The affidavit functions as a pleading and promotes the open justice principle, the court explains
The Federal Court has granted a media participant access to an affidavit filed by Coles Supermarkets Australia Pty Ltd in its judicial review challenge against an Australian Competition and Consumer Commission (ACCC) decision blocking a proposed supermarket acquisition in Western Australia.
The Federal Court found that the affidavit functions as a pleading and promotes the principle of open justice. The court explained that the affidavit, sworn by Herbert Smith Freehills Kramer partner Linda Evans, qualifies as a "similar document" to a pleading under r 2.32 of the Federal Court Rules 2011. As a result, non-parties may inspect the affidavit without seeking leave.
The court further held that, even if the rule did not apply, the court would grant leave because public access would improve understanding of the proceeding and advance open justice.
The dispute stemmed from the ACCC's decision preventing Coles from acquiring a leasehold interest for a supermarket and liquor site in Kalgoorlie, WA. The regulator concluded that the proposed acquisition would likely substantially lessen competition in the relevant market. Coles responded by filing both an application for review in the Australian Competition Tribunal and judicial review proceedings in the Federal Court. It also asked the court to stay the judicial review until the tribunal decides the review application.
After the first directions hearing, a media participant sought access to the originating application and the accompanying Evans' affidavit. The Federal Court Rules entitled the applicant to inspect the originating application. Coles, however, opposed access to the affidavit, arguing that it was not comparable to a pleading, contained commercially sensitive information and had not been read in open court. The ACCC did not oppose disclosure.
The Federal Court rejected Coles' argument that the affidavit fell outside r 2.32. The court found that the affidavit set out the material facts supporting the judicial review application and gave the ACCC fair notice of the case it would need to meet. While the originating application stated only broad grounds of review, the affidavit explained the factual basis for Coles' procedural fairness allegations against the regulator. The court therefore concluded that the affidavit served the same function as a pleading.
The court also found that public access to the affidavit would help the public understand proceedings involving Australia's new merger control regime under Pt IVA of the Competition and Consumer Act. The court noted that the case also raises questions about the ongoing utility of the judicial review proceeding while Coles pursues a parallel review before the Australian Competition Tribunal.
The court also rejected Coles' confidentiality claims, finding that Coles failed to demonstrate that disclosure would prejudice its commercial interests. The court explained that much of the information identified as confidential already appeared in the ACCC's published statement of reasons, while the remaining material described correspondence and events only in general terms. The court also noted that Coles had not sought confidentiality orders when it filed the affidavit and had not substantiated its request to redact portions of the document.
Ultimately, the Federal Court ordered that non-parties may inspect Evans' affidavit filed in support of Coles' originating application for judicial review.
