Australian Competition and Consumer Commission v Emma Sleep GmbH (Non-publication)

Australian Competition and Consumer Commission v Emma Sleep GmbH (Non-publication) [2025] FCA 1027 is a Federal Court decision about access to court documents and the limits of confidentiality in litigation. A non-party asked to inspect documents on the court file in an ACCC consumer law case. Emma Sleep tried to stop access to selected passages and annexures, arguing that they contained commercially sensitive strategy, marketing and sales information.

Hill J refused the application. The Court held that Emma Sleep had not shown that non-publication orders were necessary to prevent prejudice to the proper administration of justice. The decision is a strong reminder that open justice is the starting point. If a business wants court-file material kept from wider access, it needs specific and persuasive evidence, not just general claims that the material is commercially sensitive.

The broader proceeding was an ACCC case about misleading representations under the Australian Consumer Law. The judgment records that the respondents admitted the relevant representations were misleading during the period from 15 June 2020 to 27 March 2023. Hill J had already determined that the second and third respondents were liable, while the first respondent was not. The next stage was penalty.

After that liability stage, on 30 June 2025 a non-party solicitor requested access to documents on the Federal Court file under rule 2.32 of the Federal Court Rules 2011 (Cth). The request covered both unrestricted and restricted documents. In simple terms, unrestricted documents were documents the Registry could provide without leave under the rule, while restricted documents required leave. That procedural distinction did not itself decide whether the material was confidential. It only described the access pathway under the Rules.

The requester said it did not press for access to the extent the documents contained confidential or commercially sensitive information. The ACCC did not object to the request. Emma Sleep objected only to some material and said it was considering a non-publication application. It was given time to decide and then filed that application on 1 August 2025.

The material Emma Sleep wanted protected fell into two broad groups. First, short passages in the parties' written submissions and selected passages in Annexure A to a statement of agreed facts. Those passages came from email chains said to show strategy-level guidance and pricing or performance analysis. Second, entire annexures containing spreadsheet data. Annexure C contained information about social media posts, consumer reach, website visits and a product review website. Annexures D and E contained sales figures for Emma Sleep products during the relevant period.

Emma Sleep argued that disclosure would let competitors assess its strategy, market position, profitability and online marketing sophistication. It also argued that business partners such as influencers, affiliate website operators and brand partners could use the information to negotiate better commercial terms. The Court therefore had to decide whether those concerns justified restricting publication or disclosure of the material on the court file.

The application was made under sections 37AF and 37AG(1)(a) of the Federal Court of Australia Act 1976 (Cth). The key question was whether a non-publication order was necessary to prevent prejudice to the proper administration of justice. The judgment stresses that this is a demanding test. Open justice is a primary objective of the administration of justice, and departure from that principle is only justified where necessity compels it.

That means the Court was not asking whether Emma Sleep would prefer the information to remain private, or whether the information was commercially awkward if disclosed. The Court was asking whether secrecy was truly necessary in the legal sense. The applicant had to identify the prejudice said to arise if the order was not made and explain the link between that prejudice and the proper administration of justice.

The Court accepted that commercial sensitivity can, in principle, support a suppression or non-publication order. But the judgment also repeats several limits. Information does not become protected just because it is not already public. Generally, the applicant must show that it would be seriously compromised or adversely affected if confidentiality were not maintained, or that disclosure would give competitors a significant commercial and competitive advantage. The scope of any order must also be confined to what is actually necessary.

The judgment also highlights the importance of currency. Older information may be less likely to justify protection, especially if the applicant cannot show that it still has present commercial value. Here, the relevant period ended on 27 March 2023, so even the newest information was more than two years old by the time the Court decided the application.

A major feature of the decision is the Court's close attention to the quality and source of the evidence. Emma Sleep relied on affidavits from its solicitor, Jacqueline Downes. The second affidavit explained that key parts of the first affidavit were based on information from the Principal Legal and Compliance Manager for Emma Sleep Southeast Asia. The Court treated that as a relevant limitation. It noted that the evidence was given on information and belief and that the identified source appeared to have only indirect knowledge of the business side of Emma Sleep.

That did not make the evidence inadmissible for present purposes, but it reduced the weight the Court was prepared to give it. For a business reader, this is important. If you are asking a court to protect commercially sensitive material, the witness matters. A legal or compliance witness may be able to explain process, but may not be the strongest person to explain current market dynamics, competitor behaviour, pricing consequences, campaign strategy or negotiation leverage. The Court wanted more than broad assertions passed through a lawyer.

The Court also looked at how specific the claimed harm was. Repeatedly, the judgment says the asserted harms were expressed in broad and general terms. For example, Emma Sleep said competitors could use the information to target its business, take market share, or extrapolate current strategy from historical material. The Court considered those propositions too general without stronger evidence showing why that would realistically happen and why the effect would be serious enough to meet the statutory test.

Another important point was that the documents had already been relied on in open court. Even if the exact passages were not read aloud during oral argument, the fact that the documents were used in open court strengthened the open justice position. Once material has been deployed in that way, it is harder to persuade the Court that secrecy is necessary.

The Court considered the disputed material in categories. For the short extracts from the parties' written submissions, the application failed quite easily. The judge said the passages were so short that they revealed very little about Emma Sleep's marketing strategy. They also came from March and September 2022, making them more than two years old, and the claimed harms were framed only in general terms.

Annexure A was a somewhat stronger case for Emma Sleep because the redacted passages were longer and conveyed more substance about strategy-level guidance. Even so, the Court was not persuaded. One part of the material was simply general sales figures by country from September 2022, and the Court found it difficult to see the continuing relevance of that snapshot. As to the strategy content in the other emails, the Court accepted in principle that confidentiality can sometimes be apparent from the face of a document. But it said these strategies were not in the same league as trade secrets such as computer code, and there was insufficient evidence to show that disclosure would seriously compromise the business or adversely affect it.

The Court then turned to the annexures over which Emma Sleep sought full redactions. Annexure C contained social media and website performance information. The Court said the argument for non-publication was stronger here because the evidence was more specific. Emma Sleep had explained that, as an online retailer with no bricks and mortar stores in Australia, its online marketing strategy and performance were highly commercially sensitive. It also said the data was comparable to present-day data and could help competitors assess the reach of its advertising and the sophistication of its marketing operations. Emma Sleep further argued that business partners could use the information to negotiate better deals.

Even so, the Court held that the evidence still fell short. The harms remained insufficiently immediate and concrete. The judgment notes that saying competitors would gain the ability to identify and assess advertising reach, or would gain insights into operational sophistication, did not establish that Emma Sleep's business would be seriously compromised or adversely affected if the material were disclosed.

Annexures D and E contained sales figures. Emma Sleep said it was not publicly listed, was not required to disclose financial information, and treated revenue and sales figures as confidential. It argued that competitors could use the data to assess market position, profitability, product performance and promotional breakdowns, and that business partners could use the information to seek better margins. The Court rejected that argument. It emphasised again that the figures were more than two years old, had been included in a document relied on in open court, and were supported only by general claims that competitors might extrapolate current or future performance. That was not enough to show serious compromise, adverse effect, or a significant commercial advantage to rivals.

Hill J dismissed Emma Sleep's interlocutory application in full. The Court was not satisfied that non-publication orders were necessary under sections 37AF and 37AG of the Act. The evidence did not establish the required level of prejudice to the proper administration of justice if the material were disclosed.

The Court's reasoning rested on several cumulative points. The information was old. The evidence was on information and belief and came through a solicitor, with the identified source appearing to have indirect business knowledge. The claimed harms were broad and speculative rather than concrete and immediate. The documents had already been relied on in open court. And Emma Sleep had not identified the appropriate duration of the proposed orders, even though section 37AJ requires the Court to specify the period for which a non-publication order operates.

The judgment also addressed the fact that the non-party's request itself excluded material to the extent it contained confidential or commercially sensitive information. The Court noted that this might appear to involve a less demanding test than the statutory test for a non-publication order. But rule 2.32 did not provide a process for the Registry to redact documents in line with the wording of the request, and the relevant confidentiality exclusions in the rule did not apply on the facts. There was also no claim of privilege. So the absence of a proper basis for a non-publication order remained decisive.

The ACCC did not seek costs, so there was no order as to costs.

This decision is a practical lesson in the difference between internal confidentiality and court confidentiality. In ordinary business life, a company may keep strategy documents, campaign metrics, pricing analysis and sales data tightly controlled. But once those materials become part of a court case, the legal system starts from a different premise: justice is generally administered in public. A business that wants an exception must prove it.

That proof needs to be disciplined and specific. The Court was not persuaded by generic statements that competitors could gain insights or that business partners might negotiate harder. It wanted a clearer explanation of the present commercial significance of the information, why the information remained current, how exactly others could use it, and why that would create the kind of prejudice the statute addresses. Businesses should therefore avoid treating confidentiality applications as routine or formulaic.

The case also shows the importance of timing and witness selection. If sensitive material is filed and then relied on in open court, the open justice principle becomes harder to displace. If confidentiality is likely to matter, the issue should be considered before filing, not only after a third party asks to inspect the file. And if an application is needed, the supporting witness should ideally be someone with direct operational knowledge who can speak to current strategy, market conditions, competitor behaviour and commercial consequences.

Finally, any proposed order needs to be tightly framed. The Court expects the scope of the order to be no wider than necessary, and the legislation requires a period for which the order will operate. A broad request without a clear duration is less likely to succeed.

The judgment was delivered by Hill J on 27 August 2025 in the Federal Court of Australia. The application was determined on the papers after both sides filed written submissions. The decision concerns an interlocutory application for non-publication orders made in response to a non-party request to inspect documents on the court file.

The judgment refers to an earlier liability decision, Australian Competition and Consumer Commission v Emma Sleep GmbH [2025] FCA 618, and records that the next stage of the proceeding was a hearing to determine penalty.