Page:Australian Competition and Consumer Commission v Valve Corporation (No 3).pdf/64

 the point, the qualifications must have "the effect of erasing whatever is misleading in the conduct": Downey v Carlson Hotels Asia Pacific Pty Ltd [2005] QCA 199 [83].

215 Secondly, and flowing from the need to examine the alleged conduct in the light of the relevant surrounding facts and circumstances, the question of whether the effect of the conduct complained of answers the statutory description is one of fact to be answered in the context of the evidence. Conduct must be characterised by considering what was said and done against the background of all surrounding circumstances. The relevant context in which the conduct must be considered encompasses both:


 * (a) internal context such as surrounding words including the context which some words give to others; and


 * (b) external context such as the type of market, the manner in which such goods are sold, and the habits and characteristics of reasonable purchasers in such a market: Australian Competition and Consumer Commission v TPG Internet Pty Ltd [2013] HCA 54; (2013) 250 CLR 640, 656 [52]; Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd [1982] HCA 44; 149 CLR 191, 199 (Gibbs CJ); Australian Competition and Consumer Commission v Coles Supermarkets Australia Pty Ltd [2014] FCA 634 [41] (Allsop CJ).

216 Thirdly, a respondent can be liable for misleading or deceptive conduct (or conduct likely to mislead or deceive) without intending to mislead or deceive: Hornsby Building Information Centre Pty Ltd v Sydney Building Information Centre Ltd [1978] HCA 11; (1978) 140 CLR 216, 228 (Stephen J, Jacobs J agreeing) 234 (Murphy J). There is also no need to prove fault: Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd [1982] HCA 44; (1982) 149 CLR 191, 197 (Gibbs CJ). Nor is there any requirement to prove knowledge of the misleading character of the conduct, nor a lack of good faith. Indeed, where, as in this case, the allegations of misleading or deceptive conduct consist of statements of past or present fact rather than a promise, prediction or opinion, the representor's state of mind is irrelevant to whether the representations were misleading or deceptive or likely to mislead or deceive: Global Sportsman Pty Ltd v Mirror Newspapers Pty Ltd (1984) 2 FCR 82, 88 (the Court).

217 Fourthly, where the conduct in issue consists of an "express representation" which is "demonstrably false", "it is not usually necessary to go beyond that finding" to conclude that it is misleading or deceptive: Conagra Inc v McCain Foods (Aust) Pty Ltd (1992) 33 FCR 302, 380 (French J). Further, as the Full Federal Court said in Global Sportsman Pty Ltd