Australian Competition and Consumer Commission v P.T. Garuda Indonesia Ltd

The Australian Competition and Consumer Commission brought proceedings against P.T. Garuda Indonesia Ltd in the Federal Court of Australia. The Commission sought to enforce an Australian Competition and Consumer Commission penalty order against Garuda in relation to a price-fixing cartel. Garuda moved to have the proceeding dismissed on the basis that it was immune from the jurisdiction of the Court as an instrumentality or agency of the Indonesian government. The court was required to decide whether Garuda was a separate entity from the Indonesian government for the purposes of the Foreign States Immunities Act 1985 (Cth) and whether the commercial transaction exception applied to the proceeding.

The court considered the definition of a foreign state under the Act and the statutory test for determining whether an entity is separate from a foreign state. The court held that Garuda was not a separate entity from the Indonesian government because it was established by the Indonesian government and its primary objective was to pursue profit. The court found that Garuda was a state-owned enterprise that was entrusted with the special task of performing public services. The court also considered the evidence provided by Garuda and the Commission and concluded that the commercial transaction exception did not apply to the proceeding. The court held that the proceeding did not concern a commercial transaction within the meaning of s 11 of the Act.

The court dismissed Garuda's motion and held that Garuda was not immune from the jurisdiction of the Court. The court found that Garuda was not a separate entity from the Indonesian government and that the commercial transaction exception did not apply to the proceeding. The court ordered that Garuda's notice of motion be dismissed with costs.