Page:Australian Competition and Consumer Commission v Valve Corporation (No 3).pdf/77

 reasons I have explained above concerning the circumstances of entitlement to refunds under the Australian Consumer Law.

261 Valve submitted that the Steam Refund Policy involved no representation of entitlement, as the ACCC pleaded. Valve submitted that the policy was merely a statement of Valve's practice. Valve submitted that the situation was analogous to that in Forrest, considered above, where the High Court concluded that representations would not have been understood by their readers as representations of legal rights or what a court might do in the future. Instead, in Forrest, the High Court held that the representations that the company had entered into a binding contract conveyed only what the company had done and what it intended to do in the future. Valve's submission, and this analogy, should not be accepted for two reasons.

262 First, the statement of policy concerned Valve's intended conduct in relation to the consumers to whom it was addressed. The representations were made in a context in which a consumer would enquire about his or her rights by looking at "General Purchasing Questions". As Valve would have known, and as such an enquiring consumer knew, the representation concerned Valve's practice in relation to any rights a consumer might assert to a refund. The representations were expressed without any qualification that suggested Valve might be required to depart from its practice in relation to consumer rights by the laws of a particular jurisdiction. Valve's unqualified statement, in the circumstances in which it was made, carried the inference which would be drawn by a reasonable consumer that Valve was not required to provide a refund.

263 Secondly, each version of the Steam Refund Policy refers to the clause of the SSA which is concerned with Billing. It was a mark of Valve's careful submissions in relation to the SSA that consumers would not read some clauses and ignore others. The same is true of the Steam Refund Policy. A consumer would not ignore, or treat as meaningless, the words of the policy which refer to the SSA. Those clauses, as I have explained, provide that fees and charges are not refundable in whole or in part. As I have explained, that clause in a contractual document, was an assertion of a lack of rights. It may be that this is another example of the same representation being repeated, with the addition of words of policy. But it suffices at this liability hearing to treat each pleaded representation separately for the reasons I have explained. In this case, when a reasonable consumer read the policy together with that provision of the SSA, he or she would conclude that the Steam Refund Policy was also a statement of a lack of entitlement by the consumer.