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 outside Orange network areas in relation to the Current Prepaid Product).

For the avoidance of doubt, the Applicants acknowledge that this undertaking does not apply to the statement “one of the lowest prepaid call rates” if this statement is true and is not otherwise misleading or deceptive.

4. In any advertising or promotion including television, radio, print, website or online material, statements to or interviews with the press in relation to the Current Prepaid Product or the Orange Talk 10, 9CentTalk 18, 9CentTalk 28, 9CentTalk 48, 9CentTalk 88 post paid plans, all of which were launched on or around 1 February 2005 (the Current Plans), the Respondent shall not use the statements:

"9c per 30 seconds" or any statement which specifies a call rate

“flat rate all day, every day”

“all day every day rate”

(the Rate Statements) or statements in substantially similar form without:

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

i)    a 25c flagfall applies (unless the Respondent subsequently does not levy a flagfall in relation to the Current Prepaid Product or the Current Plans); and

ii)   the rate applies only to calls originating from within Orange’s network areas (unless the Respondent subsequently does not levy a roaming surcharge in relation to the Current Prepaid Product or the Current Plans),

b)further indicating that:

i)    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 outside Orange network areas in relation to the Current Prepaid Product or the Current Plans); and

ii)   the rate excludes international calls (other than to UK, USA, NZ and Canada) and some premium Australian numbers OR that the rate applies to calls made to Australian landlines and mobiles OR that the rate applies to standard calls OR that the rate applies to national calls (unless the Respondent subsequently includes all international calls and/or premium Australian numbers in its standard call rate for the Current Prepaid Product or the Current Plans).

THE COURT NOTES THAT:

5. The undertakings referred to in paragraphs 1, 2, 3 and 4 do not apply to:

a)advertisements in the form annexed to these Orders and marked “A” only to the extent that they are published in the Sydney Daily Telegraph and the Melbourne Herald Sun on or before 2 March 2005;

b)advertisements in the form annexed to these Orders and marked “B” only to the extent that they are used in direct marketing campaigns for new and existing customers up to 18 April 2005;

c)advertisements in the form annexed to these Orders and marked “C” only to the extent that they are used as part of a direct marketing campaign to households in Sydney up to 5 March 2005;

d)advertisements in the form annexed to these Orders and marked “D” and “E” only to the extent that they are used as part of a direct marketing campaign to households in Melbourne up to 5 March 2005;

e)brochures in the form annexed to these Orders and marked “F” only to the extent that they are made available to consumers via retail outlets up to 22 April 2005, noting the Respondent will use reasonable endeavours to remove such Brochures prior to that date.

BY CONSENT, THE COURT ORDERS THAT:

6. The Court grants leave to the Applicants to file and serve a Notice of Discontinuance within 2 days of the date of these orders.

7. Order 1 of the orders made by His Honour Justice Hely on 10 February 2005 be vacated.

8. The hearing date of 28 February 2005 be vacated.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

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:	1 MARCH 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicants commenced a proceeding in the Court against the respondent, alleging that the respondent has engaged, or was threatening to engage, in conduct that was in contravention of the Trade Practices Act 1974 (Cth) in that it was misleading and deceptive, or likely to mislead and deceive. The matter was fixed for urgent hearing. However, the parties sensibly reached an accommodation in relation to the proposed relief, and have asked the Court to make orders by consent.

2. The proposed orders include an undertaking to the Court by the respondent that it will not make certain statements or representations unless, in the context in which those statements or representations are made, it can be said that the proposed statement or representation is true and is not misleading or deceptive.  When the proposed orders were presented to me yesterday, I raised with the parties what might possibly be seen to be the undesirable form of the orders.  I raised the possibility that there could be a genuine bona fide dispute as to whether or not, in the context in which a statement or representation was made, it is not true or is misleading or deceptive.  It would be highly undesirable for such a question to be determined on the hearing of a contempt charge for breaching the undertaking to the Court.  I suggested a possible alternative form of the qualification to the undertaking, to the effect that statements or representations would not be made unless the respondent first gave an affixed period of notice to the applicants of its intention to do so.

3. However, I am satisfied, from assurances given by the solicitor for the respondent and the solicitor for the applicants that the parties are mindful of the difficulty that I raised.  I am mindful of the fact that both applicants are substantial and apparently responsible commercial entities and that both are advised by very experienced and competent lawyers.  In the circumstances, I consider that it is appropriate to accept the undertakings that are proffered on behalf of the respondent.

I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated:             30 August 2005

Solicitors for the Applicant:	Freehills
Solicitors for the Respondent:	Allens Arthur Robinson
Date of Hearing:	1 March 2005
Date of Judgment:	1 March 2005