Vodafone plans to use Optus' own confidential market research evidence against it in a lawsuit over Vodafone's "infinite" mobile phone plan advertisements.
Optus has taken its rival Vodafone to court over television and print advertisements that it believes are misleading to consumers. In Optus' Statement of Claim, obtained by ZDNet Australia, the telco claims the ads do not make it clear enough that infinite calls do not include calls to satellite phones, voicemail on some plans, calls to 1800 and 13 numbers, re-routed calls or calls made from overseas. Optus has also voiced similar concerns with the infinite text and social network claims made in the advertisements.
Vodafone has argued that consumers are educated and know about the conditions in mobile phone plans and has now requested that Optus produce market research it had conducted showing that consumers did research before signing onto broadband plans and did not rely on advertising alone.
Optus had unsuccessfully used the research as evidence in a similar case brought against it by the Australian Competition and Consumer Commission over its "Supersonic" and "Think Bigger" plans.
After the court ruled against Optus, the telco, the ACCC and the court had agreed to keep the documents confidential.
Vodafone requested the material in lieu of producing its own research material because Optus is seeking a speedy hearing. Justice Arthur Emmett agreed that the evidence would be useful for that reason.
"You're asking for a very urgent hearing and this material does seem to be relevant," Justice Emmett told the Optus legal team. "The penalty might be that you have to make this material available at least to counsel and solicitors."
Although Optus' legal team was initially reluctant to hand over the "highly confidential" material used in the ACCC case, the telco ultimately agreed to hand over an unredacted version of the material to Vodafone's solicitors and counsel on the provision that confidentiality agreements are signed to ensure the privacy of the material.
Vodafone is seeking an extra day before the case goes to trial, telling Justice Emmett that, should an injunction be taken out for the advertisements, replacement advertisements would have to be organised in the interim.
The case is expected to return to court tomorrow and Optus is seeking to have an injunction placed on the "infinite" advertisements before the weekend. Optus' legal team stressed that Vodafone had launched a "very heavy" advertising campaign for the plans and that the telco's sponsorship of the cricket would see more advertising played over the weekend.
The case was originally brought against Vodafone Hutchison Australia Ltd; however, the advertisements were produced by Vodafone Pty Ltd. Optus said it would adjust this and there would not need to be any delay in bringing the case to trial.