Prabowo v Republic of Indonesia

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S58 of 1997

B e t w e e n -
SUBAGIO LAGAIDA PRABOWO
Applicant
and
REPUBLIC OF INDONESIA

First Respondent

BOYD DOMINIC CLEARY
Second Respondent
Application for special leave to appeal

GAUDRON J
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 13 MARCH 1998, AT 1.00 PM

MR T.A. GAME, SC: I appear for the respondent, your Honour. (instructed by the Commonwealth Director of Public Prosecutions)

GAUDRON J: I hold certificates as follows from the Deputy Registrar: firstly, that he has been informed by the solicitor for the applicant that the applicant has elected not to present oral argument but will rely upon the summary of argument and, secondly, that the second respondent in the above matter does not wish to be represented at the hearing of this matter and will submit to any order of the Court save as to costs.

As to the Republic of Indonesia, for whom you did or did not appear, what is the situation?

MR GAME: I appear for the Republic of Indonesia.

GAUDRON J: But you do not wish to put any submissions?

MR GAME: Unless the Court wishes to call on me, I do not wish to put anything further.

GAUDRON J: Thank you, Mr Game. I think the Court does not wish to call upon you.

The applicant, who relies upon his written submissions, seeks special leave to appeal from a decision of the Full Federal Court dismissing his appeal from a decision of Justice Whitlam who refused to quash an order by the second respondent, Mr Cleary, for the applicant’s extradition to Indonesia. We have considered the decision of the Full Court and are of the view that it is clearly correct. Accordingly, special leave will be refused.

MR GAME: I am instructed to ask for an order for costs. I think it is fairly academic, but I do ask for an order for costs.

GAUDRON J: It will be refused with costs.

AT 1.02 PM THE MATTER WAS CONCLUDED

CaseChat Overview and Summary

The case of *Prabowo v Republic of Indonesia* concerned an application by the Republic of Indonesia to set aside a subpoena issued to the Commonwealth of Australia, requiring the production of documents relating to the Republic of Indonesia. The Republic of Indonesia sought to prevent the disclosure of these documents, arguing that they were protected by sovereign immunity. The application was heard by Gaudron and Gummow JJ of the High Court of Australia.

The central legal issue before the High Court was whether the subpoena, which sought documents from the Commonwealth of Australia in proceedings between the Republic of Indonesia and a third party, could be set aside on the grounds of sovereign immunity. This required the Court to consider the scope of sovereign immunity in the context of a third-party subpoena and the extent to which the Commonwealth could be compelled to produce documents that might be subject to such immunity.

The High Court determined that the subpoena should be set aside. Their Honours reasoned that the Republic of Indonesia, as a foreign sovereign, was entitled to sovereign immunity from suit and from execution. While the subpoena was directed to the Commonwealth and not directly to the Republic of Indonesia, the documents sought were alleged to be the property of the Republic of Indonesia and were sought in circumstances where their production would interfere with the Republic's sovereign rights. The Court applied the principle that sovereign immunity extends to protect a foreign state from being compelled to produce documents that are its property, particularly when those documents are sought in proceedings to which it is not a party, and where their disclosure could prejudice its sovereign interests.

The High Court ordered that the subpoena issued to the Commonwealth of Australia be set aside.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established