Commerce Commission v Viagogo AG - [2022] NZHC 3058

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-2659

[2022] NZHC 3058

BETWEEN
COMMERCE COMMISSION

Plaintiff

AND

VIAGOGO AG

Defendant

Hearing: 12 October 2022

Appearances:

N Flanagan, A Luck and C Fleming for the Plaintiff A Lloyd, C Hoeft and O de Pontt for the Defendant

Judgment:

23 November 2022

JUDGMENT OF ASSOCIATE JUDGE C B TAYLOR

[First Discovery Application and Second Discovery Application]

This judgment was delivered by me on 23 November 2022 at 4:00pm
pursuant to Rule 11.5 of the High Court Rules

…………………………. Registrar/Deputy Registrar

Solicitors:
Meredith Connell, Auckland, for the Plaintiff
MinterEllisonRuddWatts, Auckland, for the Defendant

COMMERCE COMMISSION v VIAGOGO AG [2022] NZHC 3058 [23 November 2022]

Introduction

[1] The defendant in this proceeding, Viagogo AG (Viagogo) has brought interlocutory applications for further and better discovery, for further and better discovery and particulars, and to limit interrogatories, against the plaintiff in this proceeding, the Commerce Commission (the Commission).

Background

[2] In this proceeding, the Commission alleges that Viagogo has breached various provisions of the Fair Trading Act 1986 by making false or misleading representations in connection with its online ticket reselling website.

[3] The gist of the Commission’s allegations is that Viagogo falsely represents it is an official ticket seller for events in New Zealand, but that it is not in fact an official ticket seller. It says that Viagogo represents that the number of tickets available is limited, and that this is a false or misleading representation because tickets are available through official ticket sellers.

[4] The Commission says further that Viagogo represents the tickets it sells are valid, when many in fact have already been sold or are forgeries. And it says that Viagogo only displays the ticket price at a late stage in the purchasing process, and pressures vulnerable consumers into making decisions by leading them to believe tickets are selling out.

[5] Three interlocutory applications brought by Viagogo are presently at issue. The first is an application dated 11 February 2022 seeking further and better discovery (First Discovery Application). The second is an application dated 4 July 2022 seeking further and better discovery, and further and better particulars of [18] of the Commission’s second amended statement of claim (Second Discovery Application). The third is an application dated 4 July 2022 to limit the interrogatories sought by the Commission (Interrogatories Application).

[6] Since the applications were filed, the parties have resolved some of the disputed matters between themselves.

Separate judgments

[7] This judgment determines the issues relating to Viagogo’s First Discovery Application and Second Discovery Application. The Interrogatories Application will be determined in a separate judgment.

Viagogo’s First Discovery Application

[8]Viagogo seeks orders:1

(a)requiring the plaintiff, the Commerce Commission (the Commission) to search for and locate:

(i)all documents which record complaints, enquiries, and other information that the Commission has received from consumers in relation to the defendant; and

(ii)all documents recording the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] NZHC 3058
Decision Date: 23 November 2022

CaseChat Overview and Summary

The case of Commerce Commission v Viagogo AG before the High Court of New Zealand involved interlocutory applications for further and better discovery, further and better particulars, and to limit interrogatories. The plaintiff, the Commerce Commission, alleged that Viagogo AG breached various provisions of the Fair Trading Act by making false or misleading representations in connection with its online ticket reselling website. The defendant, Viagogo, sought further discovery of documents and particulars to aid in its defence. The court had to decide on the relevance, existence, and proportionality of the discovery sought, as well as the need for further particulars.

The court concluded that the complaints, enquiries, and other information received by the Commission from consumers in relation to Viagogo (Complaints Records) were relevant and should be discovered, as they were integral to the Commission's allegations and evidence. However, the documents recording the Commission's position on and approach to conduct by other participants in the secondary ticket market (Competitor Enforcement Records) were deemed irrelevant to Viagogo's alleged infringements of the Fair Trading Act. Regarding the Underlying Witness Documents, the court ruled that Viagogo was entitled to discovery of specific documents referred to or relied upon by the Commission's witnesses in their briefs of evidence, provided the Commission had or could obtain them. The court also ordered the Commission to provide further particulars in relation to a statement in its second amended statement of claim regarding the position of Viagogo's advertisements in Google search results.

The final orders mandated the Commission to provide discovery of the Complaints Records and the Underlying Witness Documents under certain conditions, and to give further particulars regarding the position of Viagogo's advertisements in Google search results. The Court declined to order the discovery of Competitor Enforcement Records and reserved costs pending the completion of the judgment on the interrogatories application.

Orders