Page:Australian Competition and Consumer Commission v Valve Corporation (No 3).pdf/36

 concerning conflict of laws. In Francis Travel Marketing Pty Ltd v Virgin Atlantic Airways (1996) 39 NSWLR 160, 164, Gleeson CJ (Meagher and Sheller JJA agreeing) said:

103 Secondly, an important matter of context is that Division 1 is not limited to contracts. The Division extends to supplies generally, whether by contract, or arrangement, or understanding or even by gift. For instance, s 51 provides that if a person supplies goods to a consumer other than by limited title, "there is a guarantee that the supplier will have a right to dispose of the property in the goods when that property is to pass to the consumer". This provision would extend to circumstances where goods are supplied to a consumer as a gift for promotional purposes (s 5(1)(a)) or where there is a failure of consideration arising from a supply in anticipation of a contract or where a contract is void. This context makes it extremely difficult to see why s 67 would exclude the s 51 guarantee in a case where there is a contract with the closest and most real connection to Washington State, but not in any other instance where it is also the case that "the lex causae will generally be the law of the place with which the failure of consideration has its closest and most real connection": Panagopoulos G, Restitution in Private International Law (Hart Publishing, Oxford, 2000) 171.

104 Thirdly, another matter of context is the breadth of operation provided in the Australian Consumer Law for its provisions, including Division 1 of Part 3-2 (Chapter 3). Section 5 of the Competition and Consumer Act extends the operation of the Australian Consumer Law (other than Part 5-3 "Country of origin representations") to the engaging in conduct outside Australia by (i) bodies incorporated within Australia, (ii) bodies carrying on business within Australia, (iii) Australian citizens, and (iv) persons ordinarily resident within Australia. As I explain later in these reasons, these are provisions of considerable breadth. This extended operation militates significantly against a construction of Division 1 that would disapply the operation that the Division would otherwise have in all of these categories wherever there was a contract with the closest and most real connection to an overseas jurisdiction.