Federal Court of Australia

Australian Competition and Consumer Commission v Emma Sleep GmbH (Non-publication) [2025] FCA 1027

ORDERS

THE COURT ORDERS THAT:

1.    The Respondents’ interlocutory application dated 1 August 2025 is dismissed.

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

REASONS FOR JUDGMENT

HILL J:

introduction

1    The Respondents (Emma Sleep) have made an interlocutory application dated 1 August 2025 for non-publication orders over certain materials filed in the proceeding, in response to an application by a non-party to obtain materials from the Court file pursuant to r 2.32 of the Federal Court Rules 2011 (Cth). The application is supported by an affidavit of Jacqueline Downes sworn on 1 August 2025 (Downes affidavit), supplemented by a short second affidavit of Ms Downes sworn on 25 August 2025 (Second Downes affidavit).

2    The parties have each filed written submissions, and are content for the application to be dealt with on the papers. For the following reasons, the application is refused.

Background

3    Judgment on liability (Jun 2025): The proceeding concerns contraventions of the Australian Consumer Law (ACL) by the Respondents during the period between 15 June 2020 to 27 March 2023 (called the “relevant period”). The Respondents have admitted that the relevant representations were misleading, and I have determined that the Second Respondent (now called Emma Sleep Southeast Asia Inc) and Third Respondent (Emma Sleep AU), but not the First Respondent (Emma Sleep GMBH), are liable for those representations: Australian Competition and Consumer Commission v Emma Sleep GmbH [2025] FCA 618. The next stage of the proceedings is a hearing to determine the appropriate penalty.

4    Request for non-party access (Jun 2025): On 30 June 2025, the Court received a request by a non-party (a solicitor at a law firm) for access to certain documents filed in the proceeding.

5    The unrestricted documents sought (for which leave is not required to provide access under r 2.32(2) of the Rules) were:

(1)    Originating Application filed by the Applicant (ACCC) on 14 December 2023;

(2)    Concise Statement filed by Emma Sleep on 4 April 2024;

(3)    Statement of Agreed Facts filed by the ACCC on 14 November 2024;

(4)    Amended Document filed by the ACCC on 4 March 2025 (amended concise statement);

(5)    Amended Document filed by the ACCC on 18 March 2025 (amended originating application);

(6)    Amended Document filed by Emma Sleep on 25 March 2025 (amended concise response to the amended concise statement); and

(7)    Statement of Agreed Facts filed by the ACCC on 15 May 2025.

6    The restricted documents sought (for which leave is required under r 2.32(2) and (4) of the Rules to provide access) were:

(8)    Outline of Submissions filed by the ACCC on 17 April 2025;

(9)    List of Authorities filed by the ACCC on 17 April 2025;

(10)    Outline of submissions filed by Emma Sleep on 6 May 2025;

(11)    List of Authorities filed by Emma Sleep on 6 May 2025;

(12)    Joint list of Authorities filed by the ACCC on 13 May 2025.

7    The request for access states that the applicant does not press access for material to the extent that any of the unrestricted or restricted documents “contain confidential or commercially sensitive information”.

8    Consultation with parties (Jul 2025): The Court asked the parties to advise on whether any of the documents contained confidential or commercially sensitive information. On 10 July 2025, the ACCC advised that it had no objection to the non-party request. Emma Sleep advised that they had no objection, other than the following documents:

    Restricted documents: Outline of Submissions filed by the ACCC on 17 April 2025, and Outline of submissions filed by Emma Sleep on 6 May 2025 (documents (8) and (10) above); and

    Unrestricted documents: Annexures A, C, D and E to the Statement of Agreed Facts filed by the ACCC on 14 November 2024 (document (3) above).

9    Emma Sleep stated at this time that it was considering whether to bring an application for a non-publication order over the above documents, and requested that the Court deny the non-party access to those documents until that application was brought and considered. Emma Sleep was given (through some extensions) until 1 August 2025 to decide whether to make this application. As noted, Emma Sleep applied on 1 August 2025 for non-publication orders.

10    Application for non-publication orders (Aug 2025): Emma Sleep’s interlocutory application seeks orders under ss 37AF and 37AG(1)(a) of the Federal Court of Australia Act 1976 (Cth) restricting the publication or disclosure of the material, identified by reference to exhibits JD-1 and JD-2 of the Downes affidavit.

11    Order 1 would prevent the publication or disclosure of the following material (subject to proposed Order 2 and any further order):

a.    the highlighted parts of the extract of the Applicant's Outline of Submissions on Liability;

b.     the highlighted parts of the extract of the Respondent's Outline of Submissions on Liability;

c.     in relation to the Statement of Agreed Facts filed 14 November 2024 (SOAF):

i.     the highlighted parts of Annexure A to the SOAF;

ii.    the entirety of Annexure C to the SOAF; and

iii.     the entirety of Annexures D and E to the SOAF.

12    Order 2 would provide that access to the information captured by Order 1 is limited to:

a.     the Court and staff of the Court;

b.     the Applicant and Respondents (including their respective members, officers and employees); and

c.     the external solicitors and counsel (including the relevant office staff and administrative service providers) engaged by the parties for the purpose of the conduct of this proceeding.

13    This application is supported by the Downes affidavit. Ms Downes is the solicitor on the record for Emma Sleep. The Second Downes affidavit states that the key parts of her first affidavit were made on the basis of information provided by a Mr Nowotka, the Principal Legal and Compliance Manager for Emma Sleep Southeast Asia. Ms Downes’ evidence is set out below.

14    Non-publication orders (Act ss 37AF, 37AG): The Court’s power to make non-publication orders derives from ss 37AF and 37AG of the Act.

    By s 37AF(1)(a), the Court may, by making a suppression order or non-publication order on grounds permitted by Pt VAA of the Act, prohibit or restrict the publication or other disclosure of information tending to reveal the identity of or otherwise concerning any party to a proceeding before the Court.

    By s 37AG(1), the Court may make a suppression order or non-publication order on one or more of the grounds set out, which include “the order is necessary to prevent prejudice to the proper administration of justice” (s 37AG(1)(a)).

15    In Country Care Group Pty Ltd v Commonwealth Director of Public Prosecutions (No 2) [2020] FCAFC 44; (2020) 275 FCR 377, the Full Court set out the following principles in relation to the making of suppression or non-publication orders under s 37AF of the Act (citations omitted):

[8]    Suppression or non-publication orders should only be made in exceptional circumstances: … . 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: … . The paramount consideration is the need to do justice; publication can only be avoided where necessity compels departure from the open justice principle: … .

[9]    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”: … . It is nevertheless not to be given an unduly narrow construction: … . 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: … . There is no exercise of discretion or balancing exercise involved: … .

16    To establish that an order under s 37AF is “necessary to prevent prejudice to the proper administration of justice” within the meaning of s 37AG(1)(a), the party seeking that order must “identify the contended prejudice to the proper administration of justice that would result if the order is not made”, and identify the link “between the contended harm and s 37AG(1)(a)”: Lee v Deputy Commissioner of Taxation [2023] FCAFC 22; (2023) 296 FCR 272 at [90], [93], [95] (the Court). The necessary link between the contended harm to the administration of justice and s 37AG(1)(a) may be established by evidence or made through argument: Lee at [95].

17    It is well established that commercial sensitivity can be an appropriate basis for making a suppression or non-publication order: Motorola Solutions, Inc. v Hytera Communications Corporation Ltd (No 2) [2018] FCA 17 at [8]-[9] (Perram J), and the cases cited. The following points can be taken from the summary of principles in Clark v Digital Wallet Pty Ltd [2020] FCA 877 at [21]-[27] (Abraham J) and Australian Securities and Investments Commission v eToro AUS Capital Limited [2025] FCA 100 at [16]-[17] (Stellios J):

    The mere fact that information relevant to a proceeding is not in the public domain will rarely be a sufficient basis, by itself, to suppress its publication: Clark at [23]. Generally, to obtain a suppression order requires demonstrating that a party would be “seriously compromised or adversely affected if confidentiality was not maintained”: Clark at [26]. (Put another way, the applicant for a suppression order must demonstrate that disclosure of the information would confer a “significant commercial and competitive advantage” to other industry participants: Australian Competition and Consumer Commission v Oakmoore Pty Ltd (No 2) [2018] FCA 1170 at [37] (Gleeson J).)

    The reasons for any non-publication are “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”. It is in the interests of the proper administration of justice that “the value of confidential information not be destroyed or diminished”; and conversely, it is not in the interests of the administration of justice that proceedings “become a vehicle for advantaging or prejudicing trade rivals”: eToro at [16].

    Not only must the circumstances justify an order by reason of s 37AG(1)(a), but the scope of the order must be confined to what is necessary to prevent prejudice to the proper administration of justice: eToro at [17].

18    One important factor is the currency of any commercial information. For example, in Tech Mahindra Limited v Commissioner of Taxation (No 2) [2016] FCAFC 136, the Full Court refused to make a non-publication order with respect to a list of customers from eight years ago, or a customer revenue report from 2008 generally: at [13](ii) and (iv); but did make a non-publication order over revenue figures by customer report for 2008 insofar as it concerned the present customers of the appellant: at [14](i). In respect of that latter information, the Full Court accepted the evidence that a competitor of the appellant could use that information in order to approach those customers and so cause damage to the appellant’s business.

Consideration

19    Emma Sleep’s application can be considered in light of the principles set out above.

20    Information is not recent, limitations on evidence in support, material has been relied on in open court: There are three general points that tend against making the non-publication orders sought.

    First, this proceeding relates to the period between 15 June 2020 to 27 March 2023. Even the most recent information from that period will be more than two years old.

    Second, the evidence in the Downes affidavit is given on the basis of information and belief, and (as will be seen) is rather general in nature. The initial Downes affidavit does not disclose the source of the belief (cf Evidence Act 1995 (Cth) s 75). Although that defect has been remedied by the Second Downes affidavit, it is notable that the source of belief is a person in Legal and Compliance, who (it can be inferred) would have only an indirect knowledge of the business side of Emma Sleep. These matters reduce the weight that can be given to Ms Downes’ evidence.

    Third, these documents were relied on in open court (even if the particular passages were not read out during oral argument). Principles of open justice dictate that the public are generally entitled to access documents that have been relied on in open court: Engage Marine Pty Ltd v Tasmanian Ports Corporation Pty Ltd [2023] FCA 665 at [14] (O’Bryan J); see also Oldham v Capgemini Australia Pty Ltd [2015] FCA 1149; (2015) 241 FCR 397 at [26] (Mortimer J). (And in any event, the bare fact that information is not in the public domain will rarely be a sufficient basis, by itself, to suppress its publication: Clark at [23].)

Documents over which partial redactions are sought

21    Parties’ outlines of submissions: The first two documents over which partial redactions are sought are the parties’ outline of submissions.

22    ACCC submissions [51](d): Emma Sleep seeks non-publication of two short phrases in [51](d) of the ACCC’s submissions which are taken from an email exchange in March 2022. Ms Downes states that this information is “confidential and commercially and competitively sensitive to the Respondents” because:

(a)    Paragraph 51(d) refers to an internal performance analysis conducted by the Respondents.

(b)     If the information in paragraph 51(d) was made publicly available, the Respondents' competitors and business partners could gain access to the information and use it to the Respondents' detriment, for the following reasons:

(i)    It would provide competitors insights into the Respondents' performance.

(ii)    Emma Sleep AU would not have reciprocal information about their competitors, which would put them at a competitive disadvantage.

23    Emma Sleep submissions [22](c): Emma Sleep seeks non-publication of a little over two lines in [22](c) of its written submissions, which are taken from an email exchange in September 2022 about the pricing of products. Ms Downes states that, if this information were made publicly available, Emma Sleep’s “competitors and business partners could gain access to the information and use it to the Respondents’ detriment, for the following reasons:”

(a)     It would provide competitors insights into the Respondents’ strategy which they could rely on to adopt a strategy targeting the Respondents’ business and to take market share away from the Respondents.

(b)     Although the information in paragraph 22(c) is restricted to the Relevant Period, this information may enable competitors to extrapolate Emma Sleep AU's current strategy.

(c)     Emma Sleep AU would not have reciprocal information about their competitors, which would put them at a competitive disadvantage.

(d)     Disclosing the analysis information of the Respondents would increase the Respondents’ business partners' understanding of the profitability of the Respondents.

24    SOAF Annex A: Emma Sleep also seeks redactions of passages in five pages of Annexure A to the SOAF. That annexure set out email chains, which the SOAF described as Emma Sleep GMBH officials providing “guidance at a strategy level” to Country Team Australia (SOAF [9](g)). These email exchanges are dated 23-24 March 2020, 1 August 2022, 15-16 August 2022, 15-16 September 2022 and 31 October 2022-1 November 2022.

25    The Downes affidavit states that, if the redacted information in Annexure A were made publicly available, Emma Sleep’s competitors “could gain access to the information and use it to [Emma Sleep’s] detriment, for the following reasons:”

(a)    It would provide competitors insights into the Respondents’ strategy, which they could rely on to adopt a strategy targeting the Respondent’s business and to take market share away from the Respondents.

(b)     Although the redacted information in Annexure A to the SOAF is restricted to the Relevant Period, this information may enable competitors to extrapolate Emma Sleep AU's current strategy.

(c)     The Respondents would not have reciprocal information about their competitors, which would put them at a competitive disadvantage.

26    Partial redaction – consideration: The argument for non-publication is not made out with the two extracts from the parties’ written submissions. The two passages are so short as to reveal very little about Emma Sleep’s marketing strategy. In addition, the information is from March and September 2022 (more than two years ago), and the asserted harms are expressed in very general terms.

27    This argument for non-publication is somewhat stronger with Annexure A to the SOAF, where the passages are significantly longer and therefore convey something of the substance of Emma Sleep’s marketing strategy.

    That said, the redacted parts of the 15 September 2022 email do not contain strategy, but rather general sales figures broken down by different countries. It is difficult to see the continuing relevance of a sales snapshot taken more than two years ago.

    As to the general strategy in the other emails, I accept the argument of Emma Sleep that the confidentiality of material can, in principle, be apparent from the face of the material. In this case, however, the strategies are not in the same league as computer codes or other trade secrets requiring strict confidentiality. In the absence of evidence, it is just assertion for Emma Sleep to contend that this information continues to be relevant and informative to Emma Sleep and its competitors. And the harms asserted in the Downes affidavit are stated in the broadest and most general terms, such as competitors “may” be able to extrapolate Emma Sleep’s current strategies. The evidence does not establish that Emma Sleep’s business would be seriously compromised or adversely affected if this information were disclosed.

Documents over which full redactions are sought

28    Emma Sleep seeks full redactions of Annexures C, D and E of the SOAF.

29    SOAF Annex C (social media posts information): Annexure C to the SOAF consists of a spreadsheet containing information regarding social media posts made by Emma Sleep AU, including the number of consumers reached by each communication, as well as the number of visits to the Emma Sleep AU website and a product review website registered to Emma Sleep AU.

30    The Downes affidavit states that, if the information in Annexure C were made publicly available, Emma Sleep’s “competitors and business partners could gain access to the information and use it to [Emma Sleep’s] detriment, for the following reasons:”

(a)     As an online retailer with no bricks and mortar stores in Australia, Emma Sleep AU's online marketing strategy and performance is highly commercially sensitive. This information would provide competitors the ability to identify and assess the reach of Emma Sleep AU’s advertisements and its websites, which they could rely on to adopt a strategy targeting Emma Sleep AU’s business and to take market share away from Emma Sleep AU. It would also provide competitors with insights into the level of sophistication of Emma Sleep AU’s marketing strategies and operational capabilities.

(b)     Although the data contained in Annexure C is restricted to the Relevant Period, I am instructed that this data is comparable to present day data and that it may enable competitors to extrapolate Emma Sleep AU's current or future performance.

(c)     Emma Sleep AU would not have reciprocal information about their competitors, which would put them at a competitive disadvantage.

(d)     Disclosing the reach of Emma Sleep AU’s advertisements and its websites would increase Emma Sleep AU's business partners’ understanding of the performance of Emma Sleep AU’s online advertising and presence. This may lead them to consider that Emma Sleep AU would be willing to accept higher prices in their dealings. For example, business partners such as influencers, affiliate website operators and brand partnerships could use this data to negotiate better deals with Emma Sleep AU.

31    SOAF Annex D-E (sales figures): Annexures D and E to the SOAF consist of a spreadsheet setting out sales figures of Emma Sleep’s products during the Relevant Period.

32    The Downes affidavit states that Emma Sleep AU is not a publicly listed company, and it is not required to disclose financial information. Emma Sleep AU treats as confidential its financial information (such as revenue and sales figures) and does not disclose this information publicly.

33    The Downes affidavit states that, if the information in Annexures D and E were made publicly available, Emma Sleep’s “competitors and business partners could gain access to the information and use it to [Emma Sleep’s] detriment, for the following reasons:”

(a)     It would provide competitors the ability to identify and assess Emma Sleep AU's position in the market and profitability (including number of product sales, the value of product sales and the breakdown of products sold on and off promotion) compared to their own, which they could rely on to adopt a strategy targeting Emma Sleep AU's business and to take market share away from Emma Sleep AU.

(b)     It would provide competitors insights into products that are driving significant sales volumes and revenue for Emma Sleep AU, which they could rely on to adopt strategies to compete more effectively with those product offerings.

(c)     Although the data contained in Annexures D and E is restricted to the Relevant Period, this data may enable competitors to extrapolate Emma Sleep AU’s current or future performance and market position. Emma Sleep AU would not have reciprocal information about their competitors, which would put them at a competitive disadvantage.

(d)     Disclosing the financial information of Emma Sleep AU would increase Emma Sleep AU’s business partners' understanding of the profitability of Emma Sleep AU, which may lead them to consider that Emma Sleep AU would be willing to accept a lower margin in their dealings. This may, in turn, lead or encourage business partners to seek higher margins.

34    Full redactions – consideration: The evidence does not establish that Annexures D and E should not be disclosed. These annexures contain sales figures from more than two years ago. This material was included in a document relied on in open court, and in any event the mere fact that information is not in the public domain (if that were the case) does not provide a sufficient reason for a non-disclosure order. The harm claimed is in very general terms, such as competitors “may” enable competitors to extrapolate Emma Sleep AU’s current or future performance and market position. Again, the evidence does not establish that Emma Sleep’s business would be seriously compromised or adversely affected if this information were disclosed, or that disclosure would confer a significant commercial and competitive advantage on Emma Sleep’s competitors.

35    The argument for non-publication with Annexure C is stronger, as the evidence (albeit on information and belief) is more specific. That evidence is that the data is comparable to present day data, and the evidence gives reasons for why this information is said to be highly commercially sensitive. However, although this evidence is more specific than elsewhere in the Downes affidavit, it does not rise to the level of establishing that Emma Sleep AU’s business would be seriously compromised or adversely affected if this information were disclosed. There is still a lack of immediacy in the harms asserted: it is said, for example, that competitors would have the ability to identify and assess the reach of Emma Sleep AU’s advertisements and its websites, and would obtain insights into the level of sophistication of Emma Sleep AU’s marketing strategies and operational capabilities.

36    It is therefore not necessary to rule on an argument by the ACCC that the “central relevance” of this information to the future imposition of a penalty is another reason why this information should be available for disclosure.

Conclusions

37    For these reasons, I am not prepared to make non-publication orders under ss 37AF and 37AG of the Act. In addition to the difficulties identified above, Emma Sleep have not identified the appropriate duration of these orders, whereas s 37AJ requires that the Court specify the period for which a non-publication order operates.

38    I note that the application was made in response to an application by a non-party to inspect documents under r 2.32 of the Rules, and that request, in terms, does not seek access to the extent that the documents “contain confidential or commercially sensitive information”. This exclusion from the documents sought could on one view be seen as a less demanding test than the test for making a non-publication order under ss 37AF and 37AG of the Act.

39    However, r 2.32 of the Rules does not provide for a process by which Registry would redact documents in accordance with the particular terms of the request for access. Further, the exclusions in r 2.32 on providing access do not apply here. In particular, the documents are not “confidential” within r 2.32(1)(b) and (3)(a): the principles concerning open justice that apply to making non-publication and suppression orders under ss 37AF and 37AG of the Act also apply to (or at least inform) the making of an order for confidentiality under r 2.32: Sun Capital Pty Ltd v National Australia Bank Limited [2024] FCA 47 at [15] (Wheelahan J); see also Clean Energy Regulator v Emerging Energy Solutions Group Pty Ltd [2024] FCA 1310 at [41] (Horan J). As previously explained, there is no proper basis for making an order under ss 37AF and 37AG. And there is no claim of privilege (cf r 2.32(1)(a)).

40    Emma Sleep’s interlocutory application is therefore dismissed. The ACCC does not seek costs, so there will be no order as to costs.

Associate:

Dated:    27 August 2025