Page:Australian Competition and Consumer Commission v Valve Corporation (No 3).pdf/54

 concluded that, in the words of the joint judgment in Voth (at 567), "the question whether a cause of action is to be classified as local or foreign is to be answered by ascertaining the place of 'the act on the part of the defendant which gives the plaintiff his cause of complaint".

169 Valve submitted that the same approach should apply to the characterisation, for the purposes of s 131(1) of the Competition and Consumer Act, of whether there was "conduct of a corporation" in Australia. There are some parallels, but an approach developed in the context of determining where a common law cause of action arose should not be automatically transplanted when the relevant question is a different statutory question. As French J said of s 5 of the Trade Practices Act in Paper Products Pty Ltd Tomlinsons (Rochdale) Ltd (No 2) (1993) 44 FCR 485, 493, "it is necessary to consider not where the cause of action arose but where the conduct relied upon took place". This question of where the conduct relied upon took place focuses only upon the representations made by Valve on its website, on Steam Client, and on chat logs. This question is also quite different from the jurisdiction with the closest and most real connection to the consumers' contract.

Where the conduct relied upon took place

170 Although the common law cause of action approach in Voth should not be automatically transplanted to the question of application of a statutory test for where the conduct took place, the decision in Voth has been relied upon in a number of cases as informing the statutory approach. For that reason it is necessary to consider it in further detail.

171 The decision in Voth concerned whether New South Wales was a clearly inappropriate forum such that a stay of proceedings would be ordered. An action had been brought in New South Wales by a New South Wales company against a Missouri accountant for professional negligence. It was alleged that the accountant had been negligent by failing to draw to the attention of the company the possibility of a withholding tax liability. It was in the context of this question that the High Court of Australia considered whether the tort of negligence was a foreign tort.

172 In the course of addressing the concern that the receipt of a statement might differ from the place where it is acted upon, the joint judgment in Voth said that an act can pass "across space or time before it is completed". Their Honours continued (at 568) saying that:

If a statement is directed from one place to another place where it is known or even anticipated that it will be received by the plaintiff, there is no difficulty in saying that the statement was, in substance, made at the place to which it was directed, whether