Page:Australian Competition and Consumer Commission v Valve Corporation (No 3).pdf/94

 developer in the context of alleged problems, not as part of a representation about obligations; and

(2) perhaps the high water mark for this representation which was relied upon by the ACCC was Mr Miller's statement that "Are you telling me that unless go through 3 third party supports for the 3 games you will not refund me for the games that aren't working?" But this statement was made with sarcasm and in obvious frustration at the failure of the Steam Support Representative to address Mr Miller's constantly reiterated requests for a refund. His concern was that his requests were being ignored and Valve was constantly replying with suggestions for ways to fix the game rather than refund his money.

329 As to the No Obligation to Refund Representation, none of the statements in any of the chats amounted to a representation that even if the goods were not of acceptable quality a refund would not be given. The closest any statement came to this representation was the statement to Mr Phillips that "we cannot offer a refund for this transaction" (emphasis added) and then referring Mr Phillips to the SSA. By itself, and particularly without the words "this transaction" this could have amounted to the pleaded representation. But this statement was made in the general context described above as well as the particular context that:

(1) Mr Phillips had already insisted that he was entitled to a refund under Australian law, and the Steam Support representative did not deny this but referred to "this transaction"; and

(2) the remainder of the statements by the Steam Support representative in that part of the chat concerned implicit suggestions that the problem could be fixed by troubleshooting that Mr Phillips could undertake, including contacting a third party developer for support.

330 The ACCC also relied particularly upon the statements to Mr Phillips that "as with most software products, we do not offer refunds or exchanges for purchases made on our website or through the Steam Client" and which later referred to cl 3 of the SSA. By itself, and putting to one side the possibility that this might have been a statement of opinion about Valve's policy, this statement involved an implied representation that Mr Phillips was not entitled to a refund even if the goods were not of an acceptable quality. But the statement cannot be read in isolation. The remainder of the statement must be considered. The Steam Support representative also relied, when refusing a refund, upon Mr Phillips having installed