Australian Competition and Consumer Commission v Mastercard Asia/Pacific Pte Ltd (Suppression No 2) [2026] FCA 516

This Federal Court decision is about court procedure, not the final competition dispute between the ACCC and Mastercard. The issue was whether the Court should make suppression or non-publication orders over information in documents that might be used to cross-examine the ACCC's first witness, Mr Paul Jennings, before that cross-examination actually took place.

Justice Wigney refused to make those orders in advance. The Court said it would not grant broad confidentiality protection in the abstract, especially where the material appeared historic, where it was still unclear what would actually be put to the witness, and where some of the information appeared central to the issues in the case. The ruling reinforces that open justice is the starting point and that suppression orders require a specific and necessary justification.

The ACCC had brought proceedings against Mastercard Asia/Pacific Pte Ltd and Mastercard Asia Pacific (Australia) Pty Ltd. This judgment does not set out the full substantive allegations in that broader case. It deals only with a suppression dispute that arose during the trial.

The immediate context was the upcoming cross-examination of Mr Paul Jennings, the ACCC's first witness. Mr Jennings was a former officer of Eftpos Payments Australia Limited, or ePAL. The Court had been provided with a list of 91 documents that it was expected he might be taken to during cross-examination. Certain information in those documents had been highlighted as the subject of suppression claims by Mastercard and by a number of third parties, including ePAL, Commonwealth Bank, Coles, Woolworths, Westpac and NAB.

Justice Wigney had already dealt with an earlier round of suppression applications in a separate ruling, referred to in this judgment as Suppression No 1. In that earlier ruling, he explained the principles relevant to suppression and non-publication orders and said he would not determine the broader applications in a global way before trial. Instead, he would consider specific documents when the need actually arose during the hearing.

This judgment gives short reasons for maintaining that approach. The judge said it would be dangerous and erroneous to make broad suppression orders by reference to large categories of information without close consideration of the specific information in specific documents as they were about to be deployed at trial. Only then could the Court properly assess the nature of the information and its relevance and significance to the issues in dispute.

To illustrate the problem, the judge discussed the first two documents on the list of 91. The first was a Commonwealth Bank merchant tax invoice issued on 1 July 2019 to Kentucky Fried Chicken for fees relating to credit and debit card services. The highlighted material included, surprisingly in the judge's view, KFC's name and postal and trading address, as well as fee categories and information relating broadly to card acceptance costs. The second was a letter from ePAL to BP Australia Pty Ltd dated 26 February 2018. It gave BP a summary of eftpos strategic wholesale market routing pricing and included details of a proposal concerning the routing of BP's debit card transactions.

The judge used these examples to show what he regarded as the extreme overreach and breadth of the suppression claims. He was particularly struck by the age of the documents. The invoice was almost seven years old. The ePAL letter was over eight years old.

The legal issue was whether suppression or non-publication orders should be made over information in documents that Mr Jennings might be cross-examined about at trial. The judgment identifies the relevant statutory framework in the Federal Court of Australia Act 1976 (Cth), including sections 37AE, 37AF, 37AG and 37AI.

The practical question was not simply whether the information had once been confidential. The Court focused on whether suppression was necessary to prevent prejudice to the proper administration of justice. That is a high threshold. It required attention to the actual information, the age of the material, whether it remained commercially sensitive, how important it was to the issues in dispute, and whether the cross-examination could be conducted without revealing the content in open court.

Justice Wigney stressed that broad categories of allegedly confidential commercial information could not sensibly be protected through a single global ruling before trial. At that stage, it was unclear exactly what information in which documents Mr Jennings would in fact be questioned about. It was also unclear whether the questioning could be conducted in a way that did not reveal the content of the highlighted information in open court. Those uncertainties mattered because suppression orders should not be made in a vacuum.

The Court also made clear that open justice remained a central consideration. If the information was likely to be important to the issues in the case, suppressing it could hinder the efficient conduct of the proceeding in open court. That concern was especially strong where the information related to the types of offers made by card scheme operators to merchants concerning interchange and scheme fees.

The Court ordered that no suppression or non-publication orders would be made in respect of information in documents about which Mr Jennings might be cross-examined prior to the conduct of that cross-examination. In other words, the Court refused to grant advance protection before the questioning happened.

The judge did not make final rulings on the highlighted information in the two example documents, and he did not make final rulings on the other 89 documents either. He said that was because the cross-examination might not touch on the information at all. Even if it did, the questioning might be able to proceed without disclosing the content in open court. He would only make rulings if the cross-examiner considered that particular information had to be disclosed in open court for the cross-examination to be conducted fairly and efficiently.

In explaining that result, Justice Wigney expressed strong scepticism about the breadth of the claims. For the Commonwealth Bank invoice to KFC, he said he could not understand how the fact that KFC acquired card services through Commonwealth Bank and paid fees for those services over eight years earlier could still be commercially confidential and sensitive. He also said he could not see how the very general fee or pricing information in a document that was almost seven years old could be so commercially sensitive that suppression was necessary.

For the ePAL letter to BP, the judge accepted that the highlighted information would have been highly confidential and sensitive when the letter was sent, and perhaps for some period afterwards. But because the letter was over eight years old, and because the commercial environment would have changed over that time, he remained unpersuaded that disclosure of the old proposal could seriously create a significant risk of material prejudice to ePAL.

At the same time, the Court did not say that no valid confidentiality claims could ever arise. Justice Wigney expressly acknowledged that there might be some genuinely sensitive commercial information somewhere within the other 89 documents. His point was that any such claims had been swamped by a broader mass of weak claims, and that he was unwilling to determine them abstractly before seeing whether the information actually needed to be aired in open court.

The first example document was a Commonwealth Bank merchant tax invoice dated 1 July 2019 and issued to Kentucky Fried Chicken. The highlighted material included the merchant's name and address, a breakdown of fees into broad categories such as scheme fees, blended fees, market service fees and credit interchange fees, and information relating broadly to the cost of card acceptance by reference to major card scheme operators including Visa, Mastercard and ePAL.

The judge considered it tolerably clear that the way fees associated with credit and debit card acceptance services are categorised and billed or charged to merchants was a potentially important issue in the proceeding. That mattered because information central to the case is harder to suppress, particularly where the information is old and general rather than current and highly specific.

The second example document was ePAL's letter to BP Australia Pty Ltd dated 26 February 2018. It summarised eftpos strategic wholesale market routing pricing and included details of a proposal to BP about routing debit card transactions through eftpos. The highlighted information included details of particular payments ePAL would make for BP for use in joint marketing opportunities and wholesale interchange rates that ePAL would offer BP in respect of dual network cards, eftpos only cards and digital acceptance.

Justice Wigney accepted that this information would have been highly confidential at the time. But he was not persuaded that an offer made more than eight years earlier, in a commercial environment that had likely changed significantly, still justified suppression. He also noted that evidence concerning the types of offers made by card scheme operators to merchants about interchange and scheme fees was a central issue in the proceeding. Suppressing information of that type could hinder the efficient conduct of the case in open court.

For business owners, this case is really about what happens when commercial records enter litigation. Many businesses assume that if a document contains pricing, customer details, fee structures, proposals or internal commercial arrangements, the court will automatically keep it confidential. This judgment shows that assumption is unsafe. Courts start from open justice. A business seeking protection must show why suppression is necessary, not merely why disclosure would be inconvenient or embarrassing.

The age of the material matters. A current pricing model, live tender strategy or active customer negotiation may be easier to characterise as genuinely sensitive than an old invoice or an expired proposal from many years ago. The Court also looked closely at whether the information was central to the issues in dispute. If the commercial detail goes to the heart of the case, the hurdle for keeping it out of open court may be higher.

This is also relevant to businesses that are not parties to the main case. Third parties can find their documents pulled into regulator proceedings, competition disputes, subpoenas or notices to produce. If that happens, broad claims that everything is confidential may fail. A narrower, evidence-based approach is more likely to be taken seriously.

Good document governance also matters. If a business treats every commercial document as confidential without distinguishing between genuinely sensitive material and routine records, it may later struggle to persuade a court that particular information deserves protection. It is sensible to identify what is truly current and commercially sensitive, keep records explaining why, and review whether that sensitivity still exists over time.

If your business is preparing for litigation, a practical first step is to map the documents that may be produced or relied on. Then separate them into categories: current trade-sensitive material, historic but still potentially sensitive material, and routine or stale records. For any document you may want protected, ask whether the information is still sensitive today, what real prejudice disclosure would cause, whether the information is central to the dispute, and whether the evidence could be given without exposing the detail in open court.

This judgment does not mean suppression orders are unavailable. It means they must be justified carefully and specifically. The Court left open the possibility that genuinely sensitive information in the remaining documents could still be protected later if disclosure in open court became necessary. But the burden remains on the applicant to show why that step is needed.

The judgment was delivered on 16 April 2026 by Wigney J in the Federal Court of Australia. It was an ex tempore judgment revised from transcript. The order made was limited: no suppression or non-publication orders would be made before Mr Jennings' cross-examination in relation to the documents he might be taken to.

The status of the ruling is important. It was not a final determination of all suppression claims in the proceeding. The Court expressly said it would address claims later if and when particular information needed to be disclosed in open court for cross-examination to be conducted fairly and efficiently.

This page is based on the Federal Court of Australia judgment in Australian Competition and Consumer Commission v Mastercard Asia/Pacific Pte Ltd (Suppression No 2) [2026] FCA 516. The judgment is a short procedural ruling dealing with suppression and non-publication orders in the context of trial cross-examination.

Because the judgment is confined to the suppression issue, this page does not attempt to summarise the full substantive allegations or any final outcome in the ACCC's broader case against Mastercard. It should be read together with the Court's earlier ruling referred to as Suppression No 1 if you need the wider suppression context.