Background
RSA Express Pty Ltd, trading as Express Online Training (EOT), operated an online business selling accreditation courses—chiefly a Responsible Service of Alcohol (RSA) course and a White Card course required for work on construction sites. Between 1 October 2019 and 5 November 2023, EOT promoted its courses through paid Google and Bing advertisements and on its own website. A central marketing claim was that consumers would not be required to pay—and would not be asked to pay—until they had successfully completed their chosen course. That “Pay When You Pass” message appeared in search-engine ads and was repeated on each course information page on the EOT website.
The ACCC brought proceedings alleging four categories of misleading conduct under ss 18, 29(1)(b), and 34 of the Australian Consumer Law (ACL). Two were conceded before trial: EOT admitted making false representations that courses could be completed within the same day, and that no additional fee would be needed to do so (in reality, same-day completion required purchase of a premium “priority” service). The two disputed issues that proceeded to judgment were (1) the Pay When You Pass representations, and (2) what the ACCC called “Course Completion Conduct”—the allegation that the design and sequencing of the EOT website led consumers who were prompted to pay to believe they had already passed their course, when in fact they had not.
The relevant consumer class was persons seeking RSA or White Card certification during the period, a group the Court characterised as predominantly having limited academic education and experience. Derrington J assessed the conduct through the lens of the ordinary and reasonable member of that class, consistent with the framework affirmed by the High Court in Self Care IP Holdings Pty Ltd v Allergan Australia Pty Ltd (2023) 277 CLR 186 and ACCC v TPG Internet Pty Ltd (2013) 250 CLR 640.
The Court’s Holding
Derrington J held that the ACCC’s allegations were generally made out. EOT’s advertising and website communications represented, as a matter of overall impression on the ordinary and reasonable consumer, that payment would only be required and sought after successful course completion. That representation was false: the EOT platform prompted consumers to pay before they had in fact completed and passed their course. Because the payment prompt appeared at a stage of the website journey that consumers reasonably understood to mark course completion, many paid—under no legal obligation to do so—in the mistaken belief that they had passed, only to discover they had not obtained the certification they sought.
The Court found that this conduct contravened s 18 (conduct likely to mislead or deceive in trade or commerce), s 29(1)(b) (false or misleading representations about the characteristics or benefits of services, proved to the requisite standard of actual falsity), and s 34 (conduct liable to mislead the public as to the nature, characteristics, or suitability for purpose of the services). EOT’s argument that other statements on the website negated any misleading impression was rejected: qualifying text must actually reach and register with the ordinary consumer, and the overall effect of EOT’s website sequence, assessed as a whole, conveyed a misleading message that was not adequately corrected by fine print or subsidiary disclosures.
Because the parties requested that no final orders or declarations be made until the penalty phase, the judgment is limited to findings on liability. A further case management hearing was listed for 17 June 2026 to progress to that stage.
Key Takeaways
- A “Pay When You Pass” marketing claim becomes actionable under the ACL when the platform’s actual payment mechanics contradict it—prompting payment before course completion breaches the promise made to consumers, regardless of whether fine print elsewhere qualifies it.
- Website design and sequencing can itself constitute misleading conduct: where the flow of screens leads an ordinary consumer to conclude they have passed a course at the point a payment prompt appears, that is “Course Completion Conduct” independent of any explicit false statement.
- Qualifying or explanatory text does not neutralise a headline representation unless it is sufficiently prominent and likely to be read and absorbed by the ordinary and reasonable member of the relevant class—courts will not degrade the hypothetical consumer to someone who ignores clear explanations, but neither will they expect consumers to detect buried qualifications that contradict the dominant message.
- Sections 18, 29, and 34 of the ACL carry different proof thresholds: s 18 requires only a real possibility of misleading; s 29 requires proof the representation was actually false or misleading; and s 34 requires an actual probability (not mere possibility) of misleading the public.
Why It Matters
This decision is a significant warning to any business that uses “try before you buy” or conditional-payment advertising to drive online course or subscription sign-ups. The ACCC successfully argued that the entire user journey—from search-engine ad through to the payment screen—must be evaluated as a whole, and that the architecture of a website can generate misleading representations just as surely as explicit written claims. For online education providers in particular, where consumers are often motivated by immediate employment needs and may not scrutinise the checkout flow closely, the judgment confirms that regulators will assess the realistic consumer experience rather than the fine print.
With liability now established, penalty proceedings will follow. Given that the conduct spanned more than four years and affected a broad consumer class seeking mandatory workplace certifications, the penalty phase is likely to attract substantial attention. The case reinforces the ACCC’s appetite for pursuing digital-platform operators whose website design choices—not just their advertising copy—produce misleading outcomes for consumers.