On 22 December 2011, the Federal Court by consent made orders and declarations and imposed penalties in the total amount of $2.5 million on Ticketek Pty Limited for contraventions of section 46(1)(c) of the Competition and Consumer Act 2010.
The contravening conduct comprised 4 separate instances where Ticketek engaged in conduct which deterred or prevented a competitor, Lasttix from supplying its services. Lasttix offers promotional services to event organisers to target consumers wanting to buy 'last minute' discounted tickets.
In summary, in 3 of the 4 instances, Ticketek refused requests from event organisers to implement into the Ticketek ticketing system discounted price types offered by Lasttix. In one instance, Ticketek temporarily removed from the Ticketek system, discounted price types published by Lasttix.
The parties filed an agreed statement of facts in accordance with section 191 of the Evidence Act, joint written submissions and draft consent orders.
The parties agreed that the relevant market was the Australia-wide market for the sale and acquisition of Ticketing Related Services. What comprised "ticketing related services" was set out in details in the Statement of Agreed Facts.
During the relevant period, Ticketek's approximate market share of the Ticketing Related Services Market was estimated to be about 45%. This was based on the number of total tickets sold by Ticketek as a percentage of the total number of all tickets sold for live entertainment events across Australia.
The parties agreed that whilst there were relatively low barriers to entry for new entrants establishing a ticketing related service business to supply a partial service offering, there were barriers to potential/existing suppliers entering/expanding into a business capable of providing a full service offering.
As to competitive constraints, the parties agreed that very few other existing or potential service providers had the capability to effectively compete with Ticketek and, as such Ticketek was not constrained to any substantial degree.
Based on these factors, the parties agreed that Ticketek has a substantial degree of market power in the relevant market.
The parties also agreed that its conduct in refusing to implement, or removing discounted ticket types, was materially facilitated by its market power.
Finally, the parties agreed that Ticketek's conduct was for purpose of deterring or preventing Lasttix from supplying certain Ticketing Related Services in the relevant market.
As to penalty, the Court applied the "French Factors" as set out in TPC v CSR Ltd (1991) ATPR 41-076, and the principles in NW Frozen Foods Pty Limited v ACCC  FCA 1134 and J McPhee & Son (Australia) Pty Limited v ACCC  FCA 365, which expand on the French factors.
The court was satisfied that the penalty of $2.5million as proposed by the parties was appropriate as were the declarations and other orders sought and ordered accordingly.