Commerce Commission v Viagogo AG - [2022] NZHC 3049

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-2659

[2022] NZHC 3049

BETWEEN
COMMERCE COMMISSION

Plaintiff

AND

VIAGOGO AG

Defendant

Hearing: 21 November 2022

Appearances:

N Flanagan, A Luck and C Fleming for Plaintiff S Price, C Hoeft and O de Pontt for Defendant

Judgment:

22 November 2022

JUDGMENT OF LANG J

[on application for adjournment of trial and ancillary orders]

This judgment was delivered by me on 22 November 2022 at 3.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date……………

Solicitors:
Meredith Connell, Auckland
Minter Ellison Rudd Watts, Auckland

COMMERCE COMMISSION v VIAGOGO AG [2022] NZHC 3049 [22 November 2022]

[1] The defendant, Viagogo AG (Viagogo), is a reseller of tickets to entertainment events. It sells tickets using a website that is accessed by the public.

[2] In this proceeding the Commerce Commission (the Commission) alleges that in marketing tickets for sale Viagogo has been guilty of breaches of the Fair Trading Act 1986. It alleges that harm to the public is ongoing and seeks injunctive relief to prevent further harm occurring.

[3] The proceeding is scheduled to be the subject of a four week trial commencing on 13 February 2023. Viagogo seeks a variation of existing timetable directions and adjournment of the trial on the basis that it will not be able to serve its briefs of evidence until three outstanding interlocutory applications have been determined by the Court. It also says that six weeks will be required for the trial. The Commission applies for “unless orders” that are to take effect if Viagogo does not serve its briefs of evidence by a date nominated by the Court.

[4] For the reasons that follow, I am satisfied the existing fixture should be maintained. I am also satisfied that it is appropriate to make orders providing for the consequences that will follow if Viagogo does not serve its briefs of evidence within the time directed in this judgment.

Applications for variation of timetable directions and adjournment of the trial

[5] I deal with these issues together because they are closely interrelated. It will be necessary in any event for the existing timetable to be varied because the time has now passed for Viagogo to serve its briefs of evidence and it has failed to serve any evidence at all.

[6] Viagogo relies on three principal grounds in support of its application for an adjournment of the trial.

Length of trial

[7] Viagogo contends that a trial of at least six weeks duration will be required because the Court will hear evidence from 20 to 24 witnesses. It will cause difficulties

for both the parties and the Court if it becomes necessary to adjourn the trial on a part- heard basis.

[8] The Commission points out that it proposes to call 12 witnesses, of whom only two have provided briefs of evidence exceeding ten pages in length. Eight of the Commission’s witnesses are participants in…

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 3049
Decision Date: 22 November 2022

CaseChat Overview and Summary

The High Court of New Zealand heard an application from the Commerce Commission against Viagogo AG, a ticket reseller, over alleged breaches of the Fair Trading Act 1986. The Commission sought injunctive relief to prevent ongoing harm to the public, and the case was scheduled for a four-week trial starting in February 2023. Viagogo applied for a variation of the existing timetable directions and an adjournment of the trial due to outstanding interlocutory applications and delays in serving briefs of evidence. The Commission opposed these applications and sought "unless orders" to take effect if Viagogo failed to serve its briefs of evidence by a nominated date. The Court considered Viagogo's arguments, including the length of the trial, outstanding interlocutory matters, and delays in service of the Commission's evidence. The Court found that Viagogo had ample time to prepare its evidence and dismissed the application for an adjournment of the trial. The Court varied the existing timetable directions and ordered Viagogo to serve its evidence by 12 December 2022. The Court also made "unless orders" that Viagogo would not be able to adduce evidence at trial unless it had served that evidence on the Commission in accordance with the specified date. This order was not intended to interfere with the trial Judge's discretion to make directions regarding evidential issues as the trial proceeds.

Orders