Filing sworn affidavits triggered waiver before trial, judges found
The Full Federal Court on 30 March 2026 dismissed Mastercard's appeal, confirming that filing sworn affidavits making positive assertions about commercial purpose can waive legal professional privilege before trial.
In Mastercard Asia/Pacific (Australia) Pty Ltd v Australian Competition and Consumer Commission [2026] FCAFC 37, Justices Perram, Wheelahan and McElwaine ordered Mastercard to produce documents it had withheld on privilege grounds. The decision sharpens the rules for how corporates deploy executive evidence in commercial litigation subject to modern case management.
The ACCC alleges that Mastercard Asia/Pacific Pte Ltd (Mastercard Singapore) and Mastercard Asia/Pacific (Australia) Pty Ltd contravened or were involved in contraventions of ss 45(1), 46(1) and 47(1) of the Competition and Consumer Act 2010 (Cth). The regulator claims Mastercard, having a substantial degree of power in the market for the supply to merchants of credit card acceptance services for credit card transactions, in 2017 developed a credit leverage strategy that was intended to discourage merchants from utilising the Eftpos payment network provided by Eftpos Payments Australia Ltd (EPAL).
The strategy involved signing up merchants to strategic merchant agreements (SMAs) with Mastercard Singapore. The SMAs provided for incentives, including lower prices for credit card acceptance services, if the merchants routed their dual Mastercard-Eftpos debit card transactions through Mastercard.
The ACCC alleges a substantial purpose of Mastercard's credit leverage strategy was to harm, or disrupt or adversely affect the competitive process for the supply of debit card acceptance services and thereby prevent or hinder competition by, among other things, deterring merchants from acquiring debit card acceptance services from EPAL. Mastercard denies the alleged purpose and pleads that its conduct was legitimate and pro-competitive, with each SMA pursuing varied commercial ends including furthering its retail strategy and competing with Visa, Eftpos and American Express.
The relevant period runs from 6 November 2017 to 5 November 2020. The proceeding is listed for trial before the primary judge commencing on 13 April 2026 with an eight-week estimate.
Mastercard filed affidavits from senior executives Richard Koh Wee Keong, the Vice President, Finance, of Mastercard Singapore, and Naushaza (Bobby) Molu, the former Chief Financial Officer of Mastercard Singapore. Both deposed that no one ever told them Mastercard pursued a strategy to prevent Eftpos from competing for debit transactions, and that the SMAs were aimed at increasing the use of Mastercard cards.
The Full Court held that those positive assertions about the purpose of the strategy opened the subject matter to scrutiny. The judges found Mastercard could not assert a lawful commercial purpose through its witnesses while shielding contemporaneous communications, including emails copying in-house counsel, that bore on the same purpose.
The court rejected Mastercard's argument that implied waiver requires an express or implied assertion about the content of privileged communications. As the judges put it, express or implied assertions about the content of privileged communications may expose inconsistency as required by Mann v Carnell but are not necessary. The test remains inconsistency between the conduct of the privilege holder and the maintenance of confidentiality, informed by considerations of fairness.
The judges also rejected the argument that waiver could only crystallise when affidavits are read at trial. The court held that the filing and service of sworn affidavits is different from the mere service of an unsigned statement of intended evidence, and concluded that waiver was effective at the time production of discovered documents was ordered. The court reasoned that it would be antithetical to the proper case management framework of this Court to apply a principle that has the result that a party is not held to the consequences of the filing of its affidavits of evidence until the moment that they are read at trial.
The orders cover documents created between August 2017 and November 2020 that record or refer to Mastercard's strategy or purpose in offering, negotiating, approving or entering SMAs. Mastercard has identified 60 emails as potentially relevant, which reduces to 10 discrete emails. Mastercard must pay the ACCC's costs as taxed, assessed or otherwise agreed.
