Australian Competition and Consumer Commission v Excite Mobile Pty Ltd (No 2) [2013] FCA 1267

Australian Competition and Consumer Commission v Excite Mobile Pty Ltd (No 2) [2013] FCA 1267

The Court, applying established penalty principles and the relevant provisions of the Trade Practices Act 1974 (Cth), found that Excite Mobile Pty Ltd and its directors and employee had engaged in egregious and systematic breaches of consumer law by misleading and unconscionable conduct in sales, complaints handling and debt recovery. Having regard to the scale, seriousness and direct financial and non-financial harm caused to consumers, but also to the size and financial position of the respondents and the need for deterrence, the Court imposed pecuniary penalties substantially lower than those sought by the regulator, ordered a period of disqualification for the two principal directors,...

Jurisdiction
Australia
Judgment Date
29 November 2013
Procedural Posture
Civil – Consumer Law Penalties and Declarations / Final Judgment – Penalty, Injunction, Declarations and Costs
Outcome
Judgment for the applicant. Pecuniary penalties, disqualification, injunction, declarations, and costs ordered.
Legal Topics
['pecuniary Penalty' 'unconscionable Conduct' 'misleading and Deceptive Conduct' 'false and Misleading Representations' 'use of Undue Coercion' 'disqualification of Directors' 'injunctions' 'costs' 'principles of Penalty Assessment']
['consumer Law' 'competition Law' 'corporations Law'] ['pecuniary Penalty' 'unconscionable Conduct' 'misleading and Deceptive Conduct' 'false and Misleading Representations' 'use of Undue Coercion' 'disqualification of Directors' 'injunctions' 'costs' 'principles of Penalty Assessment']

Case Brief

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Procedural Posture

Civil – Consumer Law Penalties and Declarations / Final Judgment – Penalty, Injunction, Declarations and Costs

Legal Issues

  1. 1 ['What pecuniary penalties and other relief should be imposed following contraventions of the Trade Practices Act 1974 (Cth) by Excite Mobile Pty Ltd and individual respondents?' 'Should disqualification, injunction, and costs orders be made and in what terms?' 'How should penalty principles (including the one transaction and totality principles) be applied to the conduct proven?']

Ratio Decidendi

The Court, applying established penalty principles and the relevant provisions of the Trade Practices Act 1974 (Cth), found that Excite Mobile Pty Ltd and its directors and employee had engaged in egregious and systematic breaches of consumer law by misleading and unconscionable conduct in sales, complaints handling and debt recovery. Having regard to the scale, seriousness and direct financial and non-financial harm caused to consumers, but also to the size and financial position of the respondents and the need for deterrence, the Court imposed pecuniary penalties substantially lower than those sought by the regulator, ordered a period of disqualification for the two principal directors,...

Court Disposition

Judgment for the applicant. Pecuniary penalties, disqualification, injunction, declarations, and costs ordered.

Orders

  • ['Declarations of contravention made against Excite Mobile, Obie Brown, David Samuel, Fiona Smart.' 'Injunctions for seven years against Obie Brown and David Samuel in connection with mobile telecommunications services.' 'Obie Brown disqualified from managing a corporation for three years; David Samuel for two and a...