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involved a reference to cl 3 of the SSA which also contained a misleading representation to this effect. Mr Miles was not misled. He responded by saying that he knew "there are laws regarding this sort of thing: at the very least I consider it unethical (both on the part of the developer / publisher and steam) and would greatly appreciate a refund in this particular instance". And when the Steam Support representative replied, falsely, that the "regulations you are citing do not apply to digital distribution subscriptions, electronic games, or downloadable content", Mr Miles did not accept that statement. He replied, in his second response, with a summary of his rights which would have been an admirable submission by a lawyer in this litigation.
326 None of Mr Phillips, Mr Miller or Mr Miles was misled or (when the chats are read as a whole) was likely to be misled, by any statement that they were not entitled to a refund where the computer games were not of acceptable quality, or that statutory guarantees did not apply or that they needed to have recourse to a developer first or could not use the goods if they wanted a refund.
327 Secondly, when the statements in the chats are read in context, the statements did not amount to the pleaded representations. The statements must be considered in the context of two matters. The first was that the ACCC did not allege that there was any right to a refund that arose under the Australian Consumer Law. As I have explained, a right to a refund only arises if the various conditions in ss 54 259 and 263 of the Australian Consumer Law were met. The second matter of context was that each consumer was engaged in a chat with a Steam Support Representative concerning whether that consumer was entitled to a refund in those circumstances. Each pleaded representation can be considered in turn.
328 As to the alleged No Obligation Where No Recourse to Developer Representation, none of the statements, read in context, was capable of amounting to a representation that Valve was under no obligation to repair, replace or refund video games even if they were not of acceptable quality unless the consumer had first attempted to troubleshoot the problems with the video game developer. The ACCC alleged that such representations had been made in the chats with Mr Miller and Mr Phillips. But in both cases, the statements about troubleshooting could not be construed as requiring troubleshooting as a condition of a refund for the following reasons:
(1) None of the statements was capable of being construed as referring to any obligation of Valve at all. The statements made suggestions for troubleshooting with the
