Australian Competition Tribunal

Application by Coles Supermarkets Australia Pty Ltd (No 2) [2026] ACompT 2

IN THE AUSTRALIAN COMPETITION TRIBUNAL

DIRECTION

THE TRIBUNAL DIRECTS BY CONSENT THAT:

1.    Pursuant to s 100T(g) of the Competition and Consumer Act 2010 (Cth) (CCA), the Tribunal directs that:

(a)    by 2 October 2026, the Applicant file and serve the affidavit of Saurav Sachdev dated 11 September 2026; and

(b)    the Tribunal may have regard to the affidavit for the purposes of the review.

REASONS FOR DECISION

THE TRIBUNAL:

Introduction

1    This proceeding concerns an application made by Coles Supermarkets Australia Pty Ltd (Coles) pursuant to s 100C of the Competition and Consumer Act 2010 (Cth) (CCA) for review of an acquisition determination made on 30 June 2026 by the Australian Competition and Consumer Commission (ACCC) under s 51ABZE(1) of the CCA (Determination). O’Connor Fresh Pty Ltd as trustee for O’Connor Fresh Trust trading as O’Connor Fresh (O’Connor Fresh IGA) was granted leave to intervene in the proceeding.

2    On 24 September 2026, the Tribunal gave directions pursuant to s 100S(2) of the CCA allowing each of Coles and O’Connor Fresh IGA to provide certain new information, documents or evidence for the purposes of the review, with reasons published in Application by Coles Supermarkets Australia Pty Ltd [2026] ACompT 1 (Coles Supermarkets No 1).

3    Coles has made a further application to the Tribunal requesting the Tribunal to exercise the power conferred by s 100T(g) of the CCA to seek further information from Coles so as to correct errors in certain information given by Coles to the ACCC in connection with the making of the Determination. The further information is contained in an affidavit of Saurav Sachdev (Head of Technology – Data and AI Platform at Coles Supermarkets) affirmed 11 September 2026.

4    Each of O’Connor Fresh IGA and the ACCC consent to the Tribunal making a direction as sought by Coles.

5    For the reasons that follow, the Tribunal is satisfied that it has power to make the direction sought by Coles and that it is appropriate to do so.

Background to the application

6    Coles has informed the Tribunal that certain information given by it to the ACCC in response to a notice issued by the ACCC under section 155(1)(a) and (b) of the CCA on 12 February 2026 (Notice), in connection with the making of the Determination, contained errors.

7    The responses to the Notice are referenced and relied upon in the ACCC’s Statement of Reasons for the Determination dated 1 July 2026 or are relevant to matters in Coles’ Statement of Facts, Issues and Contentions filed on 14 August 2026 (SOFIC).

8    The responses affected by the data errors are:

(a)    a spreadsheet containing total revenue generated (excl GST), total number of transactions, and average number of items per transaction at Coles Kalgoorlie for each month between July 2024 and January 2026 (being the response to Schedule 1, Item 3 of the Notice); and

(b)    a spreadsheet identifying the 2,000 SKUs which generated the highest total revenue for the 2024-25 financial year at Coles Kalgoorlie (being the response to Schedule 1, Item 4 of the Notice).

9    The errors include:

(a)    the double deduction of GST (which has resulted in understating Coles’ revenue in Item 3 and thereby affecting the products identified in the top 2,000 SKUs in Item 4);

(b)    the selection of data from an incorrect source (resulting in the incorrect calculation of revenue and average number of items purchased in Item 3);

(c)    the inclusion of incorrect data (which has overstated the total number of transactions in Item 3); and

(d)    the application of an incorrect methodology for calculating total quantity of units sold where a product was sold by weight rather than unit (resulting in inaccuracies in the total number of products sold and average number of items per transaction in Item 3).

10    Coles submitted that the information provided by Coles in respect of Item 3 is not expressly referenced in the Statement of Reasons, although average transaction size is relevant to the ACCC’s categorisation of supermarkets into “full-line” or “convenience-based”: Statement of Reasons at [2.32] - [2.33]. Coles’ SOFIC (at [10] and [15]) refers to the average basket size of competing supermarkets, including Spudshed and other independent supermarkets, in the context of its contentions concerning supermarket competition in Kalgoorlie. Item 3 contains data from which may be derived the comparable average transaction (or basket size) at Coles Kalgoorlie in FY25 (Total Revenue / Total number of transactions). In the absence of Coles’ proposed correction to the information, Coles will not be in a position to make complete submissions, and the Tribunal will not have consistent and accurate information from which it may make findings about this dimension of comparison of supermarkets in Kalgoorlie.

11    Coles further submitted that the information in Item 4 is relied upon by the ACCC in the Statement of Reasons as a data source for the revenues of Coles Kalgoorlie’s top 100 products (and its related matching exercise for products supplied by competing supermarkets): Statement of Reasons Figure 4 and fn 155 (p 34). This analysis is, in turn, relied upon by the ACCC at [6.45] and [7.24] of the Statement of Reasons. Coles does not presently anticipate submitting that corrections to the information in Item 4 bear materially on matters in dispute, which concern ultimately the extent to which O’Connor Fresh IGA is a differentiated competitor and the significance of that to competitive dynamics in the factual and counterfactual, and where Coles will also make different submissions about the cogency of the ACCC’s SKU analysis that do not depend on the precise inclusions in the Coles Kalgoorlie top 2,000 or 100 products.

The Tribunal’s power to seek and have regard to corrected information

12    As observed by the Tribunal in Coles Supermarkets No 1 at [26], the information, documents and evidence to which the Tribunal may have regard in conducting its review is restricted to the material enumerated in s 100T. Relevantly, s 100T(g) stipulates 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:

…

(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);

…

13    The information, documents or evidence referred to in subsection 100R(2) is “any information furnished, documents produced or evidence given to the Commission in connection with the making of the determination to which the review relates”. However, s 100R(2) must be read subject to s 100R(3) which stipulates that s 100R(2) does not apply to information, documents or evidence to which the Commission was not permitted to have regard in making the determination.

14    On the present application, it is uncontroversial that the information given by Coles to the ACCC in response to the Notice was information furnished to the ACCC in connection with the making of the Determination (to which this review relates) and was information to which the ACCC was permitted to have regard in making the Determination.

15    Section 100T(g) is in substantially the same terms as s 102(10)(d), which previously applied (and continues to apply) to merger authorisations (being authorisations of acquisitions to which s 50 would or might apply). The meaning of s 102(10)(d) was considered by the Tribunal in Applications by Telstra Corporation Limited and TPG Telecom Limited [2023] ACompT 1. The Tribunal made the following observations about the nature and scope of the power conferred on the Tribunal by that provision (at [78] - [79]):

78.     For the purposes of the present application, it is unnecessary to attempt an exhaustive definition of paragraph (d). It is important, though, to note the entirety of the language used in the paragraph. The paragraph empowers the Tribunal to have regard to “information given to the Tribunal as a result of the Tribunal seeking such relevant information” and “consulting with such persons, as it considers reasonable and appropriate”, for the sole purpose of clarifying the information, documents or evidence referred to in subs (7). Thus, with the sole purpose of clarifying material given to the ACCC in the course of making its determination, the Tribunal is empowered to “seek ... relevant information” and “consult with persons as it considers reasonable and appropriate”. The powers given to the Tribunal, to seek relevant information and to consult with persons, are consistent with the ordinary meaning of the word “clarify”, which is to make clear or intelligible.

79.     Stated at a level of generality, the Tribunal accepts that, in certain circumstances, “clarifying” information, documents or evidence may include assisting the Tribunal to develop a clearer understanding of that material, including by reference to contextual material. For example, data and statistics may not be able to be understood or properly interpreted without information concerning the source of the underlying data or the methodology applied in generating the data and statistics. The Tribunal does not, however, accept the applicants’ broader submission that “clarifying” information, documents or evidence ordinarily extends to testing the reliability or credibility of that material. To clarify means “to make clear”. The Tribunal must consider that something in the information, documents or evidence before the ACCC is or may be unclear before it is permitted to seek information or consult with persons for the sole purpose of clarifying it. Testing the reliability or credibility of information, documents or evidence is not a process of clarification; it is a process of evaluation of the cogency and weight of the material.

16    The Tribunal considers that the foregoing observations apply to s 100T(g). The ordinary meaning of the verb ‘clarify’ is to make clear or intelligible (Macquarie Dictionary). Applying that ordinary meaning, the Tribunal considers that it is empowered by s 100T(g) to seek information, and consult with persons, to understand (and thereby clarify):

(a)    the sources used for the creation of data furnished to the ACCC, including any limitations or inaccuracies in the data sources which might produce misleading or erroneous information; and

(b)    any arithmetic calculations applied to data furnished to the ACCC which again might produce misleading or erroneous information.

17    As a result of seeking such information, and consulting such persons, the information given to the Tribunal may include information based upon alternative sources of data and alternative calculations which are more accurate.

18    On the present application, the Tribunal has been informed by Coles that information provided by Coles to the ACCC was based on a data source that produced inaccurate data and had arithmetic calculations applied that again produced inaccurate data. Having been informed about those matters, the Tribunal is satisfied that there is reason to believe that the relevant data given to the ACCC is or may be unclear and that it is appropriate for the Tribunal to seek information for the sole purpose of clarifying it. In the circumstances, the Tribunal is satisfied that it is empowered by s 100T(g) to:

(a)    seek the provision from Coles of the affidavit of Saurav Sachdev dated 11 September 2026 for the sole purpose of clarifying information given by Coles to the ACCC in response to the Notice; and

(b)    have regard to the affidavit for the purpose of the review.

19    The Tribunal will make a direction to that effect.

Associate:

Dated:    30 September 2026