- 89 -
Conclusion
340 A heavy focus of this trial was upon whether the Australian Consumer Law applied to transactions of this nature involving the sale to Australian consumers from a foreign corporation of products, the essence of which was computer software. Each of Valve's challenges to the applicability of the Australian Consumer Law fails. The conflict of laws provisions in the Australian Consumer Law did not essentially carve out an exception for conduct by foreign corporations like Valve governed by a different contractual proper law. Valve supplied goods (which are defined as including computer software). And Valve's conduct was in Australia and it was carrying on business in Australia.
341 Valve's conduct contravened s 18(1) and s 29(1)(m) of the Australian Consumer Law by the terms and conditions in its SSAs and also by the statements in two of its Refund policies which broadly concerned availability of refunds. However, the conduct of Valve's Steam Support representatives in online chats did not contravene the Australian Consumer Law. This latter conclusion applies only to the particular three Australian consumers in this litigation. It is a conclusion based on the particular representations alleged by the ACCC. In particular, the conclusion is based upon the pleaded allegation that statements made by the Steam Support representatives involved implied representations which, in turn, were misleading. The ACCC did not bring a case that the statements themselves were misleading. In light of the conclusions I have reached about the SSAs and two of the Refund policies, the different circumstances of other consumers seeking refunds, including particular questions asked by those consumers and answers given, might well have led to a different result.
I certify that the preceding three hundred and forty one (341) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Edelman.
Associate:
Dated: 24 March 2016
