PT Garuda Indonesia Ltd v Australian Competition and Consumer Commission [2011] FCAFC 52

FEDERAL COURT OF AUSTRALIA

PT Garuda Indonesia Ltd v Australian Competition and Consumer Commission [2011] FCAFC 52 Citation: PT Garuda Indonesia Ltd v Australian Competition and Consumer Commission [2011] FCAFC 52

Appeal from: Australian Competition and Consumer Commission v PT Garuda Indonesia Ltd [2010] FCA 551 Australian Competition and Consumer Commission v Malaysian Airline System Berhad [2010] FCA 757

Parties: PT GARUDA INDONESIA LTD (ARBN 000 861 165) v AUSTRALIAN COMPETITION AND CONSUMER COMMISSION MALAYSIAN AIRLINE SYSTEM BERHAD (ARBN 000 996 903), MALAYSIA AIRLINES CARGO SDN BHD v AUSTRALIAN COMPETITION AND CONSUMER COMMISSION

File numbers: NSD 667 of 2010, NSD 943 of 2010

Judges: LANDER, GREENWOOD AND RARES JJ

Date of judgment: 19 April 2011

Catchwords: PUBLIC INTERNATIONAL LAW – Jurisdiction – Foreign State Immunity – whether corporation, wholly or partly owned by foreign state, is immune from the jurisdiction of Australian courts – whether Australian Government regulator can seek pecuniary penalties against foreign State or separate entity of foreign State in respect of alleged contraventions of anti-competitive prohibitions in Pt IV of the Trade Practices Act 1974 (Cth) – alleged price fixing cartel for international air freight – airlines claiming to be separate entities of foreign States – no claim made by foreign State that airline is separate entity –whether alleged conduct capable of amounting to commercial transaction or like activity falling within exclusion from immunity for activities concerning "commercial transactions" as defined in s 11(3) of the Foreign States Immunities Act 1985 (Cth) Held: alleged price fixing activities of airlines operated by separate entity of foreign State capable of amounting to commercial transactions or like activities – airlines acted as private players in the market and alleged activities concerned commercial transactions within the meaning of s 11(3) of the Foreign States Immunities Act 1985 (Cth) – airlines not immune from the jurisdiction of Australian courts STATUTORY INTERPRETATION – definition of 'separate entity' in relation to a foreign State in s 3(1) of Foreign States Immunities Act 1985 (Cth) – whether corporation conducting international airline is a 'separate entity' being an 'agency or instrumentality' of foreign State – whether the foreign State must wholly own corporation or exert day-to-day management control Held: a person is a 'separate entity' if, on the whole of the evidence, the person is acting for, or being used by, the foreign State as its means to achieve some purpose or end of that State in the relevant circumstances – day-to-day control of a corporation by foreign State not determinative