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(above), it is not merely an express false representation that will generally be contravening conduct. There can also be a contravention by "a statement which is literally true [but] may contain or convey a meaning which is false".
218 Fifthly, representations to the public must be considered by reference to the class of customers likely to be affected by the conduct: Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191, 202 (Mason J). It is necessary to isolate by some criterion a representative, reasonable, member of that class and the effect of the conduct must be tested against that representative member: Campomar Sociedad Limitada v Nike International Ltd [2000] HCA 12; (2000) 202 CLR 45, 85 [103] (the Court).
219 Plainly, this approach does not apply where the conduct is directed to a single person. In that circumstance, attention must be directed to the relationship between the two persons, the context in which the statement is made, the reasonably known characteristics of the recipient of the statement, and the effect on a reasonable person in the position of the recipient of the statement. In the context of discussing a required causal link in cases where a representation was made to an individual, Gleeson CJ said in Butcher v Lachlan Elder Realty Pty Ltd [2004] HCA 60; (2004) 218 CLR 592, 604 [37]
it is necessary to consider the character of the particular conduct of the particular agent in relation to the particular purchasers, bearing in mind what matters of fact each knew about the other as a result of the nature of their dealings and the conversations between them, or which each may be taken to have known.
220 Sixthly, an incorrect statement of the law can constitute misleading and deceptive conduct. In Forrest v Australian Securities and Investments Commission [2012] HCA 39; (2012) 247 CLR 486, the High Court considered the effect of representations by letters to the Australian Stock Exchange Ltd and media releases, including that a company "has entered into a binding contract". In the joint judgment of French CJ, Gummow, Hayne and Kiefel JJ, their Honours considered, as one possibility, that the representations "conveyed some message about 'legal enforceability'" (603 [32]). Their Honours said that although it was to be doubted whether the statements were statements of "fact", (603 [33])
it is ultimately unprofitable to attempt to classify the statement according to some taxonomy, no matter whether that taxonomy adopts as its relevant classes fact and opinion, fact and law, or some mixture of these classes. It is necessary instead to examine more closely and identify more precisely what it is that the impugned statements conveyed to their audience.
