FCA Dismisses Mastercard Suppression Orders in ACCC Competition Proceeding

Original Word Document (78 KB) Federal Court of Australia

Australian Competition and Consumer Commission v Mastercard Asia/Pacific Pte Ltd (Suppression No 2) [2026] FCA 516

| File number: | NSD 401 of 2022 |

| Judgment of: | WIGNEY J |

| Date of judgment: | 16 April 2026 |

| Catchwords: | PRACTICE AND PROCEDURE – whether suppression and non-publication orders should be made in respect of information in documents that a witness will be cross-examined about at trial – whether suppression of purportedly confidential commercial information is necessary to prevent prejudice to the proper administration of justice – no suppression or non-publication orders made |

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

| Cases cited: | Australian Competition and Consumer Commission v Mastercard Asia/Pacific Pte Ltd (Suppression) [2026] FCA 431 |

| Division: | General Division |

| Registry: | New South Wales |

| National Practice Area: | Commercial and Corporations |

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

| Number of paragraphs: | 14 |

| Date of hearing: | 16 April 2026 |

| Counsel for the Applicant: | Ms S Crosbie |

| Solicitor for the Applicant: | Johnson Winter Slattery |

| Counsel for the Respondents: | Mr M Gvozdenovic |

| Solicitor for the Respondents: | Baker McKenzie |
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: | 1 6 APRIL 2026 |
THE COURT ORDERS THAT:

1. No suppression or non-publication orders will be made in respect of information in documents about which Mr Paul Jennings may be cross-examined prior to the conduct of that cross-examination.

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

REASONS FOR JUDGMENT

(Delivered ex tempore, revised from transcript)

WIGNEY J:

1 This judgment briefly addresses applications for suppression and non-publication orders in respect of certain information in documents about which the first witness to be called by the Australian Competition and Consumer Commission (ACCC), Mr Paul Jennings, is about to be cross-examined. The background to and general nature of the overarching suppression applications by the respondents, Mastercard Asia/Pacific Pte Ltd and Mastercard Asia/Pacific (Australia) Pty Ltd (collectively Mastercard), and various third parties are explained in an earlier judgment: Australian Competition and Consumer Commission v Mastercard Asia/Pacific Pte Ltd (Suppression No 1) [2026] FCA 431. That judgment addressed suppression applications in respect of certain information in the parties’ written opening submissions and the pleadings. These reasons should be read together with the judgment in Suppression No 1.

2 In Suppression No 1, I outlined the principles that apply when considering applications for suppression and non-publication orders in respect of information which is said to be confidential and commercially sensitive. I also explained why I would not determine the overarching applications by Mastercard and the third parties for suppression and non-publication orders in a global fashion pre-trial. Rather, I would determine the applications by reference to specific documents when the need arose during the trial, such as when a witness was about to be cross-examined about documents which included information which was encompassed by the overarching applications.

3 While I indicated in Suppression No 1 that I may not provide further reasons for specific suppression rulings during the trial, it is useful to give some brief reasons concerning the suppression claims in respect of the information in the documents about which Mr Jennings may be cross-examined, if only to illustrate the overreach of the suppression applications and the absurd breadth of the categories of information in respect of which suppression orders are sought. My consideration of the suppression claims in respect of the information in the documents about which Mr Jennings may be cross-examined also confirms and reaffirms the view I expressed in Suppression No 1 that it would be dangerous and erroneous to make global suppression orders by reference to the broad categories of information identified by Mastercard and the third party suppression applicants without giving close consideration to specific information in specific documents, as those documents are about to be deployed during the trial. It is only then that the nature the information and its relevance and significance to the key issues in dispute in this proceeding can be properly appreciated.

4 Mr Jennings is a former officer of Eftpos Payments Australia Limited (ePAL). I have helpfully been provided with a list of 91 documents which it is expected Mr Jennings will be taken to during his cross-examination. The information which is encompassed by suppression claims by Mastercard and third party suppression applications have been highlighted in those documents. It is, however, unclear at this stage exactly what information in what documents Mr Jennings will in fact be questioned about. It is equally unclear whether the cross-examination can be conducted in a way that would not necessarily reveal the content of any such information in open court. That is entirely understandable and I am not intending to be critical in any way in pointing that out, though the relevance of that observation will become apparent. Most of the suppression claims in respect of the information in the documents about which Mr Jennings may be cross-examined are made by ePAL, though there are a few claims by the Commonwealth Bank of Australia, Coles Group Limited, Woolworths Group Limited, Westpac Banking Corporation and the National Australia Bank.

5 I will briefly outline the suppression claims in respect of the information in two documents to illustrate what I regard as the extreme overreach of the suppression applications. I have selected the first two documents in the list to avoid any suggestion that I have somehow been selective or unfair in choosing those exemplar documents.

6 The first document is a Commonwealth Bank merchant tax invoice issued on 1 July 2019 to Kentucky Fried Chicken (KFC). The invoice is for fees payable by KFC to the Commonwealth Bank in respect of what may broadly be referred to as credit and debit card services. The information highlighted in the documents to identify the suppression claims includes, somewhat mystifyingly, the merchant’s name, Kentucky Fried Chicken, and its postal and trading address. The suppression claims in respect of that information are made by the Commonwealth Bank. Exactly how or why the fact that KFC acquired credit and debit card services by or through the Commonwealth Bank and was liable to pay fees in respect of those services over eight years ago could still be regarded as commercially confidential and sensitive completely escapes me.

7 There is a large amount of other information highlighted in the document. The information includes a breakdown of the fees into broad categories: scheme fees, blended fees, market service fees and credit interchange fees. It also includes details of information which, broadly speaking, relates to the cost of card acceptance, sorted by reference to the services or cards provided by the major card scheme operators: Visa credit, Visa debit/prepaid, Mastercard credit, Mastercard debit/prepaid, and ePAL. Whether that precise information will be the subject of cross-examination is unclear, though I doubt that the precise figures are likely to be of any particular significance. What is tolerably clear, however, is that the way fees associated with credit and debit card acceptance services are categorised and billed or charged to merchants is a potentially important issue in this proceeding.

8 While it is perhaps conceivable that, at some point in time, the information in the invoice may have been regarded as confidential and perhaps even commercially sensitive, I am unable to see how it could sensibly be said that the very general fee or pricing information in this document, which is almost seven years old, could possibly be said to be so commercially sensitive that it should be suppressed. As noted earlier, the suppression claims covering the information in this document have been made by the Commonwealth Bank. I have read the affidavit evidence relied on by the Commonwealth Bank in support of its suppression application in respect of broad categories of information which would include the information in the invoice. Having read that evidence, I am really none the wiser as to how it could possibly be said that the information in the invoice is so commercially sensitive that its suppression is necessary to protect against prejudice to the proper administration of justice.

9 The second document which contains information covered by a suppression application is an ePAL document. It is the subject of a suppression claim by ePAL. The claim that the relevant information in this document is confidential and commercially sensitive is slightly less outlandish, but nevertheless provide a useful illustration of the competing interests or considerations at play in relation to the suppression applications. The document in question is a letter from ePAL to BP Australia Pty Ltd. The letter provides BP with a “summary regarding eftpos’ strategic wholesale ‘market routing’ pricing” with a view to enabling BP to “make a well-informed decision regarding the processing of debit card transactions.” The letter also includes details of a proposal that was put to BP about the routing of its debit card transactions through eftpos. Importantly, the letter is dated 26 February 2018, so the information in it is over eight years old.

10 The information which is highlighted in this document to indicate the suppression claims is, for the most part, information concerning ePAL’s proposal to BP. It includes information about particular payments that ePAL would make for BP for use in “joint marketing opportunities” and the wholesale interchange rates that ePAL would offer BP in respect of dual network cards, eftpos only cards and digital acceptance (in-app and online).

11 I would readily accept that the highlighted information in the ePAL letter would have been considered to be highly confidential and sensitive at the time it was sent, and perhaps for some period thereafter. The information in the letter is, however, now more than eight years old. There could be little doubt that the relevant commercial environment has changed over the last eight years. Whatever offer may have been put to BP eight years ago, and whatever commercial arrangements may have eventuated from that offer, that offer and those arrangements likely expired many years ago. I have read the evidence adduced by ePAL in support of its suppression application and the categories of information covered by it. While that evidence broadly addressed ePAL’s concerns about the ongoing sensitivity of such historic information, I remain unpersuaded that the disclosure of information about a commercial proposal put over eight years ago could seriously be said to give rise to any significant risk of material prejudice to ePAL.

12 On the other hand, however, it is tolerably clear that evidence concerning the types of offers made by the card scheme operators – including, in this instance, ePAL – to merchants concerning interchange and scheme fees is a central issue in this proceeding. Information of that type is likely to be the subject matter of cross-examination of witnesses and the submissions of the parties. The suppression of information of that type would, in my view, potentially hinder and impede the efficient conduct of this proceeding in open court. I am in most cases unlikely to accept that the suppression of this type of historic information is necessary to prevent prejudice to the proper administration of justice.

13 I do not propose to make any ruling in respect of the suppression applications concerning the information in the two documents that I have referred to in this judgment. Nor do I intend at this point to make any ruling concerning the suppression applications concerning information in the other 89 documents about which Mr Jennings may be cross-examined. That is because the cross-examination may not in fact touch on that information. Moreover, even if Mr Jennings is cross-examined about any of the subject information, that cross-examination may be able to be conducted without disclosing the content of the information in open court. I will only make rulings in respect of information which the cross-examiner considers would have to be disclosed in open court for the cross-examination to be conducted fairly and efficiently.

14 I acknowledge that there might be some genuinely sensitive commercial information somewhere within the other 89 documents about which Mr Jennings may be cross-examined. If there is, the suppression claims in respect of that information have unfortunately been swamped by the morass of meritless suppression claims in respect of other information, such as the claims made about the information in the Commonwealth Bank invoice to KFC. The point is that I am unable and unwilling to determine the suppression claims in a vacuum prior to the cross-examination. I will of course address those claims, if and when, they arise during the cross-examination, however I do not propose to make any order at this point in time.

| I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Wigney. |
Associate:

Dated: 28 April 2026