Australian Competition & Consumer Commission v Worldplay Services Pty Ltd [2004] FCA 1138 | Case summary

Australian Competition & Consumer Commission v Worldplay Services Pty Ltd [2004] FCA 1138 | Case summary | Zoe

[12]

REASONS FOR JUDGMENT 1 The two questions in this proceeding are, first, whether Worldplay Services Pty Ltd ("WPS") is participating in a pyramid selling scheme in contravention of s 65AAC(1) of the Trade Practices Act 1974 (Cth) ("TP Act") and, secondly, whether Greg James Kennedy was knowingly concerned in contraventions of that provision by WPS and by World Games IP Holdings Pty Ltd ("WGIPH"). Mr Kennedy is a sole director of both companies. 2 The scheme that is challenged by the applicant ("the ACCC") relates to a global internet online business providing gaming services in over fifty countries, though principally in Scandinavia. The business trades under the name "World Games Inc" ("WGI") and appears to be owned by Pacific Delta Investments Ltd ("PDIL"), a company incorporated in the British Virgin Island. The WGI internet website uses the registered domain name "worldgamesinc.com". That name is registered to WPS. 3 The evidence by no means fully reveals the nature of the various business and corporate relationships that are utilised in the conduct of the WGI scheme. There appears to be some number of offshore companies involved. However, the ACCC's case is that the nature of WPS's and WGIPH's respective involvements in any event are such that they relevantly are participants in the scheme. 4 The scheme itself is said to be one in which a person can only become a participant member in WGI by being introduced by an existing member; in which a participation payment is required to be made by a new participant to the person who introduced him or her to WGI membership; and in which the prospect is held out to prospective members that they in turn would be entitled to receive benefits from, and in consequence of, the introduction of further new members. Described in general terms these benefits take various forms depending upon the membership package subscribed for by the member being introduced (there are three such packages), upon the introductions in turn made by that person, and by the form of gaming (e.g. "casino" or "lottery") engaged in by that person and by those subsequently introduced by him or her. 5 It is the ACCC's contention that the participation payment required to be made is substantially induced by the prospect held out to new participants that they will be entitled to financial and non-financial benefits in relation to the introduction to the scheme of further new participants. Hence the scheme is, it is said, a pyramid selling scheme and not merely a multi-level marketing scheme. 6 It will be necessary to outline in some detail the nature of the scheme and the respective involvements of WPS and WGIPH in it. However, I turn first to the new provisions on pyramid selling in Div 1AAA of the Trade Practices Act which came into force in December 2002.

[13]

Pyramid Selling 7 By way of background, the purpose of the 2002 amendment to the Act was, according to the Explanatory Memorandum, to re-write the pyramid selling provision "in plain English" as the section to be repealed was "difficult to understand". 8 Participation in a pyramid selling scheme is proscribed by s 65AAC. It provides: "(1) A corporation must not participate in a pyramid selling scheme. (2) A corporation must not induce, or attempt to induce, a person to participate in a pyramid selling scheme." 9 The nature of such a scheme (insofar as presently relevant) is described in s 65AAD in the following terms: "(1) In this Act: 'pyramid selling scheme' means a scheme with both the following characteristics: (a) to take part in the scheme, some or all new participants must make a payment (a 'participation payment') to another participant or participants in the scheme; (b) the participation payments are entirely or substantially induced by the prospect held out to new participants that they will be entitled to a payment (a 'recruitment payment') in relation to the introduction to the scheme of further new participants. (2) A scheme may be a pyramid selling scheme: (a) no matter who holds out to new participants the prospect of entitlement to recruitment payments; … (3) A scheme may be a pyramid selling scheme even if it has any or all of the following characteristics: … (d) arrangements for the scheme are not recorded in writing (whether entirely or partly); (e) the scheme involves the marketing of goods or services (or both)." 10 I note by way of anticipation that there is a controversy between the parties as to the meaning of "in relation to" in subsection (1)(b) above. 11 The general definitional provision is s 65AAB. It provides: "In this Division: 'new participant', in a pyramid selling scheme, includes a person who has applied, or been invited, to participate in the scheme; 'participant', in a pyramid selling scheme, means a person who participates in the scheme; 'participate', in a pyramid selling scheme, means: (a) establish or promote the scheme (whether alone or together with another person); or (b) take part in the scheme in any capacity (whether or not as an employee or agent of a person who establishes or promotes the scheme, or otherwise takes part in the scheme); 'participation payment' has the meaning given by paragraph (a) of the definition of 'pyramid selling scheme' in subsection 65AAD(1); 'payment', to a person or received by a person, means: (a) the provision of a financial or non-financial benefit to or for the benefit of the person; or (b) the provision of a financial or non-financial benefit partly to or for the benefit of the person, and partly to or for the benefit of someone else; 'pyramid selling scheme' has the meaning given by section 65AAD; 'recruitment payment' has the meaning given by paragraph (b) of the definition of 'pyramid selling scheme' in subsection 65AAD(1)." 12 I would again note that the parties disagree over the width to be given to the definition of "participate". 13 Finally, s 65AAE indicates some of the matters to which regard may be had in determining whether a marketing scheme is a pyramid selling scheme. That section provides: "(1) To decide whether a scheme that involves the marketing of goods or services (or both) is a pyramid selling scheme, a court may have regard to the following matters in working out whether participation payments under the scheme are entirely or substantially induced by the prospect held out to new participants of entitlement to recruitment payments: (a) the extent to which the participation payments bear a reasonable relationship to the value of the goods or services that participants are entitled to be supplied under the scheme (as assessed, if appropriate, by reference to the price of comparable goods or services available elsewhere); (b) the emphasis given in the promotion of the scheme to the entitlement of participants to the supply of goods and services by comparison with the emphasis given to their entitlement to recruitment payments. (2) Subsection (1) does not limit the matters to which the court may have regard in working out whether participation payments are entirely or substantially induced by the prospect held out to new participants of entitlement to recruitment payments."

[18]

(a) Policies and Procedures 18 The material that has been put in evidence was downloaded from an Internet webpage entitled "World Games Inc Members Lounge" on 7 June 2004. I should note that the respondents place particular reliance on this material which they characterise as "current evidence" as distinct from "historical evidence". 19 The "World Game Inc - Rules and Regulations" is the membership agreement between an applicant member, PDIL and Palladium Technologies Ltd, a company registered in Gibraltar to which a new member's participation payment is made. Membership is not open to "residents or domiciles" of what are described as "Blocked Jurisdictions". Australia is such a jurisdiction and, it seems, has been so since mid-2003. There is evidence that (i) it is not possible to access the WGI website using an internet connection provided by an Australian internet service provider; and (ii) WGI has taken steps to have Australian memberships terminated or transferred to third parties "who may legally participate in WGI". 20 Of the various matters dealt with in the Rules and Regulations, I need only note the following. The agreement contains the predictable provision that: "1.6 You acknowledge that You have already decided to join WGI of your own free will, subject to You entering into this Agreement and any other WGI policies as required, and that You do not rely upon anything contained in this Agreement as an inducement to become a Member." 21 It is contemplated that a member may set up what the agreement describes as a "Members Site". This is defined to mean: "any website which is constructed, owned, operated, produced, created and/or commissioned by a Member (or their agent, representative, contractor or service provider) for the purpose of Promotion which is governed by clause 9." Reference will later be made to material on members' sites. 22 Clause 9, insofar as presently relevant, states in relation to "the promotion of Membership or any Products" by members: "9.2 All promotion must be legal, inoffensive, professional, honest and truthful. You must not produce, use, distribute, or advertise any Promotion materials or engage in any Promotion activities that are: … (b) otherwise not in accordance with the rules regarding promotion of specific products and services described below. 9.3 Your Promotions must not emphasize or focus on the concept of recruitment of Members as a way to make a profit." 23 Clause 9.4 in turn prescribes that all statements describing "Membership … must be the official and authorized descriptions obtained from WGI Official Publications section of the WGI Site". The clause further specifies statements that must not be made by members to any person. These include that Relationship Marketing Rewards (discussed below) "are calculated with reference to recruitment": cl 9.11(v). 24 Separate provision is made for a member's use of WGI intellectual property. Clause 9.15 imposes a total prohibition on use of WGI Intellectual Property, subject to the provisions of cl 9.17 which state: "9.17 You may, in certain circumstances, seek and receive written permission from WGI (in the manner prescribed in the Schedule) to have restricted use of the WGI Intellectual Property. Any Member who makes use of WGI Intellectual Property without the proper written authorization from WGI may have their Membership Terminated." 25 WGI's "Core Products & Services" are briefly described in the Rules. They are described in greater detail in the "Product Rules" referred to below. 26 One aspect of the agreement to which reference should be made relates to sponsorship and membership. The person who introduces a member is a sponsor and all persons introduced by that member are "First Generation Members". New members sponsored by First Generation Members are "Second Generation Members" of the original sponsor and so on. By this process all members have "down lines" of members who they either sponsored, or who were sponsored by the persons they sponsored and so on. The significance of this becomes apparent when the benefits of membership are considered. 27 By way of background to the games and services offered by WGI, I should outline the various membership packages as described in the respondents' defence. 28 There are three different membership packages offered to members, each of which attracts different fees which are payable ultimately to PDIL. Those fees and packages are: (i) 99 Swiss francs for a Standard Package;

[19]

29 The packages are described as follows in the Defence: "(b) the products and services provided to a member who has paid the fee for the Prestige Package are: (i) full access to all of the on-line gaming products provided by WGI; (ii) full access to the WGI Website; (iii) four tickets in the Sweepstakes8 Lottery conducted by WGI (one entry in each of four weeks); (iv) 200 Swiss francs credit in the member's SMG Account for use in the Stock Market Game ('SMG'); (v) a 'Prestige' (Yellow) Pay2 Card; (vi) full entitlement to participate in the Traditional and Casino RMR programs conducted by WGI; (c) the products and services provided to a member who has paid the fee for the Advantage Package are: (i) full access to all of the on-line gaming products provided by WGI; (ii) full access to the WGI Website; (iii) four tickets in the Sweepstakes8 Lottery conducted by WGI (one entry in each of four weeks); (iv) 25 Swiss francs credit in the member's SMG Account for use in the Stock Market Game ('SMG'); (v) an 'Advantage' (Red) Pay2 Card; (vi) full entitlement to participate in the Traditional RMR program conducted by WGI; (vii) entitlement to participate in the Casino RMR program conducted by WGI, but limited to 50% of the benefits available to a Prestige Member from that program; (d) the products and services provided to a member who has paid the fee for the Standard Package are: (i) full access to all of the on-line gaming products provided by WGI; (ii) full access to the WGI Website; (iii) one ticket in the Sweepstakes8 Lottery conducted by WGI; (iv) a 'Standard' (Green) Pay2 Card; (v) entitlement to participate in the Traditional and Casino RMR programs conducted by WGI, but limited to 25% of the benefits available to a Prestige Member from those programs." 30 I would merely note that a "Pay2 Card' is a "stored value digital cash card" provided by Pay2 Ltd, a company registered in the Isle of Man. The colour reference merely indicates the type of package taken and, apparently, has no other significance. 31 WGI's "Product Rules" is another Official Publication. Its opening paragraph indicates WGI's function in the provision of products to members: "WGI facilitates the provision of various third party products to its Members via the WGI website. The core products are the Casino, Virtual Stock Market Game ('SMG') and the Lotteries. Complementary products are products that assist Members of WGI in using the core WGI products, such as the Pay2 Card and Pay2 Accounts." The document goes on to state the rules of the Casino, the Lotteries, and the Virtual Stock Market Game and to note that none of these products are owned or operated by WGI. 32 The Casino is, as its name suggests, an internet gambling site at which games can be played. The Lotteries provided are of two types - "Sweepstakes8" and "Globetrot". The former is described as follows: "In each Sweepstakes8 draw there will be six hundred and twenty six (626) winning entries in six (6) prize divisions. The winners of the Sweepstakes8 draw will be selected by the ILLF and prizes calculated in accordance with the rules contained on the Sweepstakes8 Site. The drawing is broadcast each week live via the Sweepstakes8 Site. In the top five prize divisions, the amount of the prize is calculated as a fixed percentage of the revenue from the ticket sales for that week. The sixth division prizes are fixed. The prize amounts are distributed to winning Members in accordance with the WGI Rules & Regulations Schedule." 33 Globetrot is a "suite" of three games of chance. 34 The Virtual Stock Market Game is described to be: "a game of chance which is based on the operation of a real stock market in so far as players acquire a virtual portfolio of shares in a fictitious company which they may trade amongst themselves. The SMG facilitates transactions between Members for the purchase and sale of the 'virtual stock' in quantities and in prices determined by the Members participating in the transaction." 35 The most significant official document for the purposes of this proceeding is that describing "WGI's Relationship Marketing Rewards (RMR) Program". The document's "Introduction" indicates that: "2. As a member You … have the option to participate in the Relationship Marketing Rewards program ('RMR'). This is a compensation structure intended to reward Members for the sale of WGI Products, such as the Product Packages, and the continued use of the WGI Products by Members themselves and those Members introduced (directly or indirectly) to WGI by other Members. 3. You do NOT need to participate in the RMR to remain a Member. You may play the games and are entitled to use the products and services provided via the WGI website. It is not necessary to introduce any new Members. However, if You do, You may be eligible to receive these rewards. 4. There are two kinds of RMR: Product RMR and Points RMR." A Product RMR is described as follows:

[20]

"1. Members who participate in the Product RMR receive a percentage of the revenue generated for WGI by their own use of a the product [sic], together with use by Members they introduce, and Members in their downline. In other words, they are rewarded for their and their team's use of a Relevant Product (such as the Casino)." At the time of this proceeding the only available product rewards were Casino Rewards. 36 To be eligible for these rewards in any given week, a member is required to purchase a Sweepstakes8 ticket in that week. If a member has sponsored a new member or otherwise has members in his or her down line the member can earn these rewards without playing in the Casino if a sponsored or down line member has played in the Casino in the relevant week. 37 Casino rewards are paid out of the Casino Rewards Pool which is calculated as a percentage of the overall gross profit (40 per cent at the time of hearing) in the Casino for that week. Every member who gambles in a given week generates funds that contribute to the Pool, that contribution being the pro rata amount contributed by the member to the overall turnover. When the amount of that member's contribution is calculated - and the Rules give a detailed example of how this is performed - the euro sum resulting is distributed in accordance with the following: "13. Each Member's contribution to the Casino Rewards Pool is then paid to Members as follows:- a. To the player: 25% of the Member's contribution to the Casino Rewards Pool goes to the Member who spent the funds in the Relevant Product (ie who gambled their credits in the Casino). These rewards will apply regardless of a Members' Membership level. b. To the Sponsor: The Member's sponsor receives a percentage of the Member's contribution to the Casino Rewards Pool calculated as follows: i. If the Sponsor is a Prestige level Member: 25%; ii. If the Sponsor is an Advantage level Member: 12.5%; iii. If the Sponsor is a Standard level Member: nil. c. To the Upline: 50% to that Member's Upline (which will include the sponsor) according to a fixed formula that ensures distribution of commissions to the Upline decreases, the further away the recipient of the Rewards payment is located in the Membership Database from the Member who actually generated the Rewards ('Casino Upline Rewards'). Your Casino Upline Rewards calculated in accordance with this sub-paragraph (c) will be adjusted according to Your Membership level as follows: i. Prestige level Members will receive the full entitlement of the Casino Upline Rewards; ii. Advantage level Members will receive 25% of the entitlement of Prestige level Members; iii. Standard level Members will receive no Casino Upline Rewards." 38 The Points RMR provides rewards for the sale and use of Product Packages, Sweepstakes8 and the Virtual Stock Market Game ("SMG"). Members accumulate points in this RMR which are converted to credits in a member's own account. 39 As the Rules indicate: "3. The points assigned to each Product for the Points RMR are: a. Sale of a Prestige Package - 75 points; b. Sale of an Advantage Package - 50 points; c. Sale of a Standard Package - 5 points; d. Sale of a Sweepstakes8 ticket - 1 point; and e. Each €65 credit amount in respect of brokerage fees on virtual share transfers in the SMG - 12.5 points (Prestige level Members only)." Importantly, the Rules go on to provide:

[22]

"a. Prestige Level Members: Receive full Points RMR Rewards; b. Advantage Level Members: Receive full Points RMR Rewards; and c. Standard Level Members: Receive 25% of the Points RMR Rewards." 40 Prestige and Advantage level membership qualifies a member to participate in a Matching Bonus Program. It need only be noted that depending upon the number of product packages that member has sold to his or her "First Generation", the member is entitled additionally to a percentage (varying between 10 and 20 per cent) of the points RMR payments to his or her First Generation Members and possibly Second Generation Members. 41 The Rules prescribe a payment ceiling per week: "28. The maximum credit amount Members may receive pursuant to the Points RMR is €50,000 in any given week. In addition Members may receive credits of up to €50,000 in Matching Bonuses. 29. If You receive the maximum Points RMR payment for four (4) consecutive weeks, You are permitted another Membership and assigned a new Username and UserID. The new Membership is placed directly above Your original Membership in Your Upline in accordance with clause 6.37 of the WGI Rules & Regulations. 30. If this new Membership generates the maximum Points RMR payment for four (4) consecutive weeks, You will be given another new Membership (and corresponding Business Centre) via the same process. There is no limit to the number of Business Centres You may receive via this process." 42 The Rules conclude by addressing the subject of "Promotion of the RMR Program": "1. Whether, and how to promote the RMR Program is generally up to You. However, You should be aware that there are laws in many countries that restrict Your ability to promote the RMR Program and You must at all times comply with the WGI Rules & Regulations. It is Your responsibility to ensure that You comply with these laws and WGI makes no representations regarding the legality or otherwise of its RMR Program in Your jurisdiction. Please note in particular the provisions of sections 9 and 16 of the WGI Rules & Regulations in this regard. 2. New Members should be aware that they do NOT need to participate in the RMR Program and do NOT need to introduce other New Members to remain a Member or to earn commissions. For example the Casino Rewards program rewards Members for their OWN use of the Casino (in addition to that of the Members team). 3. This document may only be used by Members in accordance with section 9 of the WGI Rules & Regulations. That section restricts a Members ability to reproduce, summarise or explain how the RMR Program works in their own Promotional materials. Members are expected to familiarise themselves with those rules before introducing WGI to any New Member. In particular please note the disclaimer that is required to be included in any promotional material in accordance with clause 9.21 of the Rules & Regulations: 'It is illegal for a promoter or participant in a trading scheme to persuade anyone to make a payment by promising benefits from getting other people to join a trading scheme. Do not be mislead by claims that high earnings can be easily achieved.'" 43 Finally, mention should be made of certain mandatory rules contained in one or other of the Rules referred to above. These are that (i) 30 per cent of all a member's winnings from the Sweepstakes8 lottery can only be used to purchase virtual stock in the virtual SMG; (ii) a like percentage of any earnings of a member from RMRs be similarly used; and (iii) where a member sells stock, a 10 per cent brokerage fee is charged and half of this is credited to members' rewards.

[30]

(iii) WGI members' promotional websites 49 Material derived from these websites looms large in the case advanced by the ACCC. Put shortly it is that they bring to life what is implicit or dryly put in the WGI website material. 50 I earlier noted that the "World Games Inc - Rules and Regulations" envisaged that members would engage in promotional activities on their own websites for WGI membership and products. The RMR Rules in turn deal explicitly with member promotion of the RMR Program. 51 The three members' websites put in evidence are http://www.wgidreamteam.com ("Dreamteam"), http://spillmaster.com ("Spillmaster") and http://www.wgivirtualstockmarket.com ("Stockmarket"). They represent the members variously to be, an "Independent Distributor", an "Independent Member", and a "normal member" of World Games Inc. Dreamteam and Stockmarket make prominent use of WGI trademarks (a matter I return to below) and both Spillmaster and Stockmarket have hypertext links to the WGI website. 52 There are many pages from these sites in evidence. The material is overwhelmingly promotional in character and conforms in the substance of the messages they convey to that of the various rules and regulations to which I have referred. The significance of the material lies in emphases given to the component parts of the WGI business and to the nature of the appeal they seek to make to a reader/potential member. 53 The following extract from Spillmaster describing WGI's "products" illustrates the emphases to be found in the material tendered. I have highlighted what I consider to be a recurrent theme in that material - a theme which is evidenced in WGI's own promotional video: "Lottery Each week you may participate in our worldwide lottery. You receive a dividend for all the tickets sold in your network. For example - 600 tickets sold will give you an income of $150. Stock market Our stocks are not listed in any stock exchange market. They are fictitious and solely a part of a game. But a patented system is pressing the rates up almost continuously. This makes the WGI stock market the place to make a really good investment. Close to a 400% increase during the past year says it all … You must buy shares for 30% of all your earnings in WGI, and then leave it for a month before you can sell it. When you sell, there is a sales impost of 10%, and half of this money is returned to the members. This means that every time someone in your network sells shares you receive a dividend. Casino and sports betting WGI cooperate with the best in the business when it comes to online casino and sports betting. Every time someone in your down line gambles, you receive a dividend. Offshore Credit Card To make sure you gain easy access to the money you make in WGI, the company offer you three different cards. All from a simple debit card, to a Gold Master Card. And every time someone in your down line orders a card, you receive a dividend on that sale too. New members product package We all work actively to share WGI with even more people. And when your network is growing, you receive a dividend that recognises your contribution of endeavour. It does not matter if it's you or someone else who introduces a new member - as long as it happens within your network, you earn exactly the same on this sale as the person who is doing the work. The bonus! WGI has the best Bonus ever! If you personally introduce 4 people to WGI, you get 10% bonus on their income … Yes, you'll get 10% of whatever their making, and that without having equal income in your down line … That means that if one of your members' makes $1000 one week, you receive $100. If you recruit 8 people, we will give you 20% on their income…Pretty unbelievable, but true! We give you 20% of what your members earn when you have recruited 8 people (ambassadors). That means you will receive $200 every week if one of your members is earning $1000. And of course - you earn bonuses from all 8! If you recruit 12 or more members, we'll give you 20% on your personally recruited members, and 10% on their members again…We pay you a bonus at two levels and don't forget, the bonus is something you get on top of your ordinary income. Let's look at an example: If you've got 12 personally introduced members who are making $2000 a month, and each of these 12 has recruited 5 members - that gives you 60 people who will provide you with 10% additional income. Now let's say that these 60 are making $1000 a month… 12x2000x20%=$4800 60x1000x10%=$6000 That's a total of $10,000 per month - just because your downline members are making money. And this is what you make on top of your ordinary income! Let's not forget that even better, WGI pay you for all the activity in your network. You don't earn provision on just 5 or 9 levels below you - even if you have 1000 people in your downline, you receive points from all the people in your network. But are there no limits? Yes, there are. The maximum you can earn a week on a centre is 50,000 CHF. If you reach this limit, WGI gives you a new income centre to build, on top of your old one." 54 The site most extensively represented in evidence is Dreamteam. The site has a considerable number of hyperlinks. The tendered material comes only from several of these. Material from the "Income Streams" hyperlink describes the WGI products but in more muted language than Spillmaster. It, nonetheless, does emphasise reward to a member from activity in his or her downline. 55 More significant for present purposes is the material from the "Earnings Example" hyperlink. It relates earnings to continuing introduction of members into a member's downline. The following is the example given of the possible income effect of exponential growth: "EXAMPLE ONLY (For Information) · Let's say you introduce TWO members in your first month (one in your Left Team and one in your Right Team) - You are now qualified to earn 'MR Income'. · Now let's assume each new member joining your team introduces a total of only two (2) new Prestige members in their first month only. · And that's all - No more than (2) members each and you could be earning the following: Month New Members LEFT New Members RIGHT Approx Income 3 4 4 U$ 120 6 32 32 U$ 900 9 256 256 U$ 6,900 12 2,048 2,048 U$ 55,250

[31]

Notes: · All of this could happen in Weeks, Months or Years depending on the commitment generated by you, your personal team and spill from above. · The Network Marketing Industry Average is that each member or distributor will introduce only two (2) people and the WGI Reward Plan is built around this statistic. · As your team grows so will your income. Plus Don't forget your Matching Bonuses! What are, and how do I earn Matching Bonuses (MB's)? You can build your 1st & 2nd generations as big as you like. … ALSO · Don't forget your profits from the Stock Market Exchange. · Don't forget your winnings from the Online Games. · Don't forget the additional units earned from the Sweepstakes-8 Lottery, and Stock Brokerage activities. · Don't forget the independent income streams from the Online Casino and Pay2 Visa Electron Cash Silo Reward Plans. · Don't forget the additional Cash Silo Reward Plans which will be released every two to three months into the WGI Product Package Portfolio." 56 The "Slide Presentation" hyperlink reiterates the themes of making a profit from "your team members" activities (in those slides describing WGI products) and of the benefits from exponential growth in a downline. As in the Promotional video quoted earlier, emphasis in the slides (of which there are 28) is placed upon generating a "continuous income stream". I would note in particular the slide entitled "Relationship Marketing Creates the most Powerful Form of Leverage!" It states: "John Paul Getty said, 'I would rather earn 1% of the efforts of 100 men than 100% of my own efforts". By helping others achieve their dreams through relationship marketing, you receive a small commission on the business they conduct. (John Paul Getty 1892-1976, made his first million by the age of 23 and became one of the richest men in the world) Residual Income - previously the exclusive domain of the very talented or wealthy as they generated streams of income from licenses, patents, royalties or investments. With WGI you can work hard once and unleash a steady flow of continuous income 24 hours per day 7 days per week, year after year": emphasis added. 57 The Stockmarket material is specific to the SMG. It focuses on the twin effects of membership growth and the investments that the Rules require be made in the stockmarket (to which I have earlier referred). Unlike the materials from the other two sites it does not emphasise profits derived by the activities of downline members.

[32]

WPS's INVOLVEMENT WITH WGI 58 In their Defence the respondents have admitted that WPS: "(c) operates, and at all material times has operated, a telephone call centre in which it receives and responds to queries by southern hemisphere players of the online casino available at the World Games Website; (d) carries out, and has at all material times carried out, the computer programming necessary to maintain the World Games Website; (e) carries out, and has at all material times carried out, the computer programming necessary to update the World Games Website; (f) carries out, and has at all material times carried out, the computer programming necessary to upload those updates to the servers for the World Games Website; (g) responds, and has at all material times responded, to Members who make inquiries about the World Games Scheme via the World Games Website; (h) uses customer relationship management software in so responding to those enquiries; and (i) is, and was at all material times, responsible for ensuring the security, by way of encryption of communications, between Members and the World Games Website." 59 The pleading, though, denies that WPS was the owner of the Internet domain name worldgamesinc.com or that it controlled that website. 60 The evidence of WPS's connection to the WGI business, apart from the above admissions, comes from various sources. 61 First, for reasons I give below: see Rulings on Evidence; I have admitted a domain name registration search of the name "worldgamesinc.com". The registrant is WPS. Mr Starkoff who conducted the search accepted in cross-examination that there is no necessary connection between the person to whom a domain name is registered and ownership of the web site bearing that name. 62 Secondly, both WPS and PDIL have been engaged in proceedings in the Supreme Court of Queensland against Quentin George, a former employee of WPS who had resigned in October 2003. The claim, it seems, was for injunctive relief to restrain alleged misuse of confidential information derived during employment. An affidavit filed by Mr Kennedy in that proceeding has been put in evidence. It is necessary to refer at some length to parts of that affidavit as they are relied upon by the ACCC as constituting an admission by WPS that it is a participant in the WGI scheme. The company EWC to which reference is made is incorporated in Western Samoa. Mr Kennedy is a director of it. 63 Mr Kennedy's affidavit said, in part: "2. I have direct knowledge of all aspects of the business of WPS and the business of PDIL. … 4. EWC is under contract with PDIL to provide management and administration services to PDIL in respect of PDIL's business in which PDIL trades as 'World Games Inc' ('WGI Business'). … 6. WPS provides administrative services, a telephone call centre and customer service centre in Australia to PDIL in respect of the WGI Business. WPS also pays any expenses incurred by PDIL in Australia and provides some staff to PDIL. WPS employs approximately fifty (50) staff to provide those services to PDIL. 7. WPS is paid for the provision of its services for PDIL by EWC pursuant to a contract between WPS and EWC. … 8. The gross fees for services received by WPS over the 12 months preceding the date of this affidavit totalled approximately AUD$8,000,000. 9. From on or about 1 November 2002, WPS employed the Defendant in the capacity of a manager responsible for the promotion of the WGI Business. In that role, the Defendant: (a) directly managed the strategic direction and operations of the WGI Business; (b) developed financial models for the WGI Business; (c) attempted to maintain and improve the profitability of the WGI Business and business of WPS; (d) briefed and instructed legal counsel for and on behalf of WPS and PDIL both in Australia and overseas; (e) dealt on a daily basis with strategic business partners to the business and the larger customers of the business; and (f) had daily access to all financial, strategic and customer data of the WGI Business. 10. At all times during his employment with WPS, the Defendant was privy to highly sensitive and confidential information of WPS and/or PDIL, including (but not limited to) the following: (a) information in relation to WPS's business activities with other entities (including, for example, PDIL); (b) contractual and business arrangements made between WPS and third parties, and PDIL and third parties, such as financial institutions, financial service providers and providers of other professional services; (c) details of the financial accounts of WPS and PDIL; and (d) details of strategies and business plans of WPS and PDIL." 64 After alleging that Mr Georges' post-employment actions were designed to discredit the business of WPS and PDIL, Mr Kennedy continued: "28. The profitable continuation of the WGI Business is integral to the continuation of the business of WPS, which in turn is to provide services and staff for the WGI Business, as I stated earlier in this my affidavit. If the WGI Business was to shut down or even significantly deteriorate, the business of WPS would deteriorate proportionately. 29. I verily believe that keeping the WPS Data confidential was and is critical to the profitable continuation of the WGI Business. If any WPS Data is published and/or falls into the hands of competitors to the WGI Business or if some of the WPS Data comes to the attention of some larger customers of the WGI Business, I verily believe that this will impact very adversely upon the WGI Business by, for example: (a) allowing competitors to take advantage of the trade secrets contained within the WPS Data; (b) allowing customers of the WGI Business to know (and therefore to try to renegotiate lower) profit margins of the WGI Business; and (c) providing customers with contact details of various suppliers to the WGI Business, potentially allowing them to seek to obtain some of the products of the WGI Business from those suppliers directly rather than via the WGI Business." 65 Discovered WPS documents contained in Annexure DBS 57 to Mr Starkoff's affidavit confirm that Mr George performed the managerial function described in the affidavit. They similarly support the inference that at that time the WGI business was operated from WPS's Gold Coast facility. 66 The launch of the Casino in Norway occurred in July 2003. The video of it was screened during the hearing and a transcript of it was supplied to me. Mr Kennedy was present at, and formally performed, the launch. His was a figurehead role. The video opens with the compere announcing that "we have actually organised a satellite link to go live to Australia to our corporate headquarters". The later discussion with staff at the "WGI headquarters in Australia" (as it was again referred to by the compere) disclosed that they were clearly involved in the development of the design of, and the IT for, the casino; were involved in the international coordination of the casino project; and were to provide customer support services in respect of the casino. One of the persons introduced from Australia, for example, was the "operations manager for WGI". 67 Finally, WPS's Company Tax Return 2003 described its main business activity as "Management of internet gaming company". Its Profit and Loss Statement for 1 July 2003 to 30 April 2004 disclosed an expenditure on travel and entertainment of $2,012,187.02, an almost 100 per cent increase on the previous year.

[35]

RULINGS ON EVIDENCE 72 The respondents objected to the reception of evidence as to the registration of the worldgamesinc.com domain name. The basis of the objection was that the accredited registrar of that name was Intercosmos Media Group Inc (which trades as "direct NIC"), but the document sought to be tendered to prove the name of the registrant resulted from a "who is" search of direct NIC's database through an online facility for conducting such searches at a website conducted by Verisign (which apparently trades as Network Solutions). Its contents were, in consequence, hearsay. Their admission, it is said, cannot be otherwise supported as being part of a business record of Network Solutions as it does not satisfy the requirements of s 69(2) of the Evidence Act 1995 (Cth). 73 I should note that the document downloaded from the Network Solutions website contains (inter alia) the following: "Registration and WHOIS Service Provided By: directNIC.com Intercosmos Media Group, Inc. provides the data in the directNIC.com Registrar WHOIS database for informational purposes only. The information may only be used to assist in obtaining information about a domain name's registration record. directNIC makes this information available 'as is,' and does not guarantee its accuracy. Registrant: World Play Services 1 Main St Robina, QLD 4226 AU 8520 Domain Name: WORLDGAMESINC.COM … The previous information has been obtained either directly from the registrant or a registrar of the domain name other than Network Solutions. Network Solutions, therefore, does not guarantee its accuracy or completeness." 74 Section 69(1) and (2) provide insofar as presently relevant: "69 Exception: business records (1) This section applies to a document that: (a) either: (i) is or forms part of the records belonging to or kept by a person, body or organisation in the course of, or for the purposes of, a business; or (ii) at any time was or formed part of such a record; and (b) contains a previous representation made or recorded in the document in the course of, or for the purposes of, the business. (2) The hearsay rule does not apply to the document (so far as it contains the representation) if the representation was made: (a) by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact; or (c) on the basis of information directly or indirectly supplied by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact." 75 On the evidence before me Network Solutions carries on the business of providing a facility for doing a "who is" search of direct NIC's database. The document tendered by the ACCC is, in my view, a computer produced copy of a business record of Network Solutions. That record contains a representation as to the registrant of the wordgamesinc.com domain name and that representation by Network Solutions was made on the basis of information supplied by directNIC. I am in consequence satisfied that the tender falls within the provisions of s 69(2)(b) of the Evidence Act. The disclaimers as to accuracy have no bearing on the admissibility of the document.

[37]

(i) The Territorial Issue 77 The evidence in this matter is such that, whatever may have been the case prior to December 2003 when the present application was filed, I cannot now be satisfied that the WGI business as it operates in Australia is accessible to members of the Australian public. The worldgamesinc.com website cannot be accessed using an internet connection provided by an Australian internet service provider and steps have been taken to prevent the continued membership of Australian residents in WGI. 78 Because the scheme so operates outside the territorial boundary of Australia, the respondents contend it is beyond the purview of the TP Act properly construed, even if the scheme otherwise satisfies the requirements of s 65AAD. 79 Section 5 of the TP Actinsofar as presently relevant extends the provisions of Part V (which include the pyramid selling provisions) "to the engaging in conduct outside Australia by bodies corporate incorporated or carrying on business within Australia". 80 There is nothing in the language of the pyramid selling provisions which expressly requires that the scheme operate within Australia's territorial boundaries or that it otherwise have some nexus with Australia. Nonetheless, the respondents contend that in construing s 65AAC and s 65AAD I should apply the territorial presumption of construction prescribed by s 21(1)(b) of the Acts Interpretation Act 1901 (Cth) and rule that the scheme itself must operate "in … the Commonwealth". That presumption, I would note, is displaced where "the contrary intention appears". The respondents contend that, as s 65AAC has "an objective of protecting the public": Sherman v Australian Competition and Consumer Commission (2003) 47 ACSR 505 at [14]; and as the object of the Act is to enhance the welfare of Australians through "provision for consumer protection": s 2; parliament must be taken as having intended in s 65AAC to protect the Australian public and so to be limited in its territorial operation. 81 Interesting though this question might be, it does not require address in this matter. If WPS and WGIPH are, relevantly, participants in a pyramid selling scheme, the conduct they are engaging in to that end is engaged in within Australia at their Gold Coast offices, albeit the scheme itself operates outside the territorial boundary of Australia. No question in consequence arises as to the extraterritorial operation of the TP Act or as to how s 5 and s 65AAC interact: see Bray v F Hoffman-La Roche Ltd (2002) 118 FCR 1 at [45] ff. The case is one involving the application of the TP Act to Australian registered companies engaging in conduct within Australia. 82 I should add that I do not consider that the pyramid selling provisions should be read down so as to apply only to the protection of Australian consumers: cf Wells v John R Lewis (International) Pty Ltd (1975) 25 FLR 194 at 208 ff. Provided the conduct proscribed by s 65AAC is engaged in within Australia, it is immaterial that the persons who make participation payments to take part in the scheme: cf s 65AAD(1)(a); are not within Australia. The Commonwealth has an obvious interest in the conduct of corporations that occurs within Australia.

[38]

(ii) The Construction Issues 83 The respondents have urged that I construe the pyramid selling provisions of Division 1AAA in light of two considerations. The first is that this Division, when enacted in 2002, was not intended to make substantial changes to the coverage of the provisions which it replaced or otherwise affected (i.e. s 61 and s 75AZO of the old TP Act). It was essentially a "plain English rewrite" of those provisions. This "intent", it is contended, is plainly revealed in the relevant Second Reading Speech and Explanatory Memorandum to the 2002 amendment. 84 The second consideration is that the TP Act is a penal statute (for the pyramid selling offences see s 75AZO) and that this is relevant in determining its true construction. Reliance is placed upon the observations of Gibbs J in Beckwith v R (1976) 135 CLR 569 at 576: "The rule formerly accepted, that statutes creating offences are to be strictly construed, has lost much of its importance in modern times. In determining the meaning of a penal statute the ordinary rules of construction must be applied, but if the language of the statute remains ambiguous or doubtful the ambiguity or doubt may be resolved in favour of the subject by refusing to extend the category of criminal offences … The rule is perhaps one of last resort." The respondents emphasise that this statement has been applied regularly in decisions involving the TP Act: see e.g. Australian Competition and Consumer Commission v McCaskey (2000) 104 FCR 8 at [37]. 85 Both of the above considerations are invoked in relation to the construction I should give to the definition of "participate" in s 65AAB and to how I should construe the words "entirely or substantially induced" and "in relation to" in s 65AAD(1)(b) of the Act. 86 Before considering these matters in turn I should make the following preliminary observations. First, though the Act refers to a pyramid selling "scheme", unsurprisingly, it does not define the term "scheme" (though it does require such a scheme to have the two characteristics prescribed in s 65AAD(1)). For present purposes, I am content to give the word "scheme" a like meaning to that given it by Mason J (albeit in a different setting), in Australian Softwood Forests Pty Ltd v Attorney-General for New South Wales; Ex rel Corporate Affairs Commission (1981) 148 CLR 121 at 129: "all that the word 'scheme' requires is that there should be 'some programme, or plan of action'". This meaning I would add does no more than reflect the appropriate dictionary meaning of the word in any event: see Shorter Oxford English Dictionary, "scheme: 4" (5th ed). 87 Secondly, it is well recognised that pyramid schemes can be complex and elusive in nature: Australian Competition and Consumer Commission v Destiny Telecom International Incorporated (1997) ATPR 41-588 at 44,115. An object of the amendment to the TP Act which introduced Division 1AAA was to eliminate complexity at least in the law itself: see Second Reading Speech, House of Representatives, 26 September 2002, 7331. I mention these matters for this reason. When one contrasts the comparatively speaking open-textured language of the provisions of Division 1AAA with the more particular language of the old s 61 of the TP Act, it is apparent that the language of the new provisions is more appropriately adapted to deal with the possible complexity of the schemes the Act seeks to proscribe than were the predecessor provisions.

[39]

(a) The definition of "participate" 88 Section 65AAB defines "participate" in a pyramid scheme to mean: "(a) establish or promote the scheme (whether alone or together with another person); or (b) take part in the scheme in any capacity (whether or not as an employee or agent of a person who establishes or promotes the scheme, or otherwise takes part in the scheme)." 89 It is unnecessary for present purposes to consider the scope of the term "promote" in subpar (a) of this definition, given the nature of the conduct engaged in by WPS and WGIPH that is relied upon by the ACCC. I would, though, comment that as the term is used to encompass conduct going beyond the establishing of a scheme, it is apt to describe conduct in support of, or in furtherance of, a scheme: cf Australian Securities and Investment Commission v Young (2003) 173 FLR 441 at 453. I would note, for example, that in this matter there clearly were persons who had no part in the establishment of the scheme, but who, as members of WGI, actively engaged in promotional activities for WGI membership and products and that this was envisaged by the WGI "Rules and Regulations". I would equally note that the conduct of both WPS and WGIPH, to the extent that it supported and facilitated the implementation of the WGI business, might with some justice be said to have constituted promotion of the scheme. 90 The significant innovation in the definition of "participate" is to be found in subpar (b). To participate is to "take part in the scheme in any capacity". The amplitude of the definition is indicated in that part of it which is in parenthesis: "any capacity" includes "whether or not as an employee or agent of a person who establishes or promotes the scheme, or otherwise takes part in the scheme". Section 65AAD(1)(a) illustrates two other possible "capacities" in which a person may take part in the scheme. These are as a "new participant" or as "another participant" to whom a participation payment is made. But these are only illustrations. 91 Because there is no obvious textual reason for reading down the language of the definition, the respondents rely upon context and on principles of construction to that end. It is said that the terms "establish", "promote" and "take part in" are all ambiguous in nature. That ambiguity should, in each instance be resolved by reference to contextual and purposive considerations and to the penal character of the Act and that these together would justify a construction of "take part in" that would exclude persons who merely provide services to existing participants in a scheme. 92 The ACCC in contrast contends that, notwithstanding the penal character of the TP Act, the "take part in" formula should be given a broad meaning given the beneficial purpose of the pyramid selling provisions. The formula, it is said, encompasses both active or passive cooperation in any aspect of the scheme. 93 Before expressing my own view on the matter, it is appropriate to note, first, that while natural persons can be participants in pyramid selling schemes, the structure of the Act is such that only corporations can be held liable directly for contraventions of s 65AAC or for an offence under s 75AZO. The provisions of s 6(3) of the Act (which extends the application of various provisions of the Act to natural persons in specified circumstances) do not encompass Division 1AAA of Part V: see also s 6(4). If natural persons are to be held liable under the Act it will be in consequence of what, for convenience, I will call the Act's accessory liability provisions such as s 75B. 94 It has, in my view, rightly been said that the apparent purpose of the pyramid selling provisions of legislation in this country is to "stamp out" such schemes: Hawkins v Price [2004] WASCA 95 at [15]. Given the serious losses that have been inflicted both in this country and world-wide by pyramid schemes: see Heydon, Trade Practices Law [14.10] and the notes thereto; and given the declared consumer protection object of the TP Act (see s 2), it is unsurprising that there should be such a legislative purpose. The legislation is beneficial in character and for this reason should be construed purposively. The strict construction principle referred to in Beckwith v R (see above) should in consequence clearly be treated as a "rule of last resort": see Newcastle City Council v GIO General Ltd (1997) 191 CLR 85 at 109-110; The Syndicate Club Pty Ltd v State of Queensland [2003] QSC 104 at [47] ff. 95 Having regard to both the clear legislative intent to proscribe corporate participation in pyramid selling schemes and the explicit lack of qualification on the capacity in which a person can be a participant in a scheme by virtue of taking part in it, I can see no basis for construing the s 65AAB definition in a way which would limit what can constitute taking part in a scheme by reference to the role or function performed by a person if that person could be said in fact to be taking part in the scheme. The sole question raised by the definition is whether a person does take part in a scheme. 96 Given the lack of qualification on the capacity in which a person might take part in a scheme, it is unlikely that there will be a single and invariable route to a finding that a person "participates" in a scheme. The illustrations given of participation in s 65AAB and s 65AAD(1)(b) suggest as much. I will return to this below. For present purposes, though, I confine my comments to that class of case in which the alleged taking part by a party arises from involvement in the performance of functions which relate or are referable to the organisation, conduct and maintenance of a scheme where that party is neither an "owner" or the manager of the scheme. 97 I should preface what I have to say with the following observation. While it is necessary for a scheme to have the two characteristics specified in s 65AAD(1) before it will be regarded as a pyramid selling scheme, the question whether a person takes part in such a scheme is to be determined by reference to the nature of that person's involvement (if any) in the actual programme or enterprise that constitutes the scheme. To make that determination it will ordinarily be necessary to understand the scheme itself: how is it structured? How and by whom are its products and/or services developed and provided? How is the scheme conducted? How is it promoted? Etc. The obvious reason why such an analysis is necessary is that the definition is directed at taking part in any capacity "in the scheme": cf the comments of Ormiston J in Commissioner for Corporate Affairs v Bracht [1989] VR 821 at 828 on "take part in the management of a corporation". 98 The fact that a party is in a legal relationship with an entity that conducts a pyramid scheme does not for that reason mean that that party is thereby taking part in the scheme. Ordinarily, a landlord of such an entity's business premises, the entity's external lawyer or accountant when providing professional services, or an arm's length service provider to the entity's business (e.g. of telecommunications) will not as such be a participant in the entity's scheme. This will be so notwithstanding (a) that such a party may be aware of the existence of the scheme and (b) that the service provided is necessary for the operation of the scheme. Parties so circumstanced, while not strangers to the scheme's "owner", will ordinarily be strangers to - will not be involved in - the scheme itself. Something more is needed. 99 I earlier indicated a pyramid selling scheme may be complex and elusive in nature. Whether or not the scheme in this matter ought finally be characterised as a pyramid one - and I consider it should - its structure, the geographic dispersal of the "collaborating" companies, and the manner of provision of its products and services evidence complexity of the type which Division 1AAA seeks to penetrate. 100 I use the example of the present scheme for this reason. A pyramid selling scheme may be structured in a highly fragmented way with the functions that are necessary to be discharged to conduct and maintain the particular scheme being dispersed across a range of cooperating entities each having its own place and part in the practical realisation of the enterprise which is the scheme. Irrespective of whether the scheme is formally owned or conducted by one only of such entities while the other cooperating entities formally perform functions for it so that the scheme may be carried into effect, those other entities (no less so than the employees or agents of the scheme "owner") may properly be said to take part in the scheme because of the nature and basis of their involvement in its effectuation. As I will later indicate WPS and WGIPH are just such types of entity. 101 Where, for example, one entity performs services for the scheme "owner" for the purposes of the scheme in circumstances in which it is a knowing instrument in the conduct of the scheme cooperating with the "owner" in the pursuit of the objectives of the scheme, such an entity participates in the scheme for the purposes of the s 65AAB definition. It is immaterial in my view that the particular service or function performed relates only to a part or aspect of the scheme. 102 I have used the terms "knowing" and "cooperates" in the preceding paragraph. In so doing I do not suggest that knowledge of the nature and purpose of the scheme and/or cooperation with its "owner(s)" are necessary ingredients in the "take part in" requirement in all cases. An employee of a promoter who performs services in the promotion of the scheme, or a person who becomes a participant on making a participation payment, may have little or no knowledge of the actual nature of the scheme in which that person is participating. Nonetheless, both will be participants for the purposes of Div 1AAA though, as I have noted, they are not thereby exposed to any personal liability merely because of that participation. 103 What I am suggesting is that, in cases of the type with which I am presently concerned, knowledge of the scheme and cooperation in its prosecution will readily support a finding of participation. Such a conclusion will be reinforced where the entities in question are related (through common board members or shareholders) or otherwise operate collaboratively. 104 In consequence of the view I take of the definition, I reject the respondent's submission that their respective functions as service providers excluded them from the scope of the s 65AAB definition.

[41]

106 The concern, then, is with what "leads, persuades or influences a person": cf Shorter Oxford English Dictionary, "induce: 1" (5th ed); entirely or substantially to make a payment. Is it, or is it not, the "prospect held out"? 107 The Act provides some indication of the matters to which regard might be had in making the required judgment. Section 65AAE provides: "s 65AAE (1) To decide whether a scheme that involves the marketing of goods or services (or both) is a pyramid selling scheme, a court may have regard to the following matters in working out whether participation payments under the scheme are entirely or substantially induced by the prospect held out to new participants of entitlement to recruitment payments: (a) the extent to which the participation payments bear a reasonable relationship to the value of the goods or services that participants are entitled to be supplied under the scheme (as assessed, if appropriate, by reference to the price of comparable goods or services available elsewhere); (b) the emphasis given in the promotion of the scheme to the entitlement of participants to the supply of goods and services by comparison with the emphasis given to their entitlement to recruitment payments." 108 If there is a difference between the parties as to what is signified by "substantially induced" - and it is the operative formula in this matter - that difference is one of degree. 109 It has been recognised in a number of legislative contexts that the word "substantial" is imprecise and ambiguous and that "its meaning must be taken from its context": Radio 2UE Sydney Pty Ltd v Stereo FM Pty Ltd (1982) 44 ALR 557 at 563; Tillmans Butcheries Pty Ltd v Australasian Meat Industries Employees' Union (1979) 27 ALR 367. The present setting is no different. It also is well accepted that where the word "substantially" is used in a composite formula such as "wholly or substantially", it must (a) be construed "alongside the word 'wholly' and not by reference to what it does not mean": Commissioner for Superannuation v Scott (1987) 13 FCR 404 at 408; Minister for Immigration and Multicultural Affairs v Graovac [1999] FCA 1690; and (b) be coloured by that proximity. 110 The use of the composite formula in s 65AAD recognises that there may be a number of inducements to make a participation payment, and if such be the case, their relative significance must be considered. A participation payment could, for example, be induced substantially by the s 65AAD "prospect" held out while another and lesser inducement was the use or enjoyment of the goods or services being provided. Where multiple prospects are held out, if a particular prospect is to be characterised as the substantial inducement, it must be the predominant inducement: cf Graovac at [11]. This said, I consider it is unlikely to be helpful to engage in further adjectival elaboration of the word "substantially" in this setting bearing in mind that what one is characterising is a reason for action.

[46]

(i) The WGI scheme is a pyramid selling scheme 119 It has been said of pyramid schemes that "recruitment is the income generating event": Myers, Wedding and Maertin, "Non-Egyptian Pyramids - US Style" [1974] Bus Law Rev 84 at 84. The promotional material that has been put in evidence, be it from the official WGI website or from members' websites, leaves little doubt that recruitment is held out as the predominant source of income generation and that income generation is the predominant reason for taking membership. The official promotional video, for example, emphasises how wealth is the product of "residual income" and that for WGI members such income is available from the benefits earned from the activities of a member's "downline" members. A like message, expressed in more explicit and graphic forms, is to be found on the Dreamteam and Spillmaster websites which I have set out at some length earlier. I would note in passing that there are obvious similarities between the Slides Presentation on the Dreamteam website and WGI's own promotional video as, for example, in the references to "residual income" and to a "continuous income stream". Given my reliance on members' websites, I should foreshadow I reject the challenge made by the respondents to such reliance. 120 WGI's "Rules and Regulations" characteristically leaves the manner of a member's participation in the WGI business as something for the member to decide - be this, for example, as to product package purchased, participation in the "Relationship Marketing Reward Program" or playing in the Casino. Nonetheless, the clear emphasis in the material to which I have earlier referred is upon membership as a source of wealth generation and this in turn is linked both to introducing members and to optimising the advantages from downline membership activity through the selection in particular of the "Prestige" product package. 121 It is plain from the evidence that it is held out to members that they: (i) could participate in the RMR program;

[51]

I regard these benefits as being "in relation to" the introduction of new participants for s 65AAD(1)(b) purposes given the construction I have placed on that phrase. 122 It is the case that the promotional material emphasises as well that the services offered by WGI are themselves capable of providing enjoyment as games of chance, etc. However, that emphasis is of a significantly lesser order to that given to the benefits to be derived from recruitment payments. The order of priority in Mr Kennedy's closing statement in the promotional video is emblematic of this: "Security, wealth, happiness and fun can be yours by joining World Games Inc today". 123 I would have to say this is a reasonably straightforward case of members' participation payments being substantially induced by the prospect held out to them that they will be entitled to benefits in consequence of their introduction to the scheme of new participants. I am satisfied the WGI scheme is a pyramid selling one. 124 I earlier indicated that the respondents challenged the use of material on members' websites to assist in characterising the WGI scheme. They contend, correctly, that there is no actual evidence that any relevant WGI entity or person knew of, or authorised the information forming the content of the members' websites that have been put in evidence. They equally contend that the members' website promotion is inconsistent with those provisions in the "Rules and Regulations" prohibiting promotion by way of representing that the main reason for joining is promised benefits resulting from getting others to join (i.e. from making "a pyramid selling inducement"). 125 These contentions need to be considered against the backdrop of s 65AAD(2)(a) which provides that a scheme may be a pyramid selling scheme "no matter who holds out to new participants the prospect of entitlement to recruitment payments". 126 The ACCC's contention is that these websites simply reflect in large measure what is in the rules etc published on the Worldgames Inc website; those rules clearly contemplate member promotion even if they purport to impose strictures on how the scheme is promoted; the websites in fact promote the scheme and in a way that would lead the scheme to be characterised as a pyramid selling scheme; it is this promotion to which s 65AAD(2) attributes significance because it is a characteristic of pyramid selling schemes that it is members who do the recruiting and make the representations while "the promoters sit safely back at corporate headquarters". 127 For my own part, the websites can properly be relied upon in ascertaining what are the characteristics of the scheme. Two of the schemes make prominent use of WGI trademarks, two have hyperlinks to the WGI website and the sites do not materially misrepresent the nature of the benefits to members held out in the WGI Rules and Regulations. They may make representations which, in form, are prohibited by those rules but they at least are not colourable or misleading. They reflect what is contained in WGI's own materials even if they are formally obliged not to say that this is so. 128 It is quite understandable why Div 1AAA should contain a provision such as s 65AAD(2). As the ACCC properly indicates, it helps preclude a scheme promoter from immunising itself from what its active promoters have to say about a scheme to which the scheme promoter and active promoters alike are seeking to attract new members. The sophistication of the websites in terms both of content and subject range suggest that they are probably representative of established member-promoters. The respondents have not sought to suggest otherwise. In my view, they make bluntly explicit what in any event is being held out clearly enough - if not somewhat coyly - on WGI's own website in its rules etc and in the promotional videos.

Australian Competition & Consumer Commission v Worldplay Services Pty Ltd

At a glance

Court

Decision date

Before

Source

Judgment (73 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (15)

Cited By (4)