ACCC loses bid to stop Garuda appeal
The ACCC has been unsuccessful in its attempt to stay Garuda’s appeal against a $19 million cartel penalty, despite its failure to pay the penalty.
See Australian Competition and Consumer Commission v PT Garuda Indonesia Ltd (Remedies) [2019] FCA 786
Justice Yates
[44] The Commission’s application is put on a simple basis. In a nutshell, Garuda is in contempt of the pecuniary penalty order and its appeal should, therefore, be stayed until it has “regularised” its position by paying the pecuniary penalties or obtaining a stay of that order.
[45] So put, the argument is superficially attractive, if not alluring. However, after some reflection, I have come to the conclusion that it should not be accepted.
[46] I have no doubt that the Court has the power to control the exercise of its appellate jurisdiction, including by granting a stay of proceedings. There must, however, be a substantial basis for exercising that power. Such basis may be provided by an appellant’s contempt in failing to comply with an order of the Court. …
[47] In the present case, there is no dispute that Garuda has not complied with the pecuniary penalty order which, as extended, required it to pay the pecuniary penalties by 5.00 pm on 23 August 2019. However, failure to comply with an order to pay money is not, itself, sufficient to make out a finding of contempt. What is required is wilful disobedience of the order (i.e., disobedience that is not casual, accidental or unintentional): … Hence, the Commission’s characterisation of Garuda’s conduct in the present case as deliberate and wilful.
[48] However, in order for the failure to be deliberate and wilful in the requisite sense, it must be shown that the person who is subject to the order had the capacity to comply with it, in whole or in part: …The burden of showing this rests on the party alleging the contempt.
[49] It is at this point that the Commission’s case runs into difficulty. The Commission argues that Garuda has not provided a plausible explanation for its failure to comply with the pecuniary penalty order. This is not entirely correct as a matter of fact. In correspondence with the AGS, Norton White advised the Commission that those with responsibility within Garuda for processing payment of the pecuniary penalties were required to await the direction of the Indonesian Ministry for State Enterprises. This was because Garuda was subject to control by the Indonesian Government and the requirements of Indonesian law: … Further, Mr Rizal’s affidavit, … spoke of Garuda’s financial incapacity to pay the pecuniary penalties, at least within the extended period within which compliance was required: …
[50] The evidence of these matters might not have been sufficiently persuasive to warrant the Court granting, on Garuda’s application, a stay of the pecuniary penalty order. But it cannot be said that Garuda has not provided a plausible explanation. Whether it can be said that, by advancing these matters, Garuda has justified its failure to comply with the pecuniary penalty order, is another question.
[51] However, in this application, Garuda does not bear an onus to justify its non-compliance. It is for the Commission to establish the fact of contempt …
See also