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Conclusion on the first issue
125 In summary, Valve's submissions on this first issue must be rejected for these textual, contextual, purposive, and policy reasons. As Buchanan JA said in The Society of Lloyd's v White [2004] VSCA 101 [19], in a dispute about jurisdiction but in remarks which are equally applicable in this case:
When it entered a foreign jurisdiction Lloyd's was required to deal with the legal system it found. In my view, names in markets without effective consumer protection laws have no legitimate complaint about the operation of laws in other jurisdictions simply because they may produce different results. It is one thing to require claims to be determined by the courts of one country; it is another to require all claims to be determined by the same laws whether or not they are the appropriate laws to govern the transaction giving rise to a claim.
(2) Issue 2: Whether there was a "supply of goods"
126 The second issue is whether there was a "supply of goods" by Valve. Valve accepted that if "goods" were provided by it to consumers then the goods had been "supplied" (ts 218). The question of whether there was a "supply of goods" can, and (in light of the statutory definitions) should, be considered as a single question.
The proper approach to the definitions of goods and services
127 Section 2(1) of the Australian Consumer Law defines "goods" with an inclusive definition in the following way:
goods includes:
- (a) ships, aircraft and other vehicles; and
- (b) animals, including fish; and
- (c) minerals, trees and crops, whether on, under or attached to land or not; and
- (d) gas and electricity; and
- (e) computer software; and
- (f) second-hand goods; and
- (g) any component part of, or accessory to, goods.
128 The definition of "goods" is inclusive. It supplements the ordinary meaning of "goods": ASX Operations Pty Ltd v Pont Data Australia Pty Ltd (No 1) (1990) 27 FCR 460, 468 (the Court). The definition emphasises an important aspect of a "good". That aspect is sometimes described in theoretical studies as "thinghood": eg Penner J, The Idea of Property in Law (Clarendon Press, Oxford, 1997). The legal meaning of "goods" can be analogised to the strict definition of "property" which is "a description of a legal relationship with a thing":
