Page:Australian Competition and Consumer Commission v Valve Corporation (No 3).pdf/59

 might be felt (such as loss suffered). The concern is where Valve acted. And the relevant acts to which ss 18(1) and 29(1)(m) are directed is the representations to consumers who (i) downloaded Steam Client in Australia, or (ii) entered contractual relationships with Valve through agreeing to the terms and conditions of the SSA, involving representations concerning the supply of goods, or (iii) corresponded with Valve representatives on chat logs. The same point can be made about these acts as the joint judgment made about harm in Dow Jones (at 600 [26]) quoted above: they are bilateral acts.

Whether Valve carries on business in Australia

189 The next issue would only arise if I had concluded that Valve's conduct was not in Australia. However, since the parties dealt with this issue in comprehensive detail I will express my views about it. It was a submission put eloquently by Valve but it can be quickly dismissed: see Popov v Hayashi (Cal Super Ct, No 400545, 18 December 2002) fn 6 (McCarthy J).

190 Section 5(1)(g) of the Competition and Consumer Act provides that the provisions of the Australian Consumer Law relevant to this litigation extend to "the engaging in conduct outside Australia by… bodies corporate incorporated or carrying on business within Australia". Valve submitted that this extended operation did not apply to it because it was not "carrying on business within Australia". There is no definition of that phrase.

191 Valve submitted that the mere supply of goods or services to persons within Australia for profit cannot be sufficient to amount to "carrying on business within Australia". This was said to be because s 5(2) provided for a further extension concerning matters of mere supply, but only in relation to ss 47 and 48. I do not accept this submission.

192 Section 5(2) of the Competition and Consumer Act provides that:

193 Section 5(2) is not merely an extension to the "supply of goods or services to persons within Australia". The important words in s 5(2) are "in relation to". Those words are an "expression of wide and general import": Fountain v Alexander [1982] HCA 16; (1982) 150 CLR 615, 629 (Mason J); O'Grady v Northern Queensland Co Ltd [1990] HCA 16; (1990) 169 CLR 356, 374 (Toohey and Gaudron JJ).