- 71 -
270 I conclude, not without hesitation, that the inclusion of the words "unless required by local law" meant that representation 5 was not false and was not misleading. In particular the "local law" qualification was (i) in the same clause where the representation was made, (ii) in the same typeface and font, and (iii) would reasonably have been understood by a consumer to mean the laws in which the consumer was located.
Representations 6, 7, 8, and 9 (in the online chats): the ACCCs case and the statements made
271 Representations 6, 7, 8, and 9 were all made in online chats between three Australian consumers and Steam Support representatives. For the reasons below, I consider that none of the pleaded representations in relation to these consumers was misleading.
272 Although the ACCC's case in relation to these representations was pleaded on the basis that these statements were "false or misleading" the case was never run as one involving alternatives. The ACCC focused upon the common element to contraventions of s 18(1) and s 29(1)(m) which was that the representations were misleading. Separate cases were not made for s 18(1) and s 29(1)(m). In other words, the ACCC did not suggest that a contravention might occur because Valve representatives made false statements that were not misleading. No submissions were made about whether the Steam Support representatives were (i) expressing opinions about the operation of legal rules in the SSAs or Valve's policies or opinions about the Valve's representations, or (ii) stating facts and making independent representations of fact. It is wholly understandable why the ACCC ran its case in this way. It would be extraordinary for a case for pecuniary penalties to be prosecuted only on the basis of allegations of false representations to three people, none of whom was misled or likely to be misled.
273 Another important part of the context to the representations in the online chats is that the ACCC did not allege that any of the online video games that it offered were not of acceptable quality or that a "major failure" occurred". Section 54(2) was set out above. It concerns the circumstances in which goods are of acceptable quality. Section 54(3) provides for the matters to consider for the purposes of s 54(2) to determine whether the goods are not of acceptable quality, including the nature of the goods, the price of the goods (if relevant), any statements made about the goods on any packaging or label on the goods; and any representation made about the goods by the supplier or manufacturer of the goods. Issues might also arise in relation to s 54(6) that goods do not fail to be of acceptable quality if "the consumer to whom they are supplied causes them to become of unacceptable quality, or fails
