- 84 -
319 The eighth representation alleged was that statutory guarantees and/or warranties of acceptable quality did not apply in relation to the supply by Valve of video games to consumers in Australia (Non-Applicability of Statutory Guarantee Representation). This was false or misleading as the consumer guarantee of acceptable quality in s 54 of the Australian Consumer Law did apply in relation to the supply by Valve of video games.
320 The ninth representation alleged was that Valve was under no obligation to repair, replace or refund computer games that it had supplied that were not of acceptable quality where the consumer had installed and played the video game (No Remedy where Goods Used Representation).
321 In the case of all pleaded representations there are two essential reasons why the ACCC's submissions should not be accepted. First, no-one was misled or even likely to be misled. Secondly, with only minor exceptions, none of the pleaded representations was made.
322 First, although I have proceeded on the basis that it is possible that a consumer can be likely to be misled even if the consumer was not misled, it is apparent from the conversations as a whole that none of the three consumers was misled or likely to be misled by any of the alleged representations even if they had been made.
323 In relation to Mr Phillips, his very first comment in the chat asserted that "Title purchase of this software and any refund request is protected under Australian law via rules set down by the ACCC (http:/www.accc.gov.au). If I don't receive a refund within 7 working days. I will put forward a complaint with the ACCC". He made similar points, and references to the ACCC, throughout the exchanges.
324 In relation to Mr Miller, after a series of exchanges in which the Steam Support representative did little more than make suggestions for how to resolve the problems Mr Miller was encountering, Mr Miller responded by saying "You are not listening to what I'm saying. I'd like a refund for the games that don't work. The refund I'm legally entitled to (emphasis added)". Later he explained "Under the Australian consumer rights laws you are immediately required to refund purchases that do not meet adequate standards or function as promised".
325 In relation to Mr Miles, the first statement by the Steam Support representative would have been misleading to any reasonable consumer. It was that "we do not offer refunds or exchanges for purchases made on our website or through the Steam Client", and later
