Page:Australian Competition and Consumer Commission v Valve Corporation (No 3).pdf/67



or likely to mislead or deceive.

224 These observations were taken further by Ipp JA in Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Markets Ltd [2008] NSWCA 206 [610], although in the context also of considering the different question of "indirect causation" (as to which see, more recently, Caason Investments Pty Ltd v Cao (No 2) [2015] FCAFC 192). In Ingot Capital, Ipp JA said:

225 The other members of the Court of Appeal in Ingot Capital, although agreeing generally with Ipp JA, did not express agreement on this point. Justice Hodgson reserved his opinion on this point. And in a separate judgment, Giles JA said at [43]:

226 His Honour considered (at [44]) that there may be misleading conduct (or, more strictly, conduct likely to mislead the individual) even if the individual was not in fact misled.

227 In this case, Valve did not seek to rely upon a proposition that conduct directed to an individual could never be misleading unless the individual was misled. I am therefore content to proceed on the same basis as Giles JA. As a matter of abstract concept I consider it to be correct. Conduct is not misleading merely because the person to whom it was directed was actually misled. Similarly, conduct does not lose the character of being likely to mislead merely because the person to whom it was directed was not actually misled.

228 Although there is a possibility that conduct towards an individual might be misleading even though that individual was not misled, this notion requires, at the least, some abstraction from the individual. The further that abstraction from the individual the more surreal will be the submission that conduct might be likely to mislead when it did not actually mislead. For instance, in what respect was the knowledge or response of the individual beyond that which a reasonable person in that individual's circumstances? What characteristics held by that individual would have been unexpected so that the representation was likely to mislead even though the individual was not misled. These matters were not addressed in this case.