[2013] FCA 350

The Federal Court found that Excite Mobile engaged in false and misleading and unconscionable conduct in its provision of mobile phone services to customer across Australia, and that Excite acted unconscionably and used undue coercion when attempting to obtain payment for mobile phone services.  The Court also found Excite Mobile’s two directors were knowingly concerned in the company’s contraventions, and an Excite Mobile agent was knowingly concerned in false representations relating to the company’s debt collection conduct.  Justice Mansfield found that the conduct was “unfair to such a degree as to attract a strong adverse moral judgment” at [178]:

  … the Excite Mobile plan was destined to expose its consumers to quite substantial monthly charges but was presented in such a way that it effectively concealed that reality…

   … in my view, its marketing approach judged objectively was cynically indifferent to the interests of its potential customers, and was unconscionable for the reasons given.

The large number of consumers affected by the conduct includes remote indigenous communities in the Cape York Peninsula, QLD, WA and the NT. The ACCC is seeking declarations, injunctions, pecuniary penalties and costs.