Voicemail, standard calls at stake in Vodafone defence

Optus legal counsel urges television ads run by its competitor failed to provide sufficient footnotes on the plan's exclusions

Numerous exclusions to the unlimited calls advertised as part of Vodafone’s “Infinite” plans raises questions of whether customers are being misled, the Federal Court heard this week.

The allegations came as Optus ramped up its case against Vodafone parent company, Vodafone Hutchison Australia (VHA), with the former telco arguing print and television ads run by Vodafone since mid-November failed to properly notify customers of what was included in the plans.

Legal counsel for Optus argued that the plans did not include “reasonable” standard calls including voicemail, satellite phones. Two television advertisements in particular were called in to question as they did not provide sufficient footnoting.

“We accept that... in print ads people are more likely to direct their attention to what the exclusions mean,” Optus’ legal counsel argued.

Optus has sought an interim injunction on the advertising, which is managed and aired by Vodafone Pty Ltd, rather than VHA.

VHA submitted its draft defence ahead of the second directions hearing with presiding judge, Justice Arthur Emmett, this week. The telco is expected to argue a case of what is considered “standard” by a reasonable consumer, a word used to describe the type of international calls included in the plan.

It will also utilise an unredacted version of Optus market research original brought before Justice Nye Perram in a similar case brought against the telco by industry watchdog the Australian Competition and Consumer Commission (ACCC). The research will, according to VHA counsel, provide evidence of the processes customers may go through when choosing a mobile phone plan beyond basic advertising.

Though aspects of the research were redacted to protect confidential numbers and percentages for the company, a unclassified version will be presented directly to VHA solicitors ahead of a further hearing on Thursday 16 December.

Optus petitioned for the case to face an urgent hearing in order to prevent further advertising in the coming weeks.

“One can expect that there will be very significant advertising, particularly over the weekend,” counsel argued, due to Vodafone’s sponsorship of the Ashes cricket series.

However, VHA argued its competitor had failed to act quickly enough on the advertising. The letter of demand delivered by Optus to the respondent on 6 December stated the telco had become aware of the allegedly misleading advertising on the 25 November - two weeks after the ads first aired - with no action taken until three weeks after Vodafone had cemented its schedule.

Justice Emmett agreed with VHA counsel, asking Optus whether it had been “a little bit dilatory in getting there”.

VHA stated in a letter of response to Optus that it may consider making some changes to the advertising in question, but the “heavy schedule” of ads planned since November would make such a request difficult to follow through with.

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James Hutchinson

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