Page:Australian Competition and Consumer Commission v Valve Corporation (No 3).pdf/29

 which was s 67 of the Trade Practices Act 1974 (Cth), referred to the Division applying to the contract notwithstanding "a term that it should be the law of some other country or a term to like effect". That wording was amended to use similar language to that considered in Akai. The amended words had the effect that the Division would apply despite "a term of the contract that provides otherwise" than the law of any part of Australia: see Trade Practices Amendment (Australian Consumer Law) Act (No 2) 2010 (Cth).

75 The majority in Akai explained that in determining the law which has the closest and most real connection with the transaction, it is proper to have regard to matters including (i) the places of residence or business of the parties, (ii) the place of contracting, (iii) the place of performance, and (iv) the nature and subject matter of the contract (437). Each of these is considered in turn.

76 As for (i), the places of residence and business of the parties, the Australian consumers who gave evidence in this proceeding were located in New South Wales, Victoria, and Tasmania. The ACCC made no submission about which of these jurisdictions was said to be the proper law.

77 In contrast with the divergent places of residence of the consumers, although Valve conducts business in Australia, its residence and the locus of its business is in Washington State. That is where its registered office is located. It owns no subsidiary in Australia. The importance of Valve's residence as the locus of connection with the contract is bolstered by the fact that any reasonable person in the position of a consumer would realise that Valve was entering into contracts on the same, or nearly the same, terms with consumers in countries other than Australia including the United States and the European Union to which reference is made in the SSA.

78 As to (ii), the place of formation of a contract, this must be determined by reference to the characterisation rules of the forum. If it were necessary to determine this point, I would conclude that the place at which the contract was formed was where the consumers' electronic acceptances were received (Washington State) rather than the place from which they were sent (Victoria, Tasmania, and New South Wales). As a matter of basic principle any bilateral contract generally requires the receipt of a communication of acceptance in order to be effective: Tallerman & Co Pty Ltd v Nathan's Merchandise (Vic) Pty Ltd [1957] HCA 10; (1957) 98 CLR 93, 111 (Dixon CJ and Fullagar J). The basis of this general principle is the usual expectation of reasonable persons in the position of contracting parties