The ACCC’s decision to block Telstra and TPG’s networking sharing deal was based on confidential information provided by Optus, which TPG now wants access to.

The telco argues it should have the chance to review, and possibly refute, the “internal documents and sworn evidence” at the centre of the decision, which were not made public.

With the evidence deemed “sufficiently credible for the ACCC to attach weight to”, and the Competition Tribunal reviewing this decision, TPG argues it should have access to all the information used in the decision, in order to mount its appeal.

“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.

“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.”

Optus, not surprisingly, argues against this consideration.

“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.”