Questions:
1.
Perth Academy of Fitness (PAF) and Fitness Institute of Technology (FIT) are rival private colleges in Perth. Both colleges offer certificate-level and diploma-level qualifications in the health and fitness industry. Every year, Australian colleges participate in an international fitness education expo aimed at recruiting overseas students.
The Common wealth Department of Education and Training is responsible for providing advice to the Minister for Immigration and Border Protection on the composition of the Skilled Occupations List (SOL). The SOL identifies occupations that would benefit from skilled migration for the purpose of meeting the medium to long-term skills needs of the Australian economy. The composition of the SOL is reviewed annually. On 1 July 2019, qualified health and fitness professionals including gym instructors and personal trainers were added to the SOL. PAF and FIT believe that this r ecen t addition to the SOL will enable them to attract international students interested in applying for permanent residency in Australia under the skilled migration category.
At this year's expo h eld in ear ly J an u ary in Rio de Janeiro, Brazil, PAF distributed a free digital video disc (DVD) about PAF. The DVD claimed that, ‘Upon completion of their training at PAF, students will be entitled to apply for permanent residency in Australia’. The DVD also referred to an offer of ‘generous scholarships to eligible students’.
A voice-over on the DVD said: ‘Undecided between PAF and FIT? Consider this - PAF has the best fitness teachers in Australia: It is the country's leading provider of health and fitness courses. According to the 2019 rankings of the best community colleges in Australia for overall college experience, PAF's information technology (IT) facilities are "excellent" whilst FIT's facilities are "adequate"’. The DVD continued: ‘Best teachers! Excellent IT facilities! Do not settle for less! In addition, upon completion of your practical training with one of PAF's education network partners, you will be granted access to our Graduate Placement Guarantee (terms and conditions apply).’ The DVD concluded with the following endorsement by two persons called Jack and Jill, who claimed to be PAF graduates: ‘Study health and fitness at PAF. We did - it’s simply fantastic!’
FIT does not dispute that the 2019 rankings of the best community colleges in Australia rated its IT facilities as ‘adequate’ and PAF's IT facilities as ‘excellent’. Nevertheless, FIT alleges that PAF has been disingenuous by its selective use of the information in the 2019 rankings because its DVD does not mention that the overall rankings placed FIT in the top 1O community colleges in Australia whilst PAF did not feature at all. FIT also asserts that PAF's claim that its fitness teachers are the best has no basis. Furthermore, FIT asserts that PAF's offer of ‘generous scholarships’ is misleading because, as PAF knows, only Australian citizens or permanent residents are eligible to apply for them. International students on temporary visas are not eligible to apply. Finally, FIT has evidence that Jack and Jill are paid actors who have never studied at PAF and have no connection with it.
FIT has complained to the ACCC about the DVD on the grounds listed above. Advise FIT and the ACCC of all potential causes of action and remedies, if any, they may have under the Australian Consumer Law against PA F .
2.
Unsun is an international art collector b a s e d in South Korea. In January 2019, Unsun visited Perth with a view to purchasing paintings by Australian Aboriginal artists for her private art gallery in Seoul. She purchased from the Wiradjuri Heritage Trust Inc (WHT), a not-for-profit Aboriginal community organisation, a painting known as ‘Didgeridoo’. ‘Didgeridoo’ was painted by Rootsey, a celebrated Aboriginal artist.
The painting won the prestigious National Aboriginal and Torres Strait Islander Art Award in 2017. In 2018, WHT bought the painting from Rootsey for $22,500 and subsequently put it up for sale in their art gallery and shop in Fremantle. In January 2019, WHT sold the painting to Unsun for $40,000. Before Unsun signed the contract of sale, she informed WHT’s shop manager that her purpose in purchasing ‘Didgeridoo’ was to add an award-winning painting to her collection of outstanding artworks by Australian Aboriginal artists. The shop manager assured Unsun that Didgeridoo would be an excellent addition to her art collection. At th e same time, the shop manager drew Unsun’s attention to a notice displayed prominently behind the shop counter - written in English, Japanese and Korean - advising customers that goods, once sold, were not returnable. Unsun nodded her head in agreement and added, ‘This will be a wonderful addition to my collection of Australian Aboriginal paintings’.
In March 2019, it transpired that Rootsey, the celebrated Aboriginal artist, was not an Aboriginal and Rootsey was not his real name. His real name is Anubis, an illegal immigrant from Egypt who originally came to Australia seven years ago to study Aboriginal art. Anubis is awaiting deportation and the sponsors of the National Aboriginal and Torres Strait Islander Art Award have revoked his award for ‘Didgeridoo’. H a v i n g h e a r d o f t h e s e e v e n t s , Unsun attempted to return the painting to WHT for a refund on two grounds: first, that since ‘Didgeridoo’ was not a genuine Aboriginal artwork, she could not use it for the specific purpose for which she had bought it, and secondly, that shortly after she acquired ‘Didgeridoo’, the paint began peeling off the canvas due to the canvas being mouldy. WH T refused Unsun a ref und or co mpensation of any k in d, claiming that they were also innocent victims of Anubis's deception. Moreover, WHT pointed out that Unsun agreed that the painting, once sold, was not returnable.
Unsun seeks your legal advice. Discuss her potential causes of action and remedies, if any, under the Australian Consumer Law and the Sale of Goods Act 1895 (WA). You should support your answer with relevant legislation and case-law.
How, if at all, would your advice to Unsun differ if she had bought ‘Didgeridoo’ not in a private transaction between herself and WHT, but at a public auction held by WHT at its art gallery and shop in Fremantle?
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