Australian Competition and Consumer Commission v Excite Mobile Pty Ltd (No 2)

The Federal Court of Australia considered the case of Australian Competition and Consumer Commission v Excite Mobile Pty Ltd (No 2) where the ACCC sought relief against Excite Mobile and three individuals for multiple breaches of the Trade Practices Act 1974 (Cth). The primary legal issue was the determination of appropriate penalties under section 76E of the TPA for Excite Mobile, and individuals Obie Brown, David Samuel, and Fiona Smart. The court found Excite Mobile guilty of unconscionable conduct, misleading and deceptive representations, and undue coercion in its sales practices and debt recovery processes. The court applied the one transaction principle to group the acts into four categories: Selling Conduct, Coverage Conduct, TIC Conduct, and Debt Recovery Conduct. The penalties were assessed based on factors such as the nature and extent of the act, any loss or damage, and the circumstances in which the act took place. The court imposed a penalty of $455,000 on Excite Mobile, $55,000 on Obie Brown, $45,000 on David Samuel, and $3,500 on Fiona Smart. The court also issued injunctive orders against Obie Brown and David Samuel for seven years, prohibiting them from engaging in similar conduct. Disqualification orders were made against Obie Brown for three years and David Samuel for two years and six months. The court ordered Excite Mobile, Obie Brown, and David Samuel to pay the ACCC's costs, while Fiona Smart was ordered to pay 10 per cent of the costs. The court's decision balanced the need for deterrence and protection of the public while considering the personal circumstances of the respondents.