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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:
In a case based on misleading conduct directed against identified individuals, and the person alleged to have been misled is not induced by the conduct in question to act or refrain from acting, there is no "erroneous assumption" in the sense required to establish misleading or deceptive conduct. The absence of an erroneous assumption is fatal to the cause of action based on misleading conduct. That is so irrespective of whether that absence is regarded as a failure to prove that the conduct is misleading or as a failure to prove causation.
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]:
At its widest, if the representor reasonably believed that the individuals knew the truth and the individuals did know the truth, it would be difficult to find that making the representation was misleading or deceptive or likely to mislead or deceive.
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.
