Australian Competition and Consumer Commission v viagogo AG (No 3)

• Jurisdiction: Australia Federal only
• Court: Federal Court (Australia)
• Judgment Date: 02 October 2020
• Neutral Citation: [2020] FCA 1423
• Date: 02 October 2020

Federal Court of Australia

Australian Competition and Consumer Commission v viagogo AG (No 3) [2020] FCA 1423

File number:	NSD 1489 of 2017
Judgment of:	BURLEY J
Date of judgment:	2 October 2020
Catchwords:	CONSUMER LAW – misleading or deceptive conduct – false or misleading representations relating to price – part-price representation – remedies – declarations – pecuniary penalties – principles relevant to imposition of a penalty – injunctions – principles relevant to imposition of an injunction – publication orders – compliance program orders
Legislation:	Competition and Consumer Act 2010 (Cth) s 137H(3) Competition and Consumer Act 2010 (Cth) Schedule 2, ss 18, 29, 34, 48, 224, 232, 246 Evidence Act 1995 (Cth) s 135(a) Federal Court of Australia Act 1976 (Cth) s 21 Trade Practices Act 1974 (Cth) s 80 ; Convention on the Service Abroad of Judicial and Extrajudicial documents in Civil or Commercial Matters, done at the Hague on 15 November 1965
Cases cited:	ACCC v AirAsia Berhad [2012] FCA 1413 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCAFC 113; 254 FCR 68 Australian Competition and Consumer Commission v Cement Australia Ltd [2017] FCAFC 159; 258 FCR 312 Australian Competition and Consumer Commission v Coles Supermarkets Australia Pty Ltd [2015] FCA 330; 327 ALR 540 Australian Competition and Consumer Commission v Cornerstone Investment Aust Pty Ltd (in liq) (No 5) [2019] FCA 1544 Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd [2007] FCAFC 146; 161 FCR 513 Australian Competition and Consumer Commission v GlaxoSmithKline Consumer Healthcare Australia Pty Ltd (No 2) [2020] FCA 724 Australian Competition and Consumer Commission v Meriton Property Services Ltd (No 2) [2018] FCA 1125 Australian Competition and Consumer Commission v On Clinic Australia Pty Limited [1996] FCA 721; 35 IPR 635 Australian Competition and Consumer Commission v Real Estate Institute (WA) Inc [1999] FCA 1387; 95 FCR 114 Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd [2016] FCAFC 181; 340 ALR 25 Australian Competition and Consumer Commission v SensaSlim Australia Pty Ltd (in liq) (No 7) [2016] FCA 484 Australian Competition and Consumer Commission v TPG Internet Pty Ltd (No2) [2012] FCA 629; ATPR ¶42-402 Australian Competition and Consumer Commission v Turi Foods Pty Ltd (No 5) [2013] FCA 1109; ATPR ¶42-450 Australian Competition and Consumer Commission v Valve Corporation (No 7) [2016] FCA 1553 Australian Competition and Consumer Commission v viagogo AG [2019] FCA 544 Australian Competition and Consumer Commission v Yazaki Corporation [2018] FCAFC 73; 262 FCR 243 Australian Consumer and Competition Commission v 4WD Systems Pty Ltd [2003] FCA 850; 200 ALR 491 Australian Securities and Investments Commission v MLC Nominees Pty Ltd [2020] FCA 1306 BMW Australia v Australian Competition and Consumer Commission [2004] FCAFC 167; 207 ALR 452 Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate [2015] HCA 46; 258 CLR 482 Flight Centre Limited v Australian Competition and Consumer Commission (No 2) [2018] FCAFC 53; 260 FCR 68 ICI Australia Operations Pty Limited v Trade Practices Commission [1992] FCA 707; 38 FCR 248 Markarian v The Queen [2005] HCA 25; 228 CLR 357 Mill v The Queen [1988] HCA 70; 166 CLR 59 NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission [1996] FCA 1134; 71 FCR 285 Royer v Western Australia [2009] WASCA 139; 197 A Crim R 319 Singtel Optus Pty Ltd v Australian Competition and Consumer Commission [2012] FCAFC 20; 287 ALR 249 TPG Internet Pty Ltd v Australian Competition and Consumer Commission [2012] FCAFC 190; 210 FCR 277 Trade Practices Commission v Mobil Oil Australia Ltd [1984] FCA 403; 4 FCR 296
Division:	General Division
Registry:	New South Wales
National Practice Area:	Commercial and Corporations
Sub-area:	Regulator and Consumer Protection
Number of paragraphs:	148
Date of hearing:	24 April 2020
Counsel for the Applicant:	Dr K. Stern SC with Ms V. R. Brigden
Solicitor for the Applicant:	Corrs Chambers Westgarth
Counsel for the Respondent:	Ms K. C. Morgan SC with Ms S. Palaniappan
Solicitor for the Respondent:	MinterEllison

ORDERS

		NSD 1489 of 2017
BETWEEN:	AUSTRALIAN COMPETITION AND CONSUMER COMMISSION Applicant
AND:	VIAGOGO AG Respondent

order made by:	BURLEY J
DATE OF ORDER:	2 OCTOBER 2020

THE COURT DECLARES THAT:

Official Site Representation

1. During the period 1 May 2017 to 26 June 2017, the Respondent:

   1. by using the phrase “Buy Now, viagogo Official Site” in its advertisements on Google, and

   2. by failing to disclose, or adequately disclose in its advertisements that it was not a primary ticket seller,

represented to consumers located in Australia (Consumers) that:

3. they could purchase official original (i.e. not resold) tickets through https://www.viagogo.com/au/ (the viagogo Australian website); and/or

4. the Respondent had the sponsorship of, approval from, or was affiliated with, the relevant team, musician, entertainer or event promoter, organiser or venue (Host) as an “official” agent of the Host to sell original (i.e. not resold) tickets to the Host’s event(s) directly to the public;

when, in fact:

5. the tickets available from the viagogo Australian website were being resold via an online secondary ticketing platform; and/or

6. the Respondent did not have any such sponsorship, approval or affiliation;

and thereby:

1. in trade or commerce, engaged in conduct that was misleading or deceptive or likely to mislead or deceive in contravention of s 18 of the Australian Consumer Law, being Schedule 2 to the Competition and Consumer Act 2010 (Cth);

2. in trade or commerce, engaged in conduct that was liable to mislead the public as to the nature of the services the Respondent provided, in contravention of s 34 of the Australian Consumer Law; and

3. in trade or commerce, in connection with the supply or possible supply of services or in connection with the promotion of that supply of services, made false or misleading representations that the Respondent had the sponsorship, approval or affiliation of a Host in contravention of s 29(1)(h) of the Australian Consumer Law.

Quantity Representations

2. During the period 1 May 2017 to 26 June 2017, by making statements such as the following (where “X” is a variable number):

   1. “Less than [X]% of tickets left for this event”;

   2. “Less than [X]% tickets remaining”;

   3. “Only [X]% of tickets left”;

   4. “Tickets are likely to sell out soon”;

   5. “Only a few tickets left”;

   6. “Only [X] tickets left”;

   7. “LAST CHANCE!”; and

   8. “Tickets for this event are selling fast”

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