- 54 -
conduct. These are matters that can be addressed at the remedies hearing. However, it may be that this overly cautious pleading by the ACCC was justified because (i) the different media in which the representations were made became a focus of some of Valve's submissions concerning whether its conduct was in Australia, and (ii) Valve's submissions focused very closely upon the particular words of every representation even where some representations differed from others only in very minor respects. It is therefore necessary to consider each pleaded representation individually.
The legal principles concerning s 18(1) and s 29(1)(m)
207 Counsel for the ACCC summarised a number of relevant legal rules relevant to this case concerning the approach to s 18(1) of the Australian Consumer Law. Some of those helpful submissions require qualification but they were not generally in any dispute. With the exception of the seventh matter below, most of the principles are now well known. The relevant rules are set out briefly below.
208 The legal rules concerning s 18(1) are generally similar to those concerning s 29(1)(m). But there are important differences. Some of the differences were not material in this case. Three examples can be given.
209 First, there was no suggestion that anything in this case turned upon any distinction between a "representation" and "conduct". The ACCC relied in each case only upon representations said to derive expressly, or by implication, from various statements.
210 Secondly, other than the issue discussed above concerning whether goods were supplied, Valve did not dispute that the alleged representations were "in connection with the supply or possible supply of goods" or that they concerned "the existence, exclusion or effect of any condition, warranty, guarantee, right or remedy (including a guarantee under Division 1 of Part 3-2".
211 Thirdly, and possibly relevant to the representations to individual consumers, the ACCC made no submission to explain how any of the representations might be false (within s 29(1) (m)) even if they were not misleading (within s 18(1) and s 29(1)(m)). It is necessary to return to this point later in these reasons. With that context, the relevant legal rules are set out below concerning conduct or representations that are misleading or deceptive or likely to mislead or deceive.
