Page:Australian Competition and Consumer Commission v Valve Corporation (No 3).pdf/66

 221 The High Court concluded that the representations, in the context they had been made and to the audience that they were addressed, did not convey "a lawyer's question" about "what could or would happen in a court if the parties to the agreement fell out at some future time" such as relief that the court might grant. In the circumstances including the intended audience they did not convey a meaning that "the agreements the parties had made were not open to legal challenge in an Australian court". Rather, they conveyed "a statement of what the parties to the agreements understood that they had done and intended would happen in the future" (604 [37], 606 [43]).

222 Senior counsel for Valve submitted that the "caution" that emerges from the Forrest decision is that before a conclusion is reached that representations have been made about legal rights, "one really has to look at the context of what is said very closely" (ts 222). That can be readily accepted in a context such as that in which the representations in Forrest were made, by letters and media releases. The submission has less cogency when the representations are contained in a contract. Since "engaging in conduct" includes the "the making of, or the giving effect to a provision of, a contract or arrangement", representations contained within a contract are capable of being misleading or deceptive conduct: see Competition and Consumer Act s 2(2). Indeed, a contractual provision can constitute misleading conduct even towards persons who are not party to the contract. In Accounting Systems 2000 (Developments) Pty Ltd v CCH Australia (1993) 42 FCR 470, 506, Lockhart and Gummow JJ said that it is "no objection to relief [under provisions for breach of the equivalent of s 18(1)] that the misleading conduct is found in the making of a contractual provision, and the complainant does not have contractual privity with the defendant".

223 Seventhly, it is possible (and I put it no higher than that) that conduct can be likely to mislead even if it is directed towards a single person who is not misled. The opposite conclusion is sometimes thought to derive from the decision in Taco Company of Australia Inc v Taco Bell Pty Ltd [1982] FCA 136; (1982) 42 ALR 177, 197-199. In that case, the Full Court of the Federal Court observed that "no conduct can mislead or deceive unless the representee labours under some erroneous assumption" (200). Importantly, their Honours spoke only of conduct which "can mislead or deceive" rather than conduct which is likely to mislead or deceive. They continued, saying that the

nature of the erroneous assumption which must be made before conduct can mislead or deceive will be a relevant, and sometimes decisive, factor in determining the factual question whether conduct should be characterised as misleading or deceptive