Australian Competition and Consumer Commission v viagogo AG

Counsel for the Respondent: Mr R Scruby SC with Ms S Palaniappan

BETWEEN: AUSTRALIAN COMPETITION AND CONSUMER COMMISSION Applicant

BURLEY J: 1 Judgment was delivered in these proceedings on 18 April 2019; Australian Competition and Consumer Commission v viagogo AG [2019] FCA 544. In it, I found that the respondent, viagogo AG, had acted in breach of various sections of the Australian Consumer Law (being Schedule 2 to the Competition and Consumer Act 2010 (Cth)). I directed that the parties confer and endeavour to agree on a timetable for further steps in the proceedings, including the proposal of orders for relief to follow from my reasons. 2 The need for further steps is occasioned by the fact that the hearing and the judgment were not directed to all of the issues between the parties. In the course of the preparation for the hearing, on 28 March 2018, I made the following the following order, at the request of the parties: The question of liability in the proceedings, including as to the entitlement and terms of any declaratory relief, be heard separately from the question of relief other than declaratory relief. 3 After the delivery of judgment the parties supplied a form of declaratory orders that they were apparently content should be made, but they could not agree on timetabling orders for the preparation of the next phase of the proceedings, which concern the appropriate final orders to be made. In its Originating Application, in addition to declarations, the ACCC seeks injunctions, publications orders, compliance program orders, pecuniary penalties and costs. I directed that a case management hearing be held to sort the disputed issues out. 4 At the hearing, Dr Stern SC, who appears with Ms Brigden for the ACCC, submitted that I should not make any declaratory orders. She supplied a form of short minutes that provide a timetable for the preparation of the next phase of the proceedings, which includes the provision of documents or certain information by viagogo followed by the filing by the parties of affidavit and other documentary evidence and concluding with the exchange of written submissions and other steps leading to a hearing. The short minutes propose that the matter be listed for a one day hearing after 1 November 2019. 5 Dr Stern submits that it would not be convenient or appropriate for the Court to make declarations, because this would lead to the fragmentation of the proceedings. Viagogo has indicated that it intends to seek leave to appeal from the decision and will do so upon the Court making declaratory orders. In such a case the making of the declaratory orders would lead to two undesirable events, first, there would be a multiplicity of proceedings and secondly there would be a delay in the determination of the question of other orders concerning penalty, injunctive relief and so on. There is, Dr Stern submits, a clear public interest in determining those matters together, without any delay occasioned by any appeal process. She relies on the decision of Edelman J in Australian Competition and Consumer Commission v Valve Corporation (No 4) [2016] FCA 382 in support of her contentions and seeks to distinguish the decision of Perram J in Australian Competition and Consumer Commission v Unique International College (No 7) [2017] FCA 1289. 6 Mr Scruby SC, who appears with Ms Palaniappan for viagogo, contends that declaratory orders should be made so that viagogo can file an application for leave to appeal from the decision. He submits that this was the course embraced by the ACCC in the orders of 28 March 2018, that the form of the declarations has been agreed by the parties and that upon the application for leave to appeal being filed the Court should make no further directions for the future conduct of the matter until the question of leave has been determined. If decided in favour of viagogo, he submits that no further steps should be taken pending determination of the appeal. Like Dr Stern, Mr Scruby submits that it would be in the interests of efficient and cost effective case management for the course he proposed to be adopted. 7 In my view it is likely to be more efficient and appropriate for all issues concerning relief, including declaratory orders, to be considered and finalised at once. The following matters persuade me to this view. 8 First, upon reflection, and perhaps despite the form of the orders of 28 March 2018, I am not satisfied that consideration of the making of declarations and the ultimate form of any declarations should be separated from the other relief sought. There is quite possibly an interaction between these which indicates that all questions concerning the form of relief to be granted are more conveniently considered together. Furthermore, the grant of declaratory relief is discretionary, and part of the exercise of discretion may well involve consideration of the whole of the relief sought. 9 Secondly, the principal advantage in the present case of hearing the question of liability before questions of relief was to enable the parties, when addressing relief, to have a clear picture of the findings relevant to that question. Further, in the event that the ACCC failed to establish liability, the need to proceed to questions of relief would have been avoided. 10 Thirdly, the argument advanced by viagogo is, in effect, that in order for it to have an opportunity to appeal from the judgment, it is necessary for orders to be made. There are well known practical and procedural disadvantages the separation of issues, some of which were adverted to in Valve Corporation at [11], [12], where Edelman J notes the cautionary observations of Kirby and Callinan JJ in Tepko Pty Ltd v Water Board [2001] HCA 19; (2001) 206 CLR 1 at [168] - [170]. In my view the better approach in the present case is to regard the matter as part heard, and to proceed to its finalisation. The alternative course leads to the undesirable possibility that there will be multiple appeals and hearings concerning the same underlying subject matter. 11 The present case took two days to hear and concerned the making of misrepresentations in a google ad and on the viagogo website. It is on the simpler side of such matters. Despite predictions by viagogo that the question of relief will be hotly contested, it is doubtful that the hearing will take more than the time for the hearing on liability, and probably less. The likely cost and delay to be occasioned by an application for leave to appeal is in my view not warranted. Furthermore, the inconvenience occasioned by either delaying the continuation of the hearing and the resolution of the entire proceeding for an application for leave to appeal, or alternatively the additional costs involved in the parties proceeding in the preparation for an application for leave to appeal and also (in the event that it is refused or the appeal is dismissed) preparing for a hearing on remedies is not warranted. In this regard the facts of Valve Corporation are more closely aligned with the present case than those that caused the Court in Unique International to take a different approach. The latter was apparently a far more complex case; see Unique International at [10], [11]. Furthermore, the facts of the present case are quite unlike the run of more complicated intellectual property cases in which liability and quantum are routinely separated, cf Unique International at [9]. 12 Accordingly, I decline to make the proposed declaratory orders. I will make timetabling orders for the preparation of the hearing concerning relief. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Burley.