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Emily (P) v SecureCy Pty Ltd (D) It can be argued that contrary to section 18 of the Australian Common Law (ACL), D was involved in misleading and deceptive conduct1 by the means of marketing their cybersecurity training course as such, that it creates an impression and suggests that people from lower socio-economic backgrounds will be able to enjoy an affluent lifestyle once they have completed the said course. P will further be able to argue that D targeted people from the lower socio-economic backgrounds who were potentially the vulnerable members of the society and had low self-esteem. The information available on the company’s website coupled with the false sense of the value of the course created by the advertising campaign, which highlighted the following bold and prominent text 1. Become a cyber expert in Just weeks 2. Free* high-powered computer included! 3. Earn an income of $100,000 p.a.** 4. Suitable for all ages and backgrounds: no prior education needed!! 5. Book now for a small deposit: money-back guarantee on your training costs*** were in contrast to section 29 of ACL.2 This will also be supported by the finding of the court in Australian Competition and Consumer Commission v ACN 117 372 915 Pty Limited (in liq) (formerly Advanced Medical Institute Pty Limited), in which the court found that the medical institute targeted vulnerable or disadvantaged members of the society and used unfair advertising tactics to lure them in.3

1 The Australian Common Law, Schedule 2 - Competition and Consumer Act 2010 (Cth), s 18. 2 Ibid, s 29 (1)(b). 3 Australian Competition and Consumer Commission v ACN 117 372 915 Pty Limited (in liq) (formerly Advanced Medical Institute Pty Limited) [2015] FCA 368, 891.

Similar conduct was also noted in Australian Competition and Consumer Commission v Cornerstone Investment Aust Pty Ltd (in liq), as such it could be successfully argued that D was involved in misleading and deceptive conduct even though every individual undertaking the course with D, might not have been affected, however, it could strongly be argued that by suggesting that people with no formal education will be able to earn significant amount monies after undertaking their three-week course, D intended to target vulnerable members of the society 4, hence also misleading the general public to the “nature, or characteristics of services or their suitability”.5 It can also be suggested that the D via their employee Jo, who also works as a carer for P has acted unconscionably. Based on the available information, it can easily be proven that P was faced with a special disadvantage because of her limited formal education and most likely lack of understanding of the requirements of the course. As Jo worked as P’s carer, it can be established that there was a degree of presumed undue influence, which encouraged P to pay the fees and signed the documents to enroll in the course. P did not understand the course and what it intitled and agreed to join the course based on the information provided by Jo because she trusted in Jo as her carer along with the advertisement material available. Jo, as an employee of the D, had failed to provide full disclosure to P regarding her role and financial interests in encouraging P to enroll for the course being offered by D. Accordingly based on the Amadio principle, it becomes the responsibility of the D to ensure that people choosing to undertake their course had a full understanding of 4 Australian Competition and Consumer Commission v Cornerstone Investment Aust Pty Ltd (in liq) (No 4) [2018] FCA 1408, 729. 5 The Australian Common Law, s 34.

what was being offered, what will be required to complete the course and how their choice may affect them6, so that the weaker party, which will P in the present scenario had the opportunity to possibly make a much-informed decision. D also appears to be involved in misrepresenting the facts by advertising that potential students will receive a free ‘high powered laptop’ upon signing up for the course. When P’s friend contacted D and enquired about issues pertaining to the unsafe laptop, D responded by stating that “High Powered” means the laptops have high power demand. This is misleading as in general sense, for the regular person out in the community, a high powered laptop will mean that the laptop is high performing, indifferent to what was claimed by D, hence it will be in clear contravention of section 29 and section 34 of ACL Based on the available information P will very likely be able to satisfy that she was led to believe and relied on the positive misrepresentation of the facts, as presented to her by the means of D’s conduct through their advertisement campaign. P can apply for damages to be awarded along with recession of the original contract, under the tort of deceit. As we have been able to establish that D’s conduct involved false and misleading information, based on the three limb test from Derry v Peek, P will be able to satisfy that D’ conduct involved 1. Knowingly making a false statement by the means of advertisement 2. Making bold and prominent stamen in which he did not believe in (can be proved by the fact that D, provided less prominent information towards the end of his advertisements) 3. Was reckless to its truth7

6 Commercial Bank of Australia Ltd v Amadio, [1983] 151 CLR 447, 474. 7 Derry v Peek [1889], 14 App Cas 337.

Therefore P should be able to claim the monies paid for the course so that she is not worse off from the point she signed the paperwork to undertake the course. P can also press for damages to be awarded for emotional stress which directly resulted from undertaking the said course. P can also sue her carer Jo for negligent misrepresentation under the tort of negligence. It can successfully be argued that Jo owed a duty of care towards P and she was obligated to exercise reasonable care. However Jo acted negligently in providing the information regarding the cyber course to P, moreover, Jo acted in a deceiving manner by not providing full details of her arrangement with SecureCy to P. The risk of providing such information to P was rather significant and reasonably foreseeable, moreover in such situations where people care for vulnerable members of the society, any other reasonable person in Jo’s position would be expected to take necessary precautions to ensure no loss is caused to the person they care for.8 It will not be unreasonable in this situation that P is provided with in-depth information about realistic expectations for completing the course. Max (P) v SecureCy Pty Ltd (D) In the scenario, P can approach the court to seek damages for deceptive and misleading conduct under section 18 of Australian Consumer Law and also request a full refund under section 61 of ACL, which ensures that Australian consumers will receive the services that are fit for the particular purpose.9 Though the onus of providing satisfactory proof that the course provided by the D was not up to the

8 Civil Libality Act 1936 (South Australia), s 31 – 32. 9 The Australian Common Law, s 61.

substantial standards and that D conduct amounted to deceptive and misleading conduct, D potentially can fall back on the conditions that were attached to their offer 1. “the course is role with a major enterprise, and are not guaranteed. While no prior education is required, it will strongly impact the capacity of a participant to benefit from the course, and further training (available from SecureCy) is strongly recommended for all participants. 2. money back guarantee only applies to cancellations of training where notice is received in writing 4 weeks prior to the course, and does not apply designed to ensure diligent and bright students are expert within the limited range of the course materials. Income levels are indicative only of a salary that might be achieved for highly capable people who successfully complete the course and then gain employment in a cyber-security 3. to the upfront deposit of $500 (required for administration costs). All fees are due prior to the course commencing”

P can argue that the course as advertised was not fit for the service being provided, and D could have reasonably known that the course as offered by them was not of the standards that would be expected by the industry, in order to hire someone on high level of annual salary as advertised by D.10 If D, in effect tries to fall on the exclusions provided to him by the means of the signed contract and refuses to provide a refund, his argument in relation to the matter can be easily rebutted based on the fact that such conditions concerning money-back guarantee cannot be applied during the execution of the contract in Australia. By effectively informing the consumers about the money-back guarantee as mentioned above, D deceptively conducted his business and misrepresented that customers were not eligible for a refund past the date as stated, hence acting in contrast to section 29(1)(m), by making a false or misleading representation that 10 Ibid.

warranty or right to remedy available under the law were excluded and consumers in Australia.11 In Valve Corporation v ACCC at 70, the court expanded on sections 64 and 67 of the Australian consumer law and held that any provisions either via contract or implying expressively cannot override the provisions and remedies available to consumers under the law.12 Furthermore setting a condition in the contract that stops consumers from requesting a refund past the date that was four weeks before the course start date directly up within 6 years of the event taking place.13 In Brighton Australia Pty Ltd v Multiplex Constructions Pty Ltd, the court held that by limiting the period for a claim to be brought upon for misleading or deceptive conduct, the party doing so will be acting “contravenes section 236(2) of the Australian Consumer Law, which gives consumers the right for the damages to be brought contrary to the public policy of the Act”.14 Based on the above findings, the P’s will be able to put forward a strong case for the damages to be awarded along with a refund of the prepaid course fees.

11 Vave Corporation v Australian Competition and Consumer Commission [2017] FCAFC 224, 67. 12 Ibid, 70. 13 Brighton Australia Pty Ltd v Multiplex Constructions Pty Ltd [2018] VSC 246, 137. 14 Ibid....