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a reference to doing or refusing to do any act, including the making of, or the giving effect to a provision of, a contract or arrangement, the arriving at, or the giving effect to a provision of, an understanding or the requiring of the giving of, or the giving of, a covenant…
161 The relevant conduct in this case which must be characterised to determine whether it is conduct "in Australia" is the conduct which amounted to alleged contraventions of ss 18(1) and 29(1)(m). As I explain in more detail in relation to issue (4) below, the core of that conduct involved representations by Valve on its website, in chatlogs to consumers, and through Steam Client.
162 Valve submitted that it did not engage in conduct in Australia. In written submissions it said that it is a foreign corporation, with business premises and staff all located outside Australia. It said that it holds no real estate in Australia and hosts its website outside Australia. It said that it provides support services outside Australia. It said that the Steam content is not "preloaded or stored" on Valve's servers in Australia. It said that payment for subscriptions is made in United States dollars and processed in Washington State.
163 All of these matters can be accepted. But it is curious that Valve's written submissions made no mention of all the connections that it did have to Australia, including in relation to each of these matters:
(1) Although it has no real property in Australia, it has significant personal property, namely servers in Australia which, at the time of acquisition, had a retail value of $1.2 million.
(2) Although it has no staff in Australia, it had approximately 2.2 million subscriber accounts in Australia. Its Australian servers were initially configured by an employee who travelled to Australia (ts 122).
(3) Although its support services are provided outside Australia, those support services provide support for subscribers including the 2.2 million accounts in Australia.
(4) Although the Steam content is not "pre-loaded or stored" on Valve's servers in Australia, Mr Dunkle's evidence was that it is "deposited" on Valve's three servers in Australia when requested by a subscriber and will stay on the server if it is requested again in a particular period of time.
(5) Although payment for subscriptions is in United States dollars and processed in Washington State, the payments include those made by Australian consumers to Valve and, against that revenue are expenses including payments of tens of thousands
