(a) Excite Mobile
43 The conduct of Excite Mobile was egregious. By the Selling Conduct it undertook a mass telemarketing campaign, in which it promoted the day cap plans extensively to the public at large when it knew they were not suited to the "everyday user", and the telemarketing campaign made it difficult for consumers to appreciate the significance of what they were agreeing to.
44 The recordings played and evidence led during the liability hearing show that the consumers affected included those with imperfect comprehension abilities, those in remote areas and indigenous communities, those who required the assistance of the State Trustee and those on Centrelink payments. The sales method failed to describe the day cap adequately. Excite Mobile knew that the nature of the day cap plans was of such significance that it should have been properly explained - so that the consumer might have some information about when the day cap might be exceeded and the cost of phone calls or other services once the day cap was exceeded. Instead of doing that, however, it designed its scripts to start with the bait, and consumers were given no real opportunity for reflection, but were instead encouraged to enter an oral contract with Excite Mobile, without even a mention of other terms, the imposition of which in and of themselves was, in all the circumstances, unconscionable.
45 Except in the case of some limited users of mobile phone services, the design of the Excite Mobile day cap plans was destined to expose its consumers to quite substantial monthly charges, but was presented in such a way that it effectively concealed that reality.
46 Excite Mobile chose to do this knowing both that its plan was unique, and that in 2009 and 2010 Excite Mobile was the only company offering a day cap plan. It resulted in many consumers becoming trapped in a $33 per month contract for two years that exposed them to quite substantial monthly charges if they wished to do much more than make two 30 second telephone calls and send one text on a given day. An example is given in the liability judgment at [173]-[174].
47 It was then only by the documents sent with the phone to its customers that there was reference, for the first time, to the cooling off and damage fees. Almost inevitably, the box containing the phone would be opened and then able to be treated as damaged by Excite Mobile. For consumers that elected to "cool off", they could only have done so by incurring fees of $260. The fee for the cost of the "damaged" phone was almost twice the cost incurred by Excite Mobile.
48 As noted, the ACCC seeks a penalty for the Selling Conduct based on the customers that Excite Mobile signed up to any of its three day cap plans from 15 April 2010. The exact number of those consumers is not clear. It was obviously a significant number. At its peak, Excite Mobile had about 4000 customers, and over time in total, Excite Mobile had about 8000 customers. The Selling Conduct took place mainly from about 1 April 2009 to about 4 November 2010, equalling about 400 contracts per month. To be conservative, and to allow some drop-off in the latter months, I will proceed on the basis that it contracted with about 1500-2000 customers over the period from 15 April 2010 to 4 December 2010.
49 The ACCC contends that the Coverage Conduct added to, and had greater effect because of, the Selling Conduct because once the misleading statements were made, those consumers were locked into the contract, and were only in a position to know they had no coverage after they opened the packaging and tried to use the telephone. By this stage, the damage fee, at the least, had kicked in and they were confronted with the unconscionable "cool-off" option at considerable expense in any event. I am mindful of avoiding doubly penalising the respondents by treating the Coverage Conduct entirely independently of the Selling Conduct. The victims of the Selling Conduct include those customers affected by the Coverage Conduct.
50 The liability judgment also records at [184] that there was no "partial" coverage classification, so there is no explanation how entries that recorded Optus coverage as "partial" were made in Excite Mobile's customer records. In all there were 7 affected customers.
51 The third category is the TIC Conduct. Again, I am mindful that its victims are included in those exposed to the Selling Conduct. Its impact was heightened by each of the four separate aspects of unconscionable conduct involved in the Sales and Contract Conduct.
52 The complaints of customers who had accepted the day-cap plans would mostly have been those who realised the true cost and operation of the day-cap plan. Many obviously complained to the TIO to seek redress. They did so in such great numbers that the fees charged by the TIO became a significant cost for Excite Mobile. Hence, the establishment of the TIC number. The evidence does not show that the TIC number was not intended to address complaints genuinely, but on the other hand, Excite Mobile did not choose to revisit its Selling Conduct which was clearly the foundation for many, if not most, of those complaints.
53 The TIC number was to dupe consumers, so as to deprive them of an opportunity to have their complaint resolved by the TIO, to improve Excite Mobile's financial position by retaining moneys that would otherwise have been payable to the TIO in respect of its Selling Conduct and, I accept to try to resolve customer disputes. Some consumers were misled deliberately by being told that TIC was independent of Excite Mobile, or by the pretence that TIC did not have direct access to Excite Mobile's records. One customer was told by an Excite Mobile representative to call the TIC number if it wished to escalate a concern.
54 The Debt Collection Conduct also has to be seen in the context, as I found in the liability judgment, that many customers of Excite Mobile had unconscionably been duped into agreeing to the day-cap plan that did not suit their needs and with terms which of themselves were not reasonable. Unsurprisingly, customers began to accumulate large debts. Excite Mobile by the TIC Conduct then proceeded to try and divert customers away from contacting the TIO with complaints.
55 In response to mounting outstanding accounts, Excite Mobile devised the strategy reflected in the Jerry Hastings letters. The Times Are Bad Letters were sent to 34 customers over the two month period from 15 April 2010 to 16 June 2010. They presented a fictitious debt collector with a fictitious lawyer, together with the threats contained with the letter.
56 If the Times Are Bad Letter did not result in payments or a payment arrangement satisfactory to Excite Mobile, the next step was the Last Warning Letter. The Last Warning Letter was sent to 93 customers over a 2.5 month period from 15 April 2010 to 30 June 2010. It too supported the presentation of a fictitious debt collector with a fictitious lawyer, together with the heightened threats contained with the letter.
57 The Failure to Pay Letter is the last step. It applied to customers who had either ignored earlier letters or had been misled into entering a repayment agreement but had not performed the obligations they had agreed to. As I found in the liability judgment at [217], the Failure to Pay Letter contained unfair and unreasonable threats, which attract a pejorative moral judgment and a high level of moral obloquy. The Failure to Pay Letter was sent to 35 customers in a two week period from 17 to 25 May 2010. It is unclear how more extensively it was used after 10 April 2010.
58 Whilst it is again important to bear in mind the penalty imposed for the Selling Conduct (and the TIC Conduct) so that the Debt Recovery Conduct should not impose a penalty which would doubly penalise for the two categories of conduct, the context means that the unlawful coercion as part of the Debt Recovery Conduct took place where earlier contraventions of the TPA in relation to each customer made the intimidation which was the culmination of Excite Mobile's sequential process of Debt Recovery Conduct quite reprehensible.
59 In relation to the unlawful coercion, there are at least 27 acts over a two month period, from 15 April 2010 to 23 June 2010 which the ACCC has identified.
60 Each of Excite Mobile's four episodes of acts in contravention of the TPA after 15 April 2010 directly caused significant loss and damage to individual consumers, although the broader effect of the Coverage Conduct was limited to 17 consumers.
61 In my view, it is a fair inference to conclude that the large majority of Excite Mobile customers would not have entered into a contract if the day-cap had been properly explained, and they had been made aware of the cooling off fee and the nature of, and circumstances in which, the damage fee was incurred.
62 Clearly, loss and damage cannot be quantified with any precision. At a minimum, most customers that commenced from 15 April 2010 incurred harm by paying, at least, $33 in advance for a day-cap plan, and probably much more than if they had entered into a different mobile plan contract. In the sample of 10 customers taken by the ACCC (not specifically selected to make a point) referred to in the liability judgment at [173], two commenced their Excite Mobile service from 15 April 2010. Their records show that they each made payments of $279.11 and $371.10. Excite Mobile had approximately 8000 customers throughout the entire period. A significant number of those that started on the day-cap plan from 15 April 2010 could be expected to have paid at least comparable amounts. Of course, allowance must then be made for the amounts they might otherwise have paid under a different contract without a day cap.
63 In addition, every payment of the cooling-off or damage fee by a customer from 15 April 2010 represents harm occasioned by the Selling Conduct. The precise amount of such loss is unable to be readily quantified.
64 The ACCC says, correctly, that loss and damage to other mobile telephone service suppliers was also sustained, because it can be inferred that these suppliers lost the opportunity to supply services at least to every customer that commenced an Excite Mobile service after 15 April 2010. The quantum of this loss to competitors cannot be quantified. In the overall market for mobile telephone consumer contracts, I do not know if that would be significant. Nevertheless, in a minor way in these circumstances, I take it into account for the purpose of assessing a penalty of appropriate deterrent value.
65 There is no evidence before the Court to quantify the specific loss and damage Excite Mobile caused consumers to suffer by its TIC Conduct. However, that is not to say that no harm was suffered. Consumers suffered the real harm of being diverted from the TIO and largely denied their right to raise, and have resolved, complaints they had in respect of the provision to them of telecommunication services by Excite Mobile. Many, as a result, lost the opportunity of receiving refunds or other redress. There is no evidence to quantify how much these consumers were worse off financially. At a minimum, Excite Mobile caused consumers the harm of being misled into telephoning the TIC number and the further harm of the wasted time the consumers spent seeking redress from Excite Mobile instead of the Ombudsman. The TIC Conduct is, as the ACCC says, an affront to fundamental consumer rights, specifically provided by the Parliament. Its design is an act that has no regard to good conscience. Moreover, whilst it is impossible to quantify, there are no doubt consumers who would have had their complaints addressed by the TIO but, by dealing with Excite Mobile through TIC, came to accept liabilities they need not have accepted or to make arrangements they need not have made.
66 The Coercion Conduct is the worst feature of the Debt Recovery Conduct. It builds on the other Jerry Hastings letters and the Jerry Hastings calls. It was by virtue of those letters and calls that Excite Mobile put into place each payment plan with customers and caused customers to suffer financial loss and damage by making payments to Excite Mobile. It caused particular harm to consumers, as it built on, and added to, the harm caused by each of the other two episodes of conduct (excluding the Coverage Conduct) which preceded it. While the amount of such loss cannot be quantified with precision, in my view it is significant to the customers who succumbed to that conduct. In addition, customers would have suffered non-financial harm such as the stress caused by threats and intimidation, for example that referred to at [128] of the liability judgment.
67 In addition, each of the consumers who telephoned the Jerry Hastings number or answered a phone call said to be made on behalf of Jerry Hastings after 15 April 2010 suffered the harm of the intimidation that the Coercion Conduct, by its very nature, was intended to inflict and the distress which naturally follows from the possibility of being exposed to repossession orders and 20% extra costs. This harm was suffered the more so as many of the payment plans that were entered into after sending a Jerry Hastings letter were with customers who were receiving Centrelink payments.
68 Excite Mobile is in the process of being deregistered. There is no evidence that it has any assets of substance or capacity to pay a substantial penalty or that it will continue to carry on any business. Consequently, specific deterrence has no role to play in assessing the penalty to be imposed on it. In assessing a penalty to impose upon Excite Mobile of appropriate deterrent value, only general deterrence is relevant.
69 In assessing the appropriate penalty, I accept that Excite Mobile made a conscious decision to engage in each of the transactions, or episodes of conduct, which from 15 April 2010 attract a penalty. In doing so, I find that it did not really consider the interests of potential consumers when devising and implementing the Selling Conduct as it knew the day-cap plan was not suited to the requirements of the many everyday users. It presented its proposal in a way that avoided drawing attention to the way the day-cap plan operated and so potentially expose consumers to quite substantial monthly charges. Cooling-off rights were fixed at a level which make it less likely that consumers would exercise those rights, especially if they realised the basis on which the damage fee would be incurred.
70 Excite Mobile was also apparently indifferent to the consequences of its Coverage Conduct. The evidence shows that Excite Mobile was aware that at least one customer did not have coverage at their home address, but continued to charge the customer in relation to a service that the customer could not use at that address. Whilst I do not think Excite Mobile deliberately set about selling mobile telephone services to customers where there was no Optus service, there is nothing to indicate that it was sensitive to an appropriate reaction when it emerged that that had occurred.
71 The TIC Conduct was a deliberate attempt to divert customers away from the TIO and some customers were deliberately misled by being told that TIC was independent of Excite Mobile or by the pretence that TIC did not have direct access to Excite Mobile's records. It is not possible to assess the direct effect of that conduct on any particular consumer or consumers, but I am confident that some made agreements with Excite Mobile about payment they might not otherwise have made. I am also of the view that, apart from perhaps "doing a deal" so that less was paid than Excite Mobile demanded, there was little benefit in the process. For the reasons given in the liability judgment, most consumers should not have been in the position of having debts to Excite Mobile at all.
72 The Times Are Bad, Last Warning and Failure to Pay letters were all deliberate in their intent to mislead, and were designed to secure agreement by threats that were deliberately misleading and unfair, and as recorded above, the Jerry Hastings letters in some instances with personal contact meant that the Debt Recovery Conduct ultimately was unlawful because it was designed to secure agreement by intimidation.
73 Excite Mobile did not voluntarily provide any cooperation in the investigation and did not participate in the proceedings. Other than a modest allowance for discontinuing the conduct some time after the ACCC investigation commenced, no credit should be given in relation to this aspect of setting penalty. That is not to say that it was uncooperative. By the time the investigation had any real momentum, it was in effect a non-operating company.
74 The penalties are only available for, and sought for acts in each of the episodes of conduct that occurred from 15 April 2010. The Court has also made findings that Excite Mobile and the individual respondents contravened the TPA from about 24 December 2008 to 14 April 2010, mainly from about 1 April 2009.
75 The ACCC therefore submits that it is relevant to take into account the similar conduct of each respondent which they engaged in prior to 15 April 2010. It argues that their conduct from 15 April 2010 was not the first time that such acts, in contravention of the TPA, were committed by them. For instance, when Excite Mobile contravened ss 51AB and 53(g) by sending its first Times are Bad letter from 15 April 2010, there had been on the evidence some 480 earlier such letters. The conduct prior to 15 April 2010 was no less unlawful, unconscionable, misleading or coercive, even though it did not render the respondents vulnerable to pecuniary penalties.
76 The ACCC properly acknowledges that its submission is contrary to the findings by Marshall J in Australian Competition and Consumer Commission v BAJV Pty Ltd [2013] FCA 666 (BAJV) at [22]. In that matter, his Honour said at [38]:
… the Court is aware of admitted contraventions going back to 2006 but it would be erroneous to take them into account in assessing penalty. They have not been the subject of any prior finding by this Court.
77 The ACCC submits that the findings in BAJV conflated consideration of the factor commonly relevant to penalty, as in s 76E of "whether the person has previously been found by the Court in proceedings under Pt VC or this Part to have engaged in any similar conduct" with the factor which Heerey J in Australian Competition and Consumer Commission v NW Frozen Foods Pty Ltd [1996] ATPR 411-515 at 42,444 had regard to whether the contravener has engaged in "similar conduct in [the] past".
78 In my view, it is now well settled that it is appropriate to take into account whether a contravenor has engaged in similar conduct in the past, even if there has been no court determination to that effect. The relevant remarks of Heerey J did not attract any adverse comments on appeal (see NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission (1996) 71 FCR 285 (NW Frozen Foods)), and have been frequently applied since. There is no apparent reason why past contravening conduct should not be taken into account. Indeed, it is a common feature of sentencing that a prosecutor asks for any past conduct of the convicted person of the same character as the subject of the conviction to be taken into account. An example under the TPA is provided by Australian Competition and Consumer Commission v Cotton On Kids Pty Ltd [2012] FCA 1428, per Tracey J especially at [54].
79 In this matter, the "past conduct" is in a somewhat different category. It is not past conduct remote or separate from the conduct attracting liability for a pecuniary penalty. It is the continued conduct which commenced from about 24 December 2008, but in substance mainly from about 1 April 2009, and continued to about 4 November 2010. The contravening conduct only attracted liability for a pecuniary penalty from 15 April 2010.
80 The ACCC submits that the Court should recognise that those acts earlier than 15 April 2010 show a long history of similar, frequent and repeated contraventions by the respondents, so the acts for which penalties are presently sought are not isolated episodes. It says that the fact that the respondents' similar conduct in the period prior to 15 April 2010 remained undetected is no reason to allow advantage to be taken of that.
81 In BAJV at [29], reference is made to the decision of Reeves J in Australian Competition and Consumer Commission v EDirect Pty Ltd (in liq) (2012) 206 FCR 160 (EDirect) at [74] to support the finding that "… it is only conduct from 15 April 2010 that can be taken into account in assessing penalty."
82 In EDirect, Reeves J at [74] said that:
[s]ince s 76E of the TPA only applies to conduct that occurred after 15 April 2010 and the statement of claim is confined to the period up to September 2010, that is the period which I will take into account in assessing the pecuniary penalty.
The ACCC says that passage makes it clear that Reeves J is assessing the extent of the acts for which penalties are available, not applying a principle that acts prior to 15 April 2010 cannot be taken into account at all. So, it submits that the conduct prior to 15 April 2010 can be taken into account for which penalty is sought.
83 In my view, it is not appropriate to take into account in assessing the appropriate penalty for the respondents' contravening conduct from 15 April 2010 the fact that they had been engaging in that conduct from December 2008 or April 2009. That is because the TPA did not provide that that contravening conduct prior to 5 April 2010 should expose the contravenors to any pecuniary penalty. Excite Mobile did, as the liability judgment records, contravene the TPA prior to 15 April 2010 in much the same (and continuing) way as it did after 15 April 2010, but the monetary remedy provided for under the TPA was confined to a claim for damages under s 82 of the TPA up to that time.
84 It would not therefore be appropriate to impose a higher penalty on the respondents for their conduct after 15 April 2010 by reason of prior conduct which did not attract the potential of a monetary penalty. In my view, that is consistent with the approach in BAJV and EDirect. Section 76E as in force at the material time does not, in my view, require the adoption of the ACCC contention. If it had been intended to so operate, the transitional provisions associated with its introduction would have so provided. They do not do so. The present situation is different from circumstances where, in determining the appropriate monetary penalty for a particular contravention, it emerges that the contravenor had previously engaged in similar conduct which itself could have attracted a monetary penalty.
85 In those circumstances, I do not need specifically to consider whether the continuous conduct referred to amounts to "prior conduct" which should be taken into account for the purpose of determining the appropriate pecuniary penalties for the conduct after 15 April 2010 where its essence is really of a continuous character. Nor do I need to consider how such conduct prior to 15 April 2010, which the Legislature has proscribed but without imposing a monetary penalty for its contravention, should result in a higher monetary penalty for contraventions which do attract that sanction.
86 I note the ACCC submissions that, while it cannot be stated with precision, prior to the Selling Conduct for which penalties are sought, Excite Mobile had engaged in similar conduct on hundreds, if not thousands, of occasions over a period of at least 14 months; that it had prior to the Coverage Conduct for which penalties are being sought, previously engaged in similar conduct on 14 occasions from 21 January 2009 to 4 February 2010; that it had prior to the TIC Conduct for which penalties are being sought, previously engaged in similar conduct on 40 occasions from 17 September 2009 to 15 April 2010; and that it had prior to the Debt Recovery Conduct for which penalties are being sought, previously issued the Times Are Bad letter on 481 occasions from 7 January 2010 to 15 April 2010; but that the Failure To Pay letter had not been issued prior to 15 April 2010; and that it had engaged in the Coercion Conduct for which penalties are being sought, and previously engaged in similar conduct on at least 74 occasions from 11 January 2010 to 15 April 2010.
87 It is clear that each of the four episodes of acts for which penalty is being sought was systematic and deliberate, and to the extent that the TIC Conduct was designed to, it did, divert some customers from contacting the TIO. It was also covert.
88 The financial effect of the conduct on the consumers for acts in contravention from 15 April 2010 is not quantifiable. Excite Mobile benefited and/or profited from the four categories of conduct by receiving revenue. It benefited from the TIC Conduct by retaining monies that otherwise would have been paid by Excite Mobile to the TIO and by the benefit of such "deals" it was able to achieve by its device. But for the Selling Conduct, it would not have received any revenue from any of the customers that commenced on a day-cap plan from 15 April 2010.
89 The ACCC submits that an instinctive synthesis of all relevant factors should result in the Court assessing penalties on Excite Mobile in the following ranges as having appropriate deterrent value. I record its submissions in relation to each of the eight categories of conduct for which it intended:
(1) $900,000 to $1,000,000 for the Sales Conduct;
(2) $815,000 to $900,000 for the Contract Conduct;
(3) $25,000 to $50,000 for the Coverage Conduct;
(4) $815,000 to $900,000 for the TIC Conduct;
(5) $815,000 to $900,000 for the Times Are Bad Conduct;
(6) $815,000 to $900,000 for the Last Warning Conduct;
(7) $815,000 to $900,000 for the Failure To Pay Conduct; and
(8) $815,000 to $900,000 for the Coercion Conduct.
90 If I adopt the higher figure in the range where I have not accepted the eight categories, the following would represent its submissions:
(1) $900,000 to $1,000,000 for the Selling Conduct;
(2) $25,000 to $50,000 for the Coverage Conduct;
(3) $815,000 to $900,000 for the TIC Conduct; and
(4) $815,000 to $900,000 for the Debt Recovery Conduct.
91 As to the Selling Conduct, the ACCC submission is that it is towards the maximum end of the range. The conduct, in its nature, is comparable to the worst possible case. Had the conduct been engaged in by a much larger corporation, with the intention to actually contravene the law and involve every consumer in Australia for larger sums of money, the appropriate penalty might be closer to the maximum. However, the nature of the conduct is so serious, coupled with the irrelevance of specific deterrence because Excite Mobile is no longer operative and apparently has no assets of value, that a penalty towards the maximum end of the range is required in order to have appropriate general deterrent value to others who might be minded to engage in similar conduct.
92 As to the Coverage Conduct, the proposed range is said to be at the lower end of the range. The conduct for which penalty is sought was not as widespread, but nonetheless serious and made worse by the Selling Conduct which preceded it.
93 As to the TIC Conduct and the Debt Recovery Conduct, the ACCC submits that the nature of the conduct is at the upper end of seriousness, involving particularly reprehensible misrepresentations, and/or unconscionable or coercive conduct; and each episode of conduct was made even more affronting by the Selling Conduct which each consumer had suffered earlier in the process.
94 The most harm was caused by the Selling Conduct - extending to all monies paid by consumers for Excite Mobile's contraventions. The ACCC accepts that the extent of each episode differed, in that the proliferation of the acts in each episodes varied. It contends that the TIC Conduct is "most reprehensible", and at the upper end of seriousness for misleading representation contraventions; and the Debt Recovery Conduct is "particularly reprehensible" given that it followed and had greater impact because of Excite Mobile's previous unconscionable and misleading conduct directed at each consumer.
95 In NW Frozen Foods, it was noted that "[a] hallmark of justice is equality before the law, and, other things being equal, corporations guilty of similar contraventions should incur similar penalties" but, that in the context of the TPA, "other things are rarely equal", so that "[c]ases are authorities for matters of principle; but the penalty found to be appropriate, as a matter of fact, in the circumstances of one case cannot dictate the appropriate penalty in the different circumstances of another case". Thus, the Full Court in Singtel at [60] warned:
It is convenient at this point to observe that the Court is not assisted by Optus' citation of penalties imposed in other cases, where the combination of circumstances were different from the present, as if that citation is apt to establish a "range" of penalties appropriate in this case.
96 I accept the submission that there are no "like cases" to this matter. The ACCC says it has not seen conduct as serious in nature as this.
97 In determining the appropriate penalty for a multiplicity of offences, a penalty-fixer must have regard to the "totality principle". In Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1997) 75 FCR 238 per Goldberg J at 243 (Safeway); Australian Competition and Consumer Commission v Rural Press Ltd [2001] ATPR 41-833 per Mansfield J at [19] and Australian Competition and Consumer Commission v Baxter Healthcare Pty Ltd [2010] FCA 929 at [22], the Court held that the total penalty for related offences ought not to exceed what is proper for the entire contravening conduct involved: see also Trade Practices Commission v TNT Australia Pty Ltd (1995) ATPR 41-375 per Burchett J at 40,169.
98 In Safeway, the Court addressed the application of the principle of totality in the civil penalty context. In reaching an appropriate overall penalty for Excite Mobile, I have of course been guided by those remarks.
99 The end result, according to the ACCC, is that Excite Mobile should have a penalty close to the total of the four figures referred to in [90] above. Its proposal was somewhat higher than that, based on its eight transactions analysis and was about 75% of the total of upper ranges for the eight transactions which it put forward.
100 I have carefully considered the ACCC submissions. As I indicated at [11], I consider that a pecuniary penalty considerably less than sought by the ACCC is appropriate.
101 I accept generally how the ACCC has characterised the conduct of Excite Mobile in its submissions. However, it should not be assumed that those who are sought to be influenced by the general deterrent effect of a pecuniary penalty will be unaware of the size of the contravenor. Excite Mobile was not a significant participant in the market for the provision of mobile telephony services. Although its overall conduct was serious, the deterrent effect of the penalty will be seen as that applicable to a "smaller player" in the market. But it must also be seen for the character that conduct had, its extent, and for the impact that conduct had upon consumers (at least so far as it can be roughly assessed). The evidence shows that neither Excite Mobile nor its directors in fact benefited from the contravening conduct in any significant way, although there is no doubt that the purpose was profit making. In its case, although I have considered the other matters variously discussed in the authorities, they do not figure largely in the balance I have struck.
102 In my view, the Selling Conduct should attract a pecuniary penalty of $300,000. Obviously, there is no particular science to that figure. It is, for a smallish company, a significant amount. I do not have the benefit of full details of its turnover, or of its gross profits, during the period from 5 April 2010 to November 2010. They may have led to a different, and perhaps lesser, figure. I do not know. For the relevant period, the consumers who contracted with it by reason of the Selling Conduct were (as I have noted above) in the order of 1500-2000 consumers. As a matter of arithmetic (and so as a cross check) the pecuniary penalty therefore represents about $150-$200 per transaction. That does not appear to me to be excessive. On the other hand, the maximum penalty must be adjusted to allow for an appropriate penalty for similarly improper conduct by a much larger company, or in relation to a much larger number of customers.
103 That is not intended to set a tariff for other cases. Each case will have to be assessed by reference to its particular circumstances. As the ACCC said, this conduct is certainly towards the more serious end of the scale.
104 The Coverage Conduct was much more limited in its effect upon consumers, and was I think mostly a consequence of inattention rather than deliberateness. I impose a pecuniary penalty of $15,000 for the Coverage Conduct.
105 The TIC Conduct was deliberately misleading, and was designed to divert consumers who had been victims of the Selling Conduct from using the resources of the TIO, an office established inter alia to receive and deal with complaints. The potential benefits to Excite Mobile, and the potential detriments to consumers, are discussed above. It was conduct seriously in contravention of the TPA, driven by self-interest. Because the range of those affected is smaller than those affected by the Selling Conduct, I consider the appropriate pecuniary penalty should be somewhat less, and I impose a pecuniary penalty of $100,000.
106 Similar comments apply to the Debt Recovery Conduct. I consider the appropriate penalty $140,000, even though on the evidence the consumers affected were likely to have been only in the order of a few hundred over the relevant period. I have taken into account the staged process that the Debt Recovery Conduct involved, and that it involved a serious element of improperly threatening consequences, including conduct constituting the contravention of s 60 of the TPA.
107 The total of those figures, namely $455,000, is in my view a proper one having regard to the totality of the contravening conduct I have found to have been established. I have stepped back and viewed that conduct overall to reach that conclusion.
108 Although it may be somewhat theoretical, I will allow Excite Mobile 28 days to pay that sum, and I will give it leave to apply within that period of 28 days if it seeks some different orders relating to the time for payment or for staged payment.