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 contract as a result of the Trade Practices Act. The appellant in that case had a contract with a hospital for the provision of nursing services and possibly also for medical attention (305 (Lockhart J)). But Lockhart J (with whom Sheppard and Pincus JJ agreed on this point) held that there was no contract for the supply of blood plasma which was intended to be supplied, if necessary, free of charge. His Honour held that since there was no contract for the supply of blood plasma, there was no contact for the supply of goods. He concluded at 306 that:

134 The remarks about whether food, sleeping tablets, or antibiotics were a "supply of goods" were not necessary for the decision. The decision did not concern any alleged defects in food, sleeping tablets, or antibiotics. No complaint had been made about any of these supplies. Further, it might be doubted whether this reasoning would apply to the new Australian Consumer Law regime which does not require a contract to be divided into services and goods but requires an initial enquiry into whether the respondent has obtained "rights or benefits being the supply of goods". It might now be questioned whether the conclusion could be reached that there was no supply of goods if, in the course of treatment, the appellant had been given defective antibiotics. However, even if it were the case that the mere incidental provision of goods is not a supply of goods, as I explain below, the goods supplied in this case were a core part of the supply, not an incidental part.

The application of the definitions

135 The starting point, therefore, is to determine whether part, or all, of a transaction involves a supply of goods. As a matter of law I reject Valve's submission that the "substance" of its transaction is one for the supply of services and therefore it does not supply goods. Not only does this introduce a gloss ("substance of the transaction") upon the words of the statute but it also reverses the proper enquiry: the first question is whether there is a supply of goods not whether there is a supply of services. And in any event, for the reasons below, I also reject Valve's submission as a matter of fact.

136 The ACCC makes three alternative submissions:

(1) the supply is a good; or