Page:Australian Competition and Consumer Commission v Valve Corporation (No 3).pdf/56

 176 Although there is no "directed" requirement in Voth and although such a requirement cannot be transplanted to the characterisation of different statutory norms in ss 18(1) and 29(1)(m), it is important to note that the joint judgment did not say that the negligent misstatement was made in the place where it was uttered. The reason why such a general rule should be rejected is not merely because actionable negligence requires proof of loss. It is also because negligence in thin air is meaningless. In his famous decision in Palsgraf v Long Island Railroad Co 162 NE 99, 101 (NY CA, 1928), a judgment described by Professor Beever as one which vies for "the greatest single judgment in the history of the law of negligence", Cardozo CJ explained that "Negligence, like risk, is thus a term of relation. Negligence in the abstract, apart from things related, is surely not a tort, if indeed it is understandable at all": Beever A, Rediscovering the Law of Negligence (Hart Publishing, Oxford, 2007) 125–126.

177 The same can be said of the conduct in this case. As counsel for the ACCC colourfully submitted, if she were to stand in a soundproof room and scream at the top of her lungs that she was not applying the consumer guarantees in Australia then nobody would be misled or likely to be misled (ts 283). That is not the conduct upon which the norms in ss 18(1) or 29(1) (m) of the Australian Consumer Law attach. Instead, the relevant conduct upon which the ACCC rely is representations relating to the supply of goods. Throughout this trial Valve contended, and the ACCC conceded, that an essential element of the conduct upon which the ACCC relied was that the representations concern the supply of goods.

178 I do not accept Valve's submission that the conduct upon which the ACCC relied occurred in Washington State. The background to the conduct was described above at [163]. That background involves a significant Australian context.

179 The chat log representations were specifically made to individual Australian consumers. They concerned the supply of goods in Australia.

180 The Steam Client representations also concerned the supply of goods in Australia and were also made specifically to the consumers who had downloaded the Steam Client in Australia and in the course of doing so had accepted the terms of the Licence Agreement and SSA. Again, when those consumers purchased a game they would have chosen Australia as their country. But even without specifically being told that the consumer was in Australia, the downloading of Steam Client in Australia and the agreement to Steam's terms and conditions established a direct relationship between Valve and the Australian customer. This is in a context in which Valve had established game servers in Australia, it had content delivery