Sydney, 30 August 2025 — The Federal Court has ordered Mastercard to disclose previously privileged documents in the Australian Competition and Consumer Commission’s (ACCC) high-profile case alleging anti-competitive conduct in the debit payments market.
Justice Wigney ruled yesterday that Mastercard Asia/Pacific Pte Ltd and Mastercard Asia/Pacific (Australia) Pty Ltd had waived legal professional privilege over certain communications by relying on affidavit evidence from two senior executives. The decision compels Mastercard to produce unredacted internal documents about its strategy in negotiating “strategic merchant agreements” (SMAs) with Australian retailers between 2017 and 2020.
The ACCC alleges that Mastercard developed a “credit leverage strategy” designed to discourage merchants from routing debit card payments through the domestic eftpos network, instead keeping transactions within Mastercard’s global payments system. The regulator says this conduct substantially lessened competition in the market for debit card acceptance services, in breach of sections 45 and 46 of the Competition and Consumer Act 2010 (Cth). Mastercard denies the allegations.
The privilege dispute turned on affidavits filed by two senior Mastercard executives, Richard Koh and Naushaza (Bobby) Molu, both of whom played key roles in approving SMAs. In their evidence, they asserted that nobody within Mastercard told them that the purpose of the agreements was to block eftpos, and that the strategy was aimed at promoting Mastercard’s products. Justice Wigney found those statements effectively put their internal communications with colleagues and legal counsel “open to scrutiny.”
“It is inconsistent for [the executives] to make assertions of the kind they made and for Mastercard at the same time to maintain that otherwise privileged communications … remain confidential,” his Honour said.
The Court ordered Mastercard to produce, within 28 days, unredacted copies of communications involving Mr Koh and Mr Molu that relate to the purpose or effect of the SMAs. However, the company may still redact portions of documents that concern unrelated legal advice.
The ACCC’s broader challenge to privilege claims over associated documents was dismissed, with the Court reserving the issue of costs.
The underlying competition case—one of the ACCC’s most significant recent actions against a global payments provider—remains ongoing. A further interlocutory hearing on confidentiality and suppression orders is scheduled for December.
Source: https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2025/2025fca1043
