Page:Australian Competition and Consumer Commission v Valve Corporation (No 3).pdf/41



indeed, for a reason of special relevance here, it would produce a result which the legislature is not in the least likely to have intended. It would mean that provisions enacted as salutory reforms might be set at nought by the simple expedient adopted in the present case of inserting in an agreement a stipulation that validity should be a matter for the law of some other country.

121 Although these remarks were made in the context of considering avoidance of a statutory policy by express agreement, if Valve's submission were accepted then the policy of Division 1 of the Australian Consumer Law would also be defeated. It might enable suppliers to avoid the effect of Division 1 by using one of the very provisions which was included to prevent them avoiding the operation of the Australian Consumer Law.

122 For instance, if Valve's construction were correct there is a real prospect that companies could, by careful drafting of their contracts and arrangement of their business affairs, ensure that the Australian Consumer Law guarantees in Division 1 did not apply. As Mr J L R Davis said in 1980 in relation to the Contracts Review Act 1980 (NSW), a New South Wales corporation might be able to cause the proper law of a contract to be that of a different jurisdiction by setting up a subsidiary to enter contracts with consumers. His example concerned a different Australian State or Territory. But the same point could be made about contriving to ensure that the closest and most real connection to a transaction is an overseas jurisdiction. As Mr Davis explained "it is a simple matter of drafting to ensure that it is the customer … who makes the offer, and the acceptance is made by the subsidiary company at its place of business" (572). He also suggested that it would be a relatively simple drafting matter to require that performance of obligations, delivery of goods such as to an agent (and, I would add, passage of risk) and payment for goods would take place at the place of business of the subsidiary: see Davis JLR, "The Contracts Review Act 1980 (NSW) and the Conflict of Laws" (1980) 54 Australian Law Journal 572–573.

123 Valve's submission would also introduce considerable complexity to a provision which was included in a Division of the Australian Consumer Law aimed at simplicity.

124 Finally, if Valve's submission were correct it could also have other surprising results contrary to the policy of the Australian Consumer Law. If Valve contracted with Australian consumers, but (unknown to them) operated through an Australian subsidiary supplier, then, on Valve's approach, the consumer guarantees would be impliedly excluded by Division 1 because of the connection between the contract and Washington State. In other words, by implication but not by express terms, Division 1 would not apply even where an Australian consumer received a supply of Australian goods from an Australian subsidiary in Australia.