Page:Australian Competition and Consumer Commission v Valve Corporation (No 3).pdf/35

 (2) the court must be satisfied that the drafter and Parliament inadvertently overlooked an eventuality that must be dealt with if the provision is to achieve its purpose; and

(3) the court must be abundantly sure of the substance of the words that Parliament would have used had the deficiency been detected before enactment.

97 The implication sought by Valve is very significant. None of the guidelines from Wentworth Securities is met. And even if they were, the implication would be little more than an attempt to fill a perceived gap in the legislation.

98 As to the first of the guidelines, it is hard to understand the purpose for implying the words sought to be implied by Valve. Why would the legislation go to such lengths to extend the operation of provisions including Division 1 by techniques such as those in s 5 for conduct outside Australia, only to cut back the reach of Division 1 for all contracts with the closest and most real connection to an overseas jurisdiction? And why would this restriction apply only to contracts and not to all other arrangements and understandings covered by Division 1?

99 As for the second guideline referred to in Wentworth Securities, the implication could not be inadvertent in circumstances in which the draftsperson chose to refer to the proper law of the contract in s 67(a) but not in s 67(b) or in the closing words of s 67.

100 Further, there is no separate provision that provides that Division 1 is concerned only with contracts governed by the proper law of a State or Territory of Australia. In circumstances in which s 67 was re-enacted with changes in 2011, it is material that such a separate provision existed ins 8 of the Insurance Contracts Act which was considered in the leading decision on a comparable provision, namely the Akai decision.

(ii) The context ofs 67 is contrary to Valve's submission

101 There are four matters of context which militate against Valve's submission that Division 1 of Part 3-2 (Chapter 3) does not apply if the law with the closest and most real connection to the contract is other than the law of a part of Australia.

102 First, not only does s 67 contain no such express provision but no other provision of Division 1 supports this submission. As senior counsel for Valve conceded, in the absence of s 67, Division 1 would apply to any contract irrespective of its proper law (ts 181). That concession should be accepted. The same point has been made about the application of s 52, in a different Division of the former Trade Practices Act which contained no provision