SALES ONLINE FROM TICKETMASTER WEBSITE
40 When a purchaser wished to buy a ticket to Big Day Out from Ticketmaster online, he or she would go to a Ticketmaster webpage with a subheading 'Hot Tickets' on which the words 'Big Day Out 2007' appeared. Each webpage had a clause stating that by continuing past it the user agreed to abide by Ticketmaster's terms of use which included its purchase policy. At the top of that page it was stated that the tickets would be mailed in late November 2006. By clicking on 'Big Day Out 2007' the purchaser was then taken to a Ticketmaster webpage headed 'Big Day Out 2007' with the venues and dates marketed by Ticketmaster on it (being Sydney, Melbourne and Perth). This page was mainly a publicity or general information page. The purchaser then clicked on the 'Buy Tickets' button and an events search results page opened showing the three venues being marketed. Each had a button for 'Find Tickets'. By clicking on the button for the relevant event, a new webpage opened containing event information and indicating that the box office was open.
41 The purchaser was told that if they were already a Ticketmaster member and had their billing information pre-registered they could log in on the log in button. If not, they were then directed to complete the information needed to become such a member. It was a condition of establishing such a membership that the user of Ticketmaster's website accepted the terms of use on the website as governing the relationship. That provided that the purchase policy would govern the order or purchase of any tickets through the site. The purchaser had to agree by using the site to abide by the terms of that policy. The purchase policy contained the following terms and conditions:
'This Purchase Policy is subject to, and incorporates by this reference, the Terms of Use. Each ticket that you purchase is a licence to attend a particular event and is subject to the additional terms set forth on that ticket.
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Unlawful Resale of Tickets - Commercial Purposes
Unlawful resale of tickets (or attempt) is grounds for seizure and cancellation without compensation. A ticket shall not be used for advertising, promotions, contests, or sweepstakes unless formal written authorisation is given by the Event Provider, provided that even if such consent is obtained, use of Ticketmaster's trademarks and other intellectual properties are subject to Ticketmaster's consent.'
42 Ticketmasters' terms and conditions of sale included one which provided that the ticket was sold subject to the promoter's, or presenter's, conditions of sale 'a copy of which is available for inspection at the time of purchase and/or collection of this ticket …' (cl 2).
43 Once a person became accredited as a member, they were able to move to the next stage of the Ticketmaster website for a purchase. It took them to a page indicating that their billing information was as set out on the page and invited the purchaser to check its correctness. If correct, they were invited to click on the 'Continue Purchase' button. The next webpage that came up noted that for Big Day Out 2007 all tickets would be sent by registered post. Lost, stolen, undelivered or misplaced tickets would not be replaced. It noted that children aged 5-15 must be accompanied by a parent or legal guardian with a ticket and that conditions of purchase applied. The purchaser was then told to take three steps.
44 First, the number of tickets had to be selected, secondly, the relevant pricing and ticket locations had to be selected and thirdly, a choice of delivery method was offered. The purchaser was told that they had five minutes after hitting the 'Look for Tickets' button to complete the purchase. They were again invited to click on a link to review the purchase policy. The webpage told the purchaser that for best performance and to prevent transaction failures, tickets should be requested by using only one web browser. Orders were said to be subject to credit card approval and billing address verification. The reader was then invited to click on buttons for 'Look for Tickets', 'Cancel Order' or 'Check my Order'. By clicking on the first of those three buttons the purchaser was taken to the next webpage. It indicated the number and price of the tickets, the handling charge, the billing information, the name and address of the purchaser and contained a 'Continue Booking', 'Cancel Booking' and 'Check my Order' set of buttons. By clicking on the 'Continue Booking' button the next webpage opened. It was headed 'Important' and told the purchaser that to complete the transaction and to confirm their tickets they had review and confirm the information set out on that page, and then, and then click the 'Purchase Tickets' button at the bottom of the page. It was emphasized on that page that the tickets would not be confirmed until the 'Purchase Tickets' button had been clicked. After clicking on that button, a new webpage opened headed 'Ticket Purchase Confirmation' which thanked the purchaser by their Christian name for the order and stated 'This is your transaction confirmation page. Please print this page and store it as safely as confirmation of the transaction you have just completed' (emphasis added). It noted that the purchaser would also receive a confirmation email to reiterate the same information. A purchase confirmation number was given and the relevant venue details and price were set out. At the foot of the page there was a notation that all orders were subject to credit card approval and billing address verification. The confirmation email was then sent which commenced, under the heading of its nature 'Thank you for purchasing tickets at Ticketmaster.com.au. We have received your order: BIG DAY OUT'. A confirmation number for this 'purchase' was then given.
45 It is common ground that during the whole of the process a purchaser from Ticketmaster online could not access any information which set out any conditions at all on the ticket or on the Big Day Out website. Thus, new condition 6 together with all the other provisions on the ticket were not communicated to the potential purchaser in the Ticketmaster online transaction. Nor was the potential purchaser given any opportunity to review or see those conditions. Nonetheless, the form of the transaction appeared to be one of a contract for purchase of the ticket which was recognised by the last two steps as having been 'just completed'. Tickets were not to be sent until late November, as the first page of the Ticketmaster online purchasing webpages stated. Thus, in the case of the Sydney concert which sold out on the day of its being first offered for sale on 13 October 2006, a purchaser would not even see the conditions sought to be imposed in the ticket itself until over six weeks after 'the transaction you have just completed' as noted on the final webpage in the series of purchase webpages. The question then arises as to whether anything on the ticket could, in those circumstances, constitute a term of the contract.
46 eBay said that the Ticketmaster online purchase was concluded when the final confirmation webpage came up, subject to the credit card and address details being valid. A purchaser could not replace or exchange the ticket or seek a refund after such a purchase. eBay's argument said that the only contract in this transaction was the one made using the online method of communication. Once that occurred, a purchaser was free to deal with the ticket as he or she saw fit. There was no notification to the purchaser that a sale by him or her in any circumstances was not permitted or would have a consequence of potential cancellation. There was no communication on Ticketmaster's website to draw to a purchaser's attention the existence of any condition such as new condition 6, nor was there any link provided for the purchaser to go to the Big Day Out webpage or any other source to find what conditions were sought to be imposed on the Big Day Out ticket that had been purchased in the transaction.
47 Creative, on the other hand, argued that because the purchaser already had agreed to membership of Ticketmaster online and to the terms and conditions of use, the purchase policy bound the purchaser to the terms of Big Day Out's ticket. The purchase policy was said to be 'subject to, and incorporate[s] by this reference, the Terms of Use'. Thus, Creative argues that the purchaser was on notice that there will be terms on the ticket.
48 Creative argued that there was in fact no contract formed until the ticket arrived and the purchaser had a reasonable opportunity to consider it. I am of opinion that that analysis ought not be accepted. The parties were contracting on Ticketmaster online in writing. They had to sign, albeit electronically, the terms of the purchase. They did so. The terms did not include any reference to, or ability to view, conditions now sought to be imposed on the ticket.
49 The Ticketmaster online purchase was a contract in writing signed by the parties. By clicking on the relevant buttons and, by the computer bringing up all terms needed to purchase a ticket, on behalf of Ticketmaster as agent for Creative, the whole transaction was in writing, signed and agreed by the parties. A reasonable person in the position of the parties would have regarded the transaction completed on Ticketmasters' webpage as the contract: Toll (FCGT) Pty Limited v Alphapharm Pty Limited (2004) 219 CLR 165.
50 When the purchaser received the ticket, the terms themselves precluded any opportunity to seek a refund (see condition of sale 3) because he or she was informed that tickets would not be exchanged or replaced, nor money refunded 'after purchase'. That is, the very transaction which had been confirmed by the series of webpages and the confirmation email generated by a Ticketmaster online transaction, could not be undone if the conditions of sale were part of the transaction. Creative's argument is similar to that rejected by Wilson, Toohey, Brennan and Gaudron JJ in Fay 165 CLR at 206, 228, 261. I reject it.
51 Because these conditions were not brought to the attention of the purchaser and were not available to the purchaser, perhaps for more than six weeks after the transaction was effected and the purchaser paid the price, I am of opinion that it is quite unrealistic to regard this ordinary consumer transaction as one in which the purchaser would have been free to return the ticket thereafter and receive a refund. The ordinary reasonable member of the public would be confronted with a representation on the reverse side of the ticket that the contract denied him or her the ability to return the ticket or get a refund on ascertaining that the conditions were unsatisfactory.
52 I am of opinion that condition of sale 3 is calculated to convey to a person who bought online from Ticketmaster that the transaction was completed online at the time of the webpage transactions. It follows that it did not contain any terms on the ticket. The vague and general reference in Ticketmaster's purchaser policy to terms being on tickets, cannot substitute for the necessity to draw specifically to someone's attention unusual or significant terms affecting the proposed relationship, if it is sought to claim that the contract contains those terms. This is the more so when a term like new condition 6 is not otherwise available to a purchaser and their attention is not directed to it clearly or, as in this case, at all.
53 In Thornton v Shoe Lane Parking Ltd [1971] 2 QB 163 at 170D, Lord Denning MR gave his well known example of the need for a prominent prompt such as a red hand pointing to an exemption clause, which would draw a purchaser's attention to it. If the Ticketmaster online contract was entered into in writing on the webpages, it is impossible to incorporate the terms on the ticket by reference because the purchasers are told that the ticket would be sent to them some time later. Thus, in the case of the many thousands of people who purchased tickets through Ticketmaster online on 13 October 2006 for the Sydney concert, the tickets would only be sent to them over six weeks later in circumstances where there was no suggestion on Ticketmaster's webpages that there would be any contractual restriction on the capacity of a purchaser to sell the ticket.
54 Creative argued that the purchaser could somehow return the ticket if, when it was ultimately received, it contained terms that were not to the purchaser's satisfaction. I am of opinion that this is unrealistic. Creative for its own commercial purposes offered facilities to the public for instantaneous online ticket sales including through the Ticketmaster web facility. If Creative wanted to impose a condition of contract in the Ticketmaster online sales such as is in the old or new condition 6, it had to bring notice of such a condition to the attention of the purchaser online at the time of the purchase (Fay 165 CLR at 206, 228, 261).
55 Creative intends to sell over 220,000 tickets at $120 each, thereby generating revenue in the order of about $26 million. It is not unreasonable to expect it to get its contractual documents (including those online) right if it wants to rely on terms that have strict and perhaps drastic consequences for freedom of contract of purchasers from it . I am of opinion that a reasonable person considering the steps to purchase from Ticketmaster online would have considered them to amount to a contract between the purchaser and Creative, through the agency of Ticketmaster on the terms and conditions that were then and there available online. There was no incorporation by reference of provisions on the ticket.