Australian Competition and Consumer Commission v Mastercard Asia/Pacific Pte Ltd (Suppression No 1) [2026] FCA 431

This judgment arose inside a larger ACCC competition case against Mastercard. The ACCC alleged contraventions of sections 45, 46 and 47 of the Competition and Consumer Act 2010 (Cth), and Mastercard denied those allegations. The trial had already started and was expected to run for eight weeks. But this decision was not about whether Mastercard had broken competition law. It was about confidentiality during the trial.

The practical problem was that the case involved a large volume of commercially sensitive material. Mastercard and 14 third parties sought final suppression and non-publication orders over information expected to be aired in evidence or contained in documents likely to be tendered. Many of those third parties were companies that had produced documents to the ACCC during its investigation. The information said to need protection included terms of strategic merchant agreements, incentives, reinvestment requirements, scheme pricing and pricing analysis.

The applicants said disclosure would cause commercial or competitive disadvantage because competitors and counterparties could use the information in ongoing negotiations and business dealings. The Court accepted that this kind of concern can matter in the right case. But the Court also had to apply the strong principle of open justice, which starts from the position that court proceedings should be public.

The applications were made under section 37AF of the Federal Court of Australia Act 1976 (Cth). The ground relied on was section 37AG(1)(a), which allows suppression or non-publication orders where they are necessary to prevent prejudice to the proper administration of justice. The Court also had to take into account section 37AE, which says that a primary objective of the administration of justice is to safeguard the public interest in open justice.

Wigney J emphasised that this is a demanding test. The word necessary is a strong word. The party seeking the order carries a very heavy onus. There is no simple balancing exercise where confidentiality automatically competes on equal footing with openness. The Court must be satisfied that departure from open justice is compelled by necessity.

The judgment also explains an important distinction for businesses. Information can be confidential in a commercial sense without meeting the legal threshold for suppression in court. The Court accepted that trade secrets and genuinely sensitive commercial information can justify protection in some circumstances, especially where the court process itself could destroy or seriously diminish the value of that information. But the Court also said that the mere fact information is not public, or is described as commercial-in-confidence, will rarely be enough on its own.

A central feature of the judgment is the Court's concern about the way the applications were framed. The suppression claims were made by reference to categories of information, not by clearly identifying the exact information in exact documents that needed protection. Many of the categories were expressed in very broad terms. That made it difficult for the Court to know what would actually be hidden from public view.

The evidence burden was also very large. The applications were heard over two days in December 2025. Mastercard and the third parties relied on lengthy affidavits and more than 12,000 pages of exhibits. The evidence was generally to the effect that the information was commercially sensitive and that disclosure could be exploited by competitors and counterparties. But much of the information concerned historical commercial facts and circumstances from November 2017 to November 2020. The age of the material mattered because the Court said bare assertions that historic information remains commercially sensitive are unlikely to suffice.

The ACCC did not take a neutral position. It had carefully analysed the claims and identified some categories of information it did not oppose protecting, and others it did oppose in whole or in part. Broadly speaking, the ACCC opposed protection for information it considered central or important to its case but commercially stale because it related to events more than five years old. By contrast, the ACCC did not oppose protection for information it considered unlikely to feature in its case, and for some more granular commercial data or strategic analysis that might still have ongoing significance despite its age.

The judge said that, given the scale and complexity of the material, he would generally accept the ACCC's assessment for categories where the ACCC did not oppose orders, while still needing to identify exactly what information in what documents fell within those categories. That approach let the Court focus on the contested claims. Even after detailed schedules were provided in February 2026, the task remained extremely difficult. Mastercard later indicated that even its large legal team could not practically mark up all relevant documents in the joint tender bundle before trial without very significant effort. The Court also realised that if broad orders were made, large sections of affidavits would need to be redacted and parts of the trial might have to be conducted in closed court.

All of that led Wigney J to conclude that it was not possible or prudent to determine the applications globally before trial. Necessity could not be assessed in the abstract. The Court needed to know exactly what information would be suppressed, how important it was to the factual and legal issues, and what effect suppression would have on the conduct of the trial in open court.

The judgment gives a useful summary of the governing principles. Open justice means court proceedings should generally be conducted publicly and be open to public and professional scrutiny. That supports public confidence in the administration of justice and helps the public understand how courts decide cases. Because of that starting point, suppression and non-publication orders should only be made in exceptional circumstances where necessity compels a departure from openness.

The Court accepted that confidential commercial information can sometimes justify protection. That is clearest where a trade secret or confidential information is itself the subject matter of the proceeding, or where disclosure through the court process would allow competitors to gain an unfair advantage. The Court referred to earlier cases recognising that proceedings should not become a vehicle for advantaging trade rivals or destroying the value of confidential information.

But the Court also stressed that not every confidentiality claim will succeed. Claims that information remains commercially sensitive must be scrutinised carefully, especially where there is no effective contradictor, where the evidence cannot be tested well, or where the information is old or no longer current. Historic information may no longer have the same commercial value. The Court specifically noted that bare assertions about continuing sensitivity are unlikely to be enough.

Another important point is that the Court must consider the role the information plays in the case. If the information is likely to be important evidence, or if suppressing it would make it hard for the public to understand the proceeding or the Court's reasons, open justice becomes a particularly significant consideration. The Court also recognised a practical trial-management issue. Suppressing highly relevant information may jeopardise the orderly and efficient conduct of the proceeding, especially if it would require parts of the hearing to move into closed court while witnesses are examined or submissions are made.

Wigney J decided not to determine the suppression applications in a global pre-trial way. Instead, the Court would give rulings progressively on specific information in specific documents as the trial progressed and as documents were tendered or referred to in evidence. The parties were to confer and identify the documents or information to be used each day where suppression claims remained outstanding, and the Court would then rule on those items.

The first stage concerned the parties' written opening submissions and the highlighted pleadings. The Court said this judgment would provide guidance for later rulings during the trial. On that material, the result was clear. With the exception of information for which the ACCC did not oppose suppression or non-publication orders, none of the other highlighted information in the opening submissions and pleadings should be protected. The judge was not satisfied that suppressing that contested information was necessary to prevent prejudice to the proper administration of justice.

So the outcome was mixed, but in a very specific way. Some limited orders were to be made for information the ACCC had accepted should be protected. Broader contested claims failed because the applicants had not shown necessity with enough precision and force. The Court then ordered the parties to confer and provide agreed short minutes of order to give effect to the judgment.

For business owners and in-house teams, the most useful lesson is procedural. If your business is involved in litigation, especially a regulatory case, confidentiality needs to be planned early and managed with discipline. Courts do not grant broad secrecy because information is commercially sensitive in a general sense. They want to know exactly what information needs protection, why it still matters commercially now, and why suppression is necessary despite open justice.

This is especially relevant for businesses with pricing models, incentive structures, strategic agreements, margin data, negotiation playbooks or internal strategic analysis. Some of that material may genuinely justify protection. But if the information is several years old, or if it is central to the allegations and defence, the Court may be reluctant to suppress it. Businesses should therefore separate genuinely current trade secrets from historical context and prepare evidence that explains present-day commercial harm in concrete terms.

The judgment also shows the value of narrowing the issue. The Court was willing to place weight on the ACCC's careful assessment of categories it did not oppose, particularly where the information was unlikely to feature in the case or involved granular data with possible ongoing significance. That suggests businesses should focus on the strongest, most defensible confidentiality claims rather than trying to protect everything.