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50 The ACCC does not allege that there was a major failure in compliance. Instead, it says that the representations were made to consumers concerning their rights whether or not there was a major failure in compliance.
The integers of ss 18(1) and 29(1)(m)
51 There are two integers within these two sections which are, uncontroversially, satisfied. The first is that Valve is a corporation, and therefore a person to whom the Australian Consumer Law applies (see s 131 Competition and Consumer Act 2010 (Cth)). The second is that Valve was acting in trade or commerce.
52 However, there are four matters that are controversial:
- (1) Whether ss 18(1) and 29(1)(m) have any application where the alleged conduct or representation concerned matters relating to s 54 and any supply of goods occurred in the context of an agreement which had an objective proper law which was not the law of any part of Australia?
- (2) Whether Valve "supplied goods" such that s 54 could be engaged?
- (3) Whether Valve's conduct was in Australia? (The ACCC assumed that it was necessary for it to prove that Valve's conduct was in Australia for s 29(1)(m) as well as s 18(1)) or if Valve's conduct was not in Australia, whether Valve was "carrying on business within Australia" under the extended application of the Australian Consumer Law?
- (4) Whether ss 18(1) and 29(1)(m) were contravened?
53 Each of these issues is addressed separately below.
(1) Issue 1: The proper law of Division 1, Part 3-2 (Chapter 3) of the Australian Consumer Law
The terms of s 67
54 The first significant issue raised by the parties was whether ss 18(1) and 29(1)(m) have any application in this case. As I have explained, the ACCC accepted that ss 18(1) and 29(1)(m) could only apply in this case if s 54 was applicable. Valve's submission that s 54 did not apply was based upon its construction of s 67 of the Australian Consumer Law.
55 Sections 54 and 67 both appear in Division 1 (consumer guarantees) of Part 3-2 (consumer transactions) of the Australian Consumer Law. Section 67 provides:
