Page:Australian Competition and Consumer Commission v Valve Corporation (No 3).pdf/13

 9 Valve said that it did not contravene the Australian Consumer Law because the ACCC did not prove that the representations as pleaded were made and even if they were made they were not false, misleading or deceptive or likely to mislead or deceive. In relation to all of the statements in the SSAs and all but one of the representations concerning Valve's refund policy I accept that the statements amounted to misleading representations within s 18(1) and s 29(1)(m). But the statements in chats with the three Australian consumers, who were reasonably well informed of their rights, did not involve these contraventions.

The witnesses

10 The ACCC relied upon evidence from four people. The first was an investigator and ACCC employee, Ms Liskov. A key part of her affidavit evidence concerned how she obtained various terms and conditions, and policies used by Valve. She also described the process by which games are purchased from Valve. The other three witnesses relied upon by the ACCC were Australian consumers who had experienced problems with games that they had purchased from Valve and used. None of the ACCC's witnesses was cross examined. Their evidence was not disputed, although its legal effect was contested.

11 Valve relied upon evidence from two witnesses. The first was its Business Development, Infrastructure and Operations Manager, Mr Dunkle. The second was its General Counsel, Mr Quackenbush. Both gave evidence honestly and with a genuine effort to assist the court. Their answers were clear. Their evidence was reliable.

12 Since there was no clash in any evidence and, after rulings on objections, no submission was made that any evidence should be rejected, it is convenient for me to set out my findings of fact independently of the witnesses. However, in my discussion below, I rely particularly upon the evidence of Ms Liskov as to what a consumer would have seen or done (including her careful inclusion of screenshots of many of these steps). For the technical detail behind each step, I rely particularly upon the evidence of Mr Dunkle. Although he was not an expert independent from Valve, he has worked in the gaming industry for 14 years and, previously in the semiconductor and telecommunications industry for 10 years. He was one of the original members of the team at Valve which developed what he described as the "online game distribution network" known as Steam.