Australian Rugby Union Ltd v Hospitality Group Pty Ltd [2000] FCA 823

FEDERAL COURT OF AUSTRALIA

Australian Rugby Union Ltd v Hospitality Group Pty Ltd

[2000] FCA 823

TRADE PRACTICES – definition of market – whether a market for the supply of corporate hospitality packages at international rugby union test matches exists in Australia for the purposes of Part IV of Trade Practices Act 1974 (Cth) – whether applicant, by supplying tickets subject to restrictive conditions as to transfer, breached Part IV of Trade Practices Act 1974 (Cth) – effect of economic evidence and failure of cross claimant to call evidence from its officers – where failure to establish the market pleaded defeats the defence and cross-claim of the respondent CONTRACT – breach of contract – applicant sold tickets to certain rugby union test matches subject to condition that tickets cannot be resold at a premium or used for commercial purposes – where condition printed on ticket is a contractual promise that binds the bearer TORT – inducing breach of condition of a transferable ticket – inducing breach of contract of agency agreement – agency agreement only allowed agent to sell tickets as part of "travel packages" – first and second respondents bought tickets from third respondent – first and second respondents sold tickets to public as part of "hospitality packages" – where context of contract must be taken into account – where constructive knowledge of the terms of the contract are sufficient in establishing breach of contract TRADE PRACTICES – misleading and deceptive conduct – where representations made that tickets for seats to international rugby union test matches have been or will be acquired – whether representations made were as to future events – failure to provide reasonable basis for representations under s 51A of Trade Practices Act 1974 (Cth) CONTRACT – common law restraint of trade – whether condition on tickets and restrictive clause in agency contract are void as being restraints of trade – where a legitimate commercial interest is protected and where the party has a legitimate interest in promoting the sport and providing cheap tickets to followers of the sport there is no common law restraint of trade DAMAGES – assessment of damages – exemplary damages – exemplary damages awarded as a deterrent PRACTICE & PROCEDURE – subpoenas – appropriateness of issuing subpoenas to third parties with no interest in the case Trade Practices Act 1974 (Cth) ss 4E, 45(2)(a)(ii), 46(1)(c), 47(1), 47(7), 51(A), 52, 53(AA), 53(c), 53(d), 80 Restraints of Trade Act 1976 (NSW) s 4 Evidence Act 1995 (Cth) s 135 Federal Court Rules O27 r 2, O 27 r 6, O 27 r 9 Queensland Wire Industries Pty Ltd v Broken Hill Proprietary Company Ltd (1989) 167 CLR 177 applied Re Queensland Co-operative Milling Association (1976) 8 ALR 481, 25 FLR 169 applied Re Tooth & Co Ltd (1979) 39 FLR 1 cited NCAA v Board of Regents of University of Oklahoma (1984) 468 US 85 referred to International Boxing Club of New York Inc v United States (1959) 358 US 242 referred to Pauwels Travel BVBA (EC Commission Decision 92/521) OJ L326 12.11.92 referred to Arnotts Ltd v Trade Practices Commission (1990) 24 FCR 332 followed Trade Practices Commission v Arnotts Ltd (1990) 93 ALR 657 followed Trade Practices Commission v Arnotts Ltd (1989) 88 ALR 90 cited News Ltd v Australian Rugby Football League Ltd (1996) 135 ALR 33 distinguished Boland v Yates (1999) 167 ALR 575 cited Re Tooth (1979) ATPR 40-113 cited Mark Lyons Pty Ltd v Bursill Sportsgear Pty Ltd (1987) 75 ALR 561 cited Jones v Dunkel (1959) 101 CLR 298 applied Queensland Wire Industries Pty Ltd v Broken Hill Proprietary Ltd 16 FCR 50 cited Buckley v Tutty (1971) 125 CLR 353 referred to Esso Petroleum Co Ltd v Harper's Garage (Stourport) Ltd (1968) AC 269 referred to Linden Gardens Trust Ltd v Lenesta Sludge Disposals Ltd [1994] 1 AC 85 referred to Coulls v Bagot's Executor & Trustee Co Ltd (1967) 119 CLR 460 referred to FL Schuler AG v Wickman Machine Tool Sales Ltd [1974] AC 236 referred to DC Thomson & Co Ltd v Deakin [1952] Ch 646 applied Merkur Island Shipping Corp v Laughton [1983] 2 AC 570 applied Daily Mirror Newspapers Ltd v Gardner [1968] 2 QB 762 applied Northern Territory of Australia v Mengel (1995) 185 CLR 307 followed JT Stratford & Son Ltd v Lindley [1965] AC 269 followed Woolworths Ltd v Campbells Cash & Carry Pty Ltd (1996) 92 LGERA 244 (NSW CA) cited Attorney General v Blake [1998] 2 WLR 805 referred to Trident General Insurance Co Ltd v McNiece Bros Pty Ltd (1988) 165 CLR 107 referred to Lightly v Clouston (1808) 1 Taunt 112, 127 ER 774 referred to Foster v Stewart (1814) 3 M&S 191, 105 ER 582 referred to Phillips v Homfray (1883) 24 ChD 439 referred to Federal Sugar Refining Co v United States Equalisation Board 268 F #575 (DC, NY, (1920) cited Colbeam Palmer Ltd v Stock Affiliates Pty Ltd (1968) 122 CLR 25 cited 10th Cantanae Pty Ltd v Shoshana Pty Ltd (1987) 79 ALR 299 cited Whitfeld v De Lauret & Co Ltd (1920) 29 CLR 71 cited Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118 cited XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd (1984-5) 155 CLR 448 applied Gray v Motor Accident Commission (1998) 196 CLR 1 applied Sanders v Snell (1997) 143 ALR 426 cited Rookes v Barnard [1964] AC 1129 cited McKinley v McKinley (1960) 1 WLR 120 cited Re Cordova v Philips Roxane Laboratories Inc; Forsyth, Application of [1984] 2 NSWLR 327 cited Witness v Marsden [2000] NSWCA 52 cited Morgan v Morgan [1977] 2 All ER 515 referred to In re Norway's Application [1987] QB 433 cited Yaramin Pty Ltd v Murphy (1987) 5 ACLC 300 cited In Marriage of Lea (1990) 101 FLR 66 cited White & Tulloch v White (1995) 19 Fam LR 696 cited Kizon v Palmer (1997) 75 FCR 261 referred to Diddams v Commonwealth Bank [1998] FCA 497 referred to Heydon The Restraint of Trade Doctrine (2nd ed) (1999) Halsbury's Laws of Australia Vol 7 Meagher Gummow & Lehane Equity – Doctrines & Remedies 3rd ed, 1992 Mason & Carter, Restitution Law in Australia, 1995 AUSTRALIAN RUGBY UNION LIMITED v HOSPITALITY GROUP PTY LIMITED, ICM (MARKETING) PTY LIMITED, AUSTRALIAN TOURS FOR SPORT PTY LIMITED and CAMERON JACKSON N 324 OF 1999 GYLES J SYDNEY 20 JUNE 2000