viagogo AG v Australian Competition and Consumer Commission

• Jurisdiction: Australia Federal only
• Court: Full Federal Court (Australia)
• Judgment Date: 18 May 2022
• Neutral Citation: [2022] FCAFC 87
• Date: 18 May 2022

FEDERAL COURT OF AUSTRALIA

viagogo AG v Australian Competition and Consumer Commission [2022] FCAFC 87

Appeal from:	Australian Competition and Consumer Commission v viagogo AG [2019] FCA 544 ; Australian Competition and Consumer Commission v viagogo AG (No 3) [2020] FCA 1423
File number:	NSD 1187 of 2020
Judgment of:	YATES, ABRAHAM AND CHEESEMAN JJ
Date of judgment:	18 May 2022
Catchwords:	CONSUMER LAW – misleading or deceptive conduct – contravention of ss 18, 29(1) and/or 34 of the Australian Consumer Law – part price representations in contravention of s 48(1) of the Australian Consumer Law – where appellant contended that primary judge erred in finding three of four representations were conveyed – Held: appeal dismissed. ; CONSUMER LAW – PECUNIARY PENALTIES – where primary judge imposed an aggregate pecuniary penalty in the total sum of $7 million – whether pecuniary penalty manifestly excessive – whether primary judge erred in assessment of specific and general deterrence by placing undue weight on revenue instead of profit – whether primary judge erred in respect of application of the parity principle – whether primary judge erred in approach to calculating loss to consumers – Held: appeal dismissed.
Legislation:	Competition and Consumer Act 2010 (Cth), Schedule 2, ss 18(1), 29(1)(h), 29(1)(i), 34, 48, 224(1)(a), 224(2), 224(3), 224(4)
Cases cited:	Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCAFC 113; 254 FCR 68 Australian Building and Construction Commissioner v Pattinson [2022] HCA 13 Australian Competition and Consumer Commission v Employsure Pty Ltd [2021] FCAFC 142; 392 ALR 205 Australian Competition and Consumer Commission v High Adventure Pty Ltd [2005] FCAFC 247; [2006] ATPR 42-091 Australian Competition and Consumer Commission v Jetstar Airways Pty Ltd [2015] FCA 1263; [2016] ATPR 42-523 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 Telstra Corporation Ltd [2010] FCA 790; 188 FCR 238 Australian Competition and Consumer Commission v TPG Internet Pty Ltd [2013] HCA 54; 250 CLR 640 Australian Competition and Consumer Commission v viagogo AG [2019] FCA 544 Australian Competition and Consumer Commission v viagogo AG (No 3) [2020] FCA 1423 Australian Securities and Investments Commission v MLC Nominees Pty Ltd [2020] FCA 1306; 147 ACSR 266 Australian Securities and Investments Commission v Westpac Banking Corp (No 3) [2018] FCA 1701; 131 ACSR 585 Butcher v Lachlan Elder Realty Pty Ltd [2004] HCA 60; 218 CLR 592 Commonwealth v Director, Fair Work Building Industry Inspectorate [2015] HCA 46; 258 CLR 482 Dinsdale v R [2000] HCA 54; 202 CLR 321 Federal Commissioner of Taxation v Arnold (No 2) [2015] FCA 34; 324 ALR 59 Flight Centre Limited v Australian Competition and Consumer Commission (No 2) [2018] FCAFC 53; 260 FCR 68 Markarian v R [2005] HCA 25; 228 CLR 357 NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission [1996] FCA 1134; 71 FCR 285 Singtel Optus Pty Ltd v Australian Competition and Consumer Commission [2012] FCAFC 20; 287 ALR 249 Trade Practices Commission v CSR Ltd [1991] FCA 521; ATPR 41-076 Volkswagen Aktiengesellschaft v Australian Competition and Consumer Commission [2021] FCAFC 49; 151 ACSR 407
Division:	General Division
Registry:	New South Wales
National Practice Area:	Commercial and Corporations
Sub-area:	Regulator and Consumer Protection
Number of paragraphs:	177
Date of hearing:	18 - 19 August 2021
Counsel for the Appellant:	Ms K C Morgan SC with Ms A Poukchanski
Solicitor for the Appellant:	Minter Ellison
Counsel for the Respondent:	Dr K Stern SC with Mr T Begbie, Ms V Brigden and Mr P Melican
Counsel for the Respondent:	Corrs Chambers Westgarth

ORDERS

		NSD 1187 of 2020
BETWEEN:	VIAGOGO AG Appellant
AND:	AUSTRALIAN COMPETITION AND CONSUMER COMMISSION Respondent

order made by:	YATES, ABRAHAM and CHEESEMAN JJ
DATE OF ORDER:	18 May 2022

THE COURT ORDERS THAT:

1. The appeal is dismissed with costs.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

Table of contents

INTRODUCTION	[1]
THE REPRESENTATIONS	[9]
The Official Site Representation	[11]
The Total Price Representation	[12]
The Part Price Representation	[15]
The Quantity Representations	[17]
GROUNDS OF APPEAL (LIABILITY)	[19]
STATUTORY PROVISIONS	[21]
THE LIABILITY JUDGMENT	[24]
Context in which representations made	[26]
The viagogo advertisement	[27]
viagogo’s website	[29]
The Quantity Representations	[32]
The ordinary consumer	[35]
Official Site Representation	[38]
Agreed facts relating to price	[54]
Total Price Representation	[55]
Part Price Representation	[72]
CONSIDERATION – GROUNDS 1 TO 3 (LIABILITY)	[83]
The nature of this appeal	[83]
Ground 1 – Official Site Representation	[86]
Ground 2 – Total Price Representation	[108]
Ground 3 – Part Price Representation	[118]
CONCLUSION ON LIABILITY	[122]
GROUND OF APPEAL (PENALTY)	[123]
PRINCIPLES – PENALTY	[125]
STATUTORY PROVISIONS	[125]
Relevant law on penalty	[129]
THE PENALTY JUDGMENT	[134]
CONSIDERATION – GROUND 4 (PENALTY)	[146]
CONCLUSION ON PENALTY	[176]
DISPOSITION	[177]

THE COURT:

INTRODUCTION

1 This is an appeal by viagogo AG on liability and penalty in civil penalty proceedings. The respondent is the Australian Competition and Consumer Commission (ACCC) in its capacity as the regulator under the Competition and Consumer Act 2010 (Cth) (CCA) and the Australian Consumer Law (ACL) (set out in Sch 2 to the CCA).

2 The primary...