Federal Court of Australia

Coles Supermarkets Australia Pty Limited v Australian Competition and Consumer Commission [2026] FCA 1000

ORDERS

THE COURT ORDERS THAT:

1.    Leave be granted to any non-party to inspect the affidavit of Linda Evans sworn 17 July 2026 which was filed in support of the originating application for judicial review dated 17 July 2026.

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

REASONS FOR JUDGMENT

O’BRYAN J:

Introduction

1    This proceeding involves an application brought by Coles Supermarkets Australia Pty Limited (Coles Supermarkets) for judicial review of a decision of the Australian Competition and Consumer Commission (ACCC). The proceeding was commenced on 17 July 2026, and the first directions hearing was held on 21 July 2026.

2    On 21 July 2026, a media participant applied under r 2.32 of the Federal Court Rules 2011 (Cth) (FCR) to inspect two documents that have been filed by Coles Supermarkets in the proceeding:

(a)    the originating application dated 17 July 2026 filed; and

(b)    the accompanying affidavit of Linda Evans sworn 17 July 2026.

3    Ms Evans is a partner of Herbert Smith Freehills Kramer and represents Coles Supermarkets.

4    Rule 2.32(2)(a) permits any non-party to inspect an originating application after the first directions hearing. Accordingly, the media participant has been given access to that document.

5    Rule 2.32(2)(b) permits any non-party to inspect a pleading or similar document after the first directions hearing. A question arises whether an affidavit accompanying an originating application is a similar document to a pleading for the purposes of that rule. If it is not, r 2.32(4) permits a non-party to inspect the document only with the leave of the Court.

6    In accordance with the usual practice of the Court when determining such applications to inspect documents on the Court file, the Court asked the parties whether they objected to the media participant being granted access to the affidavit of Ms Evans. Coles Supermarkets (through their solicitors, Herbert Smith Freehills Kramer) informed the Court that it objected on the grounds that:

(a)    the affidavit is not a similar document to a pleading;

(b)    the affidavit contains confidential information that is commercially sensitive to Coles Supermarkets; and

(c)    the affidavit has not been read in open court.

7    The ACCC (through its solicitors, the Australian Government Solicitor) informed the Court that the ACCC raised no objections.

8    For the reasons explained below, I have determined that the affidavit is a similar document to a pleading and therefore inspection should be permitted under r 2.32(2)(b) but, even if that is incorrect, leave to inspect should be given under r 2.32(4). Coles Supermarkets has failed to satisfy me that the affidavit contains confidential information that is commercially sensitive and should be restricted from disclosure.

Background

9    On 27 November 2025, Coles Supermarkets lodged a notification under Pt IVA of the Competition and Consumer Act 2010 (Cth) (CCA) with the ACCC in respect of its proposed acquisition of a leasehold interest for a supermarket and liquor site in Kalgoorlie, WA (the proposed acquisition).

10    On 30 June 2026, the ACCC determined under section 51ABZE(1) of the CCA that the proposed acquisition must not be put into effect, being satisfied that the proposed acquisition, if put into effect, would, in all the circumstances, be likely to have the effect of substantially lessening competition in a market (Determination). On the same day, the ACCC issued a statement of reasons for the Determination and, on 1 July 2026, the statement of reasons was included on the acquisitions register in accordance with s 51ABZZI of the CCA.

11    On 15 July 2026, Coles Supermarkets filed an application for review of the Determination with the Australian Competition Tribunal (Tribunal) pursuant to s 100C of the CCA. On the review, the Tribunal may make a determination affirming, setting aside or varying the Determination (s 100N(1)(a)) and, for the purposes of the CCA, the determination of the Tribunal is taken to be a determination of the ACCC (s 100N(4)).

12    On 17 July 2026, Coles Supermarkets filed, in this proceeding, an originating application seeking judicial review of the Determination and, as final relief, an order setting aside the Determination. However, Coles Supermarkets also sought an interlocutory order staying this proceeding pending the determination by the Tribunal of Coles Supermarkets’ application for review under s 100C of the CCA. Thus, Coles Supermarkets does not wish this proceeding to be heard and determined until after the Tribunal has made its determination under s 100N of the CCA.

13    In accordance with r 8.05(2)(a) of the FCR, and as usual in proceedings seeking judicial review, the originating application was accompanied by the affidavit of Ms Evans, rather than a pleading. In the usual manner, the affidavit explains the background to the decision that is the subject of the application for judicial review and the basis for the application.

14    A question arises whether the final relief sought by Coles Supermarkets in this proceeding – setting aside the Determination – could be granted by the Court after the Tribunal has made its determination affirming, setting aside or varying the Determination. If such relief could not be granted, the proceeding may have no utility and should be permanently stayed or dismissed.

15    At the first case management hearing held on 21 July 2026, the Court made orders for the filing by Coles Supermarkets of submissions addressing the question of what, if any, relief could be granted by the Court in this proceeding if the Tribunal affirms the Determination of the ACCC, and for the filing by the ACCC of any objection to competency and responsive submissions.

16    It is in that context that a media participant has applied for inspection of the originating application and the affidavit of Ms Evans.

Applicable principles

17    As is recognised in many decisions of Australian courts, open justice is a fundamental aspect of the administration of justice, the rule of law and public accountability: Deputy Commissioner of Taxation v Hawkins [2016] FCA 164; 341 ALR 255 (Hawkins) at [7] (Pagone J). The benefits of requiring proceedings to be conducted publicly include that proceedings are fully exposed to public and professional scrutiny and criticism, which assists in maintaining confidence in the integrity and independence of the courts: Russell v Russell (1976) 134 CLR 495 at 520 (Gibbs J); Hogan v Hinch (2011) 243 CLR 506 at [20] (French CJ).

18    The media’s ability to report on proceedings that are conducted in this Court promotes open justice. As stated by the Full Court in R v Davis (1995) 57 FCR 512 at 514:

Whatever [the media's] motives in reporting, their opportunity to do so arises out of a principle that is fundamental to our society and method of government: except in extraordinary circumstances, the courts of the land are open to the public. This principle arises out of the belief that exposure to public scrutiny is the surest safeguard against any risk of the courts abusing their considerable powers. As few members of the public have the time, or even the inclination, to attend courts in person, in a practical sense this principle demands that the media be free to report what goes on in them.

19    Rule 2.32, which permits non-parties to inspect documents on the Court’s file, serves an important role in ensuring particular documents are available for public inspection: Pharm-a-Care Laboratories Pty Ltd v Commonwealth of Australia (No 13) [2012] FCA 370 at [47] (Flick J).

20    Access to the court file is not, however, unfettered. Rule 2.32 recognises competing interests that must be taken into account. Access will not be given to documents that are privileged from production or that the Court has ordered be kept confidential (r 2.32(1) and (3)).

21    Rule 2.32 also distinguishes between categories of documents. Relevantly, rr 2.32(2) and (2A) confer a general permission for non-parties to access a range of documents including an originating application, an interlocutory application, a pleading or similar document, a statement of agreed facts, a judgment or order of the Court, and a notice of appeal. However, for all other documents, r 2.32(4) permits a non-party to be given access only with the leave of the Court. The reason for the distinction between the two categories of documents lies in the nature of the documents listed in rr 2.32(2) and (2A). In broad terms, they are documents that define the issues that are sought to be determined by the proceeding and the relief that is sought by a party from the Court. As such, non-party access to such documents is important in promoting open justice as it enables the public, directly or indirectly through the media, to understand the proceeding: see Oldham v Capgemini Australia Pty Ltd (2015) 241 FCR 397 (Oldham) at [24]-[25] (Mortimer J).

22    Beyond the documents listed in rr 2.32(2) and (2A), leave is often sought by non-parties to access affidavits and submissions that have been filed with the Court in advance of a hearing. Whether leave should be granted will depend on a range of considerations, including:

(a)    the nature of the proceedings;

(b)    the stage reached in the proceedings;

(c)    the contents of the document (whether there is any information which has the potential to damage the private or commercial interests of a party);

(d)    whether access to the document is necessary or desirable to facilitate an understanding of the proceeding;

(e)    whether the document has been referred to in open court; and

(f)    the purpose for which access is required,

see Hawkins at [8] (Pagone J), referring with approval to the factors identified by McLure J in Van Stokkum v Finance Brokers Supervisory Board [2002] WASC 192 at [27].

23    The Court will usually give leave to a non-party to access documents (whether affidavits or submissions) that have been used or deployed in court, unless there is some countervailing reason to refuse leave (typically on account of confidentiality): Australian Competition and Consumer Commission v ABB Transmission and Distributors Ltd (No 3) [2002] FCA 609; ATPR 41-873 at [7] (Finkelstein J); Seven Network Ltd v News Ltd (No 9) (2005) 148 FCR 1 at [27] (Sackville J); Australian Securities and Investments Commission v Cassimatis (No 4) [2015] FCA 465 at [6]–[10] (Edelman J); Oldham at [26].

24    However, different considerations apply before such documents are used or deployed in court. The documents may never be used or deployed and therefore never become the evidence or submissions of the party concerned. As observed by Mortimer J in Oldham at [27]:

An affidavit which has not been read is likely to be treated quite differently, for the same reasons. Before it is read, it is not a person’s evidence. It may never be admitted as the evidence of the deponent, for a variety of reasons. At that stage, it is a document yet to become part of the process of open justice. That is not to suggest an affidavit on a court file and not yet read in court may never be subject to an order under r 2.32(4). There may be no objection from the parties, and there may in any given case be discretionary considerations which favour its inspection.

Consideration of the request for leave to inspect

25    In its initial submission, Coles Supermarkets opposed the grant of leave to inspect the affidavit of Ms Evans on the basis that the affidavit disclosed confidential information in the following categories:

(a)    Coles Supermarkets’ internal business processes and organisational structure including the types of analysis undertaken in relation to the proposed acquisition and the business plan for the proposed new supermarket;

(b)    the names and roles of Coles Supermarkets’ employees who provided statements to the ACCC in the course of the ACCC’s consideration of the transaction;

(c)    the identity of the developer of the site of the proposed supermarket and the fact that he provided a statement to the ACCC in the course of the merger review process; and

(d)    the contents of confidential correspondence between Coles Supermarkets and the ACCC during the merger review process.

26    Coles Supermarkets submitted that the proceeding is at an early stage and the affidavit has not been read into evidence.

27    Following the initial submission, the Court invited Coles Supermarkets to provide a further submission:

(a)    supporting its claim that the affidavit disclosed confidential information, and that public disclosure of that information would cause prejudice to Coles Supermarkets; and

(b)    addressing the question whether the affidavit is in the nature of a pleading, supporting the originating application.

28    In response, Coles Supermarkets submitted that the affidavit ought not be considered in the nature of a pleading. Coles Supermarkets did not provide any further support for its confidentiality claim, instead merely requesting that it be permitted to file a redacted version of the affidavit.

29    Having considered the submissions made by Coles Supermarkets, I consider that access to the affidavit should be given to non-parties for the following reasons.

A similar document to a pleading

30    First, I consider that the affidavit is in the nature of a pleading and is a “similar document” to a pleading within the meaning of r 2.32(2)(b).

31    Chapter 2 of the FCR regulates proceedings within the original jurisdiction of the Court. Part 8 prescribes how proceedings are to be commenced. Rule 8.01 stipulates that a proceeding must be commenced by filing an originating application. Rule 8.05(2) stipulates that an originating application seeking relief that does not include damages must be accompanied by a statement of claim or an affidavit (unless a practice note issued by the Chief Justice requires or permits an alternative accompanying document). Rule 8.05(4) stipulates that an accompanying affidavit must state the material facts on which the applicant relies that are necessary to give the respondent fair notice of the case to be made against the respondent at trial.

32    Chapter 3 of the FCR contains additional rules in relation to specific classes of proceedings. Unless expressly stated, however, the additional rules do not override the rules in Chapter 2; rather, they supplement those rules. Relevantly, Pt 31 applies to applications for judicial review. It prescribes different forms of originating application to be used for different categories of judicial review. Rule 31.03 requires the applicant to file, with the originating application, a copy of the decision that is the subject of the application for review and the reasons for decision.

33    The originating application filed by Coles Supermarkets contains a bare statement of the grounds of the application as follows:

Grounds of application

1.    A breach of the rules of natural justice, or denial of procedural fairness, occurred in connection with the making of the Decision by the Respondent in that the Respondent failed to provide the Applicant, prior to making the Decision, with:

a.     adequate notice of the grounds on which it proposed to make, and made, the Decision, namely, the theory of harm to competition against which it proposed to assess, and assessed, the Proposed Acquisition in making its Decision;

b.     relevant adverse material it relied upon in making its Decision (including reports entitled “Review of IGA Kalgoorlie viability: revised viability analysis” prepared by FTI Consulting dated 17 June 2026 and “Coles Kalgoorlie” prepared by Professor Patrick Rey dated 25 June 2026); and

c.     a reasonable opportunity to provide factual material and submissions responding to the matters and materials identified at (a) and (b) above.

34    The originating application complies with the requirements of r 8.01 and 31.01, but it does not give the ACCC fair notice of the case to be made by Coles Supermarkets at trial.

35    The affidavit of Ms Evans, which accompanies the originating application, is in the nature of a pleading. It states the material facts on which Coles Supermarkets relies in support of its application for judicial review. Paragraph 10 of the affidavit states:

This affidavit sets out certain of the factual bases for the proposition that the Applicant was not given fair notice of, and a fair opportunity to respond to, the new theory of harm relied upon by the Respondent in its final determination, as set out in the statement of reasons accompanying its Decision.

36    The affidavit then narrates the chronology of events resulting in the Determination: the notification of the proposed acquisition under Pt IVA of the CCA by Coles Supermarkets; the information provided to the ACCC by Coles Supermarkets (stated at the highest level of generality); the issue of the ACCC’s notice of competition concerns (a public document); Coles Supermarkets’ understanding of that notice and the issues raised; the further information provided to the ACCC by Coles Supermarkets (again, stated at the highest level of generality); further correspondence between the parties (identifying the individuals that provided lay or expert statements, and a very broad statement of the topics they addressed); and the issue of the Determination and statement of reasons (again, a public document). The affidavit then states Coles Supermarkets’ procedural fairness complaints, including allegations that:

(a)    prior to the Determination, Coles Supermarkets had not been informed of the ACCC’s current theory of competitive harm; and

(b)    the ACCC’s statement of reasons relies, or references, material which had not previously been made available to Coles Supermarkets or its advisers.

37    Having regard to the nature of the proceeding and the content of the affidavit, I consider that the affidavit is a “similar document” to a pleading within the meaning of r 2.32(2)(b) and the non-party seeking access to the document does not require leave to inspect the document.

Leave to inspect

38    Second, if I am wrong in the foregoing conclusion, I would nevertheless grant leave to the non-party to inspect the document under r 2.32(4) for the same reasons of open justice that underpin r 2.32(2).

39    As stated earlier, the grant of leave to inspect a document, including affidavits, will depend on a range of considerations, including the nature of the proceedings, the stage reached in the proceedings, the contents of the document, whether access to the document is necessary or desirable to facilitate an understanding of the proceeding, whether the document has been referred to in open court, and the purpose for which access is required. While typically the Court will not grant leave for inspection of an affidavit until the affidavit has been read in Court, that is not an absolute rule. As Mortimer J (as her Honour then was) observed in Oldham, there may be discretionary considerations which favour leave to inspect to be granted.

40    In my view, the present case is one in which leave to inspect should be granted. For the reasons already explained, the affidavit is in the nature of a pleading and has been filed at the commencement of the proceeding for that purpose. Access to the affidavit will facilitate an understanding of the proceeding and public scrutiny of the proceeding. That is desirable in circumstances where the proceeding concerns a new legislative regime for the control of mergers in Pt IVA of the CCA, and where a question arises about the legal utility of the proceeding in circumstances where Coles Supermarkets has also initiated a review of the Determination in the Tribunal under Pt IX of the CCA. At the first case management hearing, orders were made for the parties to file submissions addressing that question. Access to the affidavit of Ms Evans will facilitate open justice by facilitating an understanding of the issues being raised in the proceeding and how the question of utility arises.

Confidentiality claims

41    Third, having reviewed the affidavit, I am not in the least bit persuaded that the affidavit contains confidential information the disclosure of which would be prejudicial to Coles Supermarkets’ commercial interests.

42    At the time of filing the affidavit, Coles Supermarkets did not seek any orders from the Court restricting access to the affidavit or any part of it. In the affidavit, Ms Evans deposed that the affidavit refers to correspondence and other material that contain confidential information subject to a confidentiality undertaking and that, given the terms of the confidentiality undertaking, she does not believe that she is permitted to exhibit information which is the subject of the confidentiality undertaking to the affidavit. Ms Evans further deposed that, at a future point in time, she anticipates that she will be in a position to provide a further affidavit which includes a confidential exhibit of the relevant materials she discusses in the affidavit, but which are not annexed or exhibited to the affidavit. The clear implication of those statements is that Ms Evans does not consider that anything stated in the affidavit involved a breach of any confidentiality undertaking given by Coles Supermarkets.

43    In its initial submission, Coles Supermarkets claimed that four categories of information disclosed by the affidavit are confidential. Each is considered in turn.

44    First, I reject the claim that the affidavit discloses Coles Supermarkets’ internal business processes and organisational structure including the types of analysis undertaken in relation to the proposed acquisition and the business plan for the proposed new supermarket. The affidavit does none of those things. Further, in so far as those matters are relevant to the proposed acquisition, they have been disclosed by the public version of the ACCC’s statement of reasons (which is exhibited to the affidavit).

45    Second, it is correct that the affidavit discloses the names and roles of Coles Supermarkets’ employees who provided statements to the ACCC in the course of the ACCC’s consideration of the transaction. However, their names and roles have already been disclosed by the public version of the ACCC’s statement of reasons. Accordingly, that information is not confidential.

46    Third, it is also correct that the affidavit discloses the identity of an individual who is said to be the developer of the site of the proposed supermarket and the fact that he provided a statement to the ACCC in the course of the ACCC process. The public version of the ACCC’s statement of reasons discloses that the developer of the site is a company called M Holdings 4 Pty Ltd owned by M/Group. Accordingly, that information is not confidential. As the transaction involves a proposed lease between the developer and Coles Supermarkets, it can be readily inferred that the developer supports the transaction and would wish the ACCC to approve the transaction. Accordingly, that information is not confidential. The affidavit identifies the individual within the developer that provided a statement to the ACCC. The Court invited Coles Supermarkets to file a submission addressing why the disclosure of that fact would be prejudicial to the company. Coles Supermarkets did not provide any submission in response to that invitation and merely requested the opportunity to redact the affidavit to remove the individual’s name. In the absence of any submission explaining why disclosure of the individual’s name would be prejudicial, I refuse to grant leave for a redacted version of the affidavit to be filed.

47    Fourth, it can be accepted that the affidavit discloses a general description of correspondence between Coles Supermarkets and the ACCC during the merger review process and, in a few cases, a small amount of the contents of correspondence. The general description is at the highest level of generality and, where any of the contents of the correspondence is quoted, it is confined to a few sentences. Having reviewed the public version of the Determination, in my view there is nothing disclosed in the affidavit that is not already disclosed by the Determination. The ACCC has raised no objection to the disclosures contained in the affidavit. The Court invited Coles Supermarkets to file a submission addressing why the disclosures would be prejudicial. Coles Supermarkets did not provide any submission in response to that invitation and merely requested the opportunity to redact the affidavit to remove “direct extracts” of the correspondence. In circumstances where Coles Supermarkets seeks to rely on a description of the correspondence in support of its application for judicial review, and where Coles Supermarkets has failed to provide any explanation of why disclosure of the description of the correspondence would be prejudicial (far less substantiate any such claim), and where the ACCC has raised no objection to the disclosures, I refuse to grant leave for Coles Supermarkets to file a redacted version of the affidavit.

Conclusion

48    In conclusion, and for the reasons stated above, leave will be granted to any non-party to inspect the affidavit of Linda Evans sworn 17 July 2026 which was filed in support of the originating application for judicial review dated 17 July 2026.

Associate:

Dated:    28 July 2026