Telstra and Optus have continued their legal stoush, with the latter seeking damages over an advertising campaign that the Federal Court had previously ruled could mislead consumers.
The Australian Federal Court on Friday heard that Optus is seeking compensation for the customers it had potentially lost as a result of the business Telstra has won thanks to its billboard and online ads that state, "One word from Australia's best mobile network: Unlimited".
Optus wants access to Telstra's business records to determine how many customers its "unlimited" campaign caused the former to loose.
Declan Roche, representing Optus, told Justice Gleeson that it is hard to garner an exact figure of the number of customers his client had lost as a result of Telstra's campaign, as it isn't just those that have switched carriers to Telstra, but that Optus "also lost the opportunity to compete for customers as a result of this campaign".
The Federal Court had granted an injunction preventing Telstra from continuing its "unlimited" mobile advertisements in May, after finding they constitute misleading and deceptive conduct.
According to Gleeson J, Telstra's advertisements "falsely convey the representation" that the telco offers a mobile product with no limits on data speeds, data volumes, and the ability to download data without interruption or delay, misleading the public on the nature and characteristics of mobile products including the geographical reach of its network.
This is in contravention of both Australian Consumer Law and the Competition and Consumer Act, Gleeson J said at the time.
Anthony McGrath SC, representing Telstra, said he is unsure what the categories of discovery proposed by Optus will be, but that they involve a "very significant" number of records.
"We're talking about records that may be kept across Australia," he said.
It was decided on Friday that Optus will be given until June 20 for serving the categories of discovery on Telstra, with Gleeson J setting the case management hearing for June 28.
The telcos will need to wait until the second half of July for the hearing of application for the discovery, unless both parties are prepared by June 28.
Telstra's "unlimited" ads were the subject of a hearing in May.
Optus counsel Richard Lancaster SC had argued that Telstra's usage of the word "unlimited" is misleading, because ordinary consumers would be likely to think unlimited applies to characteristics across data speed, data volume, geographical reach, and availability across devices.
"Unlimited is a powerful word," Lancaster said, adding that Telstra's ads cause "a misleading impression intentionally created to draw consumers into the marketing web" and are "misleading and false".
"Its lack of specificity is in fact a huge part of the problem, because it invites consumers to think about what is important to them about a mobile network ... and telling them those are unlimited."
PREVIOUS AND RELATED COVERAGE
Telstra's 'unlimited' mobile network advertising campaign has been found to be misleading and deceptive conduct under a Federal Court decision, with an injunction preventing it from continuing the ads.
Optus argued in court that consumers could assume Telstra's 'unlimited' mobile network ads refer to unlimited network coverage and unthrottled data speeds; Telstra argued the industry is 'awash' with unlimited advertising.
Telstra has gained an interlocutory injunction against Optus' potentially misleading ads that claim it operates Australia's best mobile network.