The $31.4bn supermarket chain argues it has not had enough time or information to properly fight the Australian Competition & Consumer Commission’s decision blocking a second Coles in Kalgoorlie.
It now wants to see documents and data it believes sat behind that call, rather than arguing against what it describes as a moving target.
Coles is focused on material that may have come from O’Connor IGA, a local independent supermarket in Kalgoorlie, which could have influenced the ACCC’s opposition earlier this month. The dispute centres on Coles’ plan to open a supermarket and liquor store in Somerville, a suburb of Kalgoorlie-Boulder, which it first notified to the regulator last year.
The case came before the Federal Court on Tuesday, with arguments heard by Justice Michael O’Bryan about how the ACCC used its new enforcement powers and what evidence it relied on.
Lawyers for Coles told the court the ACCC initially worked off a theory that a second Coles would create an oversupply of supermarkets in the town of around 30,000 people and trigger a rival’s exit. They say the regulator later abandoned that position and adopted a different theory of competitive harm, forcing Coles to respond to a fresh set of concerns midstream.
Coles maintains that access to the underlying information, including any confidential submissions, could have substantially changed how it framed its original proposal and supporting material.
The retailer now has a further hearing set for September, when it will again argue its case and push for access to documents it claims were kept from it. The case is one of the first major legal tests of the ACCC’s expanded powers in supermarket competition, especially around transparency and procedural fairness.
