Vodafone Pty Limited ABN 76 062 954 554 v Hutchison Telecommunications (Australia) Pty Limited ABN 15 003 677 227

[2005] FCA 1180

FEDERAL COURT OF AUSTRALIA

Vodafone Pty Limited ABN 76 062 954 554 v Hutchison Telecommunications (Australia) Pty Limited ABN 15 003 677 227 [2005] FCA 1180

VODAPHONE PTY LIMITED ABN 76 062 954 554 & ANOR v HUTCHISON TELECOMMUNICATIONS (AUSTRALIA) PTY LIMITED ABN 15 003 677 227

NSD 178 OF 2005

EMMETT J

1 MARCH 2005

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD178 OF 2005

BETWEEN:

VODAFONE PTY LIMITED ABN 76 062 954 554
FIRST APPLICANT

VODAFONE NETWORK PTY LIMITED ABN 31 081 918 461
SECOND APPLICANT

AND:

HUTCHISON TELECOMMUNICATIONS (AUSTRALIA) PTY LIMITED ABN 15 003 677 227
RESPONDENT

JUDGE:

EMMETT J

DATE OF ORDER:

1 MARCH 2005

WHERE MADE:

SYDNEY

BY CONSENT AND WITHOUT ADMISSIONS, THE RESPONDENT UNDERTAKES TO THE COURT THAT:

1. Unless in the context in which the question, statement or representation is made, the question, statement or representation is true and is not misleading or deceptive, the Respondent shall not use the following questions, statements or representations, or questions, statements or representations in substantially similar form in the course of any advertising or promotion including television, radio, print, website or online material, statements to or interviews with the press concerning its 9c / 30 seconds Orange Prepaid product which was launched on or around 1 February 2005 (the Current Prepaid Product):

a)that the Current Prepaid Product is “70% cheaper than Vodafone Night-Talker Prepay”;

b)that the Current Prepaid Product is 70% cheaper than Vodafone;

c)that “Vodafone Night Talker Prepay is 70% more” than the Current Prepaid Product;

d)that Vodafone is 70% more expensive than the Current Prepaid Product; and

e)the question "why pay 50% more for prepaid calls?"

2. The Respondent will not publish the report by PhoneChoice.com.au Pty Limited dated January 2005 entitled “Orange Prepaid Call Rates Key Findings” (the PhoneChoice Report) or use any representation referring to or relating to the PhoneChoice Report in the course of any advertising or promotion including television, radio, print, website or online material, statements to or interviews with the press concerning its products.

3. The Respondent shall not use the statement "lowest prepaid call rate" in the course of any advertising or promotion of the Current Prepaid Product including television, radio, print, website or online material, statements to or interviews with the press without:

a)indicating with sufficient prominence in the main body of any material and in proximity to the statement that:

i)the Current Prepaid Product rate applies only to calls originating from within Orange’s network areas (unless the Respondent subsequently reduces the roaming surcharge in relation to the Current Prepaid Product so that no such qualification is required); and

ii)in order to determine the best mobile phone product for their needs, consumers should compare the Current Prepaid Product against all aspects of the prepaid products offered by other network providers.

b)further indicating that outside Orange’s network areas a specified roaming surcharge or specified different call rate applies (unless the Respondent subsequently does not levy a roaming surcharge or charge a different call rate…