ACCC v Mastercard Suppression Order Application Judgment 2026 FCA 431

Original Word Document (96.5 KB) Federal Court of Australia

Australian Competition and Consumer Commission v Mastercard Asia/Pacific Pte Ltd (Suppression No 1) [2026] FCA 431

| File number: | NSD 401 of 2022 |

| Judgment of: | WIGNEY J |

| Date of judgment: | 14 April 2026 |

| Catchwords: | PRACTICE AND PROCEDURE – whether pre-trial suppression and non-publication orders in respect of documents and information to be adduced at trial should be made pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth) – whether suppression of confidential commercial information is necessary to prevent prejudice to the proper administration of justice – principles of open justice considered – suppression and non-publication orders made with respect to limited information highlighted in opening submissions and pleadings |

| Legislation: | Australian Broadcasting Commission v Parish (1980) 43 FLR 129; [1980] FCA 33

Australian Competition and Consumer v Cement Australia Pty Ltd (No 2) [2010] FCA 1082

Australian Competition and Consumer Commission v Air New Zealand Ltd (No 3) [2012] FCA 1430

Australian Competition and Consumer Commission v Mastercard Asia/Pacific Pte Ltd [2024] FCA 999

Australian Competition and Consumer Commission v Mastercard Asia/Pacific Pte Ltd (No 3) [2025] FCA 1043

Australian Competition and Consumer Commission v Origin Energy Electricity Ltd [2015] FCA 278

Australian Competition and Consumer Commission v Singtel Optus Pty Ltd (No 4) [2011] FCA 761

Australian Competition and Consumer Commission v Valve Corporation (No 5) [2016] FCA 741

Computer Interchange Pty Ltd v Microsoft Corp [1999] FCA 198

Country Care Group Pty Ltd v Director of Public Prosecutions (Cth) (No 2) (2020) 275 FCR 377; [2020] FCAFC 44

Cyclopet Pty Ltd v Australian Nuclear Science and Technology Org [2012] FCA 1326

Giddings v Australian Information Commissioner [2017] FCAFC 225

Lee v Deputy Commissioner of Taxation (2023) 296 FCR 272; [2023] FCAFC 22

Motorola Solutions Inc v Hytera Communications Corporation Ltd (No 2) [2018] FCA 17

Pigozzo v Mineral Resources Ltd (No 3) [2025] FCA 1142

Rinehart v Welker (2011) 93 NSWLR 311; [2011] NSWCA 403

Russell v Russell (1976) 134 CLR 495; [1976] HCA 23

Saw v Seven Network (Operations) Ltd (2024) 305 FCR 340; [2024] FCA 1210

Tech Mahindra Ltd v Federal Commissioner of Taxation (No 2) [2016] FCAFC 136

Telstra Corporation Ltd v NBN Co Ltd [2014] NSWSC 940 |

| Cases cited: | Competition and Consumer Act 2010 (Cth) ss 45, 46, 47

Federal Court of Australia Act 1976 (Cth) ss 37AE, 37AF, 37AG, 37AI

Trade Practices Act 1974 (Cth) ss 45, 46, 47

Federal Court Rules 2011 (Cth) |

| Division: | General Division |

| Registry: | New South Wales |

| National Practice Area: | Commercial and Corporations |

| Sub-area: | Economic Regulator, Competition and Access |

| Number of paragraphs: | 63 |

| Date of hearing: | 11-12 December 2025 |

| Counsel for the Applicant: | Mr J Arnott SC with Ms S Crosbie |

| Solicitor for the Applicant: | Johnson Winter Slattery |

| Counsel for the Respondents: | Mr C Bannan with Ms T Epstein and Mr M Gvozdenovic |

| Solicitor for the Respondents: | Baker McKenzie |

| Counsel for the Interested Third Party, American Express Australia Limited: | Ms L Hulmes |

| Counsel for the Interested Third Party, Eftpos Payments Australia Limited: | Mr P Strickland |

| Counsel for the Interested Third Party, Visa AP (Australia) Pty Ltd: | Mr D Healey |

| Counsel for the Interested Third Party, Aldi Stores (a Limited Partnership): | Mr T Thompson |

| Counsel for the Interested Third Party, Australian Postal Corporation: | Mr M Sherman |

| Counsel for the Interested Third Party, Coles Group Limited: | Mr K Sharma |

| Counsel for the Interested Third Party, Costco Wholesale Australia Pty Ltd: | Mr R Davies |

| Counsel for the Interested Third Party, Domino’s Enterprises Ltd: | Ms C Hamilton-Jewell |

| Counsel for the Interested Third Party, McDonald’s Australia Limited: | Ms E Doyle-Markwick |

| Counsel for the Interested Third Party, Woolworths Group Limited: | Ms R Mansted |

| Counsel for the Interested Third Party, Commonwealth Bank of Australia: | Ms J Buncle |

| Counsel for the Interested Third Party, Latitude Finance Australia: | Mr H Atkin |

| Counsel for the Interested Third Party, National Australia Bank Limited: | Mr D Wong |

| Counsel for the Interested Third Party, Westpac Banking Corporation: | Ms A Smith |
ORDERS

| NSD 401 of 2022 |

| BETWEEN: | AUSTRALIAN COMPETITION AND CONSUMER COMMISSION

Applicant | |
| AND: | MASTERCARD ASIA/PACIFIC PTE LTD

First Respondent

MASTERCARD ASIA/PACIFIC (AUSTRALIA) PTY LTD

Second Respondent | |

| order made by: | WIGNEY J |
| DATE OF ORDER: | 14 april 2026 |
THE COURT ORDERS THAT:

1. The parties are to confer and provide the Court with agreed short minutes of order to give effect to this judgment.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

WIGNEY J:

1 The Australian Competition and Consumer Commission (ACCC) commenced this proceeding alleging that Mastercard Asia/Pacific Pte Ltd and Mastercard Asia/Pacific (Australia) Pty Ltd (collectively Mastercard) contravened, or were involved in contraventions of, ss 45(1), 46(1) and 47(1) of the Competition and Consumer Act 2010 (Cth). Mastercard denies the ACCC’s allegations and is defending the proceeding. The trial, which is expected to run for eight weeks, has now commenced. Further explanation and details concerning the proceeding may be found in earlier interlocutory decisions: see Australian Competition and Consumer Commission v Mastercard Asia/Pacific Pte Ltd [2024] FCA 999; Australian Competition and Consumer Commission v Mastercard Asia/Pacific Pte Ltd (No 3) [2025] FCA 1043.

2 There has been an ongoing issue between the parties to the proceeding and several third parties, mainly companies who produced documents to the ACCC during its investigation, concerning the commercial confidentiality of information that is expected to be aired, and documents that are expected to be tendered, during the trial. Interim suppression and non-publication orders in respect of certain documents have been made pursuant to s 37AI of the Federal Court of Australia Act 1976 (Cth) (FCA Act) and various orders have been made in respect of an agreed confidentiality regime between the parties.

3 Eventually, Mastercard and 14 third parties, who will be referred to collectively as the suppression applicants, filed interlocutory applications seeking final suppression and non-publication orders in respect of certain information pursuant to s 37AF of the FCA Act on the ground that such orders were necessary to prevent prejudice to the proper administration of justice: see s 37AG(1)(a) of the FCA Act (the suppression applications or suppression claims). The suppression and non-publication orders sought by the suppression applicants were not couched in terms of specific documents or specific information in any identified documents. Rather, the suppression claims were made in respect of several categories of information that was said to be disclosed in documents that the ACCC and Mastercard were likely to tender during the trial. For example, Mastercard’s suppression claims included claims in respect of any information concerning the terms of strategic merchant agreements that dealt with various matters, such as reinvestment requirements or incentives (suppression claims were also made in respect of some of the descriptions of the categories of information) and any information in respect of scheme pricing and the analysis of scheme pricing. The categories of information specified by Mastercard and the suppression applicants were not the same, but were in some respects similar and, in some cases, overlapped. Many of the categories were expressed in very broad terms.

4 The interlocutory applications were heard over two days in December 2025. Mastercard and the suppression applicants relied on lengthy affidavit and documentary evidence in support of their applications. The documentary exhibits to the affidavits, most of which were themselves the subject of suppression applications, contained over 12,000 pages of documents. The evidence of the deponents of the affidavits was, in very broad terms, to the general effect that the information in question was commercially sensitive confidential information and that its disclosure would cause the respective companies to suffer commercial or competitive disadvantage, or prejudice because it could be exploited by competitors and commercial counterparties in ongoing business and negotiations. It should perhaps be reiterated in this context that the categories of information are in many instances expressed in very broad terms and the information that would fall within many of the categories was, for the most part, information concerning historical commercial facts and circumstances. It mostly concerned events, facts and circumstances that occurred or existed during the period November 2017 to November 2020.

5 During the hearing of the interlocutory applications I expressed considerable concern and disquiet about whether it was possible to determine the applications pre-trial. Those concerns arose primarily from the fact that it was unclear from the material that had been filed exactly what documents, and what information in what documents, would or might be impacted by the proposed suppression and non-publication orders. In most instances it was not possible to determine whether the information in question, or parts of it, would feature prominently or at all in the ACCC’s case at trial. It was therefore impossible to determine exactly how the conduct of the trial in open court might be impacted by the orders if made.

6 It is important to emphasise in this context, however, that the ACCC did not take an entirely neutral stance in respect of the suppression and non-publication applications and had identified some categories of information in respect of which it did not oppose the making of orders, and some categories of information in respect of which it did oppose the making of orders, in whole or in part. The information in respect of which the applications for suppression orders was opposed by the ACCC, in broad terms, was information which the ACCC considered to be central or at least important to its case but which was, in the ACCC’s submission, commercially stale as it involved events, facts or circumstances which occurred or existed over five years ago – indeed, in many instances, well over five years ago. Conversely, the information in respect of which the ACCC did not oppose the making of suppression orders tended to be information which the ACCC considered was unlikely to feature in its case, even though it appeared in documents it proposed to tender. That information also included more granular or detailed commercial data or strategic analysis that the ACCC accepted might have some ongoing commercial significance despite its age.

7 The fact that one party does not oppose an application for suppression and non-publication orders by another party does not mean that the Court is relieved of the task of ensuring that the grounds for the making of the orders have been made out. In this case, however, I am satisfied that the ACCC has carefully considered and analysed the suppression claims made by Mastercard and the suppression applicants. In those circumstances, and given the enormity of the task involved in analysing all the suppression claims, I will generally accept the ACCC’s assessment that the grounds for making suppression and non-publication orders have been made out in respect of certain specified categories of information. That will enable me to focus on the information and categories of information in respect of which the ACCC opposes the making of orders. It nevertheless remains necessary to identify exactly what information in what documents falls within those categories of information in respect of which the ACCC does not oppose the making of orders.

8 Following the hearing of the interlocutory applications in December 2025, and given my ongoing concerns about the difficulty and complexity of determining the various applications for suppression and non-publication orders, I directed the parties to provide the Court with schedules that provided further information that would assist me in considering and determining the suppression applications. That information included further information in respect of the specific documents, or parts thereof, that would be impacted by the proposed orders and the ACCC’s position in respect of the suppression of that material, including whether the ACCC considered that the suppression applications in respect of those documents or the information in them could properly be determined pre-trial. Those schedules were provided to the Court in mid-February 2026. They are highly detailed and, while they undoubtedly provide some assistance in determining whether suppression and non-publication orders should be made in respect of the various categories of information, they also highlight the extreme difficulty and complexity involved in that task. The schedule which summarised the categories of information which were the subject of Mastercard’s suppression application was almost 60 pages long and provided pinpoint references to information in scores of documents that were said to provide examples of the information covered by the categories of information. Similar lengthy schedules were provided in respect of the claims by the suppression applicants.

9 My concern about the capacity and ability of the Court to properly determine whether suppression and non-publication orders should be made in respect of the broad categories of information identified by Mastercard and the suppression applicants was heightened in even more recent times when Mastercard had the matter relisted for a further case management hearing concerning the suppression applications. Mastercard had the matter relisted because it had formed the view that it would be effectively impossible for its very large team of lawyers to provide the Court, prior to the commencement of the trial, with marked-up copies of all the documents in the joint tender bundle which identified the parts of the documents which were the subject of suppression and non-publication applications. Mastercard filed a lengthy and detailed affidavit which sought to explain why that was so.

10 It was at this point that I was first able to ascertain that the impacts of the proposed suppression and non-publication orders, if made, would include that large sections of the affidavits filed by Mastercard would need to be redacted. That also indicated that the orders, if made, would almost inevitably mean that parts of the trial would have to be conducted in closed court. Mastercard indicated that it had taken paralegals, solicitors and junior council a combined total of over 100 hours to review the affidavits to identify information in them that would be covered by the proposed suppression and non-publication orders.

11 Having heard further from Mastercard and the ACCC about the approach that I should take in determining the suppression and non-publication order applications, I decided that I would not determine the suppression and non-publication order applications, including those made by the suppression applicants, in a global fashion pre-trial. That is because I formed the view that it was simply not possible or prudent for me to determine the applications in the abstract, by reference to broad categories of information, without any clear indication of exactly what information in what documents would be covered by the categories of information that were the subject of the suppression applications. Perhaps more importantly, if I determined the applications pre-trial, in most instances I would not have any clear indication of the importance of the subject information to the ACCC’s case and Mastercard’s defence and the impact that the suppression orders would have on the efficient conduct of the trial in open court. It was my view, and remains my view, that it is simply not possible to determine if the suppression of certain types of information is necessary to prevent prejudice to the proper administration of justice without knowing exactly what information would be suppressed and the importance of that information to the resolution of the factual and legal issues in the proceeding.

12 I advised the parties that I would consider and give rulings in respect of suppression and non-publication order applications in respect of specific information in specific documents as the trial progressed and as specific documents were tendered or referred to in the evidence of witnesses. It would be a matter for the parties to confer and identify the documents that would be tendered, or the information that would otherwise be aired in evidence or submissions each day in respect of which there were outstanding suppression and non-publication applications. I would then give rulings in respect of those documents or that information.

13 The first stage of the proceeding is the opening addresses by the ACCC and Mastercard. Both the ACCC and Mastercard have prepared detailed written opening submissions. I indicated to the parties that I would give rulings in respect of any suppression applications concerning information referred to in the written submissions. I have recently been provided with copies of the parties’ opening submissions that have been highlighted to identify the information which is the subject of outstanding suppression and non-publication applications. The parties have also more recently provided the Court with copies of the Further Amended Statement of Claim and Defence which have again been highlighted to identify the information which is the subject of outstanding suppression or non-publication applications.

14 This brief judgment addresses the applications in relation to that information. I do not intend to give reasons in respect of all the rulings I make during the trial in respect of particular information or documents unless specifically requested to do so. These reasons will provide guidance as to the principles that I have applied, and will apply, in determining all the outstanding suppression and non-publication order applications.

15 For the reasons that follow, I have determined that, with the exception of information in respect of which the ACCC does not oppose the making of suppression and non-publication orders, none of the other highlighted information in the opening submissions and pleadings should be the subject of suppression or non-publication orders. I am, in short, not satisfied that the suppression of that information is necessary to prevent prejudice to the proper administration of justice.

16 I will first address the principles that apply when addressing applications for suppression and non-publication orders in respect of information which is said to be commercially sensitive and confidential.

Relevant provisions and principles – Suppression and non-publication orders

17 Section 37AF(1) of the FCA Act relevantly provides as follows:

Power to make orders

(1)    The Court may, by making a suppression order or non-publication order on grounds permitted by this Part, prohibit or restrict the publication or other disclosure of:

(b)    information that relates to a proceeding before the Court and is:

(i)    information that comprises evidence or information about evidence; or

…

(iv)    information lodged with or filed in the Court.

18 A “non-publication order” is an order that “prohibits or restricts the publication of information (but that does not otherwise prohibit or restrict the disclosure of information)” and a “suppression order” is an order that “prohibits or restricts the disclosure of information (by publication or otherwise)”: s 37AA of the FCA Act.

19 Section 37AG(1)(a) of the FCA Act relevantly provides as follows:

Grounds for making an order

(1)    The Court may make a suppression order or non-publication order on one or more of the following grounds:

(a)    the order is necessary to prevent prejudice to the proper administration of justice[.]

20 Section 37AE of the FCA Act provides that “[i]n deciding whether to make a suppression order or non-publication order, the Court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice”.

21 The general principles in relation to the making of suppression or non-publication orders under s 37AF of the FCA Act are well settled. They were summarised by the Full Court in Country Care Group Pty Ltd v Director of Public Prosecutions (Cth) (No 2) (2020) 275 FCR 377; [2020] FCAFC 44 at [7]:

Suppression or non-publication orders should only be made in exceptional circumstances: Rinehart v Welker (2011) 93 NSWLR 311; [2011] NSWCA 403 at [27]; Rinehart v Rinehart (2014) 320 ALR 195; [2014] FCA 1241 at [23]. That is both because the operative word in s 37AG(1)(a) is “necessary” and because the court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice: Rinehart v Welker at [32]; Rinehart v Rinehart at [25]. The paramount consideration is the need to do justice; publication can only be avoided where necessity compels departure from the open justice principle: Rinehart v Welker at [30]; Rinehart v Rinehart at [26].

The critical question is whether the making of a suppression or non-publication order is “necessary to prevent prejudice to the proper administration of justice”. The word “necessary” in that context is a “strong word”: Hogan v Australian Crime Commission (2010) 240 CLR 651; [2010] HCA 21 at [30]. It is nevertheless not to be given an unduly narrow construction: Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52; [2012] NSWCCA 125 at [8], citing Hodgson JA in R v Kwok (2005) 64 NSWLR 335; [2005] NSWCCA 245 at [13]. The question whether an order is necessary will depend on the particular circumstances of the case. Once the court is satisfied that an order is necessary, it would be an error not to make it: Hogan at [33]. There is no exercise of discretion or balancing exercise involved: Australian Competition and Consumer Commission v Air New Zealand Limited (No 3) [2012] FCA 1430 at [21].

22 The onus on the party seeking to persuade the Court to make an order pursuant to s 37AF is a “very heavy one”: Giddings v Australian Information Commissioner [2017] FCAFC 225 at 25.

23 The reference in s 37AE to the “public interest in open justice” reflects the common law understanding of that term: Saw v Seven Network (Operations) Ltd (2024) 305 FCR 340; [2024] FCA 1210 at [21]; Pigozzo v Mineral Resources Ltd (No 3) [2025] FCA 1142 at [67]. Without in any way intending to be exhaustive, the common law principle of open justice is that proceedings in a court should be conducted “publicly and in open view” and that proceedings be “fully exposed to public and professional scrutiny”: Russell v Russell (1976) 134 CLR 495 at [520]; [1976] HCA 23. Open justice “ensures public confidence in the administration of justice” (Rinehart v Welker (2011) 93 NSWLR 311; [2011] NSWCA 403 at [32]) and “facilitates public scrutiny of the way in which courts decide cases and enables the public to understand how the justice system works and why decisions are taken”: Lee v Deputy Commissioner of Taxation (2023) 296 FCR 272; [2023] FCAFC 22 at [84].

24 It is well established that it in some circumstances it may be necessary to make suppression or non-publication orders in respect of confidential commercial documents or information in order to prevent prejudice to the proper administration of justice. That is most clearly the case where a trade secret or confidential information is the subject matter of the proceeding. As Bowen CJ stated in Australian B roadcasting Commission v Parish [1980] FCA 33; (1980) 43 FLR 129 at [134]:

It is in the interests of the administration of justice that the very proceedings before the court should not be permitted to destroy or seriously depreciate the value of such confidential information. If it were otherwise, not only might the parties and members of the public consider the court was not paying proper regard to confidentiality but also it might open the way to abuse.

25 Suppression and non-publication orders have also been made in respect of confidential commercial information in cases involving competition issues. In Australian Competition and Consumer Commission v Cement Australia Pty Ltd (No 2) [2010] FCA 1082, a case involving alleged contraventions of ss 45, 46 and 47 of the Trade Practices Act 1974 (Cth), Greenwood J made non-publication orders in respect of certain categories of information which his Honour found (at [16]-[17]) to comprise “highly sensitive commercial information which would be of significant value to trade rivals”, (at [19]) information which was “market-sensitive as between trade rivals” and (at [21]) information which could be used to “damage Cement Australia in its trade rivalry in [relevant] markets”. His Honour reasoned (at [23]) that the “proceedings ought not to become a vehicle for advantaging or prejudicing trade rivals”.

26 The rationale for making suppression or non-publication orders in respect of confidential commercial documents or information has similarly been said to be “generally associated with preserving the integrity of the litigious process, likely to be jeopardised if commercial competitors could benefit from court ordered production of trade secrets by parties to a suit” (Motorola Solutions Inc. v Hytera Communications Corporation Ltd (No 2) [2018] FCA 17 at [9]) and that “[i]t is in the interests of the proper administration of justice that the value of confidential information not be destroyed or diminished… [o]therwise, the parties and members of the public might lose confidence in the Court and the Court’s processes”: Australian Competition and Consumer Commission v Origin Energy Electricity Ltd [2015] FCA 278 at [148]; see also Cyclopet Pty Ltd v Australian Nuclear Science and Technology Org [2012] FCA 1326 at [21]; Australian Competition and Consumer Commission v Singtel Optus Pty Ltd (No 4) [2011] FCA 761 at [88]; Telstra Corp oration Ltd v NBN Co Ltd [2014] NSWSC 940 at [92].

27 It does not follow that the ground for making a suppression or non-publication order under s 37AG(1)(a) of the FCA Act will be made out simply on the basis that the relevant document or information is said to be commercial-in-confidence. Indeed, it has been said that the “mere fact that information relevant to a proceeding is not in the public domain will rarely be a sufficient basis to suppress its publication”: Australian Competition and Consumer Commission v Valve Corporation (No 5) [2016] FCA 741 at [9]. It is difficult to see how it could be said that the making of suppression or non-publication orders in respect of a document or information is necessary to protect the proper administration of justice simply because the document or information is said to be confidential.

28 To determine whether the orders are necessary to protect the proper administration of justice, the Court should carefully scrutinise claims that the document or information in question is and remains commercially sensitive, or would be of value to competitors, or could, if disclosed, cause the claimant to suffer damage or prejudice. That is particularly the case where there is no contradictor, or the evidence is for one reason or another unable to be effectively tested (such as where the evidence is given on information or belief), or where the documents or information in question are years old or otherwise not current: see for example Tech Mahindra L t d v Federal Commissioner of Taxation (No 2) [2016] FCAFC 136. Bare assertions that historic documents or information remain commercially sensitive are unlikely to suffice. In Australian Competition and Consumer Commission v Air New Zealand L t d (No 3) [2012] FCA 1430, Perram J observed (at [34]) that it was not his ordinary practice to “accept that documents which are seven years old can have a commercial sensitivity of the kind which ha[d] been asserted”, though his Honour was ultimately satisfied from the evidence as a whole that the documents were sensitive.

29 The Court must also take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice. That is likely to be a particularly significant consideration where the confidential document or information in question is likely to be important evidence in the proceeding, or where interested members of the public would find it difficult to understand the course of the proceeding or its determination if the information was suppressed. As Perram J put it in Motorola at [9], it “can readily be imagined that a carte blanche approach to applications under s 37AF orders for which commercial confidentiality is claimed as a basis, would jeopardise the interest the public has in being able to access court documents under the Federal Court Rules 2011 (Cth) or to engage meaningfully with reasons published by the Court”. It might equally be said that the Court must have regard to the fact that the making of suppression or non-publication orders in respect of highly relevant documents and information may jeopardise the orderly and efficient conduct of the proceeding in open court, particularly if the orders might necessitate the closing of the court while witnesses are examined, or oral submissions are made, concerning the content of the documents and information.

SUPPRESSION CLAIMS IN RESPECT OF INFORMATION IN THE OPENING SUBMISSIONS

30 I will first address the suppression claims in respect of information in the ACCC’s written opening submissions.

The ACCC’s opening submissions

31 I have given careful consideration to the information which has been highlighted in the ACCC’s outline of submissions on liability to denote information in respect of which Mastercard or one or more of the third-party suppression applicants seek suppression and non-publication orders. Assisted by the detailed schedules prepared by the parties, in considering the suppression claims in respect of the highlighted information, I have had regard to: the category or categories of information within which the highlighted information is said to fall; the evidence adduced by the relevant suppression applicant which is said to support the suppression of that category, or those categories, of information; and the submissions advanced by Mastercard, the other suppression applicants and the ACCC in respect of the relevant category or categories of information. I have also considered the information in question in the context of my current understanding of the ACCC’s case, and Mastercard’s defence to it, as gleaned from the pleadings and the detailed opening submissions.

32 For the brief reasons that follow, with one minor exception, I am not satisfied that suppression of any of the highlighted information in the ACCC’s opening submissions is necessary to prevent prejudice to the proper administration of justice.

33 As indicated earlier in the context of my discussion of the applicable principles, it may generally be accepted that suppression of information which is confidential and commercially sensitive may in some circumstances be necessary to prevent prejudice to the proper administration of justice. That will generally be the case where it is adjudged that suppression of the information is necessary to preserve the integrity of the litigious process, such as where the disclosure of the confidential information would seriously destroy or depreciate the value of the information, or where the information in question is considered to be highly sensitive commercial information the disclosure of which would likely expose the party seeking the order to the risk that the information might be exploited by a trade rival or a commercial counterparty.

34 It is, however, also necessary for the Court to have regard to the fact that a primary objective of the administration of justice is to safeguard the public interest in open justice. That is likely to be a particularly important consideration in instances where the information in question is highly relevant or likely to be important to the resolution of the issues in dispute in a proceeding. Such information is likely to be the subject of the evidence of a witness, either in chief or during cross-examination. It is also likely to be the subject of submissions by the parties. It may also be necessary for the information to ultimately be referred to in the reasons for judgment.

35 The question of whether suppression of confidential commercial information is necessary to prevent the prejudice to the proper administration of justice is ultimately an evaluative judgment which requires the Court to have regard to various considerations. Those considerations include the nature of the information, including the extent of its confidentiality and commercial sensitivity; whether the information in question is current or historic; the degree of risk that the disclosure of the information may cause a party to suffer commercial prejudice or harm; the nature and extent of that potential prejudice or harm; the centrality or importance of the information to the resolution of the issues in the litigation; the likelihood that the information will be the subject of a witness’s evidence in chief or in cross-examination; the likelihood that the information will be specifically addressed in the parties’ submissions; the extent to which the suppression or non-publication orders in respect of that information might disrupt the orderly conduct of the proceeding in open court, particularly in circumstances where the information is likely to be the subject of cross-examination; and finally, the extent to which it may be necessary for the information to be referred to in the reasons for judgment in order to explain how the issues in the dispute have been resolved.

36 I do not propose to individually address each item of information in the ACCC’s opening submissions which is the subject of a suppression claim by Mastercard or one of the third-party suppression applicants. I would, however, make the following brief and general observations concerning that information.

37 First, the suppression applicants in respect of all but three of the items of information in the submissions is Mastercard. The other suppression applicant is Coles Group Limited.

38 Second, in all but a few instances, the information in question comprises a submission or assertion of fact which is footnoted. The footnotes generally refer to a document or documents (identified by a barcode), which would tend to suggest that the submission or assertion of fact in question is supported by information in that document or those documents. It may in due course be necessary to consider any suppression claims in respect of information in the documents which are referred to in the footnotes, at least if those claims are pressed. In some instances, the footnote reference is to an affidavit, which would tend to suggest that information in that affidavit is the subject of a suppression claim. In some cases, there is a footnote reference to the pleading or the agreed statement of facts. In a few instances the information which is the subject of the suppression claim is not footnoted.

39 Third, and more significantly, it is tolerably clear that the information in the submissions which is the subject of the suppression claims is information which is likely to be important, if not central, to the ACCC’s case. That is no doubt why it is included in the ACCC’s opening submissions. Given the obvious importance of the subject information to the ACCC’s case, it is highly likely that it will be the referred to in the evidence of a witness, or will be the subject of the cross-examination of a witness, or may ultimately be referred to in the reasons for judgment. The principle of open justice would tend to support the proposition that the evidence of a witness, including in cross-examination, in respect of important facts or information should generally occur in open court. Likewise, the parties’ submissions in respect of important facts or information should generally take place in open court. It follows, or would tend to follow, that if suppression orders were made in respect of the information in question, the orderly and efficient conduct of the trial in open court may be impeded or disrupted. It may, for example, be necessary to close the Court when the information in question was to be referred to in the evidence or submissions.

40 It is also reasonable to assume that, if the information that is the subject of the suppression claims is sufficiently important to be referred to in the ACCC’s opening submissions, it is likely to be sufficiently important for it to ultimately be referred to in the reasons for judgment. That could not occur if the information was suppressed, which again would be contrary to, or inconsistent with, the principle of open justice.

41 Fourth, while I have given due regard to the evidence adduced by Mastercard and Coles in respect of the categories of information concerned, I am nevertheless not persuaded that the information in question is particularly commercially sensitive, or that there is any real or significant risk that Mastercard or Coles will suffer any prejudice or harm from the disclosure of the information in question, or that, if there is such a risk, that the prejudice or harm that might be suffered by Mastercard or Coles would be particularly serious. That is mainly because all the information which is the subject of the relevant suppression claims is historic and concerns data, facts or circumstances which are between five and 10 years old. It is also tolerably clear that the relevant commercial environment has changed significantly in the intervening years.

42 Much of the information which is the subject of the suppression claims is also expressed in very broad or general terms. Some of the information in question comprises a single word or phrase. In my view, the concerns expressed by Mastercard and the relevant suppression applicant (Coles, in the case of the ACCC’s opening submissions) in respect of the relevant categories of information tend to be exaggerated or overstated, though perhaps unintentionally so.

43 While, as noted earlier, I do not propose to individually address all of the suppression claims in respect of information in the ACCC’s opening submissions, it might assist to refer to one category of information in respect of which suppression claims are made by way of example to illustrate my reasons for finding that the relevant ground for the making of suppression or non-publication orders has not been made out in respect of that information, at least insofar as it is referred to in the ACCC’s opening submissions.

44 Several of the suppression claims in the opening submissions concern information about card scheme fees and Mastercard’s strategies in respect of the setting scheme fees. It may be accepted that current or recent information concerning Mastercard’s scheme fees and strategies may be commercially sensitive. The information in the opening submissions concerning scheme fees, however, is more than five years old. I accept, as a general proposition, that some historic information in respect of scheme fees and strategies may have some ongoing relevance. It may, for example, give Mastercard’s competitors or commercial counterparties some general insights in respect of Mastercard’s current scheme fees, or current strategies for setting scheme fees. I am nevertheless unpersuaded that there is any real or significant risk that Mastercard will suffer any material or significant commercial or competitive prejudice arising from the disclosure of such information. On the other hand, the information in respect of scheme fees and Mastercard’s strategies in relation to the setting of scheme fees is undoubtedly central to the ACCC’s case. In those circumstances, the suppression of such information is likely to result in the need to constrain or inhibit the consideration of that information in open court, either during the cross-examination of witnesses or during the parties’ submissions. It may result in the need to close the Court, or at least require the questions asked in cross-examination, and the witness’s response, to be couched in terms which do not disclose the information in question. Either way, the result is likely to be at odds with the principle of open justice.

45 Having regard to all the considerations to which I have referred, with one very small exception, I am not satisfied that Mastercard and Coles have established any available ground for the making of suppression and non-publication orders in respect of any information in the ACCC’s opening submissions. In particular, I am not satisfied that the suppression of any information in the ACCC’s opening submissions is necessary to prevent prejudice to the proper administration of justice, save for one small item of information. That is not to say that some information in some of the documents which are identified in the footnotes in the submissions might properly be the subject of suppression or non-publication orders. That issue can be considered and determined if and when those documents are tendered.

46 The one small item of information which is properly the subject of a suppression or non-publication order is a specific figure for a rebate received pursuant to an agreement between Mastercard and Coles. That figure is highlighted in red in footnote 80 on page 14 of the written submissions. The ACCC does not oppose the making of a suppression and non-publication order in respect of that specific item of information. I would infer, in the circumstances, that the ACCC considers that the specific figure for the rebate is unlikely to be of particular significance to its case and is unlikely to be the subject of any cross-examination or submission. Equally, I would infer that the ACCC accepts that this item of information, while historic, nevertheless may possess some ongoing commercial sensitivity.

Mastercard’s opening submissions

47 Turning now to Mastercard’s written opening submissions, I have carefully considered the information in Mastercard’s opening submissions which has been highlighted to signify that it is the subject of a suppression claim. In assessing whether suppression and non-publication orders can and should be made in respect of that information, I have again had regard to the category or categories of information within which the subject information is said to fall, the evidence said to support the suppression of that category or those categories of information, and the submissions that have been advanced by Mastercard or other suppression applicants in respect of that category or those categories of information.

48 I would make the same general observations about the highlighted information as I made earlier in respect of the ACCC’s opening submissions. Most of the suppression applications are made by Mastercard, though there are also suppression claims by Coles and Eftpos Payments Australia Limited (ePAL). Most of the suppression claims are in respect of information which is framed in terms of a submission or an assertion of fact. The submission or assertion of fact which is the subject of the suppression claims are mostly footnoted, which again suggests that the underlying document or other evidence may itself be the subject of a suppression claim. I would infer from the fact that the information in question is included in Mastercard’s opening submissions that it is likely to be important to Mastercard’s case and is likely therefore to be the subject of the evidence of a witness, either in chief or in cross-examination, and further submissions by the parties.

49 I have given careful consideration to the evidence adduced by Mastercard and, in the case of the suppression claims by Coles and ePAL, the evidence adduced by Coles and ePAL in relation to the categories of information that are said to cover the suppression claims. I have also had regard to the submissions advanced by Mastercard, Coles and ePAL in respect of those categories of information.

50 For essentially the same reasons as those given earlier in relation to the suppression claims in respect of information in the ACCC’s opening submissions, with one exception, I am not satisfied that suppression of the information in question in Mastercard’s opening submissions is necessary to prevent prejudice to the proper administration of justice. In particular, I am not satisfied that there is any real or significant risk that Mastercard, Coles or ePAL will or may suffer any material prejudice or harm as a result of the disclosure of the information in question. The information in respect of which suppression claims are made is plainly not current and in many cases is well over five years old. Much of the information is expressed in very general terms. It is, however, again tolerably clear that the information is likely to be significant to the resolution of the key issues in the proceeding and is likely to be the subject of the evidence of witnesses, either in chief or in cross-examination, and further submissions. Were it otherwise, it is unlikely that it would have been referred to in the opening submissions. Suppression of the subject information in the opening submissions is therefore likely to be at odds with the principle of open justice as the evidence or submissions concerning that information could not be aired in open court.

51 The information in respect of which I will in due course make a suppression and non-publication order is the information highlighted in red at paragraph 109 of Mastercard’s submissions. That information concerns an amount of money that Mastercard provided to Coles pursuant to a strategic partner agreement and the use of that money by Coles for a specific purpose. The ACCC did not oppose the making of a suppression and non-publication order in respect of that information. I would again infer that the ACCC’s stance in respect of that information was informed by its assessment that the information was unlikely to be of particular significance to either it’s or Mastercard’s case and that the information, while historic, may retain some ongoing commercial sensitivity.

SUPPRESSION CLAIMS IN RESPECT OF INFORMATION IN THE PLEADINGS

52 It is finally necessary to consider the suppression claims in respect of information in the pleadings.

The Further Amended Statement of Claim (FASOC)

53 Most of the suppression claims in respect of information in the FASOC are made by Mastercard, though some claims are made by Westpac Banking Corporation, Coles, Australia Post, Domino ’ s Enterprises Limited and Woolworths Group Limited. I do not intend to individually address each item of information which is the subject of the suppression applications. I have in each case carefully considered the nature of the information which is the subject of the suppression applications, the relevant categories of information within which that information is said to fall, the evidence which has been adduced by Mastercard, McDonald’s, Domino’s and Woolworths in respect of those categories of information and the submissions that have been advanced in support of the suppression of those categories of information.

54 With some minor exceptions, which I will identify in due course, for essentially the same reasons as I have given in respect of the suppression claims relating to information in the parties’ opening submissions, I am not satisfied that suppression of any of the subject information in the FASOC is necessary to prevent prejudice to the proper administration of justice. In short, on the one hand, I am not persuaded that there is any real or significant risk that Mastercard or the other suppression applicants will suffer any material or substantial prejudice or harm if the information is not suppressed given the time that has passed since the information was current or commercially sensitive. The information, for the most part, is well over five years old in circumstances where the commercial environment has almost certainly changed in the intervening period. On the other hand, it is tolerably clear that the information in question, included as it has been in the ACCC’s pleading, is highly likely to be significant to the resolution of the key issues in the proceeding and is likely to be the subject of evidence and submissions that should be ventilated in open court unless good reasons are shown why it should not. I am not persuaded that good reasons have been shown.

55 There are five items of information in the FASOC which I am prepared to accept should be the subject of a suppression and non-publication order.

56 The first is the information highlighted in particular cii to paragraph 12 of the FASOC. That information comprises confidential information concerning a provision in an agreement between Mastercard and Westpac. The relevant agreement appeared to either still be on foot, or to have only just expired. It would appear, therefore, that the information in question is fairly current. I would also assess that the information is ultimately unlikely to be of any particular significance to the resolution of the issues in the proceeding, and is unlikely to be the subject of any, or any detailed, evidence or submissions that might necessitate the closure of the court. I therefore doubt that the suppression of that information is likely to impede or hinder the efficient conduct of the trial in open court.

57 The second item of information is the information highlighted in particular cii to paragraph 35 of the FASOC. That information appears to be the same as the information in particular cii to paragraph 12 of the FASOC and is properly the subject of a suppression and non-publication order for the same reasons.

58 The other items of information in respect of which I am prepared to make suppression and non-publication orders comprise information that the ACCC effectively accepts can and should be the subject of such orders. That information is: the information highlighted in red in particular vi to paragraph 60 of the FASOC which concerns specific Mastercard fee changes; the information highlighted in red in particular h to paragraph 88 of the FASOC concerning a specific provision in an agreement between Mastercard and Coles; and the information highlighted in particular i to paragraph 244 of the FASOC concerning a specific provision in an agreement between Mastercard and Woolworths. I would infer from the fact that the ACCC does not oppose the making of suppression and non-publication orders in respect of that specific information that the information is unlikely to be particularly significant to the resolution of the proceeding, and is unlikely to be the subject of any, or any detailed, evidence or submissions that might necessitate the closure of the court. The suppression of the information is therefore unlikely to impede or hinder the efficient conduct of the trial in open court.

The Defence

59 As with the FASOC, most of the suppression claims in respect of information in the Defence are made by Mastercard, though there are also claims by McDonald ’ s Australia Limited, Domino’s and Woolworths. Consistent with the approach I have taken to the parties’ opening submissions and the FASOC, in considering the suppression claims in respect of information in the Defence I have had regard to the nature of the information in question, the categories of information within which the information is said to fall, the evidence and submissions relied on by the suppression applicants in respect of those categories of information and the ACCC’s submissions. I note that none of the information has been highlighted in red, which would suggest that the ACCC opposes, or at least does not consent to, the making of suppression orders in respect of any of the subject information.

60 I am not satisfied that suppression of any of the highlighted information in the Defence is necessary to prevent prejudice to the proper administration of justice. I am not persuaded that there is any real or significant risk that Mastercard or the other suppression applicants will suffer any material or significant prejudice or harm if the information is not suppressed given the time that has passed since the information was current or commercially sensitive. The information in question is essentially historic and is mostly more than five years old in circumstances where the relevant commercial environment has undoubtedly changed in the interim. Some of the information is also very general in nature. I would assess, however, that the information in question in the Defence is likely to be significant to the resolution of the issues in the proceeding and is likely to be the subject of evidence and submissions that should be ventilated in open court.

DISPOSITION

61 This is the first ruling in respect of what may be a series of rulings concerning the suppression applications by Mastercard and the third-party suppression applicants. It would perhaps be undesirable to make separate final suppression and non-publication orders in respect of information in certain documents. It would instead be preferable to make a single order dealing with all the information in respect of which final suppression and non-publication orders have been made at some later point in time. In the meantime, the information will be protected by the existing interim non-publication orders.

62 I would, however, be inclined to make an order, the effect of which would be to excise any information in respect of which I have declined to make final suppression or non-publication orders from the effect of the interim non-publication orders that have been made. That would include all the information in the opening submissions and pleadings, save for the few exceptions to which I have referred. The parties should confer and provide proposed short minutes of order which would otherwise give effect to this judgment in due course.

Postscript

63 Following the delivery of the ex tempore reasons, the parties advised the Court that there was one small item of information in the Defence which mistakenly had not been shaded red to indicate information the suppression of which the ACCC did not oppose. That information is a very specific figure that appears in an agreement between Mastercard and Coles which is referred to in paragraph 88(h)(i) of the Defence. I am prepared to suppress that specific item of information on the basis that it may have some ongoing commercial sensitivity and is unlikely to be of particular significance to the resolution of the issues in this proceeding such as to justify disclosure in open court.

| I certify that the preceding sixty-three (63) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Wigney. |
Associate:

Dated:    28 April 2026