viagogo AG v Australian Competition and Consumer Commission [2022] FCAFC 87

FEDERAL COURT OF AUSTRALIA

viagogo AG v Australian Competition and Consumer Commission [2022] FCAFC 87 Appeal from: Australian Competition and Consumer Commission v viagogo AG [2019] FCA 544 Australian Competition and Consumer Commission v viagogo AG (No 3) [2020] FCA 1423

File number: NSD 1187 of 2020

Judgment of: YATES, ABRAHAM AND CHEESEMAN JJ

Date of judgment: 18 May 2022

Catchwords: CONSUMER LAW – misleading or deceptive conduct – contravention of ss 18, 29(1) and/or 34 of the Australian Consumer Law – part price representations in contravention of s 48(1) of the Australian Consumer Law – where appellant contended that primary judge erred in finding three of four representations were conveyed – Held: appeal dismissed. CONSUMER LAW – PECUNIARY PENALTIES – where primary judge imposed an aggregate pecuniary penalty in the total sum of $7 million – whether pecuniary penalty manifestly excessive – whether primary judge erred in assessment of specific and general deterrence by placing undue weight on revenue instead of profit – whether primary judge erred in respect of application of the parity principle – whether primary judge erred in approach to calculating loss to consumers – Held: appeal dismissed.

Legislation: Competition and Consumer Act 2010 (Cth), Schedule 2, ss 18(1), 29(1)(h), 29(1)(i), 34, 48, 224(1)(a), 224(2), 224(3), 224(4)

Cases cited: Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCAFC 113; 254 FCR 68 Australian Building and Construction Commissioner v Pattinson [2022] HCA 13 Australian Competition and Consumer Commission v Employsure Pty Ltd [2021] FCAFC 142; 392 ALR 205 Australian Competition and Consumer Commission v High Adventure Pty Ltd [2005] FCAFC 247; [2006] ATPR 42-091 Australian Competition and Consumer Commission v Jetstar Airways Pty Ltd [2015] FCA 1263; [2016] ATPR 42-523 Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd [2016] FCAFC 181; 340 ALR 25 Australian Competition and Consumer Commission v Sensaslim Australia Pty Ltd (in liq) (No 7) [2016] FCA 484 Australian Competition and Consumer Commission v Telstra Corporation Ltd [2010] FCA 790; 188 FCR 238 Australian Competition and Consumer Commission v TPG Internet Pty Ltd [2013] HCA 54; 250 CLR 640 Australian Competition and Consumer Commission v viagogo AG [2019] FCA 544 Australian Competition and Consumer Commission v viagogo AG (No 3) [2020] FCA 1423 Australian Securities and Investments Commission v MLC Nominees Pty Ltd [2020] FCA 1306; 147 ACSR 266 Australian Securities and Investments Commission v Westpac Banking Corp (No 3) [2018] FCA 1701; 131 ACSR 585 Butcher v Lachlan Elder Realty Pty Ltd [2004] HCA 60; 218 CLR 592 Commonwealth v Director, Fair Work Building Industry Inspectorate [2015] HCA 46; 258 CLR 482 Dinsdale v R [2000] HCA 54; 202 CLR 321 Federal Commissioner of Taxation v Arnold (No 2) [2015] FCA 34; 324 ALR 59 Flight Centre Limited v Australian Competition and Consumer Commission (No 2) [2018] FCAFC 53; 260 FCR 68 Markarian v R [2005] HCA 25; 228 CLR 357 NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission [1996] FCA 1134; 71 FCR 285 Singtel Optus Pty Ltd v Australian Competition and Consumer Commission [2012] FCAFC 20; 287 ALR 249 Trade Practices Commission v CSR Ltd [1991] FCA 521; ATPR 41-076 Volkswagen Aktiengesellschaft v Australian Competition and Consumer Commission [2021] FCAFC 49; 151 ACSR 407