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212 First, the process of characterising whether conduct addressed to the public at large is misleading or deceptive or likely to mislead or deceive generally requires consideration of whether "the impugned conduct viewed as a whole has a tendency to lead a person into error" (emphasis added): Campbell v Backoffice Investments Pty Ltd [2009] HCA 25; (2009) 238 CLR 304, 319 [25] (French CJ). This is assessed objectively. Although evidence that a particular person has been misled or deceived might be taken into account, that evidence is not necessary nor is it always sufficient. The objective characterisation also means that conduct which is only misleading for a temporary period might still amount to misleading or deceptive conduct when viewed as a whole. Further, it is unnecessary to establish that any actual or potential consumer has taken or is likely to take any positive step in consequence of the misleading or deception.
213 The need for objective assessment of the conduct in light of all circumstances, and as a whole, was emphasised by Gummow, Hayne, Heydon and Kiefel in Campbell v Backoffice Investments Pty Ltd [2009] HCA 25; (2009) 238 CLR 304, by reference to Butcher v Lachlan Elder Realty Pty Ltd [2004] HCA 60; (2004) 218 CLR 592, 625 [109] (McHugh J) (footnotes omitted):
The question whether conduct is misleading or deceptive or is likely to mislead or deceive is a question of fact. In determining whether a contravention of s 52 has occurred, the task of the court is to examine the relevant course of conduct as a whole. It is determined by reference to the alleged conduct in the light of the relevant surrounding facts and circumstances. It is an objective question that the court must determine for itself. It invites error to look at isolated parts of the corporation's conduct. The effect of any relevant statements or actions or any silence or inaction occurring in the context of a single course of conduct must be deduced from the whole course of conduct. Thus, where the alleged contravention of s 52 relates primarily to a document, the effect of the document must be examined in the context of the evidence as a whole. The court is not confined to examining the document in isolation. It must have regard to all the conduct of the corporation in relation to the document including the preparation and distribution of the document and any statement, action, silence or inaction in connection with the document.
214 One consequence of the need to consider the conduct in light of all relevant circumstances is that any allegedly misleading representation must be read together with any qualifications and corrections to that statement. Hence, although a qualification to a statement might be effective to neutralise an otherwise misleading representation, this might not always be so, particularly if the misleading representation is prominent but the qualification (often linked to the representation by an asterisk) is not: Medical Benefits Fund of Australia Limited v Cassidy [2003] FCAFC 289; (2003) 135 FCR 1, 17 [37] (Stone J). As Keane JA expressed
