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Released under FOI

NOTICE OF FILING AND HEARING

This document was lodged electronically in the FEDERAL COURT OF AUSTRALIA (FCA) on 28/08/2017 7:58:41 AM AEST and has been accepted for filing under the Court's Rules. Filing and hearing details follow and important additional infonnation about these are set out below.

Document Lodged:

File Number:

File Title:

Registry:

Reason for Listing:

Time and date for hearing:

Place:

Filing and Hearing Details

Originating Application- Form 15- Rule 8.01(1)

NSD 1489/2017

AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v VIAGOGOAG NEW SOUTH WALES REGISTRY- FEDERAL COURT OF AUSTRALIA First Case Management Hearing

15/09/2017, 9:30AM

Court Room Not Assigned, Level 17 Law Courts Building Queen's Square, Sydney

Dated: 29/08/2017 9:38:24 AM AEST Registrar

Important Information

As required by the Court's Rules, this Notice has been inserted as the first page of the document which has been accepted for electronic filing. It is now taken to be part of that document for the purposes of the proceeding in the Court and contains important information for all parties to that proceeding. It must be included in the document served on each of those parties.

The Reason for Listing shown above is descriptive and does not limit the issues that might be dealt with, or the orders that might be made, at the hearing.

The date and time of lodgment also shown above are the date and time that the document was received by the Court. Under the Court's Rules the date of filing of the document is the day it was lodged {if that is a business day for the Registry which accepts it and the document was received by 4.30 pm local time at that Registry) or otherwise the next working day for that Registry.

Released under FOI Form 15 Rules 8.01 {1); 8.04(1)

Federal Court of Australia

District Registry: NSW

Division: General

Originating application

No. NSD of 2017

Commercial and Corporations National Practice Area (Regulator and Consumer Protection)

AUSTRALIAN COMPETITION AND CONSUMER COMMISSION

Applicant

VIAGOGOAG

Respondent

To the Respondent

The Applicant applies for the relief set out in this application.

The Court will hear this application, or ~ake orders for the conduct of the proceeding, at the

time and place stated below. If you or your lawyer do not attend, then the Court may make

orders in your absence.

You must file a notice of address for service (Form 10) in the_ Registry before attending Court or

taking any other steps in the proceeding.

Time and date for hearing:

Place: Federal Court of Australia, Law Courts Building, Queens Square Sydney.

Date:

si9neci·h-y··a-r; -ofii.ceractin·9·w·itt1 .. the~authorHv·······-ot the District Registrar

3469-0000· 7686v1

Filed on behalf of

Prepared by

Law firm

Tel (07) 3228 9332

Australian Competition and Consumer Commission, Applicant · ·~=ranees ·wiiiiam·s· of car:r5-cilambers ·west9ai11l. anci victori'a ari9deii-----·-· and Kristina Stem SC of counsel.

corrs Chambe·;.s·wesigarth ...... ·- ········ -- · · .. -- · --- ·· · ·· ··-·· --~ --·-- ... --. -·-·--- ·-· -----··· . ~· ·-···-- -~. -· .................. ~...... ·, ....•. ~ ..... .

Tel (07) 3228 9332 Email · [email protected] · · ··· · · -·-··.. · --- · ·-- "·- · .. · ·- ·

Address r-or·se..vice·· -- .. -· w -"LeVel-43~'1''7i'1-Ea-gie· street: B'rTsbane, 6Ueenst8iid.· 4000 . ·-·- .. ........... . .

[Version 2 form approved 09/05/2013]

Released under FOI 2

Details of claim

The Court's jurisdiction to hear the present case and to grant the relief sought is found in

s138(1) of the CCA, and s398(1A)(c) of the Judiciary Act 1903 (Cth).

On the grounds stated in the Concise Statement, the Applicant claims:

Declarations

1. A declaration that during the period 1 May 2017 to 26 June 2017, the Respondent, in

trade or commerce, in connection with the supply or possible supply of services:

(a) by using the word ~~official" in its advertisements on Google, and

{b) failing to disclose, or adequately disclose that it was not a primary ticket seller,

represented to consumers located in Australia (Consumers) that:

(c) they could purchase official original (i.e not resold) tickets through

http:/lwww. viagogo.com/au/ {the Viagogo Australian website); and/or

(d) the Respondent had 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:

(e) the tickets avaijlable from the Viagogo Australian website were being resold via an

online secondary ticketing platform! and/or

(f) the Respondent did not have any such affiliation or approval;

and thereby:

(i) 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};

{ii) engaged in conduct that was liable to mislead the public as to the nature

of the services Viagogo provided, in contravention of s34 of the Australian

Consumer Law; and

(iii) made false or misleading representations that Viagogo had an approval or

affiliation in contravention of s29(1 )(h) of the Australian Consumer Law.

2. A declaration that during the period 1 May 2017 to 26 June 2017, the Respondent, in

trade or commerce, in connection with the supply or possible supply of services, by its

conduct in making representations on the 'Tickets and Seating Selection Page" of the

Viagogo Australian website that a Consumer could purchase tickets for the amount

stated on that webpage, when, in fact Consumers could not purchase tickets for the

3469-0000-7686v I


amounts stated on that webpage because Consumers had to pay additional fees,

thereby:

(i) engaged in conduct that was misleading or deceptive or likely to mislead or

deceive in contravention of s18 of the Australian Consumer Law; and

(ii) made false or misleading representations with respect to the price at which

Consumers could acquire tickets through the Viagogo Australian website, in

contravention of s 29(1}(i) of the Australian Consumer Law.

3. A declaration that on 18 May 2017, the Respondent, in trade or commerce, in connection

with the supply or possible supply of services, by its conduct in making representations

on the ~~Tickets and Seating Selection Page" of the Viagogo Australian website that a

Consumer could purchase:

(a) a ticket for a seat in the Grand Circle section at the Princess Theatre in Melbourne to

see a performance of the musicai"The Book of Mormon" on Saturday 20 May 2017

through the Viagogo Australian website for A$135 per ticket;

(b) three tickets for seats in the Bronze section of the Gabba cricket ground in Brisbane

to attend the Ashes cricket test match on St:Jnday, 26 November 2017 through the

Viagogo Australian website for A$11 0.05 per ticket

(c) two tickets for seats in the Upper Tier section at Rod Laver Arena in Melbourne to

attend a Cat Stevens concert on Monday, 27 November 2017 through the Viagogo

Australian website for A$225 per ticket;

when in fact a Consumer could not purchase any of those tickets from the Viagogo

Australian website for the relevant prices because Consumers had to pay additional fees:


deceive in contravention of s 18 of the Australian Consumer Law; and

(ii) made false or misleading representations with respect to the price at which

Consumers could acquire each of the tickets referred to in (a), (b) and (c) above

through the Viagogo Australian website, in contravention of s29(1 )(i) of the

Australian Consumer Law.

4. A declaration that on 18 May 2017, the Respondent, in trade or commerce, in connection

with the supply or possibly supply to another person of goods or services of a kind

ordinarily acquired for personal or household use or consumption, by its conduct in

stating on the "Delivery Page" of the Viagogo Australian website a price for each of the

tickets in proposed declaration 3 that excluded further fees payable without also

specifying, in a prominent way and as a single figure, the price for each of those tickets

that included the additional fees payable, thereby:

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(ii) made a part-price representation in contravention of s48(1) of the Australian

Consumer Law.

5. A declaration that during the period 1 May 2017 to 26 June 2017, by the Respondent's

conduct in making statements such as "Less than 1% of tickets left for this event" or

"Less than 1°k of tickets remaining", "Only 2% of tickets left", "Tickets are likely to sell out

soon11, "Only a few tickets left", "Only 8 tickets left\ "LAST CHANCE!" and 'Tickets for

this event are selling fasf' in circumstances where the Respondent did not disclose at

any time throughout the booking process on the Viagogo Australian website for

purchasing tickets that the references to the number or percentage of tickets still

available for any of the events were references to the number or percentage of tickets

available for purchase through the Viagogo Australian website only, and not references

to the total number or percentage of tickets remaining available to the event, the

Respondent thereby:



(ii) engaged in conduct liable to mislead the public as to the quantity of tickets

available to events advertised on the Viagogo Australian website, in

contravention of s34 of the Australian Consumer law.

Injunctions

6. An order pursuant to s232 of the Australian Consumer Law that for a period of five years

from the date of this order the Respondent, whether by itself, its officers, employees,

agents or otherwise howsoever, be restrained, in the course of the supply or possible

supply of services to Consumers for the sale of tickets on the Viagogo Australian

website, from representing, in trade or commerce, that:

(a) Consumers can purchase official original (i.e. not resold) tickets through the Viagogo

Australian website, when that is not the case;

(b) the Respondent is affiliated with or has approval from a particular 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 that is not the case;

(c) Consumers can purchase tickets for a stated price on a webpage on the Viagogo

Australian website when they cannot do so without paying further fees to purchase

the tickets;

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(d) Consumers can purchase tickets for a stated price on a webpage on the Viago

Australian website which exclude further fees payable without also specifying, in a

prominent way and as a single figure, the price for each of those tickets including the

additional fees payable; and

(e) only a set number or percentage of tickets are available without expressly stating

that the reference to tickets is to those available for purchase through the Viagogo

Australian website and not the total number or percentage of tickets remaining for

the event.

Publication orders

7. An order pursuant to s246(2)(a), (b), (c) and/or (d) of the Australian Consumer law,

directing the Respondent to prominently publish information on the Viagogo Australian

website homepage, in a form and in terms to be determined following the publication of

reasons in the proceeding, and including information for consumers concerning the

following matters:

(a) the findings of the Court;

(b) the Respondent's conduct which is the subject of the proceedings;

(c) the Respondent's obligations under the Australian Consumer Law;

(d) the Respondent's obligations under these orders; and

(e) the manner in which consumers can make a complaint to the Respondent regarding

its conduct.

Pecuniary penalties

8. An order pursuant to s224{1 )(a)(ii) of the Australian Consumer Law that within 30 days of

the date of this order, the Respondent pay to the Commonwealth of Australia such

pecuniary penalties as the Court determines to be appropriate in respect of the

Respondent's contraventions of s29, 34 and 48 of the Australian Consumer law set out

in the proposed declarations in paragraphs 1 to 5 above.

Compliance Program orders

9. Pursuant to s 246(2) of the Australian Consumer Law, the Respondent is:

(a) within 90 days of this order, to establish and implement an Austranan Consumer Law

Compliance Program to be undertaken by each employee of the Respondent or

other person involved in the Respondent's business who deals or who may deal with

Consumers, being a program designed to minimise the Respondent's risk of future

contraventions of s18, 29, 34 and 48 of the Australian Consumer Law in relation to

the sale of tickets on the Respondent's Australian website; and

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(b) for a period of 3 years from the date of this order, maintain and continue to

implement the Australian Consumer Law Compliance Program referred to in order

9(a) above.

Costs

1 0. An order that the Respondent pay the Applicant's costs.

Further Order

11. An order that a copy of the reasons for judgment, with the seal of the Court affixed

thereon, be retained on the Court file for the purposes of s137H{3) of the Competition

and Consumer Act 2010 (Cth).

12. Such further or other order as the Court considers appropriate.

Applicant's address

The Applicant's address for service is:

Place: Corrs Chambers Westgarth, One One One, Level 43, 111 Eagle Street, Brisbane,

Queensland, 4000

Email: [email protected]

The Applicant's address is:

Place: Level 24, 400 George Street, Brisbane, Queensland, 4000.

Service on the Respondent

It is intended to serve this application on the Respondent.

Date: 28 August 2017

~t~~~S~iic~li8~ ~ Solicitor for the Applicant

3469-0000-7686v I

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