Australian Communications and Media Authority v Mobilegate Ltd A Company Incorporated in Hong Kong (No 6) [2009] FCA 1533

FEDERAL COURT OF AUSTRALIA

Australian Communications and Media Authority v Mobilegate Ltd A Company Incorporated in Hong Kong (No 6) [2009] FCA 1533

COMMUNICATIONS LAW – unsolicited SMS messages (Spam) – use of fake dating profiles – contraventions established – considerations applicable to imposition of pecuniary penalties

Spam Act 2003 (Cth) s 16

Australian Communications and Media Authority v Mobilegate Ltd A Incorporated in Hong Kong (No 4) [2009] FCA 1225 considered Australian Communications and Media Authority v Clarity 1 Pty Ltd (2006) 155 FCR 377 considered

AUSTRALIAN COMMUNICATIONS AND MEDIA AUTHORITY v MOBILEGATE LTD A COMPANY INCORPORATED IN HONG KONG, WINNING BID PTY LTD ACN 121 026 793, JOBSPY PTY LTD ACN 112 801 073, SIMON ANTHONY OWEN, TAREK ANDREAS SALCEDO, SCOTT MARK MOLES, GLENN CHRISTOPHER MAUGHAN and SCOTT GREGORY PHILLIPS

QUD 426 of 2008

LOGAN J

16 december 2009

BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

GENERAL DIVISION QUD 426 of 2008

BETWEEN: AUSTRALIAN COMMUNICATIONS AND MEDIA AUTHORITY

Applicant

AND: MOBILEGATE LTD A COMPANY INCORPORATED IN HONG KONG

First Respondent

WINNING BID PTY LTD ACN 121 026 793

Second Respondent

JOBSPY PTY LTD ACN 112 801 073

Third Respondent

SIMON ANTHONY OWEN

Fourth Respondent

TAREK ANDREAS SALCEDO

Fifth Respondent

SCOTT MARK MOLES

Sixth Respondent

GLENN CHRISTOPHER MAUGHAN

Seventh Respondent

SCOTT GREGORY PHILLIPS

Eighth Respondent

JUDGE: LOGAN J

DATE OF ORDER: 16 december 2009

WHERE MADE: BRISBANE

THE COURT ORDERS THAT: 1. The Third Respondent, Jobspy Pty Ltd, pay to the Commonwealth of Australia, within 28 days of the date of this order, a civil pecuniary penalty in the amount of $4,000,000 in respect of its involvement in contraventions of the Spam Act 2003 (Cth) as found by the Court on 30 November 2009. 2. The Sixth Respondent, Scott Mark Moles, pay to the Commonwealth of Australia, within 28 days of the date of this order, a civil pecuniary penalty in the amount of $2,500,000 in respect of his involvement in contraventions of the Spam Act 2003 (Cth) as found by the Court on 30 November 2009. 3. Any payment pursuant to Orders 1 and 2 above be made by delivery of a bank cheque, made out to the Commonwealth of Australia, to the offices of the Applicant's legal representative, the Australian Government Solicitor, Level 12, 340 Adelaide Street, Brisbane in the State of Queensland, on or before the due date, or by such other arrangement, including in respect of the making of legal tender by Australian notes, as is made with the Applicant or its legal representative on or before the due date. THE COURT FURTHER ORDERS THAT: 4. Each of the Third and Sixth Respondents pay the Applicant's costs of and incidental to the hearing in relation to civil penalties, to be taxed if not agreed. 5. The Applicant serve these orders, in the case of the Third Respondent, by delivering a copy to its registered office and, in the case of the Sixth Respondent, by delivering a copy of these orders to 52 Doggett Street, Fortitude Valley, Queensland, 4006.