PT Garuda Indonesia Ltd v Australian Competition and Consumer Commission

The High Court of Australia heard an appeal from the Full Court of the Federal Court of Australia concerning the application of the *Foreign States Immunities Act 1985* (Cth) to proceedings brought by the Australian Competition and Consumer Commission (ACCC) against PT Garuda Indonesia Ltd. The ACCC alleged that PT Garuda Indonesia Ltd had contravened provisions of the *Trade Practices Act 1974* (Cth). It was common ground that PT Garuda Indonesia Ltd was a "separate entity" of a foreign state and that the proceeding was not a prosecution.

The central legal issue before the High Court was whether the proceeding brought by the ACCC concerned a "commercial transaction" within the meaning of section 11(1) of the *Foreign States Immunities Act 1985* (Cth), thereby excluding PT Garuda Indonesia Ltd from immunity from jurisdiction. The definition of "commercial transaction" in section 11(3) included "a commercial, trading, business, professional or industrial or like transaction into which the foreign State has entered or a like activity in which the State has engaged," and expressly stated that this was "without limiting the generality of the foregoing."

The High Court reasoned that the phrase "without limiting the generality of the foregoing" in section 11(3) prevented the application of the *ejusdem generis* principle to restrict the broad meaning of "commercial transaction." The Court found that the ACCC's allegations, which concerned arrangements or understandings that led to PT Garuda Indonesia Ltd entering into contracts for air freight services, constituted a "commercial transaction" even if the arrangements themselves were not pleaded as contracts. This was because the definition extended beyond purely contractual arrangements to encompass commercial, trading, or like activities.

The appeal was dismissed with costs.