Australian Competition and Consumer Commission v PT Garuda Indonesia Ltd (Remedies) [2019] FCA 786

FEDERAL COURT OF AUSTRALIA

Australian Competition and Consumer Commission v PT Garuda Indonesia Ltd (Remedies) [2019] FCA 786 File number: NSD 955 of 2009

Judge: PERRAM J

Date of judgment: 30 May 2019

Catchwords: COMPETITION – collusive arrangement – exclusive dealing – respondent found to have contravened s 45 of the Trade Practices Act 1974 (Cth) – enforcement and remedies – application for declarations, injunctions and pecuniary penalties – consideration of relevant principles PUBLIC INTERNATIONAL LAW – act of state doctrine – distinction between foreign state immunity and act of state doctrine – whether commercial acts of respondent airline had sovereign aspect to them PUBLIC INTERNATIONAL LAW – where respondent submitted injunctions and pecuniary penalties would be contrary to customary international law – where respondent argued customary international law relevant to Court's discretion and power to grant remedies – where respondent argued relevance of principles of 'accommodation, mutuality and proportionality' STATUTORY INTERPRETATION – factors relevant to imposition of pecuniary penalty – loss or damage flowing from contravention of competition law – consideration of deeming provision in s 45A of the Trade Practices Act 1974 (Cth) – whether s 45A can inform assessment of loss or damage under s 76 or limited to establishing breach of s 45 – consideration of Federal Commissioner of Taxation v Comber [1986] FCA 92; 10 FCR 88 and Re Levy; Ex parte Walton (1881) 17 Ch D 746

Legislation: Acts Interpretation Act 1901 (Cth) s 8 Competition and Consumer Act 2010 (Cth) ss 76, 80 Evidence Act 1995 (Cth) s 55 Federal Court of Australia Act 1976 (Cth) s 21 Trade Practices Act 1974 (Cth) ss 4E, 5, 45, 45A, 45DA Agreement between the Government of Australia and the Government of the Republic of Indonesia (7 February 2013) 2016 ATS 25 (entered into force 30 December 2016)