Australian Competition Tribunal

Application by Coles Supermarkets Australia Pty Ltd [2026] ACompT 1

IN THE AUSTRALIAN COMPETITION TRIBUNAL

DETERMINATION

THE TRIBUNAL DETERMINES AND DIRECTS THAT:

1. Pursuant to s 100S(2)(b) of the Competition and Consumer Act 2010 (Cth), the Applicant is allowed to file and serve by 2 October 2026, for the purposes of the review, an affidavit made by a suitably qualified employee of the Applicant identifying any errors in:

(a) the ‘calculation issues with the Second Business Case’ referred to in paragraph C5 of the Statement of Reasons of the Australian Competition and Consumer Commission (ACCC) dated 30 June 2026; and

(b) the revenue sensitivity calculations of the ACCC in paragraph C12 of the Statement of Reasons.

2. Pursuant to s 100S(2)(a) of the Competition and Consumer Act 2010 (Cth), the Intervener is allowed to file and serve by 25 September 2026, for the purposes of the review, the affidavit affirmed by Reece Neville Grant on 4 September 2026, excluding its annexure, or an affidavit in materially the same form.

REASONS FOR DETERMINATION

THE TRIBUNAL:

Introduction

1 On 27 November 2025, Coles Supermarkets Australia Pty Ltd (Coles) lodged a notification under Pt IVA of the Competition and Consumer Act 2010 (Cth) (CCA) with the Australian Competition and Consumer Commission (ACCC) in respect of its proposed acquisition of a leasehold interest over land in south-west Kalgoorlie, WA on which Coles proposes to build a new supermarket, with an associated liquor outlet (the proposed acquisition). The leasehold site is titled Lots 95-106 Great Eastern Highway, Somerville. Coles’ proposed supermarket would be a large-format, full-line supermarket with selling floor area of approximately 2,800m2. The site is currently vacant and undeveloped, and the proposed supermarket would be part of a broader proposed neighbourhood development.

2 On 30 June 2026, the ACCC determined under s 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.

3 On 15 July 2026, Coles 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.

4 At a directions hearing conducted on 21 July 2026, the Tribunal made a direction pursuant to s 109(2) of the CCA permitting O’Connor Fresh Pty Ltd as trustee for O’Connor Fresh Trust trading as O’Connor Fresh (O’Connor Fresh IGA) to intervene in the proceeding. O’Connor Fresh IGA is an independently owned and operated full-line supermarket at the corner of O’Connor Street and Maguire Street, Somerville, Kalgoorlie. It serves the southern and western suburbs of Kalgoorlie and the West Kalgoorlie industrial precinct. Geographically, it is the closest supermarket to the proposed supermarket.

5 At that directions hearing, the Tribunal also made directions:

(a) extending the period within which the Tribunal must make its determination on the review by a period of 60 days (pursuant to s 100P(3) of the CCA);

(b) requiring any application by a participant to provide new information, documents or evidence pursuant to s 100S(2) of the CCA to be made by 4 September 2026; and

(c) listing the proceeding for hearing on 9 to 12 and 16 to 19 November 2026.

6 On 4 September 2026, each of Coles and O’Connor Fresh IGA filed an application seeking the leave of the Tribunal under s 100S(2) of the CCA to provide new information, documents or evidence.

7 By its application, Coles seeks leave to provide the following information, documents and/or evidence for the purposes of the Tribunal’s review pursuant to s 100S(2)(b):

(a) an expert report from Dr Mike Walker (Frontier Economics UK) which addresses, and responds to, the expert report prepared by Professor Patrick Rey dated 25 June 2026 and the ACCC’s Statement of Reasons; and

(b) any evidence of a person or persons with working knowledge of Coles’ Capital Approval Request (CAR) Model addressing the following worksheets prepared by the ACCC in respect of Coles’ business case, as referenced in the Determination, and provided to Coles on 11 August 2026:

(i) a worksheet titled “COL.0009.0001.0001 (ACCC Adjusted - calc issues) - CONFIDENTIAL AND HIGHLY COMMERCIALLY SENSITIVE - Please see notes about sensitivity in iM doc #31,534,082 (1)” and which has the document ID number 01068.022.038.0002; and

(ii) a worksheet titled “COL.0009.0001.0001 (ACCC Adjusted - revenue sensitivity) - CONFIDENTIAL AND HIGHLY COMMERCIALLY SENSITIVE – please see notes about sensitivity .xlsx” and which has the document ID number 01068.022.038.0003.

8 Coles’ application was supported by:

(a) an affidavit of Liza Windel Carver, a partner at Herbert Smith Freehills Kramer, the solicitors for Coles, sworn 27 August 2026;

(b) an affidavit of Andrew Eastwood, a partner at Herbert Smith Freehills Kramer, the solicitors for Coles, sworn 4 September 2026;

(c) an affidavit of Linda Catherine Evans, a partner at Herbert Smith Freehills Kramer, the solicitors for Coles, sworn 4 September 2026; and

(d) written submissions dated 4 September 2026.

9 By its application, O’Connor Fresh IGA seeks leave to provide an affidavit of Reece Neville Grant affirmed 4 September 2026 for the purposes of the Tribunal’s review. The application was supported by written submissions dated 4 September 2026.

10 On 9 September 2026, the Tribunal made directions for the filing of responsive material to each application.

11 In respect of Coles’ application:

(a) O’Connor Fresh IGA has informed the Tribunal that it neither consents to nor opposes the application; and

(b) the ACCC filed written submissions dated 16 September 2026 and an affidavit of Katrina Mary Close, a lawyer employed by the Australian Government Solicitor, the solicitors for the ACCC, affirmed 16 September 2026.

12 In respect of O’Connor Fresh IGA’s application:

(a) Coles has informed the Tribunal that it neither consents to nor opposes the application; and

(b) the ACCC filed written submissions dated 16 September 2026.

13 The two applications made under s 100S were heard on 21 September 2026.

14 For the reasons that follow, the Tribunal will allow each application in part.

Legislative framework for the Tribunal’s review

15 This proceeding is the first application for review brought under the new merger approval regime introduced into the CCA by the Treasury Laws Amendment (Mergers and Acquisitions Reform) Act 2024 (Cth). In determining the present applications which have been made under s 100S(2) by Coles and O’Connor Fresh IGA, it is appropriate to have regard to the statutory context which frames the discretion given to the Tribunal by s 100S(2) to permit a person to provide “new information, documents or evidence”.

ACCC assessment of mergers and acquisitions

16 The Treasury Laws Amendment (Mergers and Acquisitions Reform) Act 2024 (Cth) introduced a new regime for the regulation of mergers and acquisitions that are likely to have the effect of substantially lessening competition.

17 In broad terms, the new regulatory regime requires certain types of acquisitions of shares and assets to be notified to the ACCC for approval, as defined within Div 2 of Pt IVA of the CCA. Parties to an acquisition that is required to be notified are prohibited from putting the acquisition into effect without such approval: see Div 1A of Pt IV of the CCA.

18 In the present proceeding, the proposed acquisition is an acquisition that is required to be notified by reason that the proposed acquisition will have the effect that Coles, being a major supermarket, acquires a legal or equitable interest in land that is greater than 2000 m2: see paras 1-7 and s 3-2 of the Competition and Consumer (Notification of Acquisitions) Determination 2025 (Cth), made pursuant to s 51ABQ(1) of the CCA.

19 The ACCC may determine that the acquisition may be put into effect or that it must not be put into effect: s 51ABZE(1). The ACCC may only refuse approval for the acquisition if it is satisfied that the acquisition, if put into effect, would, in all the circumstances, have the effect, or be likely to have the effect, of substantially lessening competition in any market (competition determination): s 51ABZE(2). If the ACCC makes that determination, the parties may apply to the ACCC for a determination that the acquisition would nevertheless be of public benefit. The ACCC may only make that determination if it is satisfied that, were the acquisition put into effect, the acquisition would, in all the circumstances, result, or be likely to result, in a benefit to the public that outweighs the detriment to the public that would result, or likely to result, from the acquisition (public benefit determination): s 51ABZW(2).

Tribunal review of ACCC acquisition determinations

20 Under the new merger approval regime, a person dissatisfied with an acquisition determination (whether a competition determination or a public benefit determination) of the ACCC may apply to the Tribunal under s 100C for review of the determination under Div 1B of Pt IX of the CCA.

Tribunal determination

21 On a review of an acquisition determination, the Tribunal may make a determination affirming, setting aside or varying the determination and, for the purposes of the review, may perform all the functions and exercise all the powers of the ACCC: s 100N(1). A determination of the Tribunal affirming, setting aside or varying an acquisition determination is taken to be a determination of the ACCC: s 100N(4).

22 However, s 102A stipulates that, unlike most reviews conducted by the Tribunal under Pt IX of the CCA, a review of an acquisition determination is not a ‘re-hearing’. As discussed below, the Tribunal’s review is not a re-hearing because the Tribunal’s review is, subject to certain exceptions, confined to a consideration of the information, documents and evidence that were before the ACCC when it made its determination.

Time limits

23 A review by the Tribunal is subject to statutory time limits, which are prescribed by s 100P. Section 100P(2) stipulates that, subject to extensions under subsections (3) and (5), the Tribunal must make its determination no later than 90 days after:

(a) the last day on which an application for review of the determination could have been made under subsection 100C(1); and

(b) the day the applicant gives to the Tribunal the additional information or documents required under subsection 100D(1).

24 Section 100P(3) permits the Tribunal, before the expiry of the period within which the Tribunal must make a determination, to extend the period by 60 days. That power can only be exercised once: s 100P(4). As noted earlier, the Tribunal has exercised that power in the present proceeding.

25 Section 100P(5) permits the Tribunal, before the expiry of the period within which the Tribunal must make a determination (including the period as extended under s 100P(3)), to extend the period by 90 days if the Tribunal is satisfied that the matter cannot be dealt with properly within the period because:

(a) of the matter’s complexity, or the volume of information, documents and evidence before the Tribunal in relation to the matter; or

(b) the Tribunal has allowed new information, documents or evidence under s 100S(2); or

(c) of other special circumstances.

Information limits

26 The information, documents or evidence to which the Tribunal may have regard in conducting its review is restricted to the material enumerated in s 100T, which provides as follows:

100T Information etc. to which Tribunal may have regard

Despite section 100N, the Tribunal must not, for the purposes of a review under this Division, have regard to any information, documents or evidence other than:

(a)     information that was referred to in the Commission’s reasons for making the determination to which the review relates; and

(b)     the information, documents or evidence referred to in subsection 100B(5); and

(c)     the information or documents given to the Tribunal under subsection 100D(1); and

(d)     the information, documents or evidence referred to in subparagraph 100Q(b)(ii); and

(e)     any information or report given to the Tribunal under subsection 100R(1); and

(f)     the information, documents or evidence referred to in subsection 100R(2); and

(g)     information given to the Tribunal as a result of the Tribunal seeking such relevant information, and consulting with such persons, as it believes reasonable and appropriate for the sole purpose of clarifying the information, documents or evidence referred to in subsection 100R(2); and

(h)     the information, documents or evidence referred to in paragraph 100S(1)(b); and

(i)     any information, documents or evidence referred to in subsection 100S(2).

27 The effect of s 100T is that the Tribunal may have regard to the following three categories of information, documents or evidence without taking any further action:

(a) information that was referred to in the ACCC’s reasons for making the determination (s 100T(a));

(b) any information furnished, documents produced or evidence given to the ACCC in connection with the making of the determination to which the review relates, other than information, documents or evidence to which the ACCC was not permitted to have regard in making the determination (s 100T(f), referencing 100R(2) which is qualified by 100R(3)); and

(c) the information and documents that the applicant is required to give to the Tribunal by a legislative instrument made under s100D (s 100T(c)).

28 Section 100T recognises that the Tribunal is empowered to supplement the above three categories of information, documents or evidence in a number of ways.

29 First, under s 100Q, the Tribunal may ask questions of a technical expert or seek information, documents or evidence from a technical expert and, if it does, may have regard to any information furnished, documents produced or evidence given to the Tribunal by the expert (s 100T(d), referencing s 100Q(b)(ii)).

30 Second, under s 100R(1) the presiding member of the Tribunal may require the ACCC to give such information, make such reports and provide such other assistance to the Tribunal as the member specifies and, if the presiding member does so, the Tribunal may have regard to any information or report given it (s 100T(e), referencing s 100R(1)).

31 Third, under s 100T(g), the Tribunal may seek such relevant information, and consult with such persons, as it believes reasonable and appropriate for the sole purpose of clarifying the information, documents or evidence given to the ACCC in connection with the making of the determination to which the review relates, and may have regard to the information given to the Tribunal as a result of that process.

32 Fourth, under s 100S(1), the Tribunal may consult any consumer associations or consumer interest groups and have regard to any information furnished, documents produced or evidence given to the Tribunal in connection with such consultation (s 100T(h), referencing s 100S(1)).

33 Fifth, under s 100S(2), the Tribunal may allow a person to provide new information, documents or evidence if:

(a) the Tribunal is satisfied that the information, document or evidence was not in existence at the time the ACCC made the determination; or

(b) the person is the notifying party of the notification, and the Tribunal is satisfied that:

(i) the information, documents or evidence are relevant to the grounds on which the ACCC made the determination; and

(ii) the person was not given a reasonable opportunity to make submissions to the ACCC in relation to those grounds, or the evidence or other material on which those grounds were based, before the ACCC made the determination (including because the person was not informed of the grounds, evidence or other material).

The nature of the Tribunal’s review

34 The legislative scheme governing the Tribunal’s review of acquisition determinations is very similar to the scheme that previously applied to the review of merger authorisations, prior to the enactment of the Treasury Laws Amendment (Mergers and Acquisitions Reform) Act 2024 (Cth). That scheme was considered by the Tribunal in Applications by Telstra Corporation Limited and TPG Telecom Limited [2023] ACompT 1 (Telstra and TPG), where the Tribunal explained:

68    … the 2017 Amendment Act differentiated the review of merger authorisation determinations from other authorisation determinations in two material ways. First, a review of a merger authorisation is required to be completed by the Tribunal within a statutory time period. Second, a review of a merger authorisation is not a re-hearing of the matter and restrictions are imposed on the information, documents and evidence to which the Tribunal may have regard. In other important respects, however, the statutory framework governing the review of authorisation determinations does not distinguish between merger authorisations and other authorisations. Most relevantly, ss 102(1) and (2) stipulate in respect of all reviews of authorisation determinations by the Tribunal that:

(a)    the Tribunal may make a determination affirming, setting aside or varying the determination of the ACCC;

(b)    for the purposes of the review, the Tribunal may perform all of the functions and exercise all the powers of the ACCC; and

(c)    the Tribunal’s determination is taken to be a determination of the ACCC.

69    The language of those subsections is similar to that found in many statutes that provide for review by an administrative tribunal of administrative decisions including, for example, ss 43(1) and (6) of the Administrative Appeals Tribunal Act 1975 (Cth). The combined effect of ss 102(1) and (2) indicate that the Tribunal’s review task is to determine whether the decision made by the ACCC was objectively the correct or preferable decision to be made: cf Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 78 (Smithers J). In that sense, the Tribunal “stands in the shoes” of the ACCC: O’Sullivan v Australian Securities and Investments Commission (2018) 160 ALD 233 at [36], citing Shi at [40], [100] and [134]. The substance of those provisions have remained unchanged since the Act was first enacted and the provisions have been consistently interpreted in that manner: see for example QCMA at 486; Re Herald & Weekly Times at 295-6; Australian Consumers’ Association’s Application (Re Media Council of Australia (No 2)) (1987) 82 ALR 115 at 126 (Lockhart J, Prof M Brunt and Dr B Aldrich); Medicines Australia at [135] and [138].

35 The Explanatory Memorandum to the Treasury Laws Amendment (Mergers and Acquisitions Reform) Bill 2024 confirms that the legislature intended that the new provisions governing the Tribunal’s review of ACCC acquisition determinations reflected the ‘limited merits review’ process for determinations made by the ACCC under the previous merger authorisation process, with some modifications (at para 6.9). The Explanatory Memorandum further explained:

6.21     The purpose of limited merits review is for the Tribunal to stand in the shoes of the original decision-maker, and make its own findings of fact and reach its own decision, based on the information which was before the Commission (unless otherwise permitted in limited circumstances). In doing so, the review body needs the ability to perform all the functions and exercise all the powers of the original decision-maker (to the extent it is permitted to do so).

6.22     These provisions give the Tribunal those powers and functions in relation to acquisition determinations. Accordingly, the Tribunal may affirm, vary or set aside the determination.

…

6.25     The Tribunal’s review of an acquisition determination is not a re-hearing. This is the same as the existing position for a review of a determination in relation to a merger authorisation application (or minor variation) or merger authorisation revocation and substitution of another merger authorisation.

36 Thus, in a review conducted under Div 1B of Pt IX of the CCA, the Tribunal must conduct a review of the ACCC’s acquisition determination, making its own decision with respect to the application of the statutory criteria in s 51ABZE(2) (for a competition determination) and s 51ABZW(2) (for a public benefit determination), having regard to only that material that is enumerated in s 100T and do so within the time limits imposed by s 100P.

Section 100S(2)

37 Having regard to that statutory context, the discretion conferred on the Tribunal by s 100S(2) can be considered. It is helpful to reproduce that provision:

100S Information gathering etc.

…

(2)     For the purposes of a review under this Division in relation to an acquisition determination in respect of a notification of an acquisition, the Tribunal may allow a person to provide new information, documents or evidence if:

(a)     the Tribunal is satisfied that the information, document or evidence was not in existence at the time the Commission made the determination; or

(b)     the person is the notifying party of the notification, and the Tribunal is satisfied that:

(i)     the information, documents or evidence are relevant to the grounds on which the Commission made the determination; and

(ii)     the person was not given a reasonable opportunity to make submissions to the Commission in relation to those grounds, or the evidence or other material on which those grounds were based, before the Commission made the determination (including because the person was not informed of the grounds, evidence or other material).

38 It can be seen that s 100S(2) confers a discretion on the Tribunal to allow a person to provide new information, documents or evidence if the Tribunal is satisfied of one of two matters. In context, the word “new” can be understood as information, documents or evidence that was not before the ACCC when it made its acquisition determination.

39 The first of the circumstances is stated in s 100S(2)(a) and applies where the Tribunal is satisfied that the information, document or evidence was not in existence at the time the ACCC made the determination. The statutory language is materially the same as s 102(9) which applied to the review of merger authorisations. In respect of that provision, the Tribunal observed in Telstra and TPG at [82] that:

It can be accepted that there is a degree of ambiguity in the descriptor “in existence at the time the Commission made the determination” when used to qualify the phrase “information, documents or evidence”. Taken literally, the descriptor could refer to an affidavit or expert report that is only brought into existence after the ACCC made its determination, but which contains information or evidence about facts and matters that existed before the ACCC made its determination. Read in context and in light of the statutory purpose as revealed by the extrinsic materials, however, it is clear that the descriptor is intended to confine the Tribunal’s discretion so as to permit the provision of new material concerning facts and matters that did not exist at the time the ACCC made its determination.

40 In respect of s 100S(2)(a), the Explanatory Memorandum described the Tribunal’s discretion as follows (at para 6.29, emphasis added):

The Tribunal may allow a person to provide new information, documents or evidence that the Tribunal is satisfied was not in existence at the time the Commission made the determination to which the review relates. This will allow the Tribunal to take account of a change in circumstances that has occurred since the Commission’s determination. For example, if there is new entry to the relevant market after the Commission’s determination is made, the Tribunal may allow a person to provide new information about the entrant so this change in circumstances can be taken into account in the Tribunal’s review.

41 Thus, it is clear that the legislative purpose of s 100S(2)(a) is to confer a discretion on the Tribunal to allow a person to provide information, documents or evidence concerning facts and matters that did not exist at the time the ACCC made its acquisition determination.

42 The second of the circumstances is stated in s 100S(2)(b) and applies where the person is the notifying party of the acquisition, and the Tribunal is satisfied that (i) the information, documents or evidence are relevant to the grounds on which the ACCC made the determination and (ii) the person was not given a reasonable opportunity to make submissions to the ACCC in relation to those grounds, or the evidence or other material on which those grounds were based, before the ACCC made the determination. It is apparent that this second limb of the Tribunal’s discretionary power is intended to address procedural fairness concerns arising from the ACCC’s decision-making process. The Tribunal may allow a notifying party to provide new information, documents or evidence on a relevant issue if the notifying party satisfies the Tribunal that they were not given a reasonable opportunity to make submissions on the issue or the evidence bearing on the issue.

43 The Explanatory Memorandum recognised that procedural fairness issues may arise in the ACCC’s decision-making process by reason of the need to balance the competing interests of the notifying party and third party stakeholders in a merger review. The notifying party has an interest in receiving and responding to all information and submissions made by third party stakeholders, whereas third party stakeholders may have a legitimate interest in keeping commercially sensitive information and submissions confidential. In balancing those interests, the ACCC may provide summaries of third party submissions to the notifying party, leading to disputes about procedural fairness. The Tribunal has a discretionary power to address such concerns on its review, subject to being satisfied of the conditions referred to above. However, the Explanatory Memorandum makes clear that it is expected that the power will be exercised in limited circumstances (at para 6.32):

These amendments recognise the need to facilitate continued cooperation and engagement from third party stakeholders in merger reviews including those that might have commercially sensitive and confidential information that may be relevant to the review. The Tribunal has rules and processes that can be used to protect confidential third-party information. This provision is not intended to reduce the incentive for such stakeholders to provide information in the future. Rather it is intended to ensure the Tribunal is empowered to exercise discretion in limited circumstances to provide parties with appropriate procedural fairness while at the same time being able to balance a desire to avoid harm to the interests of third party stakeholders and the need to ensure that third parties continue to participate in merger reviews.

44 The meaning of the phrase “reasonable opportunity” in s 100S(2)(b) must be considered in its statutory context, particularly the statutory processes for the notification of acquisitions and their assessment by the ACCC: Kioa v West (1985) 159 CLR 550 at 614 (Brennan J); SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [26] (Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ). Those processes are defined in Part IVA of the CCA, and particularly Divisions 4 and 6. They include the following:

(a) First, where a notified acquisition proceeds to a Phase 2 review, the ACCC must give a notification (Phase 2 Notification) to the notifying party which explains the ACCC’s competition concerns, including the nature of the ACCC’s theory of harm that is the basis for the decision to proceed to Phase 2 and the matters the ACCC intends to investigate: s 51ABZJ.

(b) Second, the ACCC must also give the notifying party a notice of competition concerns (NoCC) which identifies the ACCC’s preliminary assessment of whether the acquisition, if put into effect, would have the effect, or be likely to have the effect, of substantially lessening competition in any market, and the grounds for that assessment, referring to the evidence or other material on which those grounds are based: ss 51ABZK. The ACCC must give the notifying party a reasonable opportunity to make submissions in relation to the matters the subject of the NoCC: s 51ABZL.

(c) Third, the ACCC may request additional information and submissions from the notifying party and third parties: s 51ABZZD. The ACCC may also use its coercive powers in s 155 of the CCA to seek further information and evidence: s 51ABZZE(2)(c).

(d) Fourth, the ACCC’s assessment of a notified acquisition is subject to statutory timeframes. Relevantly, the Phase 2 review process is to be completed within 90 business days subject to extensions permitted by the statute: see ss 51ABZI(2), (3)(b) and (5). The making of submissions to the ACCC is also governed by statutory timeframes, and the ACCC must not take into account certain submissions received outside of those timeframes: see ss 51ABZL(1)(b) and 51ABZZD(5).

45 The statutory framework governing the ACCC’s assessment of notified acquisitions does not suggest that the ACCC must afford the notifying party an opportunity to respond to every piece of information or submission received by the ACCC. Having regard to the statutory timeframes, such an implied requirement would be infeasible.

46 The discretion conferred on the Tribunal by s 100S(2)(b) is to be construed and applied in that statutory context. It applies if the notifying party was not given a reasonable opportunity to make submissions to the ACCC in relation to the grounds on which the ACCC made the determination or the evidence or other material on which those grounds were based.

47 As stated earlier, if either of the conditions stated in paras (a) and (b) of s 100S(2) apply, the Tribunal has a discretion to allow a person to provide new information, documents or evidence. In exercising that discretion, it is appropriate for the Tribunal to have regard to the apparent legislative purpose underpinning the ‘limited merits review’ framework governing the Tribunal’s review. That legislative purpose was explained in the Explanatory Memorandum as follows (at para 6.33, emphasis added):

The Tribunal must not have regard to any information, documents or evidence other than specified. Limitations on the information that may be considered by the Tribunal appropriately balance the interests of all parties to the review. In particular, they are intended to ensure that notifying parties in relation to a notification of an acquisition provide the Commission with all relevant material at the time of the notification, and do not delay the production of that material until later in the process or until the Tribunal review takes place. The limitations also facilitate the Tribunal conducting its review expeditiously given the time-sensitive nature of acquisitions.

Role of the ACCC in Tribunal reviews

48 The Tribunal has long recognised the important role played by the ACCC in reviews conducted under Pt IX of the CCA, assisting the Tribunal to reach the correct decision in the public interest: see Re Herald & Weekly Times Ltd (1978) 17 ALR 281 at 300 (Deane J, Mr J Shipton and Mr J Walker). The ACCC’s role in a review is not to defend its own decision, but to assist the Tribunal to understand the legal, factual and economic issues arising on the review. Ordinarily, if a party or intervener acts as a contradictor on the review, the role played by the ACCC will be more confined and will avoid duplication of submissions advanced by the contradictor. However, where there is no contradictor, the ACCC may play a very important role in assisting the Tribunal. In a similar review context to Pt IX, being a review of a determination made by the Economic Regulatory Authority of Western Australia, the Tribunal observed (in Application by DBNGP (WA) Transmission Pty Ltd (No 3) [2012] ACompT 14 at [37] (Mansfield J, Mr R Davey and Prof D Round)):

Where there is no natural contradictor on an issue in the application, a decision maker may need to participate in the proceedings in order to assist the Tribunal. In addition, if the statutory regime is consistent with the decision maker taking an active role in the proceedings, it is then appropriate for the decision maker to respond substantively to the review application. The role that the decision maker takes in merits review proceedings is also different to the role taken in actions for judicial review. In the case of merits review, there is a more limited application of the Hardiman principles because the decision maker, as “administrator” of the particular statutory regime, is uniquely placed to assist in that it has an in-depth knowledge of the scheme: Macedon Ranges Shire Council v Romsey Hotel Pty Ltd and Anor (2008) 19 VR 422 at [30]; Bankstown City Radio Co-operative Ltd v Australian Communications and Media Authority [2007] FCA 2053 at [6]; Geographical Indications Committee v O’Connor (2000) 64 ALD 325 at [35].

49 The Tribunal considers that the above principles are applicable to a review by the Tribunal of acquisition determinations under Pt IX of the CCA.

Coles’ application

Overview

50 By its application, Coles seeks the Tribunal’s permission to provide, for the purposes of the review, two categories of further evidence, pursuant to s 100S(2)(b).

51 The first category is an expert report from Dr Mike Walker, of Frontier Economics UK, which addresses, and responds to, the expert report prepared by Prof Patrick Rey dated 25 June 2026 and the ACCC’s Statement of Reasons.

52 The second category is an affidavit, statement or report from a Coles employee addressing alleged errors made by the ACCC when assessing Coles’ CAR Model, as reflected in certain worksheets prepared by the ACCC, as referenced in the Determination and provided to Coles on 11 August 2026.

53 It is convenient to address each category in turn. As stated earlier, O’Connor Fresh IGA neither consents to nor opposes Coles’ applications and, accordingly, did not file submissions in response.

Further expert report from Dr Mike Walker

Coles’ submissions

54 Coles submitted that the opportunity that a notifying party has to make submissions to the ACCC is shaped by the statutory requirement that the party be informed of the grounds on which the ACCC proposes to make a determination, including the theory of harm which the ACCC proposes to apply in assessing the acquisition. In that regard, Coles referred to the requirements for the ACCC to give the notifying party a Phase 2 Notification specifying the nature of the theory of harm and to give a NoCC (notice of competition concerns) which sets out the grounds of the ACCC’s preliminary assessment and refers to the evidence on which those grounds are based.

55 Coles submitted that the ACCC informed Coles that the theory of harm against which it was assessing the proposed acquisition was one of oversupply and predation or profit sacrifice. The Phase 2 Notification referred to the “likely economic rationale” of the acquisition and potential “over-supply of supermarket capacity relative to consumer demand”. The NoCC similarly recorded the ACCC’s concerns about “an over-supply of supermarket capacity in Kalgoorlie, leading to the exit of an effective independent supermarket competitor” and that the proposed acquisition “is likely to be unprofitable unless it results in the exit of an effective competitor”. Coles further submitted that questions put to witnesses in examinations under s 155(1)(c) of the CCA and responses made to enquiries made by Coles seeking to clarify the applicable theory of oversupply and predation, were to equivalent effect. Coles submitted that, according to this theory of harm, acquisitions that have the effect of increasing capacity may raise competition concerns when they involve a strategic investment in excess capacity relative to demand, leading to recoupment on the exit of a competitor.

56 Coles submitted that at no stage was Coles informed that the ACCC was investigating or assessing the proposed acquisition against an alternative theory of harm whereby exit, even though occurring as a consequence of consumer choice, is said to be a substantial lessening of competition because of a judgement made by the regulator about net consumer welfare.

57 On 18 May 2026, Coles received a report prepared for the ACCC by Prof Patrick Rey (First Rey Report). On 1 June 2026, the solicitors for Coles, Herbert Smith Freehills Kramer (HSFK), received a spreadsheet comparing revenue for Coles Kalgoorlie’s top 100 SKUs with revenue for “matching” SKUs offered by Woolworths, Spudshed and O'Connor Fresh IGA (SKU Analysis). The SKU Analysis did not include any data for Lionel St IGA and Hannans Marketplace by Foodworks (Foodworks). Coles submitted that, at the time of receiving these materials, the ACCC did not indicate to Coles how the ACCC would apply them.

58 On 3 June 2026, HSFK wrote to the ACCC stating that there was nothing in the NoCC that suggested that the framework set out in the First Rey Report would be applied to the proposed acquisition and that the ACCC had not otherwise provided any indication as to how it proposes to use or apply the framework. The letter further stated that procedural fairness in connection with the ACCC’s determination required that Coles have an opportunity to comment, not only on the First Rey Report, but on the potential application of the First Rey Report to the proposed acquisition that the ACCC may be considering. The letter also asked whether the SKU Analysis was being applied to the First Rey Report and stated that procedural fairness required that Coles have an opportunity to respond to the SKU Analysis, in particular in circumstances where the ACCC may be applying these datasets to the framework set out in the First Rey Report. The letter specifically asked if, or how, the ACCC proposed to or might use the SKU Analysis and, at a minimum, confirmation of the propositions or issues to which the SKU Analysis was relevant.

59 Coles submitted that the ACCC’s response dated 5 June 2026 provided no substantive answer to Coles’ question in respect of the First Rey Report, instead asserting that it was for the ACCC to decide whether and how the principles expounded by Prof Rey may inform the ultimate decision the ACCC is to make, that the ACCC was considering how the principles articulated in the First Rey Report may assist the ACCC to identify whether the new investment represented by the proposed acquisition would be pro-competitive or anti-competitive, and inviting submissions on that question. In respect of the SKU Analysis, the ACCC stated that the SKU Analysis is relevant to its assessment of the substitutability and closeness of competition between supermarkets in Kalgoorlie and stated that substitutability may be relevant to the application of the principles in the First Rey Report (if they are applied) but that the SKU Analysis was not directly related to the First Rey Report.

60 On 5 June 2026, Coles instructed Dr Mike Walker of Frontier Economics UK to provide a report on (among other matters) the extent to which the First Rey Report is useful and informative for decision-makers in relation to analysis of the proposed acquisition. On 9 June 2026, Coles received a report from Dr Walker addressing those matters, and provided that report to the ACCC on the same day.

61 On 25 May 2026, Coles instructed Warwick Davis of Frontier Economics Australia to respond to the First Rey Report insofar as it touched on an earlier report prepared by Mr Davis. On 10 June 2026, Coles provided further instructions to Mr Davis to provide his observations on the SKU Analysis. On 11 June 2026, Coles provided a report from Mr Davis to the ACCC. Coles also provided a statement from Coles’ Head of Range, Space and Systems outlining Coles’ centralised, but locally tailored, range decision-making processes.

62 On 11 June 2026, Coles met with the ACCC and stated that the ACCC had not disclosed the material facts and propositions that would enable Coles to understand the issues likely to be relevant to the ACCC’s decision. On 17 June 2026, HSFK wrote to the ACCC regarding procedural fairness, emphasising the need for Coles to be in a position to understand and comment on the ACCC’s potential application of the First Rey Report to the proposed acquisition. Coles received no response to that letter.

63 Coles submitted that, in the Statement of Reasons, the ACCC concluded that there was a material risk that the proposed acquisition would lead to the exit of O’Connor Fresh IGA, and that consumers would be worse off over time by losing a differentiated local offer (through the exit of O’Connor Fresh IGA), thus reducing “non-price competitive rivalry” (SoR [8.6], [8.9]). Coles further submitted that the ACCC’s assessment of the proposed acquisition did not turn on whether the proposed acquisition is profitable or not (SoR [6.207], [6.209]).

64 Coles further submitted that the ACCC’s conclusion, that the proposed acquisition would be likely to substantially lessen competition even in the absence of predation, was informed by the First Rey Report, and by a further report of Prof Rey received by the ACCC dated 25 June 2026 (Second Rey Report) (SoR [4.7], [6.185]-[6.209]). Coles submitted that it became aware that the ACCC had obtained the Second Rey Report only upon reviewing the Statement of Reasons (and was not provided with the Second Rey Report until 3 July 2026, after the ACCC’s Determination). The Second Rey Report asserted that a substantial lessening of competition may occur in circumstances where there is reduction in net consumer welfare, resulting from an investment in new capacity and the exit of an independent and differentiated competitor, irrespective of any evidence of predation. Coles submitted that no equivalent opinion was expressed in the First Rey Report, which observed that “the expansion & exit scenario outlined by the ACCC, in which the new store replaces O’Connor Fresh IGA, need not exhibit the dynamic pattern of predatory behaviour”, but did not make the further point that the expansion and exit scenario could result in reduced net consumer welfare irrespective of predation.

65 Coles submitted that the ACCC’s conclusion that consumers would be worse off by losing a differentiated offer (O’Connor Fresh IGA) was informed by the SKU Analysis (SoR [4.9], [6.45], [6.46] (Figure 4) and [7.24]), and the data on which it was based, being Woolworths, O’Connor Fresh IGA and Spudshed’s top 2,000 SKUs by revenue (SKU data). Coles’ legal advisers were not permitted to share the SKU Analysis with Coles, and neither Coles nor its legal advisers were provided with the SKU data until between 30 July and 11 August 2026, after the ACCC’s Determination. Coles further submitted that the ACCC’s conclusion was also informed by other information and evidence pertaining to supermarket SKUs, product ranges, sources of supply and differentiation in Kalgoorlie provided to the ACCC by O’Connor Fresh IGA, Metcash, Woolworths, Lionel St IGA and Foodworks (Additional Information) (SoR [2.43] (Table 3), [6.37], [6.41], [6.50], [7.24] and [7.25]). Neither Coles nor its legal advisors were provided with the Additional Information until between 13 July and 11 August 2026, after the ACCC’s Determination.

66 On the basis of the foregoing, Coles submitted that it was not given a reasonable opportunity to make submissions in relation to the grounds on which the ACCC made the Determination, or to the evidence or other material on which those grounds were based, before the ACCC made the Determination. Coles argued that its ability to respond to the Rey Reports (on which the ACCC’s theory of harm was based) was unreasonably constrained:

(a) first, by the time Coles was given to respond to the First Rey Report (being, in substance, a mere three weeks, in the context of requirements that Coles simultaneously respond to other later disclosed material);

(b) secondly, by the ACCC’s failure (even when asked) to inform Coles that the ACCC was considering applying Prof Rey’s framework to support a conclusion that exit of O’Connor Fresh IGA would have an effect of substantially lessening competition even in the absence of a finding of predation by Coles; and

(c) thirdly, by Coles not receiving the Second Rey Report prior to the Determination, especially in circumstances where the Second Rey Report asserted in terms that an “expansion & exit scenario” may support a finding of substantial lessening of competition even absent a finding of predation, where the First Rey Report had contained no such assertion.

67 Coles argued that the non-disclosure of the Second Rey Report was additionally unfair because its assertion that Dr Walker “does not question the validity” of the economic principles outlined in the First Rey Report formed the basis for the finding in the Statement of Reasons that Dr Walker “appears also to support an approach that assesses the net effect on consumer welfare, albeit using a different economic model [to that used by Prof Rey]” (SoR [6.202]). Coles submitted that that is not Dr Walker’s position and the ACCC did not ask Dr Walker if it was.

68 Coles also submitted that its ability to respond specifically to the SKU Analysis and the Additional Information (on which the ACCC’s theory of harm was based) was unreasonably constrained:

(a) first, by the time Coles was given to respond to the SKU Analysis (being only 10 days), and by Coles not receiving the SKU data and Additional Information prior to the Determination;

(b) secondly, by reason of Coles’ legal advisors not being permitted to share the SKU Analysis with Coles prior to the Determination and thereby permit it to interrogate the analysis and in particular the ACCC’s assessment of “matching” SKUs; and

(c) thirdly, by the ACCC’s failure (even when asked) properly to inform Coles that the SKU Analysis was relevant to more than its “assessment of the substitutability and closeness of competition between supermarkets in Kalgoorlie” and that it was directly relevant to the application of Prof Rey’s framework by the ACCC.

69 Coles submitted that, if it had been aware that the ACCC proposed to use the “Rey framework” to reach a conclusion that expansion by Coles, resulting in exit of O’Connor Fresh IGA as a differentiated competitor, had an effect or likely effect of substantially lessening competition because of a reduction in long-term net consumer welfare even absent predation, Coles would have had an opportunity to put further or different instructions and questions to Dr Walker, including whether, in the circumstances, that theory of harm is an appropriate basis for a competitive assessment of the proposed acquisition.

70 Coles seeks to provide the Tribunal with a second expert report from Dr Walker to respond to the Second Rey Report. It would address whether the theory of harm presented in the Second Rey Report and economic principles outlined is an appropriate basis in the circumstances for a competitive assessment of the proposed acquisition. It would also address the assertion that Dr Walker supports an approach that assesses the net effect on consumer welfare. These were matters Coles did not have an opportunity to instruct Dr Walker to consider, or to make submissions on by reference to Dr Walker’s opinions, prior to the ACCC making its Determination.

ACCC submissions

71 In relation to s 100S(2)(b)(i), the ACCC submitted that it is at best doubtful whether the proposed further report by Dr Walker would satisfy the threshold test of relevance. The ACCC submitted that both Dr Walker and Mr Davis provided reports criticising the First Rey Report. The Second Rey Report merely responds to those criticisms, concluding that those reports did not cause Prof Rey to vary or alter any of the views in his first report. The ACCC further submitted that the Second Rey Report was not cited in the Statement of Reasons.

72 In relation to s 100S(2)(b)(ii), the ACCC submitted that the factual premise for Coles’ application, that the Statement of Reasons relied on a theory of harm to which Coles was not given an opportunity to respond, is unsound. The ACCC submitted that its view that the proposed acquisition was likely to substantially lessen competition by leading to the exit of an effective independent competitor reflects a concern that the ACCC communicated to Coles in the Phase 2 Notification, the NoCC and in its many subsequent interactions with Coles.

73 The ACCC submitted that its Phase 2 Notification and NoCC did not identify a single theory of harm “of oversupply and predation or profit sacrifice”. Rather, the Phase 2 Notification described the bases for the ACCC’s satisfaction that the proposed acquisition could, in all the circumstances, have an effect or likely effect of substantially lessening competition. In doing so, the Phase 2 Notification specifically identified that the ACCC was considering whether the proposed acquisition could have the effect or likely effect of substantially lessening competition “through increased concentration and adverse impacts on competition, including the potential exit of independent supermarket competitors” (SoR [3.13] and [3.14]). The Phase 2 Notification and the NoCC described the wide range of matters relevant to these bases and the ACCC’s further investigations: market share, concentration, the competitive constraint from rival supermarkets (including having regard to their product range and differentials between the major and independent supermarkets’ product ranges), the possibility and competitive consequences of exit by a rival supermarket, the barriers to entry and the prospect of new entry, the economic rationale for the proposed acquisition (including in connection with the possible impact of the proposed acquisition on rival stores’ profitability), the profitability of Coles’ and rivals’ supermarkets, the structure of the supermarket industry, incentives for price competition, and consumers’ ability to assess pricing and related matters (Phase 2 Notification at paras 3.15, 3.16, Box 2, 3.18 – 3.20; NoCC at paras 4.2 – 4.46).

74 The ACCC submitted that the NoCC did raise the question whether the proposed acquisition would be profitable for Coles absent the exit of a rival, but did not indicate that this was an essential aspect of any theory of harm. That matter was not mentioned in the ACCC’s preliminary assessment of the effect or likely effect of the proposed acquisition in the NoCC (see paras 4.47 – 4.53), which identified that the acquisition “would have the effect or likely effect of substantially lessening competition as it leads to the exit of an effective independent competitor and increases Coles’ market power” (NoCC at paras 4.47). The ACCC submitted that both the Phase 2 Notification and the NoCC put Coles on notice about the ACCC’s concerns and the wide range of matters the ACCC considered relevant to its further investigations.

75 The ACCC further submitted that it is not correct to say that the ACCC based its decision on an assessment of net consumer welfare, or that the ACCC ‘applied’ the First Rey Report in its Determination. The ACCC submitted that its decision was based upon an assessment of likely harm to the competitive process. During the course of its investigation, the ACCC explored and considered a wide range of matters that bore upon its assessment of the proposed acquisition. But whether Coles’ business case assumed the exit of an existing competitor, or whether that was simply a consequence of diversion of business to the new Coles store, the resulting harm to the competitive process that the ACCC was concerned about remained the same throughout, namely the loss of an effective competitor from the Kalgoorlie market and the resulting increase in Coles’ market power.

76 In respect of Coles’ opportunity to respond to the opinions of Prof Rey, the ACCC noted the following matters:

(a) First, while the ACCC had regard to the principles Prof Rey described, including as to the relevance of consumer welfare to considering whether the consequences of a rival’s exit might constitute an effect or likely effect of substantially lessening competition, the ACCC did not confine its consideration to the effects of the proposed acquisition on net consumer welfare.

(b) Second, the ACCC provided Coles with a copy of the First Rey Report on 18 May 2026, under cover of a letter which expressly invited Coles to make submissions on that report, and requested that Coles do so by 4 June 2026. The ACCC again invited submissions on the First Rey Report by letter dated 5 June 2026.

(c) Third, the First Rey Report specifically identified that “the expansion & exit scenario” he had been asked to consider “need not exhibit the dynamic pattern of predatory behaviour” (at page 9). Read in the context of Prof Rey’s description of relevant economic principles (from page 1), and application of those principles (from page 3), which specifically referred to that expansion and exit scenario, it is clear from that statement that Prof Rey considered that it was possible for an acquisition to lessen competition regardless of whether the acquisition entailed predatory behaviour.

(d) Fourth, Coles took the opportunity to make submissions on the First Rey Report, including by submitting written submissions. It also provided the expert reports by Dr Mike Walker and Mr Warwick Davis in response to that report. Coles’ submission to the ACCC on 11 June 2026 acknowledged that Prof Rey’s analysis did not rely upon a predatory investment analysis, stating: “the Rey Report does not rely upon a predatory investment analysis as any fundamental proposition supporting a conclusion that the Acquisition is likely to substantially lessen competition” (page 7).

(e) Fifth, the Second Rey Report was sought by the ACCC by letter dated 17 June 2026, specifically to respond to criticisms of the First Rey Report by Dr Walker and Mr Davis, and to ask whether anything in those reports caused Prof Rey to vary the views expressed in his first report. Consistently with the ACCC’s 17 June letter, the Second Rey Report adds little, if anything, to his first report on the relevance of predation to Prof Rey’s analysis.

77 In respect of Coles’ opportunity to respond to the SKU Analysis relied upon by the ACCC, the ACCC noted the following matters:

(a) First, the ACCC provided a summary of its observations on the SKU Analysis and invited Coles to provide submissions on 21 May 2026, and provided further analysis and sought further submissions on 1 June 2026.

(b) Second, the ACCC identified to Coles’ lawyers on 5 June 2026 that the SKU Analysis was relevant to its assessment of substitutability and closeness of competition, but was not directly related to Prof Rey’s first report.

(c) Third, the ACCC disclosed the unredacted SKU Analysis to Coles’ external counsel and experts, and also provided a redacted version of its methodology, but did not agree to the provision of an unredacted version of that analysis to Coles’ employees for the reason that one of the industry participants whose confidential information was used in that analysis did not consent to that disclosure, as advised to Coles on 5 June 2026.

78 The ACCC submitted that, viewed in the context of the statutory process as a whole, Coles was given a reasonable opportunity to make submissions on:

(a) the principles identified by Prof Rey, including as to any relevance or otherwise of a consumer welfare or predatory investment analysis, and on the key elements of the theory of harm that underpinned the Determination; and

(b) the SKU Analysis,

before the ACCC made its Determination.

Consideration

79 Coles’ application to provide a further expert report from Dr Walker is cast in very broad terms. Coles proposes that the further report will address and respond to the Second Rey Report and the ACCC’s Statement of Reasons without any limitation. The permission sought by Coles is not confined to specific issues or questions, but would allow Dr Walker to express an opinion about any aspect of the Statement of Reasons. In her affidavit (at [68]), Ms Carver described the proposed content of Dr Walker’s expert report in perhaps more confined terms, suggesting that the report would respond to the Second Rey Report and address questions concerning the “appropriateness of the Rey framework and modelling techniques employed by Prof Rey”, the extent to which the Second Rey Report’s analysis appears to be reflected in the Statement of Reasons, and whether the theory of harm presented in the Second Rey Report is an appropriate basis for a competitive assessment of the proposed acquisition.  Even that description of the proposed content of the report is stated broadly and, in any event, Coles’ application is not confined to that description.

80 The open-ended nature of Coles’ application is exacerbated by the fact that Coles was not able to provide the Tribunal with a copy of the proposed report from Dr Walker for the purposes of considering its application. That is not to suggest that an application made under s 100S(2) must be accompanied by a copy of the information, documents or evidence sought to be provided. However, if the application is not accompanied by the proposed information, documents or evidence, the Tribunal expects that the application will be framed in a manner that demonstrates that the proposed information, documents or evidence satisfies the requirements of s 100S(2).

81 It appears that Coles has framed its application in such an open-ended manner because it complains that the ACCC informed it that the theory of harm against which the ACCC was assessing the proposed acquisition was one of “oversupply and predation or profit sacrifice”, and the ACCC failed to inform it that the ACCC was also assessing whether a substantial lessening of competition may occur in circumstances where investment in new capacity might result in the exit of an independent and differentiated competitor, irrespective of any evidence of predation. Coles seeks an opportunity to respond generally to the analysis contained in the Statement of Reasons, complaining that it was not given a reasonable opportunity to do so during the ACCC’s merger review process.

82 We reject Coles’ complaints. In our view, the competition issues being investigated by the ACCC in the merger review process were adequately disclosed to Coles, and Coles was given a reasonable opportunity to respond to those issues. To the extent that Coles believed, during the merger review process, that the ACCC’s analysis of the competitive harm of the proposed acquisition was based solely on a theory of predation, that belief was not the result of the ACCC’s communications to Coles, including through the statutory notices which the ACCC provided to Coles. The belief appears to have arisen from Coles’ own preconceptions about the circumstances in which investment in new capacity may result in a substantial lessening of competition.

83 The Phase 2 Notification that the ACCC is required to give to the notifying party under s 51ABZJ is an important document. The Phase 2 Notification must:

(a) identify the parties to the acquisition, and describe the economic activities in which they engage; and

(b) explain the ACCC’s satisfaction that the acquisition, if put into effect, could, in all the circumstances, have the effect, or be likely to have the effect, of substantially lessening competition in any market, including specifying:

(i) the nature of the theory of harm that is the basis for the ACCC’s satisfaction; and

(ii) the matters the ACCC intends to investigate before making a determination in respect of the notification.

84 It is apparent that the purpose of the Phase 2 Notification is to identify the economic activities that will be the focus of the ACCC’s Phase 2 investigation and explain why the ACCC is satisfied that the acquisition might substantially lessen competition. In that regard, the ACCC is required to identify the nature of the theory of harm that is the basis for the ACCC’s satisfaction. The use of the word ‘nature’ conveys that the ACCC must provide a description of the types or categories of competitive harm that the ACCC believes might result from the acquisition. However, the fact that the Phase 2 Notification is given at the commencement of the Phase 2 review, and that the Phase 2 Notification must also describe the matters the ACCC intends to investigate, indicates that the nature of the theory of harm will usually be described with a degree of generality. The ACCC’s Phase 2 Notification given to Coles included several shaded boxes in which the ACCC identified the matters it intended to investigate during the Phase 2 merger review process, recognising that its final views would be formed during the review, as the new merger approval regime contemplates.

85 Contrary to Coles’ submissions, the ACCC’s theory of harm described in the Phase 2 Notification was not based on a theory of predation (or ‘profit-sacrifice’). It is convenient to reproduce the two sections of the Phase 2 Notification which describe the ACCC’s two theories of harm.

86 The first theory of harm was described as follows:

Potential over-supply of supermarket capacity that could induce the exit of effective competitors

3.13.     The ACCC is satisfied the Acquisition could have the effect, or likely effect, of substantially lessening competition in the retail supply of grocery products in Kalgoorlie through increased concentration and adverse impacts on competition, including the potential exit of independent supermarket competitors.

3.14.     In general, new supermarkets will increase competition by expanding the options available to consumers and by increasing pressure on incumbents to offer better prices, quality, product range and service. The ACCC is therefore considering whether, and to what extent, these possible immediate pro-competitive effects may be offset or outweighed by the subsequent exit of one or more effective competitors as a result of the Acquisition.

3.15.     Information before the ACCC suggests, if the Acquisition were to proceed:

* Coles will have a high market share in a concentrated local market

* the competitive constraint by rival supermarkets—Woolworths, Spudshed, O’Connor Fresh IGA, Lionel St IGA and Hannans Marketplace by Foodworks—may be limited

* there may be a low likelihood of new entry or expansion on a timely basis in Kalgoorlie.

3.16.     In this context, the ACCC is considering the likely economic rationale of the Acquisition closely. Information before the ACCC suggests the Acquisition may lead to an over-supply of supermarket capacity relative to consumer demand, such that existing competitor stores may become unprofitable.

87 The second theory of harm was described as follows:

Creating, strengthening or entrenching a substantial degree of market power

3.17.     The ACCC is satisfied the Acquisition could have the effect, or likely effect, of substantially lessening competition in the retail supply of grocery products in Kalgoorlie by creating, strengthening or entrenching a substantial degree of power in the market.

3.18.     Information before the ACCC suggests the Acquisition may create or strengthen a substantial degree of market power in Kalgoorlie as a result of the Acquisition. The ACCC also considers the Acquisition may make it more difficult for existing or potential competitors to erode Coles’ substantial market power, thereby extending the durability and robustness of that power. The ACCC is considering the extent to which the Acquisition may raise barriers to entry or expansion, thereby reducing the likelihood of entry or expansion by competitors.

3.19.     In the Supermarkets Inquiry, the ACCC made findings about the nature and extent of competition in the supermarket industry in Australia. Some of the findings that are likely relevant to this assessment are:

* at a national level the supermarket industry is an oligopoly

* Coles and Woolworths have a limited incentive to compete vigorously on price

* there are significant barriers to entry or expansion at large scale

* Supermarket promotional practices may make it difficult for consumers to assess pricing, discounts and value for money.

3.20.     The ACCC is considering the effect the Acquisition would have on Coles’ market power and the ability of competitors to compete. The ACCC’s preliminary view is that the Acquisition may create, strengthen or entrench substantial market power because it may only be profitable due to the impact on competitors or potential competitors.

88 The words ‘predation’, ‘predatory’ or ‘profit-sacrifice’ do not appear in those descriptions of the ACCC’s theory of harm (nor anywhere else in the document). Nor is any concept of predation inherent in those descriptions. As to the first theory, the circumstance that over-supply of supermarket capacity could result in the exit of effective competitors does not necessarily connote predation. New entry, involving an expansion of capacity, by a more efficient competitor could produce that outcome. Under the first theory of harm, the ACCC disclosed that it was investigating the circumstances in which such new entry, involving an expansion of capacity, might nevertheless harm competition. Nor does the second theory of harm connote predation. The second theory appears to supplement the first theory, disclosing that the ACCC was investigating whether the acquisition would strengthen Coles’ substantial market power and also make it more difficult for existing and new competitors to constrain that power. That conclusion is reinforced when consideration is given to the ACCC’s description of the matters it intended to investigate. Amongst many matters, the ACCC disclosed that it intended to investigate the effect on competition should one or more competitor supermarkets exit following the expansion of Coles via the proposed supermarket. Again, the fact of market exit does not depend upon any theory of predatory conduct.  While the ACCC disclosed that it intended to investigate the likely economic rationale for Coles opening the proposed supermarket, such disclosure cannot be interpreted as the ACCC limiting its theory of harm to predation.

89 The NoCC that the ACCC is required to give to the notifying party under s 51ABZK is also an important document. The NoCC must set out:

(a) the ACCC’s preliminary assessment of whether the acquisition, if put into effect, would have the effect, or be likely to have the effect, of substantially lessening competition in any market; and

(b) the grounds on which the ACCC makes the assessment, referring to the evidence or other material on which those grounds are based.

90 Contrary to Coles’ submissions, the grounds on which the ACCC had made a preliminary assessment that the proposed acquisition could substantially lessen competition, as stated in the NoCC, were not based on a theory of predation (or ‘profit-sacrifice’).

91 The NoCC commences with the following description of the future with the proposed acquisition:

4.12.     The Acquisition will add a new Coles supermarket in the south-west of Kalgoorlie. The ACCC considers the Acquisition is also likely to lead to the exit of an effective independent supermarket competitor.

4.13.     The ACCC considers that although the Acquisition might lead to more competitive intensity over a short period, it is likely to lead to the exit of an effective independent supermarket competitor. Following that exit, remaining rivals and prospective new entrants are unlikely to replace the competitive rivalry that is lost, resulting in a likely increase in Coles and Woolworths (and potentially other supermarkets) existing market power, to the detriment of customers.

92 Those statements are entirely consistent with the Phase 2 Notification and do not involve any notion of predation. Under the heading ‘Exit of an effective competitor’ (paras 4.14 to 4.23), the ACCC describes the grounds on which it has formed a preliminary assessment that Coles’ investment in new supermarket capacity in Kalgoorlie may lead to the exit of a competing supermarket. The description does not refer to predation or profit sacrifice. Certainly, the NoCC stated that:

4.22.     The ACCC recognises that it is a competitive process for firms to expand in a market, compete for customers, and increase market share. It is also a natural consequence of that competition for other firms to exit the market if they are outcompeted by more efficient rivals.

4.23.     However, in competitive processes, firms are expected to earn a positive return on their investments to expand. Analysis undertaken by the ACCC indicates that Coles’ investment in the Proposed Supermarket is likely to be unprofitable unless it results in the exit of an effective competitor.

93 The point being made by the ACCC in para 4.23 is not entirely clear, particularly when juxtaposed with para 4.22. Nevertheless, the statements in para 4.23 do not describe predation. Paragraph 4.23 says nothing more than that investment in new capacity will not be profitable unless the investment is accompanied by increased revenue. If there is no unmet demand in the market or the capacity to grow the market, then revenue may be taken from a competitor, which may force their exit.

94 The NoCC concludes with the following description of the ACCC’s preliminary assessment of the competitive effects of the proposed acquisition:

(a) the proposed acquisition would have the effect or likely effect of substantially lessening competition in Kalgoorlie as it would lead to the exit of an effective independent competitor and increase Coles’ market power (para 4.47);

(b) the Kalgoorlie market would lose an effective independent supermarket competitor that price matches and price discounts relative to Coles and other supermarkets in Kalgoorlie, offers a range and quality of products, is valued by customers as a high-quality alternative to other competitors and provides a high level of customer service (para 4.48);

(c) this is likely to lead to Coles competing less strongly in Kalgoorlie, as it will no longer be concerned with the effective competitor’s activity (para 4.49); and

(d) Coles would increase its market power and likely have a substantial degree of market power (para 4.51).

95 In its Statement of Reasons, the ACCC summarised the basis for its conclusion that the proposed acquisition would be likely to have the effect of substantially lessening competition in the following six propositions:

8.4.     First, the ACCC accepts the Acquisition is likely to have some pro-competitive effects. Coles’ investing in a new store in Kalgoorlie will bring benefits to some consumers in the form of improved amenity and some competitive response from incumbent supermarkets.

8.5.     Second, the ACCC considers that these benefits are confined to those customers who would prefer the Proposed Supermarket to the supermarkets they currently shop at, and any competitive response on price to the Proposed Supermarket is likely to be short term in duration.

8.6.     Third, beyond those short-term competitive effects, there is a material risk that an effective, independent competitor will exit the market as a result of the Acquisition and the loss of this competitor will substantially lessen competition in the Kalgoorlie market for retail groceries. This is because the Proposed Supermarket is expected to win significant sales from the existing Kalgoorlie supermarkets and there is a material risk that the loss of those sales will place sufficient financial pressure on an independent competitor that it will exit, and its assets will also leave exit [sic] the market rather than facilitating new entry.

8.7.     Fourth, with little prospect of sufficient and timely new entry, the combination of gaining a second store and the exit of the effective independent competitor will result in Coles having a substantial degree of market power in Kalgoorlie, enabling Coles to engage in the competitive process with less competitive constraint.

8.8.     Fifth, the likely effect of the Acquisition would be to increase concentration, in that one fewer independent supermarket would be present, and remove a competitive constraint on remaining supermarkets. Coles would operate two of the four full-line supermarkets in Kalgoorlie. Its share of SFA and revenue would increase materially, and the combined Coles and Woolworths share of GLA used for larger supermarkets would increase from its already high level of 62%.

8.9.     Sixth, consumers would likely be worse off over time by losing a differentiated local offer, including local products, longer trading hours, higher-touch customer service, and locally responsive pricing and product ranging. The loss of this independent, differentiated supermarket would reduce (principally) non-price competitive rivalry, reducing the pressure on remaining supermarkets to maintain or improve their product, service and store quality offering.

96 In our view, there is no material divergence between the grounds stated in the NoCC for the ACCC’s preliminary assessment that the proposed acquisition would be likely to have the effect of substantially lessening competition and the grounds stated in the Statement of Reasons. Neither are based on a theory of predation or ‘profit-sacrifice’.

97 It can be accepted that neither the Phase 2 Notification nor the NoCC explained fully the economic basis upon which the ACCC distinguishes new entry to a market which is pro-competitive, or at least consistent with competitive market behaviour, and new entry which is anti-competitive (in the sense that it would have the effect of substantially lessening competition). As Coles submitted at the hearing, a thesis that new entry to a market, involving an expansion of capacity, would have the effect of substantially lessening competition in the market in the absence of the indicia of predation is a somewhat novel thesis in Australian competition law merger jurisprudence. However, Coles is wrong to submit that the theory of competitive harm described in the Phase 2 Notification and the NoCC implicitly included predation as a necessary element.

98 A central focus of Coles’ complaints about procedural fairness was the First Rey Report which was provided to Coles on 18 May 2026. By its letter of that date, the ACCC stated that it was providing Coles with the opportunity to respond to two reports, one of which was the First Rey Report. The ACCC stated that the report provided Prof Rey’s “opinion on the economic principles for assessing whether the potential exit of O’Connor Fresh IGA is an efficient outcome of the competitive process, or whether it lessens supermarket competition in Kalgoorlie”.  That description was consistent with the content of the First Rey Report. For the purposes of the report, Prof Rey was asked to express an opinion on “the economic principles that, when applied to the facts, would assist the ACCC to assess whether any potential future exit by, or diminution of the offering made by, O’Connor Fresh IGA which is considered likely to result from the Acquisition is an efficient outcome of the competitive process, or whether it lessens supermarket competition in Kalgoorlie”. Prof Rey was also asked whether a report prepared by Dr Walker or Coles’ response to the NoCC had taken those economic principles into consideration.

99 In a letter dated 3 June 2026, HSFK wrote to the ACCC asserting that Coles did not understand how the opinions expressed by Prof Rey might apply to the proposed acquisition and that procedural fairness required the ACCC to disclose how it might apply the opinions, being an “issue critical to the decision which is not apparent from its nature” (citing Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 592).  In a letter dated 5 June 2026, the ACCC replied to HSFK, explaining that it had not made a decision whether and how the principles expounded by Prof Rey may inform the ACCC’s ultimate decision, but was inviting Coles’ submissions on that question. The ACCC observed that, as an administrative decision-maker, the ACCC is required to provide procedural fairness, but this obligation does not require the ACCC to expose the thought processes that form part of its decision-making prior to making its determination.

100 We consider that Coles’ procedural fairness complaints, as reflected in the HSFK letter dated 3 June 2026, were unjustified. The ACCC complied with its obligations of procedural fairness by providing the First Rey Report to Coles. The principal question that Prof Rey was asked to consider in that report was clear: what economic principles would assist the ACCC to assess whether any future exit of O’Connor Fresh IGA likely to result from the acquisition is an efficient outcome of the competitive process or an outcome that lessens supermarket competition in Kalgoorlie. The question goes to the heart of the issue to be determined by the ACCC. It should be noted that Prof Rey was not asked by the ACCC to express an opinion on whether competition would in fact be lessened by the exit of O’Connor Fresh IGA. He was only asked to express an opinion on the principles that should be applied in making that judgement. In his discussion of the relevant economic principles, Prof Rey began with a description of general principles concerning the efficient allocation of resources, competition as a means of achieving that goal, and the observation that the “key merit” of the competitive process is to deliver an allocation that benefits consumers. As applied to the proposed acquisition, and on the assumption that the acquisition would be likely to induce the exit of O’Connor Fresh IGA (or a diminution of its offering) Prof Rey expressed the opinion that assessing whether this constitutes an efficient outcome of the competitive process, or a lessening of supermarket competition in Kalgoorlie, amounts to determining whether this benefits consumers. Prof Rey then proposed an economic framework by which that assessment could be undertaken, using a Cournot model of competition. The analysis was supported by a technical appendix.

101 Procedural fairness did not require the ACCC to disclose to Coles its thought processes about the opinions expressed in the First Rey Report, or whether the ACCC intended to adopt the economic principles explained in the First Rey Report. The purpose of providing the First Rey Report to Coles and inviting submissions was plainly to test the opinions expressed by Prof Rey, which would inform the ACCC’s decision whether to adopt any of the opinions.

102 Coles took the opportunity to make submissions in response to the First Rey Report, and also provided responsive expert reports from Dr Walker and Mr Davis. Dr Walker’s report was a lengthy and substantive response which, amongst other topics, expressed an opinion on “the extent to which Prof Rey’s report is useful and informative for decision-makers in this case”. As part of its response, Dr Walker’s report proposed using a differentiated Bertrand pricing model of competition as an alternative to the Cournot quantity competition model in the First Rey Report to predict changes in consumer benefit from changes in market structure associated with potential firm entry and exit related to the acquisition. In sum, Dr Walker’s report productively engaged with net consumer benefit associated with the acquisition and is noted in the Statement of Reasons at paragraph 6.202.  Mr Davis’s report was also substantive, albeit only part of it responded to Prof Rey’s report.  Coles’ submission to the ACCC on 11 June 2026 engaged extensively with Prof Rey’s opinions.

103 The Second Rey Report responds to the reports of Dr Walker and Mr Davis, concluding with the opinion that those reports did not cause Prof Rey to vary or alter any of the views expressed in his first report. The Second Rey Report merely explains why his opinion had not altered. It did not introduce any new information, other than engaging with the opinions and analysis propounded by Dr Walker and Mr Davis. Further, and significantly, the Statement of Reasons contains no reference to the Second Rey Report.

104 Having regard to the foregoing, insofar as Coles’ application under s 100S(2)(b) is based on an alleged inability to respond adequately to the First Rey Report, we reject the application. We are satisfied that Coles was given a reasonable opportunity to respond to the First Rey Report. Whilst the time period within which Coles was required to respond was not lengthy (about 3 weeks), we consider the time was sufficient to respond, and was a reasonable time period within the merger review framework in Pt IVA of the CCA. The response made by Coles was substantive, comprising two expert reports and a detailed written submission. The fact that, following the Determination, Coles believes that more could be said in response to the First Rey Report does not mean that Coles was not given a reasonable opportunity to respond to the report.

105 In relation to the Second Rey Report, procedural fairness does not require Coles to be given the last word on every piece of information or evidence received by the ACCC during the merger review process. The ACCC was entitled to seek a responsive report from Prof Rey which merely responded to the reports of Dr Walker and Mr Davis and the submissions filed by Coles. Prof Rey was asked whether those reports and submissions caused him to vary the views expressed in the First Rey Report, and Prof Rey answered in the negative. In our view, the Second Rey Report did not introduce any new concepts or principles to the analysis such that it was procedurally unfair to deny Coles the opportunity to respond. That is demonstrated by the fact that the content of the Second Rey Report is not mentioned in the ACCC’s Statement of Reasons. Coles complains that, in the Second Rey Report, Prof Rey expressed the opinion that Dr Walker “does not question the validity of” certain principles stated in the First Rey Report, and that that opinion was echoed in the ACCC’s Statement of Reasons which stated that Dr Walker “appears also to support an approach that assesses the net effect on consumer welfare, albeit using a different economic model [to that used by Prof Rey]” (SoR [6.202]). Coles submitted that this does not reflect Dr Walker’s opinion. That is a submission that can be made by Coles at the Tribunal hearing, and the submission can be assessed by the Tribunal on the basis of Dr Walker’s report which was before the ACCC.

106 In relation to the SKU Analysis and Additional Information, the ACCC provided the SKU Analysis to Coles on 1 June 2026. On 3 June 2026, HSFK sent a letter to the ACCC complaining that it did not understand the relevance of the SKU Analysis. On 5 June 2026, the ACCC replied stating that the SKU Analysis is relevant to the ACCC’s assessment of the substitutability and closeness of competition between supermarkets in Kalgoorlie. On 11 June 2026, Coles lodged a submission with the ACCC responding extensively to the SKU Analysis. Mr Davis’s supplementary report also responded to the SKU Analysis.

107 Having reviewed the foregoing material, in so far as Coles’ application under s 100S(2)(b) is based on an alleged inability to respond adequately to the SKU Analysis, we reject the application. We are satisfied that Coles was given a reasonable opportunity to make submissions in relation to the SKU Analysis.

108 Overall, the Tribunal is not satisfied that the precondition under s 100S(2)(b) for allowing Coles to provide a new report from Dr Walker is met. Specifically, in relation to the matters to which the new report from Dr Walker would be addressed, the Tribunal is not satisfied that Coles was not given a reasonable opportunity to make submissions to the ACCC in relation to the grounds on which it made its Determination, or the evidence or other material on which those grounds were based.

109 More generally, the Tribunal also refuses this part of Coles’ application in the exercise of its discretion under s 100S(2)(b). Having reviewed the expert reports of Prof Rey, Dr Walker and Mr Davis, the Tribunal considers that it would not be assisted by yet another report from Dr Walker. The relevant issues have been adequately canvassed in the reports that were filed in the ACCC review process. Further, the materials filed by Coles in support of this part of its application provide no justification for the open-ended nature of the proposed report from Dr Walker. Coles has proposed that it be permitted to file a further report from Dr Walker responding to the Statement of Reasons. That would be permission for Dr Walker to address any aspect of the facts and reasoning contained in the Statement of Reasons. Even if we had accepted Coles’ submission that it was not given a reasonable opportunity to respond to the theory of harm that underpins the Determination, the Tribunal would not grant permission to Coles to file a further expert report without limitation as to the subject matter to be addressed. The Tribunal would require Coles to identify with greater precision the specific questions to be addressed in the report, so that the Tribunal could assess the relevance and utility of the further report.

Statement or report from a Coles employee – ACCC analysis of Coles’ CAR (Capital Approval Request) Model

Coles’ submissions

110 Coles’ submissions drew attention to the following two findings in the Statement of Reasons:

6.54.     There is a dependency between Coles’ business case for the Proposed Supermarket and the extent of sales lost by the Relevant Independent. The fewer sales the Proposed Supermarket wins from the Relevant Independent, the less profitable the business case. The more sales it wins from the Relevant Independent, the greater the potential impact on the viability of that store.

6.79.     This is a finely balanced situation, where it is unlikely that it can be the case that the Proposed Supermarket makes economic sense for Coles and that it also makes economic sense for the Relevant Independent’s assets to remain in the market.

111 Coles submitted that, in apparent support of those findings, the ACCC performed analyses on Coles’ business case (and in particular, to the CAR Model which formed part of that business case), in Attachment C to the Statement of Reasons. Coles submitted that Attachment C purports to show that:

(a) if adjustments were made to address asserted ‘calculation issues’ (set out in [C5]) in Coles’ business case, a central case of the model is that the acquisition would be unprofitable over a specified period (SoR [C10]); and

(b) even without those adjustments, if the proposed supermarket attracted a specified percentage less revenue than forecast, the proposed acquisition would be unprofitable using Coles’ benchmarks (SoR [C12]).

112 Coles submitted that, after making the Determination, the ACCC produced to Coles worksheets (ACCC Spreadsheets), each of which appears to Coles to be a modified and amended version of the CAR Model.

113 Coles submitted that it was not provided with the ACCC’s ‘NPV tipping point’ analysis of the point at which shortfalls from revenue forecasts would cause the proposed acquisition to be unprofitable, nor was it given an opportunity to comment on the ‘calculation issues’ set out in [C5]. Coles submitted that the ACCC’s earlier analysis of Coles’ business case was presented to Coles for comment and was shown to contain a number of fundamental errors, and was then abandoned by the ACCC.

114 Coles submitted that the ACCC’s analyses of, and adjustments to, Coles’ business case in the ACCC Spreadsheets contain material errors and are liable to mislead the Tribunal if relied upon. The errors are not simply in the nature of disagreement about appropriate inputs, but errors of logic that produce misleading outputs or wrong interpretations of the CAR Model. The lack of any opportunity to make submissions about the adjustments was unreasonable.

115 Coles submitted that it seeks to correct the errors in the ACCC’s analysis of the CAR Model by adducing evidence from a Coles employee.

ACCC submissions

116 The ACCC submitted that Coles and the ACCC engaged in considerable correspondence concerning the revenue sensitivity of the CAR Model during the ACCC’s investigation. In particular, Coles provided the CAR Model to the ACCC in February and March 2026 and, during further engagement between the ACCC and Coles in relation to that model, the ACCC provided Coles with its proposed analysis of the profitability of the proposed Coles Kalgoorlie store, and Coles provided an expert report from Mr Tony Samuel of Sapere responding to that analysis. The ACCC submitted that, viewed in that context, Coles had a reasonable opportunity to make submissions on the revenue sensitivities of its business models, such that s 100S(2)(b)(ii) is not satisfied in relation to this aspect of its application.

117 As to the adjustments the ACCC made to the CAR Model, the ACCC submitted that these adjustments are matters of detail. The ACCC submitted that the Statement of Reasons specifically identified that the analysis produced by the adjusted CAR Model was not determinative (SoR [C10]). Accordingly, that analysis, and the particular adjustments to the CAR Model, are not central to the ACCC’s analysis of, or directly relevant to, the grounds on which the ACCC made its Determination.

118 The ACCC further submitted that Coles has not explained why the alleged errors made by the ACCC cannot simply be dealt with through submissions in the review being conducted by the Tribunal. However, if the Tribunal is nonetheless satisfied that it is appropriate for Coles to be permitted to provide further evidence on these matters, the relevant orders should be strictly confined to permit Coles to provide an affidavit which concisely and precisely identifies the relevant errors said to have been made by the ACCC.

Consideration

119 The Tribunal accepts Coles’ submission that Coles’ business case modelling for the proposed acquisition was a relevant consideration for the ACCC in making its Determination, albeit not a decisive consideration. The ACCC stated (SoR [C13]):

The ACCC notes that whether the Acquisition is unprofitable or profitable is not necessary for the ACCC to find that the Acquisition would have the effect or would be likely to have the effect of substantially lessening competition. Notwithstanding this, Coles’ Second Business Case is a relevant consideration for the ACCC’s assessment, as identified throughout this document.

120 The Tribunal also accepts that Coles was not given a reasonable opportunity to respond to the adjustments made by the ACCC to Coles’ CAR Model, as discussed in the Statement of Reasons at [C5] and [C12].

121 Whilst Coles may be able to respond to the ACCC’s adjustments through submissions made in the course of the Tribunal review, the Tribunal considers that it would be assisted by receiving evidence from a suitably qualified Coles employee addressing what Coles alleges to be errors in the ACCC’s adjustments to the CAR Model. Any such evidence should be confined to the specific adjustments identified in [C5] and [C12] of the Statement of Reasons.

O’Connor Fresh IGA’s application

122 By its application, O’Connor Fresh IGA seeks the Tribunal’s permission to provide, for the purposes of the review, an affidavit of Reece Neville Grant affirmed 4 September 2026, pursuant to s 100S(2)(a).

123 The affidavit of Mr Grant has been prepared and provided to the Tribunal for the purposes of the application. In the affidavit, Mr Grant deposes that, on 20 July 2026, O’Connor Fresh IGA began offering a delivery service to consumers in Kalgoorlie via the online platform ‘Uber Eats’ (Delivery Service). The Delivery Service is offered in respect of the majority of O’Connor Fresh IGA’s products in its grocery and fresh food ranges. A confidential copy of the agreement between O’Connor Fresh IGA and Uber dated 21 May 2026 is exhibited to the affidavit.

124 As stated earlier, Coles neither consents to nor opposes O’Connor Fresh IGA’s application.

125 The ACCC acknowledged that the subject of Mr Grant’s evidence, concerning the commencement and subsequent performance of the delivery service offered in respect of the majority of O'Connor Fresh IGA's products in its grocery and fresh food ranges, was not in existence at the time of the Determination. It follows that the evidence satisfies s 100S(2)(a). The ACCC submitted, however, that the underlying agreement between O’Connor Fresh IGA and Uber, which is dated 21 May 2026, was in existence at the time of the Determination, and accordingly does not satisfy s 100S(2)(a).

126 At the hearing of the application, O’Connor Fresh IGA informed the Tribunal that it did not press its application to provide the underlying agreement to the Tribunal. On that basis, the Tribunal will allow O’Connor Fresh IGA to provide, for the purposes of the review, the affidavit affirmed by Mr Grant on 4 September 2026, excluding its annexure, or an affidavit in materially the same form.

Conclusion

127 In conclusion, the Tribunal will allow both applications in part.

128 The Tribunal will allow Coles to file and serve, for the purposes of the review, an affidavit made by a suitably qualified employee identifying any errors in the ‘calculation issues with the Second Business Case’ referred to by the ACCC in paragraph [C5] of the Statement of Reasons and the revenue sensitivity calculated by the ACCC in paragraph [C12] of the Statement of Reasons.

129 The Tribunal will allow O’Connor Fresh IGA to file and serve, for the purposes of the review, the affidavit affirmed by Mr Grant on 4 September 2026, excluding its annexure, or an affidavit in materially the same form.

Associate:

Dated:    24 September 2026