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244 The third matter is relied upon most heavily by Valve. The two SSAs contained an additional relevant sentence in the final (miscellaneous) clause that "Valve's obligations are subject to existing laws and legal process and Valve may comply with law enforcement or regulatory requests or requirements notwithstanding any contrary term". It is unlikely that a reasonable consumer would read this clause as qualifying the dominant message from (i) the (capitalised) denial of refunds, (ii) with an exception only for EU customers. It is too much of a strain for the reasonable Australian consumer of Valve games to read the dominant message to be subject to an implied qualification to be found in cl 15 that the clause also permitted refunds for Australian customers under the conditions permitted by their local laws.
245 It should also be noted that cl 15 is a step further removed from the "asterisk" cases because the asterisk cases directly link the asterisked words to the qualification to the dominant representation (see Medical Benefits Fund of Australia Limited v Cassidy, and Downey v Carlson Hotels Asia Pacific Pty Ltd above). As Jacobson and Bennett JJ noted in National Exchange Pty Ltd v Australian Securities and Investments Commission [2004] FCAFC 90 [55]; (2004) 49 ACSR 369, 381 [55]:
Where the disparity between the primary statement and the true position is great it is necessary for the maker of the statement to draw the attention of the reader to the true position in the clearest possible way.
246 Representation 1 was misleading, contrary to s 18(1) and s 29(1)(m). It was also false in the 2011/2012 SSA but I am not satisfied that, as a legal proposition and read in the contract as a whole, it was false in the other SSAs. Although I do not place great weight upon it, as the evidence of only a single consumer, it is also pertinent to the misleading nature of representation 1 that Mr Miller (a 28 year old university student who has played video games for two decades) looked at the SSA in January 2013 and formed the view that he would not be able to obtain a refund.
Representations 2 and 3 (in the SSAs)
247 The second alleged representation is that Valve had excluded statutory guarantees and/or warranties of acceptable quality (Contractual Exclusion of Statutory Guarantee Representation).
248 The third alleged representation is expressed as further, or in the alternative, to the second. It is that Valve had restricted or modified statutory guarantees and/or warranties of acceptable quality (Contractual Modification of Statutory Guarantee Representation).
