Australian Competition and Consumer Commission v Excite Mobile Pty Ltd [2013] FCA 350

FEDERAL COURT OF AUSTRALIA

Australian Competition and Consumer Commission v Excite Mobile Pty Ltd [2013] FCA 350 Citation: Australian Competition and Consumer Commission v Excite Mobile Pty Ltd [2013] FCA 350

Parties: AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v EXCITE MOBILE PTY LTD (ACN 128 229 498), OBIE BROWN, DAVID SAMUEL and FIONA SMART

File number: SAD 328 of 2011

Judge: MANSFIELD J

Date of judgment: 18 April 2013

Catchwords: CONSUMER LAW – unconscionable conduct, misleading or deceptive conduct, and false or misleading representations, undue coercion – representations that certain letters and telephone calls sent and made to consumers by the first respondent were sent and made by an independent debt collector engaged by the first respondent – representations in those letters and telephone calls that the purported independent debt collector had engaged a lawyer, that legal action against the consumer was contemplated, and that such legal action would be likely to result in certain harsh orders being made against the consumer – whether such representations were false or misleading concerning the existence, exclusion or effect of any condition, warranty, guarantee, right or remedy – whether such representations amounted to misleading or deceptive conduct – whether such representations amounted to unconscionable conduct – whether such representations amounted to undue coercion in connection with the payment for goods or services by a consumer CONSUMER LAW – unconscionable conduct – conduct whereby telemarketers engaged by the first respondent called consumers and obtained their agreement to an oral contract for the provision of mobile telecommunications services – unusual terms of the contract, such as a term that meant that only a small monetary amount's worth of mobile phone services could be used each day without incurring extra charges, were not properly explained, or explained at all – no time was afforded by the telemarketers to the consumer for reflection on the explanation of the terms – once the mobile phone and a letter containing a more detailed explanation of the terms of the contract was subsequently delivered to the consumer, the oral contract could only be cancelled by paying a fee – opening the packaging containing the mobile phone incurred a further "damage" fee – whether sales process of the first respondent amounted to unconscionable conduct CONSUMER LAW – misleading or deceptive conduct and false or misleading representations – representations made by the first respondent to consumers that there was mobile phone coverage at the consumers' home addresses – whether the first respondent represented that goods or services have performance characteristics they do not have – whether the representations amounted to misleading or deceptive conduct CONSUMER LAW – misleading or deceptive conduct and false or misleading representations – representations that a telephone number provided to consumers was operated by an independent telecommunications complaints body – representations that certain telephone calls were made by representatives of an independent telecommunications complaint body - whether such representations were false or misleading concerning the existence, exclusion or effect of any condition, warranty, guarantee, right or remedy – whether such representations amounted to misleading or deceptive conduct