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

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

PT Garuda Indonesia Ltd was found to be a separate entity of Indonesia within the meaning of the Act, as it was used by Indonesia as a means to operate its national airline. However, Malaysian Airline System Berhad did not establish that it was a separate entity within the meaning of the Act due to the presence of minority shareholders and lack of sufficient evidence of agency or instrumentality. The Court held that the cartel conduct alleged against the airlines constituted commercial transactions for the purposes of s 11, and thus the exception to foreign state immunity applied; the airlines were not immune from the jurisdiction of the Australian courts for the ACCC’s claims.

Parties
Applicant: PT Garuda Indonesia Ltd; First Applicant: Malaysian Airline System Berhad; Second Applicant: Malaysia Airlines Cargo Sdn Bhd; Respondent: Australian Competition and Consumer Commission
Jurisdiction
Australia
Judgment Date
19 April 2011
Procedural Posture
Appeal / Judgment on Appeal With Reasons
Outcome
Appeals dismissed; leave to appeal granted
Legal Topics
Foreign State Immunity, Commercial Transactions Exception, Separate Entities of Foreign States, Cartel Conduct, Price Fixing, Jurisdictional Immunity, Statutory Construction
Public International Law Statutory Interpretation Competition Law Foreign State Immunity Commercial Transactions Exception Separate Entities of Foreign States Cartel Conduct Price Fixing +2 more

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Parties

PT Garuda Indonesia Ltd

Applicant

Malaysian Airline System Berhad

First Applicant

Malaysia Airlines Cargo Sdn Bhd

Second Applicant

Australian Competition and Consumer Commission

Respondent

Procedural Posture

Appeal / Judgment on Appeal With Reasons

Legal Issues

  1. 1 What is the test for ascertaining whether a corporation is a 'separate entity' of a foreign State under s 3(1) of the Foreign States Immunities Act 1985 (Cth)?
  2. 2 Is PT Garuda Indonesia Ltd a separate entity of Indonesia?
  3. 3 Is Malaysian Airline System Berhad a separate entity of Malaysia?

Ratio Decidendi

PT Garuda Indonesia Ltd was found to be a separate entity of Indonesia within the meaning of the Act, as it was used by Indonesia as a means to operate its national airline. However, Malaysian Airline System Berhad did not establish that it was a separate entity within the meaning of the Act due to the presence of minority shareholders and lack of sufficient evidence of agency or instrumentality. The Court held that the cartel conduct alleged against the airlines constituted commercial transactions for the purposes of s 11, and thus the exception to foreign state immunity applied; the airlines were not immune from the jurisdiction of the Australian courts for the ACCC’s claims.

Court Disposition

Appeals dismissed; leave to appeal granted

Orders

  • Leave to appeal is granted to the applicants.
  • The appeals are dismissed.