. That, of course, includes this form itself. Secondly, as I explain later in these reasons at [483], the signature of ‘Jyoti’ which appears under Tre’s signature could not have been affixed on the date it bears. Jyoti Chaudhary was not in Tolland at this meeting. To the extent that this form suggests in some way that Ms Chaudhary was a witness to the matters Tre is apparently certifying, this impression is false. Thirdly, in relation to the ticks it was Mrs Simpson’s evidence that she thought it likely that they had been placed there by Mel but this was only because:

‘I would say she would have, because she’s the only one there doing the paperwork with us.’

110    This rather suggests that Mrs Simpson’s evidence about how much of the forms had been filled out by Mel was influenced by an assumption on her part that the ticks had been placed on the forms at the meeting and not subsequently.

111    This is consistent with a more general observation about Mrs Simpson’s evidence as to how she filled out the forms. It is this: in her efforts to assist the Court in her evidence about how the forms were filled out she was at times prone to give answers based not on what she recalled but, where she could not remember, on what she thought she had done; that is to say, her evidence about the forms was attended by a degree of ex post facto reconstruction. I do not mean this critically and it was an understandable position in the circumstances.

112    It is of some significance in the present context, however. Mrs Simpson’s testimony is some evidence that the only other person who helped fill out the forms was Mel. However, I do not think that her evidence can exclude the possibility that some other person filled them out later. It was part of the Applicants’ case that this, in fact, had occurred. I deal with the evidence relating to that later in these reasons at [126]-[127], [133]-[134], [278]-[281], [443]-[446], [483]-[484], [527]-[528] and [556], but these observations will mean that Mrs Simpson’s evidence is not to be seen as reliably contradicting such a case.

Enrolment application and agreement form

113    The next form was entitled ‘Enrolment Application and Agreement Form’. This form was six pages long. The way it was completed would suggest to the reader that the applicant was Tre Simpson, that he was born in Australia, that his highest level of education was year 10, that he spoke ‘excellent’ English, that he was unemployed and that he wished to do the Diploma of Management full-time in April 2015. The form indicated Tre’s desire to complete a Diploma of Management because a tick appeared in a box next to that course. Next to that box were the words ‘Tuition Fee $22,000’.

114    On page 4 of the form there was a section dealing with language, literacy and numeracy (‘LLN’). It explained that Unique provided LLN support to students who required it. This was followed by two boxes as follows, the left one of which was ticked:

115    There may be difficulties in understanding how a person with literacy problems might be expected to approach this question but that is not presently relevant. There was another section on the same page which appeared to indicate that Tre had ‘Advanced’ computer skills (by circling the appropriate answer in a box so marked).

116    Mrs Simpson’s oral evidence in chief was that neither she nor Tre had ticked the ‘Advanced’ box or the LLN box. Insofar as the rest of the form was concerned she confirmed, with a degree of uncertainty, that some parts were in her handwriting and others (principally signatures) were in Tre’s. Although this was explored in some detail, I do not think I need to set it out. But she did give evidence that parts of the form had not been filled out by her in addition to the two I have already mentioned. These were:

    the ticks on p.2 (indicating completion of year 10);

    the year ‘2012’ in the same section;

    the section headed ‘Diploma of Management. VET FEE-HELP. Full time six months. Part time 12 months. Tuition $22,000’ (T 408); and

    the course start date at p.3.

117    I pause here to note that the completion of the first two of these parts she attributed to Tre, whereas the second two she attributed to an unknown third party. Generally speaking, Unique submitted that Mrs Simpson seemed overly clear that the handwriting was not hers whenever the topic of VET FEE-HELP arose, although it did not say this was the result of deliberate deceit on her part. It was an unconscious bias, so it was said, arising from her understandable concern for her grandson. More specifically, Unique suggested that her testimony was influenced by her natural concern that Tre not be burdened by a debt for a course he did not complete. This suggestion seems somewhat at odds with the proposition that Mrs Simpson was not deliberately lying to the Court and I do not accept this criticism of her evidence. Although I do think that there was a degree of unconscious reconstruction in her evidence as to the filling out of the forms, I do not think that she displayed the unconscious bias for which Unique contended. Whilst it is true that her evidence about those parts of the form referring to VET FEE-HELP was that the writing was not hers, an alternative explanation is that these parts were filled out by Unique employees after the event. As will be seen later in these reasons at [126]-[127], [133]-[134], [279]-[281], [443]-[446], [483]-[484], [527]-[528] and [556] that is the interpretation I favour.

Australian government form entitled ‘Request for VET FEE-HELP’

118    The next form was a government form headed ‘Request for VET FEE-HELP assistance’. By this form a person could request VET FEE-HELP. This form contained expected fields for completion such as name and address, date of birth, course to be studied and Australian citizenship/residency. It also had fields for the applicant’s tax file number and, at item 10, a section headed ‘Your obligations’. This section was as follows (including ticks):

119    This was then followed by items 11 and 12 which were as follows:

‘11. By signing this form, you also:

● declare that:

-     you have read the VET FEE-HELP information booklet and are aware of your obligations if you receive VET FEE-HELP assistance; and

-     the information on this form is complete and correct and you can produce documents to verify this if required.

● request that:

-     the Commonwealth lend you the amount of the VET tuition fees for the units in your course outstanding at the census date and to use the amount so lent to pay your provider on your behalf.

● understand that:

-     if you are a full fee-paying student, a loan fee of 20% will be applied to the amount of VET FEE-HELP assistance provided (if you are a subsidised student in a state or territory that has implemented subsidised VET FEE-HELP arrangements, you will not incur a loan fee). The loan fee will be included in your VET FEE-HELP debt. You should contact your provider for more information;

-     you will repay to the ATO the amount that the Commonwealth has loaned to you (plus the loan fee if applicable). These repayments will be made in accordance with Chapter 4 of the Act when your income reaches a certain level, even if you have not completed your studies;

-     your debt with the Commonwealth will remain if you withdraw or cancel your enrolment after the census date but that your debt may be removed by your provider in special circumstances;

-     your HELP debt will be indexed annually in line with the Act;

-     you will not be able to obtain VET FEE-HELP assistance for VET unit(s) of study if you do not meet the TFN requirements;

-     you will no longer be able to obtain VET FEE-HELP assistance when the total amount of VET FEE-HELP (and FEE-HELP assistance) you have obtained reaches the FEE-HELP limit as set out in the Act;

-     you are able to cancel this request, in writing, at any time, with your provider, and that it will no longer apply from that time. However, this must be done by the census date, otherwise you will have a debt to the Australian Government that you are legally required to repay;

-     if your eligibility for VET FEE-HELP changes you must notify your VET provider;

-     the Department of Education collects your information in accordance with the Australian Privacy Principles for the purpose of administering Commonwealth assistance, including verifying eligibility for a HELP loan. It is also collected for the purpose of research, statistics and programme assurance. If you do not provide the information required on this form you may not be eligible for Commonwealth Assistance;

-     the authority to collect and share this information with other government agencies including, but not limited to, the ATO and the Department of Immigration and Border Protection for the purpose of verifying your eligibility is contained in Part 5-4 Division 179-20 of the Act;

-     the information may not otherwise be disclosed without your consent unless authorised or required by law;

-     full details of how the department handles personal information for the purpose of the Higher Education Loan Programme can be found at www.studyassist.gov.au;

-     the Department of Education’s Privacy Policy, including information on access and correction of personal information and how to make a complaint, can be found at www.education.gov.au/condensed-privacy-policy; and

-     giving false or misleading information is a serious offence under the Criminal Code Act 1995.

Go to item 12

12. Declaration:

Signature Tre Simpson

Date: 30/3/15.’

120    Mrs Simpson’s evidence was that she wrote Tre’s name on the first page of the form but nothing else that appeared on that page. Under the section headed ‘Your obligations’, which I have set out above, she was clear that she had not filled out any of it nor had Tre. She was not able to assist the Court in relation to whether the ticks were already there when the form was signed by Tre or not.

121    It was Mrs Simpson’s account that the tax file number appearing on the first page of the form must have been put there by representatives of Unique after the forms were handed in. Mrs Simpson deposed that there was some perfunctory conversation with one of the Indian ladies (Ms Kang or Jasmeen) and also with Mr Bell. Nothing of substance passed during these conversations, although it seems that Mr Bell took a photo of Tre, most likely on his iPhone.

122    In short, I find that none of this form was explained to Mrs Simpson or Tre. They were quite unaware of what Tre was signing.

Consent form giving permission to Unique to apply for a ‘Unique Student Identifier’

123    The following form is headed ‘Unique Student Identifier Consent Form’:

(italics indicate handwriting)

124    Most of the handwriting on this form was Tre’s according to Mrs Simpson. Some of it was not. However, nothing important turns on this form and it is not necessary to consider it further.

Acknowledgment form acknowledging that online students had received an orientation program

125    The next form is entitled ‘Acknowledgement of Orientation for Online Students’. The form was filled out with Tre’s name and birthdate which Mrs Simpson confirmed was in Tre’s handwriting. This text then appeared at the top of the form:

‘I confirm that I have attended the Unique International College Pty Ltd orientation program on the date 30.3.15 by phone / face to face (Please circle). This orientation covered the following information regarding my enrolment at Unique International College:’

126    Mrs Simpson gave evidence that this handwriting was neither hers nor Tre’s. There was then set out a long list of matters which were said to have been explained with a field for ticks. Since it is repetitive, I will simply set out the first which is representative:

127    I have concluded that neither this tick nor the others appearing on the form were in Mrs Simpson’s or Tre’s handwriting. Although I find that Tre’s name and signature did appear at the end and these appear genuine.

128    As should now be apparent, I conclude that no such orientation program was administered to Tre. Further, in the time available to them on the evidence before me, neither Mrs Simpson nor Tre could have properly understood this form.

Consent form consenting to the use by Unique of still photographs or videos of the applicant in its promotional materials

129    The next form was a consent form by which the putative student consented to the use by Unique of photographs of them. It is signed by Tre. No part of the Applicants’ case turns upon this form and I can pass over it.

Evaluation form assessing the student induction process

130    The next form was entitled ‘Evaluation of the Student Induction Process’. This document appeared to be an assessment of the presentation which Mrs Simpson and Tre, on the findings I have made, did not see even if it actually took place. There was no direct evidence about the handwriting or the ticks on this form. I think it most likely, however, that Tre’s name was written on this form by Mrs Simpson (or possibly Tre) but the ticks are most likely by some other person.

Acknowledgment form acknowledging that the cost of the course had been disclosed

131    The next form was an acknowledgement in these terms:

‘I acknowledge that I have been given the correct information on the total due fees for my chosen course which is 22000 and I understand that I have to start repaying the due fees plus the 20% loan fee back once I start earning above the minimum threshold 53000 as per VET FEE-HELP information for 2015.

Student Signature: X Tre Simpson

Unique International College Staff would like to thank you for choosing our college & wish you a pleasant learning experience.

Thank you’

(italics indicate handwriting)

132    Mrs Simpson’s evidence about this was that the signature was Tre’s but that the numbers $22,000 and $53,000 were not on the form at the time that she saw it.

Student feedback form

133    The last form was entitled ‘Student Feedback Form’. Mrs Simpson’s evidence was that the handwriting on the form was neither hers nor Tre’s and that she had not read it. Section 1(c) and 1(e) were in these terms:

134    The circling of ‘1’ signified ‘strongly agree’. Mrs Simpson did accept that the signature on the second page was Tre’s. These are it seems to me, therefore, further examples of form filling by some third party tending to suggest, incorrectly, that matters which had not been explained had in fact been explained.

135    As will be apparent from the recitation of the evidence above, Mrs Simpson did in fact deliberately complete some aspects of the forms on Tre’s behalf in ways which were incorrect. For example, ticking ‘yes’ for whether he had the internet at home and ‘no’ for whether he had a disability. The reasons why she might have done this were not explored in any detail. It could theoretically be to her discredit. In relation to some of Unique’s witnesses, I later conclude at [278]-[281], [443]-[446], [483]-[484], [527]-[528] and [556] that completing false declarations is to their discredit. In Mrs Simpson’s case, however, I do not think that it is. She was present at the meeting with some sense of resignation (‘Oh Tre, not again’) to get him the laptop which she knew there was no point resisting: T-415. She did not want him to get the laptop but she knew his mind could not be changed. In the past she had needed to get two domestic violence orders against him. Further, it would have been apparent to Mrs Simpson that Unique’s representatives were largely concerned with ensuring the paperwork was completed without any substantive interest in whether the students were suitable. In any event, Mrs Simpson found herself trying to satisfy the demands of an ungovernable grandson in the company of persons who evidently were not concerned with the truth of what was put in the paperwork. I do not, in that circumstance, think it to her discredit that she completed some of Tre’s paperwork incorrectly.

Kylie Simpson (Tolland)

136    Kylie affirmed an affidavit in this proceeding of 25 January 2016. She gave oral evidence on the fifth day of the trial which was 10 June 2016.

137    I have already dealt with some aspects of Kylie’s evidence. In particular, I have explained certain limitations in her abilities which would, in my opinion, have been obvious to anyone talking with her even for a short period of time. I have also explained why I prefer Mrs Simpson’s evidence of when she arrived at the meeting to that of Kylie’s. On Mrs Simpson’s account it is clear that Kylie arrived at Aunty Vennie’s house sometime after Mrs Simpson and Tre had already left the sign-up meeting and returned home to Mrs Simpson’s residence. One can be confident, therefore, on the sequence of events I have found to have occurred, that even if there was an introductory talk given by Ms Kang it cannot have been seen by Kylie. These further matters should be noted. In addition to her Von Recklinghausen’s disease, Kylie has learning difficulties and suffers from migraine. She has never worked. She is also on the Disability Support Pension (‘DSP’).

138    Kylie gave an account of her dealings at Aunty Vennie’s house which was not dissimilar to Mrs Simpson’s. She said she arrived and was handed the forms and told, ‘Fill this out’. She asked for help in filling them out and one of the women from Unique asked her questions such as her name and filled out the form for her. She said that the purpose of the forms was not explained to her and that she did not think to ask any questions. She was not told that she was signing up for a course although she thought she might have been. She had, in any event, no intention of signing up for a course but instead just wanted the laptop (which she received).

139    I have found it difficult to assess whether I should accept this evidence. It appears very clearly set out in her affidavit but her cross-examination revealed that it was questionable whether she actually had that degree of clarity. It is quite possible, I suppose, that Kylie was able to express herself more clearly to the solicitors who drew the affidavit away from the intimidating atmosphere of the courtroom. But even allowing that that might be so, I remain reluctant to act on this evidence on its own.

140    On the other hand, the account given by Kylie of what happened strongly resembles Mrs Simpson’s account. Both say they were handed the forms when they walked in and both say that nothing in the forms was explained to them. And, it seems likely that both were only peripherally involved in filing out the forms.

141    I have considered the extent to which I may use the similarity between the accounts given by Mrs Simpson and Kylie to reason that the former corroborates the latter. I do not think, however, it can be used corroboratively. Mrs Simpson’s evidence is about what happened to her and Tre whereas Kylie’s is about what happened to her. It is true that they happened at the same meeting but the critical parts of their evidence are about different subject matter, however similar they appear.

142    It thus seems to me to follow that I may use Mrs Simpson’s evidence to corroborate Kylie’s where they are giving evidence about the same event or topic. Examples of this would include that the meeting took place at Aunty Vennie’s and that three people were present from Unique. However, when it comes to the evidence Kylie gave of what was said to her in the process of filling out the forms I do not think that Mrs Simpson’s evidence can be treated as corroborative.

143    It may be that Mrs Simpson’s evidence could be seen as similar fact or tendency evidence. On this view, Mrs Simpson’s evidence might reveal the existence of a tendency of processing the students as quickly as possible to get them signed up without thought as to the debt consequences for them. However, there are procedural requirements attending the use of similar fact or tendency evidence contained in s 97 of the Evidence Act 1995 (Cth) which were not utilised in this case. Consequently, reasoning of that kind is not available in this case even if it is relevant for another purpose: s 95.

144    Consequently, it seems to me I must consider the reliability of Kylie’s evidence about how the forms were filled out and what explanation was given to her on its own. I have, in coming to that conclusion, also asked myself whether her account might be buttressed by the surrounding context of the meeting but I do not, on balance, consider that this would be a legitimate line of reasoning.

145    For the reasons I have already given, I do not think Kylie was a reliable witness. Thus whilst I do not find that her evidence was false, I just do not think that it is reliable enough to make findings adverse to Unique upon. I thus limit my findings about Kylie only to these matters:

    she attended the meeting in the manner I have indicated above in my treatment of Mrs Simpson’s evidence; and

    she filled out forms possibly with some assistance.

146    Further than this I do not think it safe to go.

147    However, this is by the by. As I have already indicated, it would have been plain beyond any doubt to the Unique personnel at the meeting that Kylie should not be signed up to any course. It reflects negatively upon the Unique staff present that she was signed up. It should not have occurred. It also shows, as I have indicated above, that the Unique personnel present had no interest in the truth of the paperwork. There cannot really be any dispute about this. An incident during the trial showed this. To my alarm, and also the growing and visible consternation of those behind him, Senior Counsel for Unique subjected Kylie to a vigorous cross-examination designed, I think, to expose her as a liar. What it showed very powerfully instead was that she had no idea what was going on at all. The luncheon adjournment then intervened. After lunch the cross-examination was not pursued. The reasons for this were palpable.

Jaycee Edwards (Bourke)

148    Jaycee Edwards (‘Jaycee’) affirmed an affidavit in this proceeding of 2 February 2016. She gave oral evidence on the fourth day of the trial which was 9 June 2016.

149    Jaycee was 19 years old at the time of the trial. She lives with her father at the Alice Edwards Village, an Aboriginal mission on the outskirts of Bourke. She is an Aboriginal single mother of two children, unemployed and in receipt of Centrelink benefits. Both children were under two years old when she affirmed her affidavit. She is able to read and write but struggles with larger words. She left high school in year 11 and has done no further study since. She did not have a laptop until given one by Unique (it said lent). She does not have an internet connection at home although she can use a computer and the internet.

150    Her grandmother is June Smith (‘June’). June also gave evidence in the case which I deal with at [170]-[190] of these reasons. June lives at the Alice Edwards Village. At some point in the middle of 2015, Jaycee was at June’s house. Also at June’s house that day were Jaycee’s sister, Mona, and her aunt, Lauren Cubby. From June’s house, Jaycee could see two people she identified as salespeople outside one of the neighbours’ houses. Lauren went to investigate and called out to Jaycee that if she wanted a free laptop she should come to where she was.

151    Jaycee went to join her and then seems to have had a brief word with one of the two women. The two salespersons were also Aboriginal. They were Johanne and Adell Richardson (‘Johanne’ and ‘Adell’ respectively). They worked for Unique (although whether Adell was employed by Unique is contested). Jaycee gave evidence that during this initial conversation, she asked them what they were doing and was told that they were trying to sign up people for a course so as to give them a laptop. I think it is likely that she was told at this time that in order to get the free laptop she would need some identification documents. I infer this because Jaycee gave evidence in her affidavit that she then sent a cousin (Roy, who was sitting in a car nearby) to fetch her identification documents from her father’s home. She also told the two women to go to June’s house. She said that they told her they were from Mount Druitt and worked for Unique.

152    On Jaycee’s account, the party regrouped in the front garden of June’s house where there was a table outside. I pause to observe, as a pre-cursor to the ‘party plan’ issues which I discuss later in these reasons at [753]-[756], that June did not invite anyone to her house, but it would be fair to say that Jaycee did invite Johanne and Adell to June’s house. On the other hand, the evidence does not support the notion that Jaycee, Mona or Lauren were invited to June’s house – they were already there. This finding is relevant to the ‘party plan event’ issues discussed later.

153    According to Jaycee, once they had all regrouped in the front yard of June’s house, Adell and Johanne introduced themselves. Jaycee asked whether she would have to pay for the laptop and was told that she would not. Unique would pay for them and the course. She was also told that if she wanted to do the course it would take six months and she would receive a login and password. This account was revealed during the following exchange which occurred during her cross-examination:

‘Yes. And then there was a signing up process? --- Yes

Okay. All right. Can I just go back in that order. So the general discussion first; is that right? --- Yes.

Do you remember what the general discussion was about? --- They were trying to get people to sign up to do a course and after the course you can get a free laptop. And then one of us asked if we had to do the course or we didn’t’ and the saleswoman said, “No, you don’t have to do the course, but you can if you want and we will send the login and – yes, the login stuff to start the course.”

Okay. All right. We will come back in a little time to what was said, but can I just then deal with the – at that stage – can I deal with after the general discussion people were asked did they want to sign up; is that right/ --- Yes. Yes.

And did everyone say they wanted to sign up or not everyone or ------ Yes, all of us did.

Okay? --- We were in it for the free laptop.

…

Yes. And you understood they were there to try and persuade you, if you wanted to do it, the online course? --- Yes.

Is that right? ---Yes.

Yes. But you thought to yourself, “Well, I don’t want to do the course. I just want the laptop”? ---Yes.

Yes, fair enough. But the salesladies, did they say, “Well this course,” did they say what the course was about, even if you didn’t want to do it? --- I don’t know. I can’t remember. It was a study course.

Yes? --- I don’t know what – what they were studying for.

154    After this introduction, Jaycee gave evidence that Adell began to speak with June separately whilst Johanne spoke with Jaycee. It seems that Johanne handed a bundle of forms to Jaycee which were stapled together. A bundle was also handed to Mona. The forms had ‘X’ marked at various locations. Johanne pointed to these and told Jaycee to sign the forms in those locations. There were other parts of the forms which she had to complete herself such as her name and date of birth. Jaycee said that Johanne took her through the forms ‘quickly’ but that she did not explain them to her or Mona. Further, she said that she was given no time to read the forms and, in any event, trusted Johanne because she thought that she knew what she was doing.

155    Jaycee continued that at the time Johanne handed the forms to Jaycee she asked her for her ID and to sign them. One of the forms asked for her tax file number. This Jaycee did not have but Jaycee used Johanne’s mobile phone to log on to the Centrelink webpage where she was able to retrieve it.

156    As she was filling out the forms she noticed that it had faces printed on it. Jaycee said that Johanne told her to draw smiley faces on this page but she did not explain why or what this meant.

157    Jaycee was a little unclear on this but there was some further discussions between them in which Johanne conveyed to her that she was not obliged to do the course if she did not so desire. Jaycee said that she was never told what the course was about. There was nothing surprising about this, however. Jaycee had no interest in doing a course and just wanted a laptop. In fact, Jaycee thought she was signing up for a laptop.

158    Jaycee said that Johanne did not:

    tell Jaycee how to cancel the course or give her written information about this;

    give her a copy of the paperwork or any other papers or brochures about the course;

    explain to Jaycee that if she signed up to a course that she would be left with a debt; or

    ask Jaycee whether she had finished school or use a computer.

159    After this, they went to the car and Jaycee received her laptop. She thought that the process of completing the forms and getting the laptop took about 20 minutes in all.

160    After she signed up, Jaycee received two emails from Unique one of which had login details. She paid no attention to either really because she was not interested in doing a course.

161    Jaycee was cross-examined by Mr Pritchard, Senior Counsel for Unique, in what turned out to be a painstaking cross-examination. The aim of the cross-examination was to obtain from Jaycee an admission that Unique’s staff had given an explanation of the courses and the funding for those courses. I do not think that this endeavour was successful.

162    In its closing written submissions at paragraph 795, Unique relied upon an admission made by Jaycee during her evidence that there had taken place at June’s house a general discussion of what the VET FEE-HELP sign-up sessions were all about. However, the actual evidence about this is somewhat less substantial. It appeared during Jaycee’s cross-examination at T-357.27-.37 as follows:

‘Yes. Good. And at that stage or later did everyone sit around the table? --- Yes. Some of us sat and some of us stood.

Okay? ---Like, the older people sat.

Yes. And so was there a general discussion about what was going on in a general sense? --- Yes, I think so.

Yes. And just we will come back to what was being discussed in a sec, but the table, was either or one of the Aboriginal ladies, the sales ladies, I will call them that; is that easiest for you? --- Yes.’

163    I do not think that this is evidence that the course was explained to Jaycee or its costs or the VET FEE-HELP system.

164    Unique also relied upon T-365.1 which was said to show that Jaycee had agreed that she understood that by enrolling in the course she had to pay for it, but only if she started earning over $50,000 a year. This evidence was as follows:

‘Yes. And did you understand that if you enrolled for the course, at least theoretically, in your mind, you had to pay for the course? No, that was badly put. I apologise. Thanks. Do you understand that by enrolling for the course you had to pay for it? --- Yes.

Okay. But did you also understand, well, you only had to start paying for it if I earn over $50,000 a year? --- I think so.

And someone explained that to you, as you recall? --- No.

But you just knew that – you understood that anyway? --- I think so.’

165    This rather vague evidence needs to be read alongside evidence a little later in these terms:

‘…And you understood the course had a cost; correct? --- Yes, I think so.

Yes, Yes. But you didn’t think you had to pay the cost yourself? --- Yes.

That’s right? --- Yes.

But you thought you only had to pay the cost if you earned over $50,000; is that right? --- I think so.

Yes. And what I want to get from you is how did you have that belief? How did you come to think that? Do you think it was because the ladies told you? The Aboriginal salesladies told you that? --- I don’t know.

You just don’t know how you knew it? --- I don’t know.

Okay. All right. We’re at 2909. Are you still there? --- Yes.

Now, I just want to put to you – ask you about the question 10. You see, “How do you intend to fund your studies?” Do you see that? --- Yes.

You understood this course – you weren’t paying for it straight away?---I didn’t know we had to pay for it at all. I thought it was free.

Yes. Well, you’ve told me you thought you had to pay for it but you didn’t have to pay back for it until you earned over $50,000; isn’t that right? --- Yes.’

166    It may be that this evidence rises as high as that Jaycee understood that she would have to pay the course costs if she earned more than $50,000, although I have difficulty squaring that with her evidence that the course was free. The evidence could support a finding that if she did know that as a fact, it was not something the Unique employees had told her (see especially the first passage).

167    On the other hand, I do accept that Jaycee was told by the two Unique staff members (Johanne and Adell) that they were from Mount Druitt in Sydney and that the courses being offered were in management or salon management

168    As I have said already, after filling out the forms as instructed, Jaycee received a laptop. This conclusion is inconsistent with the evidence of Johanne and Adell. I deal with their evidence below at [250]-[283] and [284]-[306] respectively and therein give my reasons for rejecting its veracity. Unique criticised Jaycee’s reliability as a witness. I did not find her to be unreliable. I had two impressions of Jaycee’s evidence. The first was that under cross-examination she seemed prone to agreeing with what was being put to her. This left me with the impression that she might have ‘admitted’ matters about which she was perhaps less sure than she seemed to be. At times this led her evidence to appear a little inconsistent. The tension I have referred to above between her evidence that she thought that she might have had to pay for the course whilst simultaneously thinking the course was free is an example of the kind of problem I have in mind. I did not think this resulted from any lack of honesty on her part.

169    My second impression of her evidence was that her recollection was a little hazy. Neither of these matters cause me to change my assessment of her evidence given above. Indeed, in relation to the first matter, it most likely has the effect of reducing the likely impact of admissions made by Jaycee under cross-examination.

June Smith (Bourke)

170    June swore an affidavit in this proceeding of 3 February 2016. She gave oral evidence on the first and second days of the trial which were 6 and 7 June 2016.

171    June is a 68 year old Aboriginal woman. As I have already related, she is Jaycee’s grandmother. Like Jaycee, she lives in the Alice Edwards Village and has lived there for 50 years. She is the primary carer for six of her grandchildren all of whom are minors and live with her. June left school at around the age of 12 or 13 and could not read or write at that time. Subsequently, in 2013 she completed a literacy program as a result of which she has acquired basic literacy skills. She nevertheless has difficulty with big words and her spelling is variable. She has difficulty using a mobile phone and cannot use a computer.

172    As Jaycee’s evidence suggests, June was indeed present at the meeting which took place at her house on 10 June 2015. In its broad outline, June’s account is similar to Jaycee’s. June observed Jaycee and her sister Mona talking to two Aboriginal women two doors down from her house. Shortly afterwards, June’s foster daughter Lauren Cubby, who it will be recalled was the initiator of the conversation with Johanne and Adell, came over and said that laptops were being given away. June said that she learnt around the same time that the two women were being shown around town by a friend of hers, Annie Gun (now deceased), and her husband. Shortly after this the two saleswomen came over to June’s house. June was comfortable with this because they were with Annie.

173    Once they arrived, the two saleswomen introduced themselves. At this point, her daughter, Fiona Smith (‘Fiona’), also arrived. Then present at the meeting were:

Jaycee Edwards

Mona Edwards

Lauren Cubby

Fiona Smith

Annie Gun

Annie’s husband

June Smith

Johanne Richardson (Unique)

Adell Richardson (Unique)

174    What happened at this point is disputed between the parties. June was cross-examined extensively. Many of the answers she gave whilst being cross-examined were not altogether consistent. For example, her answers as to how her experience as a drover came to be on her pre-enrolment questionnaire did not strike me as altogether satisfactory.

175    On the other hand, my general impression was that June was seeking to tell the truth. The difficulty seemed to me to lie in a desire to give answers which supported what she genuinely believed to be the case and some difficulty in comprehending the questions which were being put to her by counsel. That is to say, I think there was a degree to which June’s evidence about what had happened blurred into what she believed had happened and this was exacerbated by the confusion of the courtroom. I have no doubt that what she believed had happened was a belief genuinely held. But quite a lot of her evidence about what had happened seemed reconstructive in nature. She was very adamant in many of her answers to an extent which I do not think it would be natural to expect a witness to be. Again, I think this was likely to be a product of the fervency of the view she held that Unique had done something wrong rather than a product of deception.

176    Whilst I therefore accept that June’s evidence was genuinely given, it seems to me that I should approach it with some circumspection.

177    The principal issue to be determined at a factual level is the extent to what Johanne and Adell explained the courses, their costs and the VET FEE-HELP scheme to the participants. Also in issue is the extent to which some form of explanation was given as part of the form filling exercise.

178    It seems that once the meeting got under way around the table, June spent most of her time speaking with Adell, whom she described as the older saleswoman.

179    June gave evidence as to what Adell said to her. She told June that the laptop was free. June told her that she did not know how to use a laptop but that she had grandchildren who might be able to help, which prompted Adell to ask whether she should go get a form to fill for her. Adell then suggested that she might help by filling out the forms for her. June said that Adell then started doing her paperwork for her. At this point it became apparent that June’s tax file number would be needed and so she went to get it (and her glasses).

180    June then said she asked how many courses she had to do to get the laptop. She said that Adell told her that you had to do a ‘first course’ to get the laptop. She also told her that she would need to plug the computer into the internet. June said that she told Adell that she did not have access to the internet to which Adell replied that she might go to the library and plug it in there. She then said she was asked to sign the forms. After this she said she was given the laptop by the ‘younger one’ (Johanne).

181    June said that Adell did not say anything else about the course but she did agree that she was showed a brochure which she did not understand.

182    She said that whilst signing the forms, Adell moved through the forms too quickly for her to read. They were not explained to her.

183    She said she was not told that she could cancel her enrolment or that they had to leave her property if she asked them to do so. She also said she was given no information about the courses whatsoever.

184    In its written closing submissions, Unique contended that June had conceded during cross-examination that ‘she could have been told’ that the money to pay for the course was a loan from the government and that she would not have to repay this until she earned more than $50,000. There is an obvious tension between that concession (if it was made) and the idea that she might have been told the course was free. However, this tension does not arise. Unique’s submission is not an adequate rendering of the evidence which June gave. What she said about this under cross-examination was at T-116-117 and was in these terms:

‘Madam, the Aboriginal lady, the elder lady, was sitting next to you when this document was - - -? ---Yes. I know she was sitting next to me - - -

Put this - - - ? --- - - - but I had to go inside to get the tax file number and my glasses.

Yes? --- So, you know, I didn’t really bother what she was doing, I just give her my tax file number. She gave me the paper back and I sat up there for a while and either – she wrote all this on here because I didn’t know nothing about this - $22,000, is it?

Yes, it is? --- By God, that’s a lot of money and – because I would have questioned that. I would have said, “Where the hell I’m going to get this from to pay for the course?”

And you were told it’s a loan from the government, you don’t have to repay the loan from the government until such time as you earn over $50,000. That’s what you were told correct? --- I could have been told that, but I still would have questioned it. I would have said, “Why would I want to get this money from the government when I would never be able to pay it back?”

Because you didn’t believe you would ever have to pay it back, because you believed in June 2015 that you would never earn over $50,000? --- Yes. I know that.’

185    Like much of the evidence in this case this exchange is a little unclear. However, construed in its entirety, I do not think that it is fair to read this as the concession Unique alleges. The whole passage is premised on the idea that June did not know of the $22,000. The rest of her answers seem to be hypothetical and premised on that assumption. Consequently, I reject Unique’s submission about this.

186    What then to make of June’s evidence? It is mostly contradicted by Johanne and Adell’s evidence. I deal with their evidence later in these reasons at [250]-[283] and [284]-[306] and explain why I did not regard either of them as a reliable witness.

187    Although June’s evidence, especially in the witness box, was at times a little confused I am satisfied that this was largely the results of an alien environment and a lower level of literacy. The one part of her evidence that did concern me was her answer during her examination in chief at T-66 that Adell had told her that she needed to do a ‘first course’ to get the laptop. This seemed to me at first to be obviously incorrect. However, the answer makes more sense if by doing a course June meant only enrol in a course. Upon mature reflection, this is what I believe this evidence means.

188    Consequently, I accept June as a witness of truth. Generally, I accept her evidence. I keep in mind the reconstructive nature of some of it, and the degree of confusion which attended other parts of it.

189    I also accept, as Unique contended, that June was told that Adell and Johanne were from Unique.

190    I turn then to the evidence of Fiona.

Fiona Smith (Bourke)

191    Fiona swore an affidavit in this proceeding of 3 February 2016. She gave oral evidence on the second day of the trial which was 7 June 2016.

192    As with many of the witnesses in this case, the eliciting of her evidence was, and its assessment is, attended with some difficulty. She finished high school at year 8 and is now 46 years old. She has lived in the Alice Edwards Village all her life and lives across the road from her mother, June. She has a Diploma of Aboriginal Studies from TAFE which she obtained in Dubbo and certificates in Visual Arts and Music. She currently works on a casual basis as a broadcaster with Radio 2cuzFM. She reads and writes well. She did not have a computer before Unique gave her one and does not have an internet connection. She uses it for music and watching DVDs. Although she has an email account on her phone which allows her to receive and read emails, she does not know how to send emails.

193    I have found Fiona’s evidence difficult to assess. Often her evidence was inconsistent. For example, she said during cross-examination at T-146 that it was not really explained that the course was a management course but shortly afterwards at T-148 she accepted that she was, in fact, given an explanation of the course although she did not pay much attention. At other times, her evidence did not make sense. At T-123 she said she asked why the laptops were free and was told, in response, that it was for older people who did not know how to use a computer. This made no sense to me.

194    During the cross-examination, Fiona also laughed at various points and at moments which did not seem to me to be at all funny. Whilst preparing these reasons I wondered whether her manner was a function of a certain element of bravado perhaps to cover for some embarrassment at having signed up for the course without knowing much about its contents. But I am not really sure that this can be correct. It may be that her evidence is to be understood as an example of the disadvantage indigenous witnesses sometimes suffer in a highly formal environment. So, ultimately, Fiona is something of a puzzle.

195    That said, I do not think that she was deliberately setting out to deceive the Court. Of that, I am reasonably confident. On the other hand, perhaps a little like June, I sometimes felt that the answers she gave were the answers she thought would assist with acceptance of her genuinely held view of what had happened. I propose therefore to approach her evidence cautiously.

196    Fiona was one of the attendees at the meeting at June’s house. Prior to attending that meeting she was already familiar with the idea of signing up to a course in order to receive a laptop which she had apparently encountered at some earlier point in 2011. Her motivations in attending the meeting and signing up for the course seem to have been twofold. She wished to get the free laptop but she also wanted to help her mother to become computer literate.

197    Her account of how the meeting with Johanne and Adell began was not materially different to that given by June and Jaycee. She heard that some Aboriginal women were giving out free laptops. She understood they were offering a course. One small difference between the accounts is that it is Fiona who said she invited them to June’s house. There was some initial discussion in the front yard during which she was told she needed her identification documents and her tax file number.

198    One thing that Fiona did ask was how it was that the laptops were free. Fiona’s evidence about the explanation of this given by Adell and Johanne was a little unclear. At one point, Fiona said she was told that they were free so that older people who could not use the internet could be assisted; at another point, she said that she was told that ‘it was like a driving test, you know what I mean? Like, you do one quiz you get an iPad, and then she said to me that, “When you’re finished the second course you do – you get $200 and a certificate”’.

199    I have not found it possible to form a precise view as to what was said to her on this topic. In another part of her evidence she said that she thought that the laptop would be free so long as she earned less than $50,000. It sounds like her earning threshold for the purposes of the VET scheme may, therefore, have been mentioned to her. But it is difficult to imagine that if that topic had actually been touched upon by the representatives of Unique that it would have been explained as relating to the repayment of the small cost of a laptop as opposed to the large cost of a course.

200    On the other hand, Fiona was adamant that the course cost of $22,000 had not been mentioned to her. At another point she said that the whole issue of what the course would cost was never discussed and hence she also thought that no-one had said the course was free. She did however think that she was told the laptop was free although, as noted already, she thought she would have to pay for it if she earned more than $50,000.

201    The person with whom Fiona was speaking was Johanne. June on the other hand, was speaking with the mother, Adell. Since the interlocutors were different it is difficult to think, therefore, that I might be able to unravel what was said to Fiona by reference to what had been said to June. On the other hand, this is perhaps not such a large difficulty in relation to Jaycee whose evidence also hinged on a conversation with Johanne. Another problem with Fiona’s evidence on this issue is that she was very clear that she had no interest in the course and was only signing up for the laptop. It was for this reason that she did not care whether she did the course or not. Indeed, she said she had no intention of doing the course. It was because of this that she was not terribly focussed on what was said to her. In fact, during cross-examination she gave evidence that what was said to her went ‘in one ear and out the other’.

202    This rather suggests, and I am inclined to infer, that her account of the discussions is not likely to be especially reliable. Fiona was, however, clear that notwithstanding that she was not paying much attention she would have tuned in if money or the $22,000 course cost had been mentioned. It would, as she said, have rung bells. If it had been said, so she claimed, she would not have signed up.

203    I do not think this is reliable. It is difficult to accept that if she was not paying attention she would have noticed if a particular topic happened to be mentioned. This is more likely wishful thinking.

204    On balance, I have come to the view that I am not by her evidence affirmatively satisfied as to the contents of anything said to Fiona before she began signing the forms. I am satisfied that some things were said to her; I just do not know what they were. I do not accept that her evidence demonstrates therefore that she was told the course could be done online or that she was not told what the census date was. I return to the role of Jaycee’s evidence in relation to this later.

205    I turn then to the way in which her forms were filled out. There is some blurring between her account of the explanations given before the forms were filled out and the testimony about what happened whilst the forms were being completed. I have not found it possible to delineate these with much clarity.

206    Fiona gave evidence that the forms which were presented to her were stapled together. She said that she did not get a chance to look at the forms as she signed them and that she was told by the younger woman (Johanne) just to sign at various spots on the forms. She signed her signature so many times that ‘she felt like a popstar’. This is consistent with the large number of places on the forms which call for a signature.

207    She agrees the signature on the forms is hers but denies that the balance of the handwriting on the forms is hers. I am inclined to accept this. Part of the forms recorded in someone’s handwriting that one of the reasons Fiona wanted to do the course was to help her children. Fiona has no children and it is unlikely that she would have written this.

208    Part of the forms refers to a cost of $22,000 for the course and the fact that this need not be repaid until a threshold $53,345 is earned. These entries are in handwriting. Fiona denies that this handwriting was on her form at the time she signed it. She also denies that:

    she was handed a brochure;

    that there was any mention of the VET-FEE-HELP scheme; or

    that it was explained that she would be left with a debt to the government.

209    Fiona’s account of how the forms were signed might rather suggest that the process took not very long. Yet Fiona’s evidence was that it took nearly an hour. She was cross-examined by Senior Counsel who suggested that this was because she had been asked detailed questions by Johanne but she denied this, claiming instead that it was because she was chatting with Johanne. There are other time difficulties; she thought the meeting lasted 2-3 hours or more but she herself was only there for one hour and twenty minutes. It is not clear to me how she could have known the total duration of the meeting if she was not present for its entirety.

210    As with the discussions before the forms were filled out, I am reluctant to act on much of this evidence. Whilst I cannot be persuaded that Fiona’s evidence was false, I am just not affirmatively satisfied that her account is correct. There are exceptions to this. I do accept:

    most of the handwriting on the forms is not hers;

    the signatures are hers;

    the forms were stapled;

    she went through the forms with Johanne; and

    she had no interest in the course and just wanted to get the laptop.

211    But I cannot find on the basis of her evidence that she was:

    not told about VET-FEE-HELP

    not told the cost of the course was $22,000 which she did not have to repay until she earned more than $53,345;

    not given a brochure; or

    not told about the census date.

212    I do find that she was told the laptop was free and that she was given a laptop.

213    Fiona said that after the forms had been completed she asked Johanne how she could get into the course. She said that Johanne told her that she would send through some emails.

214    The following Monday, Fiona said she went to work and it was after discussions with co-workers that she began to suspect she had been the victim of a scam. Fiona gives an account of subsequently calling Unique and having a discussion with Mr Bell. It was during this conversation that she said that she first became aware of the cost of the course and the repayment obligations. I accept that she was told about those matters during this call. For the reasons I have given, I do not think it has been proved that this was the first time she had heard about these matters.

Penny Martin (Unique employee)

215    Ms Martin gave oral evidence on the third day of the trial which was 8 June 2016.

216    Ms Martin holds qualifications in education and hairdressing. She was employed by Unique during two periods between 2007 and 2009 and from November 2014 to February 2015. During this second period she worked six hours per week as an online assessor. This involved her working on about 10 occasions of which only about four involved an actual attendance at the Granville premises. For the balance she worked from home. When she worked for Unique on the second occasion she received an email to which was attached Unique’s policies and guidelines. She was also trained as an online assessor since she was a little unfamiliar with computers. After her training, she was assigned some 80 students. She subsequently attended a personal development day at Unique just before Christmas in 2014 which was attended by about 20 people. It was also attended by Ms Gagen Kaur (‘Gagen’), the head teacher.

217    As it happens, Unique introduced a new computer training system on 31 December 2014 called ‘Ammonite’ and Ms Martin also received a manual about how to operate that system by email that day. There were also emails after that time updating her on the system. . Her impression of the new Ammonite system was that it had a tendency to reduce the role of the online instructors. Prior to Ammonite, communications between online instructors and students had occurred either via emails or online forums. Ammonite now provided for direct access to materials via the system (using logins) and assessment through that system.

218    Ms Martin gave some evidence upon which the Applicants especially relied that related to the initial cohort of 80 students to which she had been assigned. From an initial email which she sent to her newly assigned cohort, she received back about 40 bounce backs and the balance did not respond at all. She also made further attempts to communicate by email with those whom she thought may not have received the initial email. The implication of this evidence which the Applicants sought to draw, as I understood it, was that there was no genuine involvement from the student end.

219    Ms Martin followed up these emails by further ‘shout outs’ (I assume emails or statements logged in the online forums) but she received no replies.

220    Ms Martin was concerned about this. Her experience as a teacher indicated to her that in a class of 30 one might lose 15 students but in the case of a larger class of 80, the absence of any responses raised a ‘question mark’. She went and spoke to Amarjit Singh (‘Amarjit’), who was the Chief Executive Officer of Unique, to share her concerns. In their hour and a half conversation he struck her as passionate about education. Their conversation covered a range of topics: the poor state of Unique’s finances, the possibility of opening a laser clinic and perhaps writing a script for a Bollywood movie. Eventually, he referred Ms Martin to Gagen.

221    Ms Martin told Gagen that she was concerned, based on her previous experience at another college, that the students might not exist. Ms Martin had noticed, in that regard, that some of the email addresses given for the students were the same.

222    Gagen told Ms Martin that the college was going to give the students individual college email addresses. It is not clear to me how this would have solved the problem since at least half of the emails had been bouncing back from their intended addressees. My impression was that Ms Martin never really got to the bottom of her concerns about this. Despite that, she was aware that she had seen other trainers in the system receive feedback in the forums. There were also two occasions when she had met students face-to-face but she had no way of knowing if they were her students. Both occasions involved a group of retired, largely Filipino, students.

223    Ms Martin gave evidence that her dealings with the education staff at Unique had been satisfactory in the sense that all of her queries had been answered promptly and the personnel were very nice people.

224    Both the Applicants and Unique accepted that Ms Marin was a witness of credit. I accept her evidence.

Larissa Kidwell (Taree)

225    Larissa Kidwell swore an affidavit in this proceeding of 18 February 2016 and gave oral evidence on the second day of the trial which was 7 June 2016.

226    Her evidence was about the events at Taree. This aspect of the case directly related only to the Applicants’ system case and Ms Kidwell was not one of the Applicants’ individual consumers.

227    Ms Kidwell was born in 1977 in Australia and is of Indian, not indigenous, heritage. In 2007 she was admitted as a solicitor of the Supreme Court of New South Wales having earlier procured admission to a degree in law. She presently resides in Taree with her husband, an indigenous man who has certain mental health issues and is unable to read or write. A significant attack upon the credit of Ms Kidwell was launched by Counsel for Unique. I explain that attack below and my reasons for rejecting it. I found Ms Kidwell to be a credible witness and I accept her evidence.

228    Ms Kidwell’s evidence is that she was present at the Taree Centrelink Office on the morning of 27 November 2014 with her husband. She observed a group of about 8-9 Aboriginal people printing off their Centrelink payment summary forms. One of the women was an acquaintance of Ms Kidwell’s husband although at this time Ms Kidwell was unacquainted with her. She subsequently found out that this particular woman was known as ‘Aunty Francis’ and was well-known in the Aboriginal community in the Taree region. Aunty Francis told Ms Kidwell that she should come to her home because some people were coming up from Sydney who would be giving out free laptops. All that Ms Kidwell would need to bring would be her Centrelink payment summary and her tax file number.

229    She discussed Aunty Francis’ suggestion with her husband and they were both interested in getting a laptop. They therefore lined up to get their payment summaries from Centrelink. In that regard, Ms Kidwell was in receipt inter alia of a Centrelink Carer Allowance, no doubt, for giving daily care to her husband. Because it will be presently relevant, there is no reason I can discern why I should proceed on the basis that her husband did not obtain his Centrelink payment summary. It was why he was there.

230    There was some delay in the process of getting the summaries as the other persons in Aunty Francis’ party printed their forms out and this delay was exacerbated to an extent by a printer failure. Ms Kidwell attached her form as printed out to her affidavit in this proceeding. This document is dated 27 November 2014 and has her tax file number on it. She did not attach her husband’s but I have no reason to think that she did not obtain his or that his form did not travel with Ms Kidwell to Aunty Francis’ house.

231    Aunty Francis lived at the Taree Purfleet Mission which I understand to be an Aboriginal mission. Ms Kidwell gave evidence that she and her husband drove from Centrelink to Aunty Francis’ house at which they arrived at around 10.30 am. When they arrived there were already about six people waiting outside although Aunty Francis herself was not there (I assume she was still at, or in transit from, Centrelink).

232    After asking whether this house was the place where the computers were, Ms Kidwell and her husband were taken indoors by a woman whom she assumed was Aunty Francis’ niece or daughter. There they waited for about 20 minutes after which time her husband left to go to the local Aboriginal land council so as to meet a friend. A brief discussion between the niece/daughter and Ms Kidwell ensued in which it was impressed upon Ms Kidwell that she needed to have her Centrelink payment summary without which the organisers might become upset at her.

233    As time passed, a crowd of around 60 people gathered at the house and Ms Kidwell became concerned that she might be unable to procure the laptop because of the numbers present. She therefore proposed to the niece/daughter, who did not demur, that they should try and compile a list of those present for the more orderly distribution of the equipment. From somewhere, the evidence is not at all clear on this particular, she obtained a piece of butchers paper and began to write a list of those present upon it. Not everyone participated in this process.

234    At around 12.30 pm her husband returned and just after that two cars drove up to Aunty Francis’ house. From out these cars stepped two women and a man who Ms Kidwell thought looked Indian. As will appear, there is no doubt that these three were Ms Kang, Jasmeen and Rubbal, although Ms Kidwell did not at this time (or even now) know this.

235    Ms Kang and Jasmeen then removed two boxes from one of the cars. One was filled with what appeared to be HP and Dell computers; the other with forms. Ms Kidwell thought the computers were ‘dodgy-looking’ and dented. In her affidavit, she said they looked scratched. They were not in packaging.

236    The trio then swept into the dining room of Aunty Francis’ house where the two boxes were put down on the table and the assembled crowd was addressed.

237    Rubbal said:

‘We offer government courses. You will need to complete the course to get a laptop. We don’t have many forms. You have to fill in the forms to get the laptop.’

238    When Rubbal had finished speaking, either Ms Kang or Jasmeen gave a short address – Ms Kidwell called it a ‘spiel’. Ms Kidwell could not remember in evidence in chief the contents of this spiel, but she was sure it was only about five minutes in duration.

239    Ms Kidwell was cross-examined about the spiel. As a result of that cross-examination it emerged that on Ms Kidwell’s version of events the woman giving it had not explained the VET FEE-HELP payment arrangement, the recognition of prior learning, the ability to withdraw from the courses before the census date or the support services which existed for students once enrolled. Ms Kidwell did, however, accept that she was told during the spiel that if she dropped out of the course the computer would have to be returned.

240    It was then time to hand out the forms. Before this occurred, Ms Kidwell was able to give to one of the Indian women the butcher’s paper with the list of names on it, presumably to make more likely the receipt of a laptop. This strategy succeeded and the paperwork was handed out by one of the women calling out names from Ms Kidwell’s list. Ms Kidwell’s name was near the top of that list.

241    Consequently, she and her husband were amongst the first to receive the paperwork. The woman handing out the forms told her that they only had 26 computers but that she did not need to worry as they would be coming back with more.

242    Ms Kidwell’s husband handed his forms to her as he could not complete them himself, being unable to read or write. She began with his forms. She was anxious to complete them all to make sure she got a laptop. She also deposed that there was some degree of pressure to do so quickly as the number of available laptops exceeded the number of attendees at the sign-up meeting by a ratio of more than 2:1. Rubbal wrote down the number of her husband’s drivers licence, Medicare card and pension card. He also took a photo on his phone of each piece of identification.

243    It seems that Ms Kidwell also sought assistance from Rubbal in filling out the forms. He told her to tick the boxes. She also asked about the four page VET FEE-HELP request form and was told by Rubbal that she should definitely fill that one in. During the process of filling out the forms Ms Kidwell became aware, as a result of her own experience with the HECS system, that what was being offered was a loan. She asked Rubbal about this and he confirmed it. Rubbal told her that it was a loan but did not need to be paid back until $54,000 was being earned.

244    Ms Kidwell was cross-examined about the process of filling out the forms. One of the forms was headed ‘information session’. It had a series of boxes which Ms Kidwell ticked, agreeing that various things had been explained to her husband. This mattered because during her cross-examination she said nothing had been explained to him at all. The point of the cross-examination was to undermine her evidence on this. Save that she repeated her evidence in chief that the $54,000 threshold had been mentioned, she maintained her position that none of the matters on the form had been explained. Her specific evidence was:

‘Sorry, do you have – it’s page 11 on the bottom right-hand corner, Madam? --- Okay. So we weren’t told about course information. We weren’t told about entry requirements. We weren’t told about study nodes. We weren’t told about tuition fee or loan fee. There was discussion about the VET FEE-HELP, which I then realised was actually HECS. There was a slight discussion about repayment of your HELP debt, meaning that they said, “Look, if you don’t earn 54,000 you don’t have to pay it.” Nothing about eligibility criteria; nothing about the course commencement date; nothing about the census date; nothing about the withdrawing procedure or changing the course; nothing about refunds; nothing about the schedule; nothing about Commonwealth assistance notice; nothing about details of student support services available; nothing about LL and N requirements; nothing about the USI consent form.’

245    I accept this evidence. I find that these matters were not explained. Ms Kidwell was tested about this with the suggestion that she was willing to complete false forms with the corresponding aspersion that this was not proper for a solicitor. Ms Kidwell’s evidence was that her focus was on getting a laptop. I do not think her conduct dishonest in that context, which included evidence that she had not noticed that the ticked boxes in her husband’s paperwork amounted to acknowledgements that the contents of the form had been understood. She ‘didn’t really read it’ and instead followed the advice given to her by Rubbal to ‘just tick the boxes’. Further, as I explain later in these reasons, Unique had little interest in this paperwork except that it should be completed. What it wanted was for people to sign up to its courses. The manner in which this meeting was conducted can hardly have failed to impress upon those present that what was on offer was an exchange: enrolment for signed paperwork. Rubbal had told Ms Kidwell to tick the boxes; that is what she did. It lies uncomfortably in the mouth of Unique now to attack the honesty of those who gave effect to this pre-emptory process. I reject this attack upon her credit.

246    It was toward the end of the process of filling out the forms that she reached the enrolment application form. It then dawned upon her that what was involved was a HECS-like loan. She had previously thought that it was a government funded course which was free for indigenous people. She had an anticipation, of course, that she would exceed the $54,000 threshold when she returned to the workforce. She told her husband that she did not want a loan for a $500 computer, especially ones which appeared to be in a state of disrepair. They then got up to leave but one of the Unique employees tried to get her to leave the paperwork which she did not agree to do. This form filling part of the meeting went for about 20 minutes.

247    It was suggested to Ms Kidwell in cross-examination that this was not how the meeting ended. It was put to her that she did not have her husband’s tax file number and hence he could not get a computer. I reject this suggestion. It is true that Ms Kidwell did not attach her husband’s Centrelink payment form to her affidavit but that struck me as a thin base upon which to launch such an attack. She had been at Centrelink with her husband and obtained her own form. I accept her evidence that she obtained his. Why would she not?

5. Unique’s Witnesses

248    Unique called 14 witnesses during the trial:

    Johanne Richardson

    Adell Richardson

    Mandy Kang;

    Jasmeen Kaur

    Christopher Bell;

    Gurneet Kaur

    Nyomi Whitton;

    Leslie Tighe;

    Jyoti Chaudhary;

    Donna Hickey;

    Guramrit Singh Jandu (Rubbal);

    Thea Merritt;

    Amarjit Singh; and

    Manmohan Singh.

249    I deal with their evidence in turn.

Johanne Richardson (Bourke)

250    Johanne affirmed two affidavits in this proceeding; one of 28 April 2016 and another of 3 June 2016. She gave oral evidence on the sixth and seventh days of the trial which were 14 and 15 June 2016. Johanne works for Unique and has done so since 2 September 2014. Her evidence principally related to the events at Bourke on 10 June 2015. Her evidence broadly supported Unique’s position.

251    Johanne was born in 1982 and identifies as Aboriginal. Her high school education finished in 1997 when she completed year 10. She lives in Shellharbour, New South Wales. In January 2014, she heard from her brother that there was a woman signing people up for a course at the Richmond Shopping Centre. She was interested in this idea and went along to the shopping centre where she met for the first time, Ms Kang. She said she commenced a course in salon management with Unique in March 2014 and completed it in August 2014.

252    She also said that she commenced a Diploma of Management in July 2014 which she completed in May 2015. It was put to her under cross-examination that she had failed every unit in both courses. She testified that she was unsure as to whether she had passed them. It struck me as odd that she would not know this.

253    In any event, Johanne said that in August 2014 she asked Ms Kang for work at Unique a few times. Not long after this she was interviewed by Amarjit and given the position of Marketing and Admissions Officer. At the time she commenced with Unique she said she was provided various policy and procedure documents. She said that she read these whilst at Unique although she does not say when, during that period, she read them. Her remuneration included an entitlement to a payment of $30 per student she referred to Unique who then enrolled. Across the relevant period, Johanne said she referred about 60-100 students of which she estimated 50% were Aboriginal. Her initial duties were administrative in nature, such as answering phones.

254    Johanne said that in September 2014, the same month she began work, she attended a training course about VET FEE-HELP. Soon afterwards she began to attend student visits with Rubbal and Ms Kang so that she could learn about the process of enrolling students. She attended about five meetings with them in Newcastle and in Sydney before she starting enrolling people herself. During these initial five visits, she said she saw them explain ‘each step in the enrolment process’ including the course information, VET FEE-HELP loans and tuition fees. Johanne said that Rubbal was particularly at pains to explain the fees and that the ‘debt does stay for life until they pay it back’.

255    Thus was Johanne’s evidence about her general practices. In relation to the trip to Bourke, her evidence was that at some point in June 2015 she had been contacted by an Edmond Caban and told that there were people in Bourke who were interested in enrolling in a course. The connexion with Edmond was that Johanne had enrolled his partner’s son in a course whilst at Tamworth. Johanne then asked Ms Kang for permission to make a visit to Bourke which she received.

256    Johanne said that she then travelled from Sydney to Bourke on 9 June 2015. She did so with her mother, Adell, who she said only assisted with the driving and did not work for Unique. As will be seen in due course, I am unable to accept this aspect of Johanne’s evidence.

257    In any event, Johanne said that she took 20 enrolment kits with her and arrived in Bourke later that evening. They stayed at the Back O’ Bourke Motel.

258    The next morning they met up with Edmond who took them to a sign-up meeting with about 10 Aboriginal persons presently awaiting them at the house hosting the visit. It was at the end of this meeting that Edmond told them there was another house nearby with more people interested in signing up to Unique courses. This was June’s house. Adell and Johanne then travelled to the Alice Edwards Village not far from June’s house. There, Johanne had a conversation with two girls. These must have been Jaycee Edwards and her aunt, Lauren Cubby, in light of my previous findings. A brief discussion ensued and she then went to June’s house where a table and chairs were set up in the driveway. Johanne said she then conducted a meeting in accordance with her usual practice (which I describe below). She does not say that June invited them to her house.

259    She said that at the end of the meeting, she and her mother drove back to Sydney where they handed the completed paperwork into Rubbal just before midnight.

260    Johanne gave some general evidence about the process by which she recruited students for Unique. She testified that she enjoyed doing the course and told her family and friends about it. She believed the course was good for Aboriginal people in terms of self-improvement. She told people who were interested in doing a course to contact her. If they did contact her she sometimes organised to meet with them, but only with Ms Kang’s permission. She would only go to homes if invited. This appeared to result in meetings when she visited a town. Although not explicit in Johanne’s evidence, I infer this because the fact of the meeting would be spread by word of mouth. Where more people turned up than was expected, she would split them into groups.

261    Her evidence was that having split them into groups she would take each group through the enrolment process finishing with one group and then beginning on the next. Sometimes while one group was waiting she would have them read over the VET FEE-HELP information. She had documents of that kind in her possession because she was provided with an ‘enrolment set’ by the administration personnel at Unique as part of her employment. This contained forms, course information and the VET FEE-HELP information booklets.

262    Johanne gave detailed evidence about the enrolment process she generally followed at these meetings. In the final form of her testimony elicited orally in chief, Johanne’s account of what transpired was centred on what she referred to as her slides. By this what she meant was slides printed on paper which she read out. A copy of these slides eventually made its way into evidence as Exhibit 33. It is likely that these paper print offs were PowerPoint slides. She gave an oral account of what she said which was largely similar to the content of the slides.

263    This evidence was elicited without Johanne ever having referred to the slides in either of her two previous affidavits. Those affidavits were directed to explaining what Johanne did at the Bourke meeting. Her failure to refer to the slides in either of those affidavits strikes me as very surprising particularly given that she accepted that she was always aware of the slides. Her attempts to explain this problem made little sense to me.

264    In any event, her evidence was that she generally:

    handed out the ‘enrolment set’;

    explained VET FEE-HELP. This explanation included describing that it involved a loan from the government which had to be paid back through the tax system once the student earned more than $54,126. She said her spiel included telling the attendees that if ‘you don’t have a job, the loan will sit with you for life’;

    explained in relation to the course, the cost, length, online aspects, tutors and support available to students;

    she would then walk the students through the enrolment papers which included the pre-enrolment questionnaire and the LLN test; and

    she allowed the students to fill out the forms but she remained on hand in case they had any questions.

265    After the enrolment process was complete she said that she would hand out the laptops but only to students who did not have access to a computer. From April 2015, the free laptop was replaced with a loaned laptop. She said she would also give a step-by-step explanation of how to log on to Unique’s online system.

266    At the end of the process she said that she left, inter alia, the following documents with the students:

    a copy of Unique’s cancellation and suspension policy;

    the VET FEE-HELP booklet; and

    a step-by-step guide on how to log on to Unique’s online learning and assessment systems.

267    In the event that a student said to her that they did not use email she said she would have told them that she would send the assessments on paper if they preferred.

268    Thus was Johanne’s evidence. While I do not think that all of her evidence was made up I am satisfied that it would be unsafe to rely upon it in any area of controversy. There were at least three areas of her evidence where I am satisfied that Johanne was giving untrue evidence.

269    The first of these concerns her evidence about how she used her ‘slides’ as the basis of her explanation to potential students. These ‘slides’ were, as her oral evidence eventually made clear, at the very centre of the way in which she allegedly went about giving her presentations. How she gave those presentations was the specific topic explored in her two previous affidavits. Yet no mention was made of the slides in those affidavits. She said that she was aware of the slides when she prepared those affidavits but she does not recall why she left them out. I am unable to accept this as an explanation. My sense that Johanne’s evidence about this was unreliable is augmented by the fact that she largely succeeded in giving an account of what she said at the meetings which was the same as that contained in the slides without having them before her. It looked to me as if she had memorised them.

270    Secondly, she gave evidence about the role of her mother, Adell, on the trip to Bourke which I cannot accept. At paragraph 57 of her affidavit of 28 April 2016, Johanne explained that her mother’s role in her trip to Bourke had been simply to help out with the driving:

‘My mum came along to help with the driving as it was a long trip. She didn’t have anything to do with the work I was doing for Unique. She does not work for Unique.’

271    Of course, this is contrary to the evidence I have set out of both Fiona and June, both of whom gave evidence that Adell had a significant role to play during the Bourke meeting. Johanne was aware of this evidence and denied that it was true at paragraphs 72 and 91 of her affidavit.

272    That Johanne’s evidence in this regard was contradicted by Fiona’s and June’s would not, by itself, have led me to view this aspect of Johanne’s evidence as necessarily untrue. However, evidence emerged during Johanne’s cross-examination of text messages sent from Adell’s mobile phone which make it very hard to accept her evidence about this. These included:

    a text message from Adell on 23 March 2015 to Ms Kang ‘confirming Saturday Tamworth’;

    a text message from Ms Kang to Adell on 25 March 2015 ‘Going to Cowra with Nyomi’;

    a similar text message from Adell to Ms Kang about ‘Matraville’ on the same day;

    a text message from Adell to Ms Kang on 27 March 2015 in these terms:: (‘condo’ means Condobolin)

•    ‘Mandy im going tomorrow me and johanne were staying the whole weekend I will get everything also ive booked Tuesday back to condo ive missef (sic) 20 people can I still do them or cancel’;

    a text message from Adell to Ms Kang on the same day in these terms:

•    ‘I will for sure I have 8 already from mt druitt and matraville’;

    a text message from Adell to Ms Kang on 30 April 2015 in these terms:

•    ‘Hi mandy I have to go down wollongong tonight and I need those forms to take with me I can get the nowra and bomedary people while im there can you have someone bring them to my house please.’; and

    a text message from Adell to Ms Kang on the same day in these terms:

•    ‘Ok because that will be to (sic) much for rubal im signing 2 people Sunday at emerton near my house’.

273    There are several other text messages which had the same basic import and I need not set them out. They show that Adell was very actively involved in Unique’s business, including in signing people up. There was some evidence that Johanne had used her mother’s mobile number to send text messages (presumably when Adell was driving) but this cannot explain all of these texts. Quite apart from that, I am sceptical of the claim that Johanne used her mother’s mobile number to send messages.

274    When confronted with this material, Johanne denied that her evidence that her mother had no role with Unique was false: T-615. I do not accept her denial. One puzzle about this which I am unable to resolve is why Johanne gave evidence that her mother had a much more attenuated role than was the case. It does not appear to be a proposition that would necessarily harm either Johanne or Unique. Put another way, I am unable to determine what Johanne’s rationale for giving this false evidence was. That notwithstanding, I remain persuaded that this aspect of her evidence was false.

275    A third reason for concluding Johanne was unreliable concerned her evidence about the counter-signing of the forms executed at the Bourke meeting. That meeting took place on 10 June 2015. The forms contained a section entitled ‘Staff Declaration’. Under this heading was a certification followed by a space for a staff member’s name and signature.

276    The certificate was as follows:

‘STAFF DECLARATION

I have conducted an interview by phone/face to face (Please circle) with the Student detailed in this Enrolment Application and Agreement Form and have implemented UIC’s Student Entry Requirements, Selection and Orientation Policy, including a selection procedures in full. I have also provided the student with a copy of the VET FEE-HELP Information for 2015, which provides the student with all details regarding their VET FEE-HELP obligations. I declare that the student in this application meets their chosen program(s) Entry Requirements and has been provided with accurate and sufficient information for their chosen program(s). I therefore declare that this student is suitable for enrolment into their chosen course(s).

Staff Name: ___________________________

Staff Signature: ________________________

Date: ___________/__________/__________’

277    The forms which were completed at the Bourke meeting each had this section completed by Rubbal. Rubbal has signed each form and dated it 10 June 2015.

278    Rubbal was not at the Bourke meeting. Indeed, on 10 June 2015, as Johanne’s cross-examination revealed, Rubbal was in Sydney. Her evidence was that she and her mother had driven from Bourke to Sydney that day and that he had signed them at Unique’s premises just before midnight.

279    I have concluded that Rubbal’s certification was false in each case. He conducted none of the interviews at Bourke and provided none of the material referred to in the certificate. Johanne’s evidence is that she had explained to Rubbal what had happened at the Bourke meeting and it was following that explanation that he, as her supervisor, had completed the certificate back in Granville.

280    For me to accept this version of events I would need to accept:

    Rubbal’s completion of an apparently false certificate is to be explained by the existence of an innocent office process whereby Johanne would report to her supervisor who would then complete the paperwork consistently with that report;

    the date of 10 June 2015 which Rubbal has inserted into the form is the date on which he actually signed it;

    Johanne travelled from Bourke to Granville in Sydney (some 738 km) in the afternoon of 10 June 2015, arriving at the College in Granville just before midnight; and

    Rubbal was at the College at that time, at which point he completed the paperwork.

281    This strikes me as distinctly unlikely and I do not think it is what happened. Johanne was not telling the truth about this.

282    There were two further matters which might be seen to adversely affect Johanne’s credit but which I do not think can be reliably used in that way. The first is her evidence about which courses she had passed. Her recollection during cross-examination at T-635-628 appeared to be at odds with the facts, but she appeared to be genuinely surprised by this. The second is her evidence, again during cross-examination, at T-635 that she did not know the meaning of the expression ‘Aboriginal community’. I cannot exclude the possibility that this evidence was the result of a degree of confusion during the cross-examination.

283    Nevertheless, I am persuaded that Johanne’s evidence is not reliable. Unless independently corroborated or obviously correct, I do not think it would be safe to rely upon it.

Adell Richardson (Bourke)

284    Adell swore an affidavit in this proceeding of 4 June 2016. She gave oral evidence on the tenth day of the trial which was 20 June 2016.

285    Her evidence was as follows. Adell completed school to the end of year 9, has four children, including Johanne, and presently cares for her disabled husband. She first became aware of Unique sometime in 2014 when she met Ms Kang in a shopping centre at Windsor, a town situated on the Hawkesbury River. Adell’s account of this meeting is abbreviated. It seems that Adell approached Ms Kang and told her that she wanted to sign up for a course and get a laptop. This account appears to presume a certain degree of knowledge on Adell’s part about what Unique was offering. Adell’s evidence did not clarify where this understanding came from.

286    Adell said that Ms Kang explained various aspects of the courses to her including:

    the length and cost of the course;

    that it was a Diploma of Management;

    that she needed to present identification documents and her tax file number;

    the cost of $20,000;

    VET FEE-HELP; and

    the $50,000 threshold.

287    She also said that Ms Kang went through the forms with her and explained them to her. About a week later she received the laptop. It was about a week later that her children Johanne, Janine and John signed up for a course with Unique. Subsequently, Johanne took up work with Unique, having previously worked at BiLo.

288    Adell gave evidence that she liked traveling with Johanne when the latter was visiting various locations to give information sessions and sign up students. Other reasons she liked to travel with Johanne included because she wanted to see Australia and meet other Aboriginal people.

289    In any event, in the middle of June 2015 Adell travelled with Johanne to Bourke. She confirms Johanne’s evidence that they stayed in a hotel in Bourke the night before the proposed sign-up meetings. She then gave evidence of attending two sign-up meetings the next day. The first was at Darling St in Bourke. I do not need to spend much time on this meeting. She said that Johanne gave an information session speaking from some documents and that afterwards the people present filled out paperwork.

290    More important for this litigation is the second meeting at the Alice Edwards Village, which I have now already discussed in some detail. It was Adell’s evidence that Edmond Caban took Johanne and Adell to June’s house. Largely, her account confirms Johanne’s. The meeting took place at about 11 am. There were about 6-8 people present. Johanne asked whether the people present wished to do a course. They answered ‘yes’. Johanne then went to get her presentation materials and paperwork from the car. Those present moved under the car port and sat around a table. Adell sat next to an older woman who I conclude was June. Johanne then gave her information session which she did standing up and moving around. The information session went for about 45 minutes. During this session, Adell’s evidence suggests that she was not very focussed on the events at hand. She said she spoke with June but not in relation to the courses. The effect of her evidence is that she did not do so because she was not employed by Unique.

291    Adell gave evidence about what Johanne said during her information session. Because Adell had seen Johanne present the information session before she became bored by it and wandered off for a while. Nevertheless Adell was clear that Johanne spoke about:

    VET FEE-HELP;

    the course cost $22,000 plus a 20% loan fee;

    how long the course went for;

    the $54,000 earning threshold beyond which repayment of the loan would occur; and

    the existence of student support and the location of the college in Granville.

292    At the end of this presentation the forms were distributed to the participants so they could be filled out. Adell accepts that she helped June fill out her forms because this was thought to be faster. She said that it took about 30 minutes. She denies that she would have answered any questions about VET FEE-HELP referring them instead to Johanne. All in all, she said the meeting took about an hour and a half.

293    Except where it is consistent with established facts or other reliable materials I do not think it would be safe to rely upon Adell’s evidence by itself to establish any of the contested issues in this case. This is because there were two matters about which I was satisfied Adell’s evidence was deliberately false.

294    The first concerns her evidence that she did not work for Unique and just travelled with Johanne to keep her company. This evidence was directly contradicted by the text messages which were sent from and to her mobile phone. On their face, the text messages (which are usefully summarised in Exhibit 46) clearly show that Adell was actively involved in Unique’s everyday business. So for example, Adell’s phone sent this text message to Ms Kang on 21 March 2015:

‘Mandy ive got a complaint about 1 of the computers dont have word working I dont know what that is what shouldvi tell her’.

(errors in original)

295    Adell’s response in relation to this, and other similar text messages in Exhibit 46, was that the messages had been sent by Johanne or written by Adell on behalf of Johanne. Why would this be so? It was because Johanne was using her (Adell’s) phone because it had better reception.

296    This explanation encountered difficulties with a text message sent on 27 March 2015. According to it, Adell sent this message to Ms Kang:

‘Mandy im going tomorrow me and johanne were staying the whole weekend I will get everything also ive booked tuesday back to condo ive missef 20 people can I still do them or cancel’.

(errors in original)

297    It is difficult to see why Johanne would send a message referring to herself in the third person. Adell’s explanation was at:

‘Now, I want you to pay particular attention to the first few words, particularly the reference to “me and Johanne”? --- Mmm.

You wrote that SMS, didn’t you? --- I did write it, but it’s probably for Johanne.

Maybe it’s for Johanne, but you wrote it, didn’t’ you? --- Yes, I did.

Yes indeed, you’ve written quite a number of these SMS message, haven’t you, Ms Richardson? --- No, I haven’t.

No. You deny that, do you? --- I do.’

298    I do not accept this explanation. The 27 March 2015 text message therefore reveals that Adell was involved in the internal workings of Unique. It shows that her account of simply accompanying Johanne is false.

299    Two further text messages make a similar point. The first is an SMS exchange which took place between 5.09 am and 5.24 am on 16 June 2015 between Ms Kang’s mobile phone and Adell’s:

‘Adell:    “mandy I have newcastle and lightning ridge set up 50 each:”

Mandy:    “Adelle Rubbal said he will go”.

300    A similar exchange took place on 18 June 2015 between 9.54 am and 10.00 am:

‘mandy before you stop at the end of the month can we do 3 more towns wagga wagga, wee waa, and narabri These people have been asking us to come

Adell, we have done narrabri long time ago when Nyomi’s cousin or friend Lorraine was helping Nyomi. There were about 20 from Wee Waa so if you take the list with you for this one as well a lot have been done in Waggaa (sic) so maybe list for that one aswell. But otherwise all good.

The lady from dubbo said its her people in some of these towns and she said they haven’t signed i’ll give it a go thanks mandy.’

301    Adell was cross-examined about this and the exchange at T-1161.20-1162.29 was as follows:

‘You will see the next one, 94 is from Mandee Kang to your phone. She said:

“Adell, Rubbal said he will go”.

Was Mandee Kang in a habit of addressing your daughter as Adell? --- Well, it’s my number. She probably just said Adell.

She was addressing - - -? ---Sometimes I send the messages - - -

- - - you, wasn’t’ she, Ms Richardson?--- - - - that Johanne tells me to write while she’s driving.

She sent it to you because you were communicating with her, weren’t you? - - - Could have – might have then. I don’t – I’m not sure.

See, it’s a response. If you look at the previous item 93, Mandee Kang is responding to your SMS sent to her just a few minutes earlier, about 15 minutes earlier; see that. She responding to you because you sent the previous SMS; do you agree? --- No, I don’t agree.

You don’t agree. Go to item 102 on 18 June. Item 102:

“Mandee, before you stop at the end of the month, can we do three more towns? Wagga, Wee Waa and Narrabri. These people have been asking us to come.”

Did you send that one?---I have never been to Wagga Wagga, Wee Waa or Narrabri.

And has anyone ever asked you to go there to do sign-ups for Unique?---No.

No. You will see Mandee Kang responds to that message from your phone a few moments later, four minutes later. Item 103:

“Adell, we have done Narrabri a long time ago when Naomi’s cousin or friend Lorraine was helping Naomi. There were about 20 from Wee Waa, so if you take the list with you for this one as well, a lot have been done in Wagga, so maybe list for that one as well. But otherwise all good.”

You sure you were not organising these trips at this time, Ms Richardson? --- Wasn’t me. I didn’t organise those trips because I didn’t’ go.

Mandee Kang is responding to you and she’s addressing you, Adell; you agree? Do you agree?--- I agree she’s addressing me, but I didn’t go on these trips, so - - -

She’s addressing you, Ms Richardson, because you are the one sending the messages to her in each of these items; do you agree? ---I disagree.

And then you responded to that message within two minutes; that’s 104:

“The lady from Dubbo said it’s her people in some of these towns. She said they haven’t signed. I will give it a go. Thanks, Mandee”

That was you responding, wasn’t it?---It might have been Johanne responding. I didn’t go.

It was you responding on the SMS, Ms Richardson, wasn’t it?---No.’

302    I do not accept these denials. I therefore do not accept her evidence that these text messages are to be explained by the fact that Johanne was using Adell’s phone.

303    Of course, all of this evidence was part of an ancillary attempt on Adell’s part to show that she had not worked for Unique. During her cross-examination, Adell was confronted with a bank statement for one of Unique’s accounts with the Commonwealth Bank. There is an entry for 23 April 2015 which records a transfer of $1500 to ‘Adell’. Adell was cross-examined about this at T-1163:

‘Ms Richardson, these are bank statements that have been given to us by Unique College, and I want to draw your attention to an item – you will see the dates on the left-hand side of the pages. These are all dates in 2015, and you on 23 April 2015 there was a transfer made out of Unique’s bank account to Adell for $1500. You are the Adell identified in that transfer, aren’t you? --- I’m not sure.

You are the person who received the $1500 from Unique College on 23 April 2015; you agree? --- I don’t agree

Do you deny receiving that $1500 on 23 April? --- I do

You deny it? --- Yes

Is it your evidence you’ve never received anything from Unique College? --- I’ve received not a cent from Unique.

Not a cent. So that’s not you. The Adell that’s named there; is that your evidence? --- That’s my evidence.’

304    I do not accept this evidence.

305    Adell gave evidence that she had helped June fill out her forms. Under cross-examination she contended that although the handwriting was hers she had merely written down June’s answers. It would be difficult to form a view about this except that it also emerged that Adell’s handwriting was on both Fiona and Jaycee’s forms. In relation to Fiona’s forms it is clear that Adell has written on the forms certain matters which I am satisfied Fiona would not have said. For example, during cross-examination at T-1169 it emerged that Adell had written on Fiona’s form that the reason she wished to do the course was because she wished to study online at home with her children. Fiona has no children and I am satisfied that she would not have told Adell to write such a thing on the form. At T-1169 it was suggested to Adell that her evidence about this was false, which she denied, but I do not accept this.

306    I therefore do not regard Adell as a reliable witness in areas of controversy.

Mandy Kang (Walgett, Taree, Tolland)

307    Ms Kang affirmed two affidavits in this proceeding; one of 28 April 2016 and another of 3 June 2016. She gave oral evidence on the seventh and eighth days of the trial which were 15 and 16 June 2016.

308    Ms Kang is the student engagement manager of Unique. Her evidence was directed to the following topics:

    her engagement by Unique;

    Unique’s participation in the VET FEE-HELP system and the enrolment of students in VET FEE-HELP courses;

    Unique’s canvassing of students;

    Unique’s information slides;

    Unique’s forms used in the process of signing students up;

    Unique’s student orientation materials;

    Ms Kang’s trip to Walgett;

    Ms Kang’s trip to Taree;

    Ms Kang’s trip to Wagga Wagga/Tolland;

    Unique’s enrolment processes; and

    Unique’s post-enrolment procedures.

309    As will appear shortly, there are abundant reasons not to accept Ms Kang as a witness of truth. However, it is also clear that she created a great deal of internal documentation relating to systems and enrolment processes. It was not suggested that I should conclude that this documentation was fabricated and I do not do so. Where this documentation fits into the events at the college is one of the puzzles of this litigation.

310    I will indicate at the outset why I do not accept Ms Kang to be a witness of credit. During her cross-examination, there were several occasions when I became satisfied that she was not telling the truth.

311    The first of these concerns an SMS message which Ms Kang sent to Adell at 4.30 am on 30 April 2015:

‘Also in the meantime sign up more people while you guys are there wherever you go my brother said…’

312    Ms Kang was asked about this during cross-examination at T-866-867:

Who’s the brother you’re referring to?---Could be Amarjit.

It’s your brother-in-law you’re referring to, is it?---Yes.

So is that what he said to you, “Sign up more people while you guys are there,

wherever you go”?---No.

Well, what did you mean when you wrote that to Adell Richardson?---See, I can tell

you what it may have meant. I have no idea what it means.

You have no idea what that means. And is it your evidence that Amarjit has never

said to you something like, “Sign up more people while you guys are there wherever

you go”? Is that your evidence?---Yes.

Yes. He never said anything like that to you?---Yes.

So you were just making that up in that SMS were you?---I – that’s why I don’t like

doing SMSs because when the phone does itself – you’re typing something else. It

just types something else. That’s why I don’t like doing SMSs.

HIS HONOUR: You’re saying this is the result of an autocorrect?---Yes. Yes.

Sorry. That’s what I meant.

MR O’BRYAN: Which word - - -?---Yes.

Which word has autocorrected wrongly?---The whole sentence. I have no idea.

So, what, every word is autocorrected wrongly; is that right? That’s your

evidence?---I don’t know.

313    I regard Ms Kang’s suggestion that the entire sentence was as a result of an autocorrect error to be false. Confronted with evidence that she was personally aware that the aim of the exercise was simply to sign people up, Ms Kang chose a path of denial which I cannot reasonably be expected to believe.

314    The second matter concerns Ms Kang’s evidence as to whether Rubbal was a Justice of the Peace. An SMS message sent by Ms Kang to Adell on 30 April 2015 said:

‘Yea but you able to find a JP? Otherwise we can send Rubbal with you as he is a JP as well…’

315    During cross-examination at T-866, Ms Kang denied that Rubbal was a JP. She was then pressed as to why she had said Rubbal was a JP in the SMS message. This exchange at T-859 then occurred:

Now, was Rubbal a JP – a justice of the peace?---No. Rubbal is not a JP.

Why did you write that?---It must be a typo.

For what?---That – where – I have no idea right now, but Rubbal is not a JP. With the messaging, you – even you yourself know that it does automatic - - -

What was the question you were asking at the beginning of that SMS:

‘Yay, but you able to find a JP?’

What does the JP refer to there?---I have no idea. Sorry.

Do you remember sending this text?---Why would I send this text?

316    Again, this evidence is not plausible. The text message is also untrue. Together they constitute material suggesting that Ms Kang is willing to lie both casually (in a text message) and formally (in the witness box).

317    The third concerns Ms Kang’s evidence about her diary. During cross-examination at T-859 this exchange occurred:

Right. Do you keep any records whatsoever, apart from these SMSs, of these

visits?---No.

No. So you don’t have a diary. Is that right?---I don’t keep a diary.

You don’t keep any diary at all. Is that right?---Yes.

Yes. You didn’t keep a diary in March 2015. Is that correct?---Yes.

Yes. And you’ve got no notes or other records of any of these visits. Is that the

case?---Yes.

318    Contrary to this evidence, Ms Kang’s 2015 diary was in evidence as part of Exhibit 53. She was asked about it during cross-examination at T-865:

My junior has just pointed out to me, Ms Kang, that you produced a diary in answer to a notice to produce which we gave you in this case. We got a document which is identified as your diary. I might show it to you, but - - -?---Yes.

Your Honour, this is in the applicant’s supplementary documentary evidence volume, volume 1, under tab 98.

So I’m just going to – I’m just going to hand that to you and ask you to confirm that the description given to it by your solicitors in answer to our notice to produce is correct. That’s your diary, isn’t it, that I’m showing you now – tab 98?---Yes. This is my diary, but I never kept track of my diary.

This is your diary, but you never did what?---I had diary, but I never wrote much in my diaries.

So you did have a diary and you – but you didn’t use it much; is that your evidence?---Yes. That’s my evidence. Yes.

319    This episode is consistent with the view I have reached that Ms Kang was willing to give false evidence when she thought it was to her advantage.

320    The fourth concern I have is with the evidence she gave of her dealings with Kylie. I have already explained above at [93] and [137] that, having seen Kylie give her evidence, I am confident that any person talking with her would have appreciated at once that she was a person of limited capacities.

321    Kylie, it will be recalled, gave evidence about the enrolment forms she had signed at the meeting in Tolland. One of these was the pre-enrolment questionnaire. It was Ms Kang who had carried out the interview with Kylie and she was cross-examined about this. It was Ms Kang’s evidence that the handwriting on this form was, in fact, hers. Ms Kang’s evidence was that the answers on this page were recorded by her on the form because they were Kylie’s answers to the questions she had asked of her. Ms Kang was asked about several of these questions and answers. I propose to confine my attention to questions 5 and 6. In these two sections, Kylie is recorded as having basic skills using Microsoft Word, Excel and PowerPoint; also, to be able to use email, Skype and Webcam. She is also listed as having intermediate technical skills. Ms Kang’s evidence was that she would only record such matters if she had satisfied herself as to these matters.

322    Having seen Kylie give her own evidence, I cannot accept this evidence from Ms Kang. There is no chance that Kylie could possibly have left Ms Kang with the impression that she had these skills. Having seen both women, the only plausible explanation is that Ms Kang was lying about this.

323    The fifth concern I have with Ms Kang’s testimony is her evidence about some cash withdrawals which were made from Unique’s account with the Commonwealth Bank. The particular branch was the Granville branch which was about 100 metres from Unique’s campus. During cross-examination, Ms Kang was asked who made some withdrawals on this account which were identified in Unique’s bank statements. Her answer was that it was Amarjit . She was then asked whether she might have done some of them to which she replied that she might have done ‘one or two’.

324    Exhibit 36 was an Australian Transaction Reports and Analysis Centre (‘AUSTRAC’) record of Ms Kang’s activities on this account. It shows her engaged in more than 90 cash withdrawals on it between 21 July 2014 and 21 December 2015 which totalled in all $1,890,600. Confronted with Exhibit 36, Ms Kang agreed that she had made cash withdrawals.

325    Her initial evidence that she made only one or two withdrawals was false and she changed her position only when confronted with Exhibit 36. This was, in my opinion, a large untruth.

326    These five matters show, and I accept, that Ms Kang was prepared to lie in her evidence when it suited her. There were other attacks made on her credit with which I do not find it necessary to deal. I will record, however, that I reject the attack made on her credit in relation to her qualifications. Although she seemed unclear about the detail of some of them, I do not think it was because she had not done them. It was instead because of their large number. Just why Ms Kang had so many qualifications raises its own questions but little utility for present purposes would be served by pursuing that issue.

327    On the other hand, Unique gave numerous examples of instances where Ms Kang was said to be telling the truth to buttress its written closing submissions that she was a witness of credit. For example it was said that her evidence that she could not recall what was actually said at Walgett, Taree and Wagga Wagga was ‘palpably honest’. It was also said that she gave ‘credible and direct’ evidence about Ms Kidwell at Taree. If describing Ms Kidwell, a youngish Indian woman, as an older Aboriginal woman can be included under the canopy of the credible then this might be so. However, the canopy of credibility is not so large.

328    In any event, that Ms Kang is shown sometimes not to have been lying does not establish that she is a credible witness. For the reasons I have given, she was not.

329    There were some aspects of Ms Kang’s evidence which I do accept as true. I accept that she was born in 1984 in India and emigrated to Australia with her parents in 1997; that she completed her secondary studies in the United States; that she commenced, but did not complete, various tertiary courses at universities; and that she has a formidable array of diplomas and certificates.

330    Ms Kang is married to Balfeet Singh, who is the brother of Amarjit Singh. She has a number of children. After a spell as a train guard, Ms Kang began working for Unique in August 2008. There she has held four roles:

331    I accept Ms Kang’s evidence that on 27 November 2013, Unique was approved by the Department as a VET provider. This coincided with Ms Kang’s appointment as Unique’s Senior Marketing Manager. Ms Kang gave evidence that as part of the process of obtaining that registration, Unique implemented a number of policies. One of these, for example, was entitled ‘AP 150 Student Review Requirements and Recrediting a FEE-HELP Balance’. As I have already said, I accept that these documents were generated and do exist. I do not accept Ms Kang’s evidence that they were implemented if that means she took any step to ensure that either herself or Unique’s employees actually used them. I reject her evidence that she directed Unique’s employees to use them although I accept that the employees were most likely provided with copies of the various policies and guidelines.

332    As will be appreciated from the evidence of several of the witnesses called by Unique, an important part of this case concerns what was said at the beginning of the sign-up meetings. This arises as a direct issue in relation to the Applicants’ case on the individual consumers but also arises in an indirect way in relation to its system case. Ms Kang gave evidence about what she said by way of introduction and this, of course, is of immediate relevance to the sign-up meetings held at Walgett, Taree and Tolland which she attended.

333    To understand her evidence it is necessary to put something of a timeline on events. It was on 27 November 2013 that Unique obtained approval as a VET provider. I return to the evidence of Amarjit below at [538]-[594] but he gave evidence, which I accept, that a decision was made by him to change the mode of delivery of Unique’s courses to include its online provision and this was approved by the Department on 2 January 2014.

334    There was therefore a brief period between 27 November 2013 and 2 January 2014 when Unique’s VET FEE-HELP eligible courses were offered face-to-face. During this period the only students who could enrol in Unique’s VET FEE-HELP eligible courses were those who could attend its Granville premises for tuition. Although Ms Kang gave evidence that in around November – December 2013, Unique instituted two arrangements (which I describe below), I think it unlikely that these had any real traction before the inception of the online courses on 2 January 2014. I accept her evidence that before its registration as a VET provider most of its students were overseas students. It appears that these students had a greater capacity to pay Unique’s fees upfront.

335    Ms Kang gave evidence that in April 2014 she developed a formal series of slides that she could speak to during out-of-college visits to make sure she touched upon all of the information she wished to talk about. I return to the topic of those slides shortly.

336    But even on Ms Kang’s account she had no slides in the period between November 2013 and 1 January 2014 (before the online courses were approved) and between 1 January 2014 and April 2014 (when the slides were first created).

337    Ms Kang gave evidence that in this first period it was her standard practice at sign-up sessions to give an overview during which she would:

‘(a)    explain the courses Unique offered, including the cost, length of time required, entry requirements and study modes offered for each course;

(b)    ask the student if they wanted to complete a course and which course they wanted to complete;

(c)    explain that the student was signing up for a course;

(d)     explain the obligations arising from the forms and that the purpose of the forms were to sign up to a course;

(e)    explain that there were different payment options for the courses;

(f)    explain the VET FEE-HELP scheme to students and the nature of their obligations if they received VET FEE-HELP including that:

(i)    a VET FEE-HELP course is not free and that it is a loan from the government;

(ii)    the student would have a debt to the Government after the census date for each unit of the course;

(iii)     the loan must be paid back to (sic) the student if they earn over the threshold amount;

(iv)    there is a 20% loan fee;

(v)     the loan stays with the student for life unless it is repaid; and

(g)    explain withdrawing from the course and the relevance of the census dates.’

338    As I have indicated already, I do not accept that Ms Kang’s testimony is reliable in areas of controversy. This topic is an area of controversy. I do not accept this evidence. This is not to say that I find that these matters were not said; only that I do not propose to act on Ms Kang’s evidence to that effect. Because I have concluded that Ms Kang is an unreliable witness, I would not be prepared to accept this evidence on its own.

339    In relation to the period commencing in April 2014, however, Ms Kang’s account is corroborated by the ‘slides’ she prepared for her presentations. These slides were not used on a projector but instead on her computer. I infer from this that she meant that she used her laptop as a prompt. No attempt was made by the Applicants to prove that the slides had been created after the event.

340    By itself, I would not accept Ms Kang’s evidence that she used the slides as a basis for her presentation. This is because I do not accept her as a credible witness and because I do not accept that the documents generated by Unique necessarily reflect actual practices.

341    Ms Kang gave evidence which I do accept (due to its uncontroversial nature) that Unique initially required persons signing up for one of their VET courses to complete two forms being an enrolment application form and a VET FEE-HELP form.

342    As I have endeavoured to explain, the VET FEE-HELP form, parts of which can be found at [118]-[119] above, is a form prepared by the Australian government. By it an applicant can apply through its provider for VET FEE-HELP in relation to a VET course. As I have already mentioned, it requires applicants, inter alia, to provide their tax file numbers. It also has boxes to be ticked which confirm that an applicant has read the VET FEE-HELP booklet and understands the various features of the VET FEE-HELP scheme. These include that it creates a debt repayable through the tax system and that there is a 20% fee.

343    The enrolment form requires similar details.

344    I accept Ms Kang’s evidence as to how she came to use the process of holding meetings. Initially she had tried to sign people up to Unique’s course at public places such as shopping malls or by using backpackers to distribute flyers. The students who were signed up this way were required to come to the Granville campus to do the enrolment process.

345    It was Ms Kang’s evidence that she changed to visiting people’s houses (by invitation) and holding sign-up meetings because it was a ‘much smoother process’, because the former process at Granville ‘made life difficult for the staff’ and because Ms Kang liked the process of talking to groups of potential students all at once.

346    I do not accept this evidence. In fact, once Unique switched to providing its course online there was no longer any need for its students to have a geographical nexus with the Granville campus. As I conclude below at [629], Unique’s city enrolment rate in the relevant period was 0.03% of its total students. The online nature of the courses had the effect of permitting Unique to solicit enrolments from anywhere. In the context of visiting geographically disparate locations, it was necessary that Unique had a way of getting the paperwork done. The process of distributing flyers or soliciting passers-by in shopping centres was not practical for this purpose. In my opinion, once Unique was released from its tether to its Granville premises, the process of sign-up meetings was the only feasible way of proceeding.

347    No doubt, the ability to provide the course online was what made it possible to sign up potential enrolees outside of Sydney, but how did Unique actually make the move into the countryside?

348    Ms Kang’s evidence about this was at paragraphs 81-83, 86, and 90-91 of her first affidavit. She said that the referral process used by Unique resulted in students bringing their friends and relatives in to enrol. Under Unique’s referral system, an enrolled student would receive $200 for each student they brought in. She instanced examples of individuals who had been students (such as Melissa and Nyomi Whitton) who had brought in others such as Adell and Johanne. The particular point of this evidence was that some of these people were Aboriginal and so an innocent explanation was available to rebut any suggestion that Unique had targeted Aboriginal students in particular when offering their courses.

349    Whilst I am prepared to accept that Unique’s referral scheme is likely to have caused the existence of its courses to spread by word of mouth, I do not accept what was, I think, implicit in Ms Kang’s evidence, that the locations at which she ended up marketing its courses were not the result of deliberate decision-making on her, or Unique’s, part.

350    No doubt, the referral system was likely to bring in leads in various, possibly quite separate, areas. But it was Ms Kang (or at least Unique) who made the choice about which leads would be followed up. Ms Kang did not give evidence in her affidavit explaining how that particular decision was made.

351    Ms Kang gave evidence, which I accept, that in March 2014, she implemented a new form, the ‘Information Session Acknowledgment Form’. I accept this because it was not suggested the document had been fabricated.

352    This form, which was an antecedent of the one I have set out at [108] above, required an enrolee to fill in their name and, by using a series of boxes which needed to be ticked, to indicate that certain specified matters had been understood by them. These matters included the following:

    the tuition fee;

    the operation of the VET FEE-HELP system; and

    the census dates.

353    Ms Kang’s evidence was that she directed all staff to use the form and she used it herself. I do not accept this evidence. I do accept that it is likely that Ms Kang sought to ensure that this form was completed and directed her staff accordingly. But I do not think she had any interest in whether the explanations had, in fact, been given. Her interest was only to be in possession of a form which would prove, in the event of litigation or inquiry, that proper explanation had been given.

354    In relation to each of the meetings which I have considered above, I am satisfied that the fact that a student has ticked the boxes on this form (or that the boxes have been ticked) and signed the form is unreliable evidence that the students understood the matters referred to within it.

355    Ms Kang gave evidence about what she regarded as the proprieties of offering potential students incentives such as laptops and iPads. I accept her evidence that she was aware in June 2014 that an answer had been given at a Senate Estimates Committee that the Australian Skills Quality Authority did not think that the offering of incentives infringed its relevant standards or the ACL.

356    Ms Kang gave evidence, which I also accept, that over time she amended the existing paperwork or created new forms or documents. I do not accept her evidence, in each case, as to her motive for creating the documents. I am satisfied that her motive in generating the paperwork was to provide the appearance of a properly operating system rather than in fact running such a system.

357    I turn then to Ms Kang’s evidence about the meetings held at Walgett, Taree and Tolland, which have already been recounted from the perspective of the Applicants’ witnesses in this proceeding. Ms Kang, it should be noted, was not present at the meeting in Bourke.

The events at Walgett

358    I do not accept Ms Kang’s evidence of how the visit to Walgett came to be scheduled. That evidence was part of Unique’s case in resisting the Applicants’ case that it had targeted disadvantaged people. She said she was asked to do a visit by Nyomi Whitton. As I have said, I do not regard Ms Kang’s uncorroborated evidence on disputed matters as reliable. In this case, her evidence was corroborated by Nyomi Whitton. However, as will be seen I did not regard her as a reliable witness either.

359    I do accept Ms Kang’s evidence that she travelled with Jasmeen and Rubbal to Walgett on 10 October 2014 and that they left at around 2 am that morning. I also accept that she arrived at the house of Alan Tighe at Sutherland Street, Wagga Wagga at about lunchtime.

360    Ms Kang said that she sat down at a long table and unpacked her materials. The materials included information on each of the courses as well as the VET FEE-HELP booklet. She said she gave a presentation to those attending and that during this presentation she explained the courses and the nature of VET FEE-HELP. In her affidavit, she made no mention of having used her slides to assist her in doing so. I think, however, that this may be implicit in paragraph 94 of her first affidavit.