Australian Competition and Consumer Commission v Ticketek Pty Ltd

Federal Court of Australia|2011-12-22|Before: Mr P, Bennett J

INTRODUCTION

This Statement of Agreed Facts is provided in accordance with section 191 of the Evidence Act 1995 (Cth). The facts agreed to, and admissions made in this document, are agreed to have been made for the purpose of this proceeding only.
This Statement of Agreed Facts is in support of the request of the Applicant (ACCC) and the Respondent (Ticketek) that the Court make orders, by consent, as set out in the attached minutes (see Attachment 1).
This Statement of Agreed Facts concerns conduct which took place between 1 July 2009 and 19 January 2010 (Relevant Period) whereby Ticketek took advantage of its substantial degree of market power in the Ticketing Related Services Market in the Relevant Period for the substantial purpose of deterring or preventing Lasttix Pty Ltd (ACN 097 312 484) (Lasttix) from engaging in competitive conduct in that market, by: (a) refusing, on three occasions, to implement in its Ticketing System discounted Price Types to be published by Lasttix when requested to implement those Price Types by Promoters or Venue Operators; and (b) removing, on one occasion, from its Ticketing System, discounted Price Types that were published or to be published by Lasttix.
The ACCC is a body corporate established by section 6A of the Competition and Consumer Act 2010 (Cth), formerly named the Trade Practices Act 1974 (Cth) prior to 1 January 2011 (the Act), and is entitled to sue in its corporate name.
Ticketek is and was at all material times: (a) a company incorporated pursuant to the Corporations Act 2001 (Cth); (b) a trading corporation within the definition of 'corporation' in section 4 of the Act; and (c) capable of being sued in its corporate name.
Unless otherwise stated, any reference to a particular state of affairs is a reference to the state of affairs as it existed during the Relevant Period.

Ticketek 7. Ticketek was established in 1979 and has approximately 200 full time employees. 8. During the Relevant Period, Ticketek carried on a business of providing end-to-end ticketing solutions to clients through the supply of Ticketing Related Services. 9. For the purposes of these proceedings, Ticketing Related Services are services inherent in, and incidental to, the function of selling and distributing tickets for live entertainment events. The range of services that comprise Ticketing Related Services can vary between suppliers of services and over time but for the purposes of these proceedings included some or all of the range of services set out below in paragraph 59. 10. Ticketek supplied Ticketing Related Services to a range of clients within Australia including venues, event promoters, theatrical producers and sports clubs across a broad range of live entertainment genres including sport, music, theatre, dance, family and lifestyle events. 11. During the Relevant Period, Ticketek typically supplied Ticketing Related Services to Venue Operators and/or Promoters under the terms of Ticketing Services Agreements. Ticketing Services Agreements were typically entered into with a Venue Operator for services provided in respect of a particular venue or, with a Promoter, for services provided in respect of a particular event. 12. For the purposes of this Statement of Agreed Facts: (a) a person that owned or operated a venue at which events were hosted is a "Venue Operator" (Venue Operator); (b) a person or organisation other than a Venue Operator, which was involved in the production or promotion of an event is a "Promoter" (Promoter); and (c) an agreement between a person that provided Ticketing Related Services and a Venue Operator or Promoter is a "Ticketing Services Agreement" (Ticketing Services Agreement). 13. The majority of the Ticketing Services Agreements to which Ticketek was a party, during the Relevant Period from time to time granted Ticketek the exclusive rights to print, prepare, sell and distribute tickets at the particular venue or event which was the subject of the Agreement. The range of Ticketing Related Services provided under each Ticketing Services Agreement varied depending on the circumstances and complexity of each venue or event, and the requirements of each Venue Operator or Promoter. 14. Consideration for Ticketing Services Agreements typically involved the payment of key money and rebates of ticketing service charges to the Venue Operator or Promoter. For the purposes of this Statement of Agreed Facts, key money payments represented payments made to secure exclusive Ticketing Services Agreements with certain venues for a period of time, typically paid up-front or sometimes staggered over the term of the Ticketing Services Agreement (key money). 15. Ticketek earned the majority of its revenue in the provision of Ticketing Related Services from the sale of the tickets by way of ticketing fees levied on tickets sold and/or ticket sale transactions, including: (a) "Inside charges and booking fees", comprised within the face value of the ticket and payable per ticket; (b) "Transaction fees", levied on top of the ticket and payable by the consumer per ticket purchase transaction. The transaction fees may differ according to which distribution channel was used to purchase the ticket. 16. The type and quantum of such fees were typically specified in Ticketing Services Agreements and negotiated at the time these Ticketing Services Agreements were formed. 17. During the Relevant Period Ticketek held approximately 75 exclusive Ticketing Services Agreements with Venue Operators and Promoters around Australia. The term for an exclusive Ticketing Services Agreement for venues and events can vary significantly, but for venues during the Relevant Period, the vast majority of Ticketing Services Agreements held by Ticketek fell within the range of three to five years. Many significant venues and events across Australia were the subject of exclusive Ticketing Services Agreements held by Ticketek during the Relevant Period, including: (a) sporting venues such as the Melbourne Cricket Ground, Sydney Cricket Ground and Suncorp Stadium (Brisbane); (b) arena/concert venues such as Rod Laver Arena (Melbourne & Olympic Parks Trust), Allphones Arena (Sydney) and Brisbane Entertainment Centre; (c) theatres such as Her Majesty's Theatre (Melbourne) and Theatre Royal (Sydney); and (d) events such as Formula 1 Grand Prix, Moto GP, Bathurst V8, Australian Tennis Open, NRL club fixtures such as Cronulla Sutherland Football Club, and the Red Bull Air Race. 18. Ticketek supplied many of the Ticketing Related Services under its Ticketing Services Agreements using a ticketing system designed, owned and developed by Ticketek called "Softix" (Ticketing System). The Ticketing System facilitates the technical aspects associated with the provision of Ticketing Related Services, including creating new events, sales across different distribution channels, ticket processing and dispatch, ticket scanning and reporting. The Ticketing System has been progressively developed, modified and enhanced by Ticketek's development team over many years as a result of continued maintenance and investment by Ticketek. 19. During the Relevant Period, the Ticketing System allowed for the ticketing of events generally and in particular, for the setting up and modification of various Price Types for a particular event. Ticketek typically set up and modified Price Types for an event as requested by and at the pricing levels determined by a Venue Operator or Promoter. 20. For the purposes of this Statement of Agreed Facts: (a) "Price Type" means a uniquely priced category of ticket to an event which may be implemented in the Ticketing System and in relation to which access by prospective ticket purchasers may be restricted by a Price Type URL or a Promo Code; (b) "Price Type URL" means a unique URL associated with a Price Type which may restrict web-based access to the associated Price Type to those persons accessing the Price Type by means of the unique URL or may direct web-based access to the associated Price Type whether or not that Price Type could be accessed with or without the unique URL; and (c) "Promo Code" includes a unique sequence of letters or numbers which may function as a password in relation to restricting access to a Price Type and may be communicated by a prospective ticket purchaser for the purpose of accessing a Price Type for an event; (d) "URL" means Universal Resource Locator. 21. During the Relevant Period, Ticketek had the capability to provide all or almost all of the Ticketing Related Services set out below in paragraph 59. 22. By reason of the exclusive Ticketing Services Agreements which Ticketek held during the Relevant Period, Ticketek had the ability to prevent other service providers from providing particular Ticketing Related Services to Venue Operators and Promoters for events where Ticketek was the exclusive ticketing services provider. Ticketek's ability to prevent other service providers from providing particular Ticketing Related Services for those events was at various times: (a) a legal and commercial ability based on the terms of the Ticketing Services Agreement; and/or (b) a technical ability based on Ticketek's operational control of the Ticketing System.

Lasttix 23. A reference to Lasttix in this Statement of Agreed Facts is a reference to the company with ACN 097 312 484, incorporated in 2001, which has, at least, been registered under the names: (a) Tickets Pty Ltd; and (b) Lasttix Pty Ltd; and which has, during the Relevant Period, at least, operated the businesses: (c) trading under the business name 'MyTickets' and the domain name 'MyTickets.com.au' (MyTickets); and (d) trading under the business name 'Lasttix' and the domain name 'Lasttix.com.au'. 24. During the Relevant Period, Lasttix carried on the business of supplying, or offering to supply, Ticketing Related Services in Australia to promote the sale of tickets. Lasttix's primary means of promoting the sale of tickets was through the provision of services to Promoters in relation to discount ticket offers for events through either the Lasttix or MyTickets businesses. 25. The Ticketing Related Services offered by Lasttix were services which promoted the sale of tickets by: (a) publishing discount ticket offers on its website and/or in emails to its own database of potential ticket purchasers, or to other databases of potential ticket purchasers owned by other persons; and (b) electronically re-directing consumers wishing to purchase a discount ticket to the relevant ticketing agent or other relevant entity. 26. Lasttix's redirection of a consumer to the relevant entity that ultimately transacted the sale of the ticket for the event took place through either: (a) in some cases, a form of website integration between the Lasttix website and the website of the relevant entity; or (b) in other cases, such as Ticketek, a Price Type URL which created a non-searchable deep link to the website of the ticketing agent or other relevant entity which corresponds with the relevant Price Type for the discounted ticket offer. In these cases, Venue Operators or Promoters typically requested ticketing agents to provide them with a Price Type for Lasttix discounted ticket offers. 27. In consideration for the Ticketing Related Services which Lasttix supplied, Lasttix charged Promoters a success based commission fee, calculable by reference to the quantity and price of tickets which were sold as a result of Lasttix's services. 28. During the Relevant Period, Lasttix only had the capability to provide the Ticketing Related Services which related to the promotion of ticket sales as set out below in paragraph 59(j).

'Dr Phil' Event - July 2009 29. In July 2009 Andrew McManus Presents Pty Ltd (AM Presents) was the Promoter of, among other things, an Australian tour of 'Dr Phil'. In Melbourne, a performance of the event on 5 August 2009 was hosted at the Rod Laver Arena by the Venue Operator Melbourne and Olympic Parks Trust (MOPT) ('Dr Phil' Event). 30. Pursuant to an exclusive Ticketing Services Agreement between MOPT and Ticketek, certain Ticketing Related Services in respect of the 'Dr Phil' Event were supplied by Ticketek. 31. On 17 July 2009, AM Presents and MOPT requested Ticketek to implement in its Ticketing System a discounted Price Type for the 'Dr Phil' Event to be published exclusively by Lasttix (then trading under the name MyTickets). That same day, Ticketek refused to implement the requested Price Type in its Ticketing System. 32. By email dated 17 July 2009 Ticketek's State Manager of Victoria reported this decision to Ticketek's Client Sales and Service Director, stating: "McManus have requested a discounted MyTickets price type for Dr. Phil. This price is cheaper than the current discounted tickets we are selling for this particular event. I have asked … to tell Dan (MOPT) that this will price type will not be added to this event." 33. By the communications from Ticketek to MOPT referred to above, Ticketek refused AM Presents' request to implement in its Ticketing System discounted Price Types to be published by Lasttix in connection with the 'Dr Phil' Event (AM Presents Refusal).

'Liza Minelli' and 'World Dog Games' Events - October 2009 34. In October 2009 Chugg Entertainment Pty Ltd (Chugg Entertainment) was the Promoter of, among other things, a production called 'World Dog Games' and a concert tour of the artist Liza Minelli, (together the 'Liza Minelli' and 'World Dog Games' Events). 35. The World Dog Games event was hosted at Acer Arena in Sydney, commencing on 30 October 2009. Pursuant to an exclusive Ticketing Services Agreement between the Venue Operator of Acer Arena and Ticketek, certain Ticketing Related Services in respect of the 'World Dog Games' Event were supplied by Ticketek. 36. Performances of the Liza Minelli tour were held at various venues around Australia commencing on 16 October 2009. Among the venues hosting the Liza Minelli performances during the tour were the Riverside Theatre in Perth, the Adelaide Entertainment Centre in Adelaide, Rod Laver Arena in Melbourne and the Brisbane Entertainment Centre in Brisbane. Each of the Venue Operators of these venues had exclusive Ticketing Services Agreements with Ticketek in operation in October 2009. Pursuant to these agreements, Ticketek supplied certain Ticketing Related Services in respect of the performances of the Liza Minelli tour at these venues. 37. On both 8 October 2009 and 9 October 2009, Chugg Entertainment requested Ticketek to implement in its Ticketing System discounted Price Types to be published by Lasttix in connection with the 'Liza Minelli and 'World Dog Games' Events. 38. On or around 14 October 2009, Ticketek refused to implement in its Ticketing System the discount Price Types requested by Chugg Entertainment on 8 and 9 October 2009. Ticketek advised Chugg Entertainment that it would aim to assist Chugg Entertainment in promoting the events through Ticketek's own marketing channels and proposed to Chugg Entertainment some means by which this could be achieved. 39. Later on 14 October 2009 and again on 17 October 2009, Chugg Entertainment again contacted Ticketek and queried why Ticketek had enabled Lasttix to publish discounted Price Types in relation to another event (known as 'World's Funniest Island' or 'WFI') that was currently being ticketed by Ticketek. 40. On 17 October 2009, the Business Development Manager of Ticketek responded to Chugg Entertainment stating: "The LastTix/WFI is unauthorised - they have used a price plan that is in place for a different program. We have asked WFI to take it down. To be clear we do not endorse and will not enable links for Last Tix. I hope this helps clarify our position." 41. By the communications and correspondence from Ticketek to Chugg Entertainment outlined above, Ticketek refused Chugg Entertainment's request to implement in its Ticketing System discounted Price Types to be published by Lasttix in connection with the 'Liza Minelli' and 'World Dog Games' Events (Chugg Refusal).

'The Trocks' Event - October 2009 42. In October 2009 Andrew Kay & Associates Pty Ltd (AKA) was the Promoter of, among other things, a production called 'Les Ballets Trockadero De Monte Carlo', also known as 'The Trocks'. In Sydney, performances of 'The Trocks' were staged at the Theatre Royal, commencing on 10 November 2009 ('The Trocks' Event). 43. Pursuant to an exclusive Ticketing Services Agreement between the Venue Operator of the Theatre Royal and Ticketek, certain Ticketing Related Services in respect of 'The Trocks' Event were supplied by Ticketek. 44. On 15 October 2009, AKA requested that the relevant Account Manager within Ticketek implement in Ticketek's Ticketing System a discounted Price Type to be published by Lasttix in connection with 'The Trocks' Event. That same day, the relevant Account Manager within Ticketek responded to AKA, stating: "Unfortunately we do not facilitate offers from Lasttix.com as they are considered by Ticketek as a competitor. Apologies for the inconvenience but we can't put together a special offer for this one." 45. By email dated 15 October 2009, AKA communicated to Ticketek that it did not understand why Lasttix would be considered a competitor to Ticketek. By an email that same day, the relevant Account Manager within Ticketek responded to AKA that: "Ticketek have no affiliation with Lasttix and are opposed to facilitating offers to their members by allowing them to piggyback off our transactional website, and in particular when those offers are more favourable than what has been made available to our own customers. We believe that by facilitating the offer we would be providing LastTix with a perceived credibility as a location to receive special offers, and giving their customers and ours the illusion of partnership between our two websites, which would be wholly incorrect." 46. By the correspondence between Ticketek and AKA outlined above, Ticketek refused AKA's request to implement in its Ticketing System discounted Price Types that were to be published by Lasttix in connection with 'The Trocks' Event (AKA Refusal).

'Warriors of Brazil' Event - January 2010 47. In January 2010, Kay and McLean Productions Pty Ltd (KMP) was the Promoter of, among other things, a production called 'Warriors of Brazil' (the 'Warriors of Brazil' Event). 48. In Sydney, performances of the 'Warriors of Brazil' Event were staged at the Theatre Royal, commencing on 19 January 2010. Pursuant to an exclusive Ticketing Services Agreement between the Venue Operator of the Theatre Royal and Ticketek, certain Ticketing Related Services in respect of the 'Warriors of Brazil' Event for Sydney performances were provided by Ticketek. 49. In Melbourne, performances of the 'Warriors of Brazil' Event were staged at Her Majesty's Theatre, commencing on 1 February 2010. Pursuant to an exclusive Ticketing Services Agreement between the Venue Operator of Her Majesty's Theatre and Ticketek, certain Ticketing Related Services in respect of the 'Warriors of Brazil' Event for Melbourne performances were also provided by Ticketek. 50. Prior to 19 January 2010, KMP requested and Ticketek implemented in its Ticketing System a discount Price Type labelled "Twenty Offer" which facilitated access to tickets to each of the Sydney and Melbourne performances of the 'Warriors of Brazil' Event at a discounted price of twenty dollars per ticket. Ticketek prepared and issued Price Type URLs to KMP in respect of each of the discounted Price Types, respectively for Sydney and Melbourne, which had been implemented by Ticketek in the Ticketing System. 51. KMP provided these Price Type URLs to Lasttix, who then published information referring to a discounted ticket offer for the 'Warriors of Brazil' Event containing the Price Type URL which Ticketek had implemented. 52. On or around 19 January 2010, Ticketek became aware that Lasttix was publishing twenty dollar discounted ticket offers to the 'Warriors of Brazil' Event and was linking its website to the Price Type URL's which Ticketek had implemented for KMP. Ticketek then disabled each of the Sydney and Melbourne Price Types, labelled as the "Twenty Offer". 53. The relevant Account Manager within Ticketek advised KMP of this decision in an email dated 19 January 2010 at 11.49am, which stated, amongst other things: "Unfortunately, Ticketek do not facilitate offers via Lasttix.com as they are considered a competitor." 54. By telephone and by emails dated 19 January 2010 at 12.18pm, 12.27pm and 12.38pm, KMP contacted the relevant Account Manager at Ticketek and requested that Ticketek reinstate in its Ticketing System the 'Twenty Offer' discounted Price Type to be published by Lasttix. 55. By email dated 19 January 2010 at 1.07pm, the relevant Account Manager within Ticketek responded to KMP stating: "Unfortunately we are unable to reinstate the price type as I have confirmed that lasttix is an exclusive ticketing service and not simply marketing tool, which we do not have affiliation with. In our contract between Ticketek and Theatre Royal it clearly states that: 'Ticketek shall act as the Theatre's exclusive Ticketing Services provider until the Termination Date,' In this instance lasttix is considered as an exclusive ticketing service provider, which is a direct conflict of interest to us. The only way we could work around this issue is to have an allocation set aside for lasttix to sell on their own website, however this would involve an extra resellers fee, such as we have with Showbiz and Pinpoint." 56. By the conduct referred to above, Ticketek removed from its Ticketing System the discounted Price Types that were published or were to be published by Lasttix in connection with the 'Warrior of Brazil' Event (KMP Removal). 57. Further discussions between Ticketek senior management, KMP and the Theatre Royal took place on or around 2.00pm, 19 January 2010. By email dated 19 January 2010, at 2.33pm, the State Manager of NSW within Ticketek wrote to KMP and Theatre Royal, proposing that the discounted Price Type be reinstated on certain conditions, including that Ticketek receive a fee of $1.75 per ticket sold, that the reinstated discounted Price Type set no precedent in respect of future hirers of the venue, and that Theatre Royal advise future hirers that offers cannot be facilitated by Ticketek for the Lasttix website. KMP and the Theatre Royal agreed to the conditions proposed by Ticketek. 58. By email dated 19 January 2010, at 2.53pm, Ticketek confirmed that the discounted Price Type would be reinstated on the basis of the conditions agreed. Ticketek then reinstated the 'Twenty Offer' Price Type in its Ticketing System.

the ticketing RELATED services market Ticketing Related Services 59. For the purposes of these proceedings, "Ticketing Related Services" means some or all of the following services provided in relation to live entertainment events: (a) the preparation of tickets for sale (including procuring ticket stock, collating event information and allocation and implementation of Price Types); (b) the printing of tickets (or making it possible for customers to print their own tickets online); (c) the selling of tickets (usually done through various distribution channels including retail agencies, box offices at venues, call centres and online); (d) the physical distribution of tickets to purchasers (making tickets available for collection at a box office or distribution by mail); (e) the collecting of monies for tickets from customers; (f) the settling of net proceeds with Venue Operators and Promoters; (g) the provision of up-to-date ticketing sales information, including tracking the level of ticketing sales; (h) the provision of post-event information about ticketing sales and demographics of customers; (i) the provision of speciality services to facilitate the sale of tickets through various channels, including, but not limited to: i. the supply of premium ticketing services including premium seating, corporate hospitality and premium pre-sales; ii. bundled ticketing services offering a single ticket including on-site car-parking, event entry and a pre-ordered food and beverage package; iii. the supply of travel and accommodation ticket packages in conjunction with affiliated organisations; and iv. the supply of discount ticket offerings; and (j) the provision of services to promote the sale of tickets, including, but not limited to publishing the details and prices of events through various channels, including: i. internet advertising (including via various websites, search word advertising and promotion); ii. email marketing (including weekly and monthly e-newsletters to various consumer databases, as well as specific email campaigns directed at various membership groups); iii. social network advertising (including Facebook posts and twitter tweets); iv. sms campaigns; v. television commercials and magazine advertising; and vi. direct mail campaigns, (together Ticketing Related Services). 60. During the Relevant Period there existed a substantial demand from Venue Operators or Promoters for the supply of Ticketing Related Services as a means of commercialising attendance at events. 61. Depending on the size of the event being ticketed, the complexity of the sales process required, and other factors, the nature and extent of the Ticketing Related Services demanded by, and supplied to, Venue Operators and Promoters varied significantly for particular venues or events. 62. During the Relevant Period there was a broad spectrum of service providers involved in the provision of Ticketing Related Services. Variation amongst these service providers existed and was based on: (a) the sophistication of the service provider's ticketing system and the robustness of their technology; (b) the service provider's ticket distribution capability; (c) the commercial ability of the service provider to pay key money, rebates or other financial incentives often demanded by Venue Operators; and (d) the extent to which the service provider had the capability and scale to provide all (a full service offering) or only some (a partial service offering) of the Ticketing Related Services listed in paragraph 59. 63. During the Relevant Period, particular venues which had the ability to "self-ticket" and "self-promote", such as the Sydney Opera House and Victorian Arts Centre, also competed for the provision of Ticketing Related Services, and had the capability to provide either a full or partial service offering depending on the circumstances of the particular venue. 64. During the Relevant Period service providers with the capability and scale to provide a full service offering across Australia included Ticketek and Ticketmaster Australasia Pty Ltd. There were a range of other service providers who provided full service offerings in some Australian States, or who provided partial service offerings. 65. Based on the facts and matters set out above in relation to the relevant conduct and market characteristics, the ACCC and Ticketek agree that during the Relevant Period, an Australia wide market for the sale and acquisition of Ticketing Related Services existed (the Ticketing Related Services Market).

MARKET POWER Market share 66. During the Relevant Period, there were various ways in which market shares for the Ticketing Related Services Market could be calculated, including by calculating either the total value of tickets sold or the total number of tickets sold as a consequence of the services provided by each participant. 67. Notwithstanding the particular method of calculation, during the Relevant Period Ticketek agrees that it held a large share of the Ticketing Related Services Market. 68. During the Relevant Period, the approximate market share of Ticketek, calculated by the number of total tickets sold by Ticketek as a percentage of the total number of all tickets sold for live entertainment events across Australia, is estimated to have been approximately 45%.

Barriers to Entry and Expansion 69. During the Relevant Period, there were relatively low barriers to entry to a new entrant establishing a Ticketing Related Services business to supply a partial service offering to Venue Operators and Promoters. 70. However, there were barriers to potential or existing suppliers of Ticketing Related Services entering or expanding into a business capable of providing a full service offering to Venue Operators and Promoters. These barriers were primarily by reason of the fact that during the Relevant Period the provision of a full service offering of Ticketing Related Services required a service provider to have sufficient capability and scale to deliver all the required services, including: (a) a sophisticated ticketing system and robust technology; (b) investment in building and maintaining a wide reaching ticket distribution capability; (c) payment of significant key money, rebates and other financial incentives often demanded by Venue Operators in connection with agreeing to exclusive Ticketing Services Agreements.

Constraints provided by actual or potential competitors 71. During the Relevant Period Ticketek and Ticketmaster competed in relation to the provision of an Australia wide full service offering across all Ticketing Related Services. During that Relevant Period, very few other existing or potential service providers had the capability or scale to effectively compete with Ticketek or Ticketmaster for the provision of such offerings. This limitation on competitive constraint particularly affected Venue Operators at significant, high capacity venues, such as the venues concerned in respect of the Events. 72. By reason of these facts, overall Ticketek was not constrained to a substantial degree by competitors or potential competitors in the Ticketing Related Services Market in respect of full service offerings during the Relevant Period.

Conclusion as to market power in the Ticketing Related Services Market 73. Based on the facts set out above, the ACCC and Ticketek agree that during the Relevant Period Ticketek had a substantial degree of market power in the Ticketing Related Services Market by reason of at least the following matters: (a) it held a large share of the Ticketing Related Services Market, including a large number of the available Ticketing Services Agreements; (b) it was not constrained to a substantial degree, by the conduct of competitors or potential competitors in the Ticketing Related Services Market in respect of full service offerings; and (c) there were certain barriers to new or existing firms entering or expanding into a business that provided a full service offering in the Ticketing Related Services Market. 74. There have been continuing significant developments in the Ticketing Related Services Market both during and subsequent to the Relevant Period, including: (a) the increased development of technology based ticketing solutions as an alternative to service providers providing a full service offering; (b) the increasing capability and preference of some significant venues to consider "self-ticketing" as an alternative; and (c) the entry or potential entry of new suppliers into the Ticketing Related Services Market. 75. Accordingly, Ticketek's admission that it had a substantial degree of market power in the Ticketing Related Services Market is confined to the Relevant Period.

TAKE ADVANTAGE 76. Based on the facts and matters set out above, the ACCC and Ticketek agree that during the Relevant Period, Ticketek held a substantial degree of market power in respect of the Ticketing Related Services Market and that its conduct in refusing to implement, or by removing, discounted Price Types requested by Venue Operators and Promoters as described in paragraphs 29 to 58 above, was materially facilitated by that market power.

PURPOSE 77. Based on the facts and matters set out above, Ticketek's conduct in respect of each of these events was for the purpose of deterring or preventing Lasttix from supplying certain Ticketing Related Services in the Ticketing Related Services Market.

ADMISSIONS AND CONTENTIONS FOR THE PURPOSES OF THESE PROCEEDINGS 78. By reason of the foregoing, and for the purpose of these proceedings only, Ticketek admits that during the Relevant Period it took advantage of its substantial degree of market power in the Ticketing Related Services Market by: (a) refusing on three occasions to implement in its Ticketing System discounted Price Types to be published by Lasttix when requested, being the AM Presents Refusal, the Chugg Refusal and the AKA Refusal; and (b) by removing from its Ticketing System, in one instance, for a period of several hours, discounted Price Types that were published or to be published by Lasttix, being the KMP Removal, and that it did so for the substantial purpose of deterring or preventing Lasttix from engaging in competitive conduct in the Ticketing Related Services Market.

Refusals to implement Price Types 79. Ticketek admits, for the purpose of these proceedings only, that by engaging in conduct constituted by: (a) the AM Presents Refusal; (b) the Chugg Refusal; and (c) the AKA Refusal, in each case it took advantage of its substantial degree of market power in the relevant market for the substantial purpose of deterring or preventing Lasttix from engaging in competitive conduct and thereby contravened section 46(1) of the Act and engaged in conduct of the kind referred to in section 76(1)(a) of the Act on three separate occasions.

Removal of Price Types conduct 80. Ticketek admits, for the purpose of these proceedings only, that by engaging in the conduct constituted by the KMP Removal, it took advantage of its substantial degree of market power in the relevant market for the purpose of deterring or preventing Lasttix from engaging in competitive conduct and thereby contravened section 46(1) of the Act and engaged in conduct of the kind referred to in section 76(1)(a) of the Act. Signed: ……………………………… ………………………………. Rani Sara John Richard Flitcroft Lawyer for the Respondent Lawyer for the Applicant Date: December 2011

Trade Practices Act 1974(Cth)ss 46(1)(c)

Deterrence 26 It has long been accepted that a principal object of a penalty under s 76 is deterrence (see, for example, TPC v Stihl Chain Saws (Aust) Pty Ltd (1978) ATPR 40-091 at 17,896 per Smithers J). In TPC v CSR, French J stated at 52,152: The principal, and I think probably the only, object of the penalties imposed by s.76 is to attempt to put a price on contravention that is sufficiently high to deter repetition by the contravener and by others who might be tempted to contravene the Act. 27 This approach, approved by Burchett and Kiefel JJ in NW Frozen Foods Pty Ltd, requires consideration of specific deterrence, in respect of the actual contravener, and general deterrence of others. General deterrence requires that for a penalty to have the desired effect, it must be imposed at a meaningful level (ACCC v ABB Transmission and Distribution Limited (2001) ATPR 41-815 at [13]). 28 In ACCC v Midland Brick Co Pty Ltd (2004) 207 ALR 329 Lee J said at [22]: The object of orders made under s 76, or s 80, of the Act is to protect the integrity of markets and to prevent the subversion and distortion thereof by conduct that has the purpose or effect of adversely affecting competition. The Act sets out the norms to be met by corporations engaged in trade or commerce and in the main seeks to obtain adherence to those standards by providing for penalties to be imposed, and injunctions to be granted, that will be sufficient to deter corporations from risking, whether deliberately or negligently, the consequence of contravening the Act. 29 As to specific deterrence, a penalty must not be so high as to be oppressive (Stihl Chain Saws per Smithers J at 17,896 and NW Frozen Foods at 293). A penalty that is no greater than is necessary to achieve the object of general deterrence will not be oppressive (ACCC v Leahy Petroleum Pty Ltd (No 2) (2005) 215 ALR 281 per Merkel J at [9]). In this regard, it is appropriate to have regard to a penalty jointly proposed by the contravener and the Commission as the regulatory body (ACCC v Korean Air Lines Co Ltd [2011] FCA 1360 per Stone J at [21]).

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