TPG
Telecom
and
Optus
are
at
odds
over
the
extent
to
which
confidential
information
the
ACCC
used
to
deny
a
spectrum
and
network
sharing
deal
between
Telstra
and
TPG
can
be
tested
as
part
of
a
review.
The
ACCC’s
December
decision
to
deny
the
Telstra-TPG
deal
is
partially
based
on
“internal
documents
and
sworn
evidence”
from
Optus
and
its
parent
Singtel,
which
was
“sufficiently
credible
for
the
ACCC
to
attach
weight
to.”
Due
to
its
nature
and
source,
none
of
that
evidence
was
made
public
by
the
ACCC.
But
with
a
Competition
Tribunal
review
of
the
ACCC’s
decision
now
underway,
there
is
a
clear
stalemate
over
how
this
information
from
Optus
and
Singtel
can
and
should
be
treated.
TPG
Telecom
argues
it
should
have
access
to
the
material
and
the
opportunity
to
test
–
and
potentially
refute
–
it.
The
extent
to
which
refuting
it
is
allowable
is
undetermined.
“TPG
(including
its
legal
advisors)
did
not
have
an
opportunity
to
review
or
comment
upon
some
of
the
material
the
ACCC
relied
upon
in
making
its
determination,
including
portions
of
the
evidence
and
submissions
submitted
by
Singtel
Optus,”
TPG
said.
[pdf]
“It
appears
that
the
ACCC
placed
significant
weight
on
some
of
that
material.
“In
those
circumstances,
TPG
may
seek
to
adduce
new
information,
documents
or
evidence
in
response
to
that
material.
“That
is
a
matter
that
cannot
be
determined
until
TPG
and
its
legal
advisers
have
received
all
of
that
material
in
unredacted
form
and
had
an
opportunity
to
consider
it.”
TPG
said
it
had
been
given
a
“tranche”
of
materials
on
January
25.
TPG
also
said
the
ACCC
relied
on
witness
statements,
examinations
and
interviews
with
Optus
and
Singtel
personnel,
which
again
it
could
not
dispute.
“It
may
be
appropriate
for
the
Tribunal
to
provide
for
a
limited
number
of
witnesses
to
be
called
and
questioned
in
the
proceedings,
so
that
the
Tribunal
is
able
to
assess
the
weight
to
be
given
to
that
evidence,”
TPG’s
lawyers
argued.
In
a
countering
submission
[pdf],
Optus
argues
the
Tribunal
should
refuse
TPG’s
demands.
“It
appears
that
Telstra
and
TPG
contemplate
that
they
should
have
a
broad
opportunity
to
adduce
additional
evidence
(including
presumably
expert
evidence)
and
cross-examine
Optus
witnesses,
on
the
asserted
footing
that
the
treatment
by
the
ACCC
of
certain
confidential
information
meant
that
some
matters
relied
upon
by
the
ACCC
were
not
known
to
Telstra
and
TPG
previously,”
Optus
said.
“That
approach
should
not
be
accepted.”
Optus
argued
the
material
should
remain
confidential.
It
also
said
that
Telstra
or
TPG
should
not
be
allowed
to
access
the
material
in
order
to
produce
“fresh
rounds
of
evidence”.
Optus
was
also
against
allowing
cross-examination
of
its
personnel.
“That
is
not
to
say
that
there
could
not
be
some
legitimate
scope
for
an
application
to
adduce
‘new’
evidence,”
Optus
added.
“It
is
merely
to
observe
that
the
Tribunal
should
be
cautious
about
proceeding
on
the
footing
that
there
would
be
broad
scope
for
new
affidavits,
new
expert
reports
and
cross-examination,
in
the
course
of
the
present
proceedings.”
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