Box Hill Institute Student Pilot Class Action Frequently Asked Questions

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Gordon Legal commenced a class action proceeding against Box Hill (BHI) on behalf of the representative plaintiffs on 26 March 2020. You can access a copy of the Writ and Statement of Claim by clicking here

Below are answers to a number of commonly asked questions which are published for the further information of group members to the proceeding:

It is important that you understand that whilst every care has been taken to ensure that the answers to questions provided here are accurate, the answers do not constitute legal advice specific to your personal claim or situations. If you wish to obtain legal advice specific to your personal situation, you should contact us and discuss how we can assist you.

What steps has Gordon Legal taken to investigate the concerns of Student Pilots?

Gordon Legal has assembled a team of its own lawyers who are experienced in dispute resolution and complex litigation (including class actions) and external barristers, including one of Victoria’s most experienced QC’s.

Our legal team has engaged in a lengthy process of gathering information from student pilots enrolled in the CPL Diploma course, reviewing the documents that were provided to us during this process and considering the regulatory environment in which the course was offered. We have also interviewed a number of potential lay and expert witnesses who have experience either directly with the CLP Diploma course or with aviation training in general.

What have we learned so far?

In our view, the marketing and other promotional material published by BHI made several representations that are likely to be found by a Court to be misleading or deceptive.

In particular, it appears clear that the CPL Diploma course was not structured in a way that would enable students with no prior aviation experience to obtain their commercial pilots licence within 2 years of part time study or 14 months of full time study.

What is a class action or group proceeding?

A class action or group proceeding is a proceeding brought by the plaintiff/s on their own behalf and on behalf of group members against the defendant, where the plaintiff and the group members have similar claims against the defendant.

Group members are bound by any judgment or settlement entered into in the group proceeding unless they choose not to participate by “opting out” of the proceeding. This means that:

a) If the group proceeding is successful or settles through mediation or alternative dispute resolution, group members may be eligible for a share of any court awarded damages or settlement monies;

b) If the group proceeding us unsuccessful, group members are bound by that result; and

c) Regardless of the outcome of the group proceeding, group members will not be able to pursue their claims against the defendant in separate legal proceedings unless they have opted out.

Group members in a group action are not individually responsible for the legal costs associated with bringing the group action.  In a group action, only the plaintiffs are responsible for any potential adverse costs order.

Do I qualify as a Group Member?

You are a Group Member if you:

a) Were enrolled in the CPL Diploma course for the period between 6 December 2015 to 26 March 2020 and have suffered loss and damage as a result.

If you are unsure whether or not you are a group member, you should contact us by registering your question here and we will arrange for one of our lawyers to contact you to discuss your individual circumstances further.

Are individual circumstances able to be taken into account in a group or class action?

Yes. The class action proceeding will be able to deal both with the common questions of fact and law that need to be determined as well as the individual circumstances of each Student Pilot.

In the event that an individual Student Pilot’s circumstances means that their ongoing participation in the class action is not the most effective way of them achieving a successful outcome, they will be able to opt out of the class action proceeding and pursue their own individual claim.

Is there much work involved in being a Group Member?

The Representative Plaintiffs do most of the work in providing us with the necessary information and documentation required to litigate the questions that are common to the claims of the Plaintiffs and the group members in the class action proceeding. 

We do however anticipate that it will be necessary to assess your individual claim for compensation in the coming months and as such we will contact you and ask that you provide us with your full instructions and evidence in support of your individual claim, if you instruct us to act on your behalf.

Is there a deadline for joining the class action?

You are automatically a group member in the class action if you have enrolled in the Diploma of Aviation (Commercial Pilot Licence) through Box Hill Institute between 6 December 2015 and 26 March 2020.

The court will nominate a time and date for group members to opt out of the class action, if they wish to do so. 

You will be notified of your right to opt out of the class action proceeding and we will provide you with further information in relation to this process once a date has been set by the court.

If students are already being offered refunds of VET loans – why join the class action?

If you are able to achieve a full refund of your Vet Student Loan, we encourage you to do so – however please do not sign a waiver that relinquishes your legal rights to other legal entitlements and compensation before seeking independent legal advice. 

In our assessment, we consider that many students enrolled in the CPL Diploma course may have an entitlement to compensation over and above a waiver or reduction of their VET student loan.  Such additional compensation is likely to include:

a) Reimbursement for lost time and additional expenses incurred through attending and participating the CPL diploma course;

b) Refunds of additional flight costs paid to Soar during the CPL diploma course;

c) Any additional studying costs incurred as part of preparing for CASA exams;

d) Damages for distress and inconvenience as a result of the incompetent administration of the CPL Diploma course;

e) Damages for loss of opportunity; and

f) Interest and legal costs.

I have previously put in a complaint with the VET Ombudsman and awaiting results from their investigation; if I was provided a refund of my Vet Student loan, would I need to opt out of the class action?

No – you will not need to opt out of the class action as your damages are likely to exceed the benefit you receive from a waiver or reduction of your VET student loan.

Are we looking to settle? Or proceed to trial? 

All parties to a legal dispute have an overarching obligation to the court to make a genuine effort to resolve the primary issues in dispute both: (a) prior to legal proceedings being issued and (b) whilst legal proceedings are on foot - up until the day of judgement. However, this requirement does not require parties to compromise their claims beyond what is reasonable.

In light of the parties overarching obligations, we will continue to make genuine efforts to resolve the real issues in dispute with BHI – however any proposed resolution must be capable of resulting in a fair outcome for all group members.

If we are unable to negotiate a resolution to the dispute that results in a fair outcome for all group members and is capable of being approved by the court then this matter will proceed to trial and will be determined by the Court.

What will happen to our flight hours if we’re successful/unsuccessful in the class action?

It is not yet clear whether there is another Registered Training Organisation that is willing or   able to:

a) Recognise your flight hours that have accumulated through the CPL Diploma course or CPL; and

b) Offer you VET-fee funding for the completion of the CPL Diploma course.

In part this is because Soar is registered under s141 of the Civil Aviation Safety Regulations 1998 (CASR).  Most flight schools that offer VET student loan funding for aviation courses are registered under s142 of CASR. 

We anticipate that if a satisfactory Registered Training Organisation is not able to recognise your past flight hours accumulated with Soar in a manner that allows you to progress with your studies, your claim for compensation is likely to be increased. 

BHI/Soar have told me that I should continue to attend classes or flight training at BHI, should I do so?

Until BHI is able to clarify in writing that the its ongoing tuition and training during the CPL Diploma course will meet all of CASA’s and ASQA’s regulatory requirements, we do not think that it is reasonable for you to attend further classes or flight training lessons that will increase your VET Student loan.

Are Student Pilots enrolled in the CPL Diploma entitled to require their log books to be returned to them?

Yes. However, you should not sign any forms or documents that releases any of your legal rights to compensation. The only document you should agree to sign is one that simply acknowledges that your log book has been returned to you.

Is BHI indemnified by an insurer?

We understand that BHI was established under s3.1.11 of the Education and Training Reform Act 2006 (Vic) (ETRA) and is a Body Corporate capable of being sued by reason of s3.1.12 of the ETRA. We anticipate that the Victorian Government will have both appropriate insurance arrangements in place or the capacity to satisfy any judgement or award of compensation which is made to you and other group members.

Are we seeking damages for the Multi-Engine Ratings Course offered after the CPL Diploma course?

No. This class action concerns students who were enrolled in the Diploma of Aviation (Commercial Pilot Licence – Aeroplane) only.

I completed my CPL but I didn’t receive my Night VRF as promised. Will I receive compensation for this?

We are pursuing all avenues to ensure students who enrolled in Box Hill Institute’s CPL Diploma course are fairly compensated for any losses arising from the failure to deliver the course as promised.  If the Night VFR rating was promised to you and not delivered, then the losses that you have suffered as a result of not receiving this rating will form part of your claim – providing that you were enrolled in the CPL Diploma course.

How many registrants are there?

To date, Gordon Legal has received enquiries from over 220 students enrolled in Box Hill Institute’s CPL Diploma course. At this stage the overwhelming majority of these registrants have instructed Gordon Legal to act on their behalf.t

The Disclosure Statement and Conditional Legal Costs Agreement
Will I be charged any legal costs if I engage Gordon Legal?

Gordon Legal is running this class action proceeding on a No Win No Fee basis.

If you would like Gordon Legal to provide legal advice to you during the class action process, please contact us and we will provide you with a copy of our Disclosure Statement and Conditional Legal Costs Agreement for you to consider.

You do not have any obligation to pay legal costs to Gordon Legal unless you decide to enter into a conditional legal costs agreement or a class action is commenced in which you are a group member – and the court makes an order requiring all group members to contribute to the legal costs not recovered from the other party in the event that the proceeding is successful.

Can I opt out of the class action after signing the cost agreement?

Yes, however if you have engaged Gordon Legal you will need to provide written notification to Gordon Legal of your intention to bring your Conditional Legal Costs Agreement to an end. If you decide to engage us to act on your behalf both your and our rights and obligations are set out in the Conditional Legal Costs Agreement.

What is an uplift fee?

An ‘uplift fee’ is a 25% increase on our professional legal fees as set out in our Conditional Legal Cost Agreement.  Gordon Legal is entitled to charge an uplift fee under s182 (1) of the Legal Profession Uniform Law Application Act 2014. 

The uplift fee is charged in consideration of the risks that we take in (a) not recovering payment of our professional fees in the event that the class action is unsuccessful; and (b) the delay in recovering payment for our professional costs noting that Gordon Legal will not receive payment of professional fees until such time as the proceeding has concluded, notwithstanding that we have and will continue to incur substantial costs in conducting the litigation during that time.    

Do clients pay legal fees separately?

In the event that the class action proceeding is successful, it is most likely that the court will order the unsuccessful party/s to pay your legal costs on an applicable Court Scale. This is usually around 60% of actual legal costs incurred.  The shortfall in legal costs not paid by the defendant will be apportioned amongst the group members, provided those costs are approved by the court as being fair, reasonable and proportionate. 

We believe that we have structured the Conditional Legal Cost Agreement in a way which ensures that legal costs are fair, reasonable and proportionate to each individual group member’s individual outcome.

If you wish to engage Gordon Legal to act for you in the class action proceeding, please let us know and we will provide you with a copy of our Disclosure Statement and Conditional Legal Cost Agreement for your consideration.

If I don’t sign the Conditional Legal Cost Agreement, do I have to pay fees?

In due course we intend to apply to the Supreme Court of Victoria for a Common Fund order to be made.  The purpose of the Common Fund order is to ensure that all Group Members, whether or not they are clients of Gordon Legal, share in the legal costs incurred by our clients and the representative plaintiff/s.

If the class action is unsuccessful, will group members be liable for the costs of the other party?

No.  Group members will not be liable for the legal costs of BHI or any other related parties, as a result of remaining a Group Member or as a result of engaging Gordon Legal to act on their behalf in the proceeding. 

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