Background
Coles notified the Australian Competition and Consumer Commission of its proposed acquisition of a leasehold interest for a supermarket and liquor site in Kalgoorlie, Western Australia. The ACCC determined that the acquisition must not proceed because it was likely substantially to lessen competition. Coles sought merits review in the Australian Competition Tribunal and separately commenced Federal Court proceedings alleging that the ACCC had denied it procedural fairness.
A media participant sought access to Coles’ originating application and an accompanying affidavit from its solicitor, Linda Evans. The originating application was available for inspection after the first directions hearing, but Coles opposed access to the affidavit, arguing that it was not similar to a pleading, had not been read in open court, and contained commercially sensitive confidential information. The ACCC did not object.
The Court’s Holding
Justice O’Bryan held that the affidavit was a “similar document” to a pleading under rule 2.32(2)(b) of the Federal Court Rules 2011. Because it accompanied the judicial-review application and stated the material facts supporting Coles’ procedural-fairness case, it performed the pleading-like function of giving the ACCC fair notice of the case. A non-party therefore did not require leave to inspect it.
The Court held that, even if leave were required, it should be granted under rule 2.32(4). Inspection would promote open justice and help the public understand both Coles’ challenge under the new merger-control regime and the question whether the Federal Court proceeding would retain any utility after the Tribunal’s review.
The Court rejected Coles’ confidentiality objections and refused to permit a redacted affidavit. Much of the identified information was already public, disclosed only at a high level, or readily inferable, and Coles had not substantiated how disclosure would prejudice its commercial interests. The Court ordered that any non-party be granted leave to inspect the affidavit.
Key Takeaways
- An affidavit accompanying an originating application may qualify as a document similar to a pleading when it states the material facts and defines the applicant’s case.
- An affidavit need not have been read in open court before inspection can be allowed; open-justice considerations may justify earlier access.
- A party resisting inspection on confidentiality grounds must identify genuine confidential material and substantiate the prejudice likely to result from disclosure.
Why It Matters
The decision clarifies how the Federal Court’s public-access rules apply when an affidavit, rather than a statement of claim, supplies the factual foundation for judicial review. Courts may look to a document’s function instead of its label when deciding whether non-parties have a general right of inspection.
It also underscores the evidentiary burden on businesses seeking to shield filed material from public access. General assertions of commercial sensitivity, particularly where the information is already public or central to the case being advanced, may not overcome the principle of open justice.