Page:Australian Competition and Consumer Commission v Valve Corporation (No 3).pdf/96

 335 In each case, there was a representation that no refund would be given because of the use of the goods but the representation was not in the absolute terms pleaded by the ACCC. In each case, it was not a representation that a remedy would never be given when there had been any use of the goods. It was, instead, a representation that the amount of use in those cases prevented a refund. Those representations contrast with the statement to Mr Miller on 3 May 2013 by the Steam Support representative that he "was also able to confirm that [the games purchased] have had no significant play time, so a refund should not be a problem. I can refund these purchases and the funds will be deposited into your Steam Wallet" (emphasis added).

336 It was common ground that the effect of s 262(1) of the Australian Consumer Law was that a consumer was not entitled, under s 259, to reject goods if the "rejection period" for the goods had ended. The rejection period is "the period from the time of the supply of the goods to the consumer within which it would be reasonable to expect the relevant failure to comply with a guarantee to become apparent", having regard to various factors, including "the length of time for which is it reasonable for them to be used".

337 Valve submitted, and I accept, that it was entitled to have a system in place to determine whether the failure is a major failure or whether it can be remedied. This litigation did not concern whether Valve's system was proper or whether the relevant periods of 4 hours or 5 hours of use were a sufficient basis upon which Valve could have refused a refund. Such a result, in this case, might not have been difficult if the evidence of the consumers were accepted. In particular, the factors relevant to a consideration of the rejection period also include "the use to which a consumer is likely to put them" which, in this case, was said to be troubleshooting.

338 In circumstances in which Valve was entitled to have a system in place to determine whether a rejection period had ended, and since the statements of the Steam Support representatives were tailored to the period during which the games were asserted to have been used, I do not accept that there was an absolute representation that there was no refund remedy available whenever the goods had been used.

339 In summary, I conclude that Valve did not contravene s 18(1) or s 29(1)(m) by the statements of Steam Support representatives in the online chats. Those statements did not mislead any of the consumers and they did not involve the pleaded representations.