FOREIGN PROCEEDINGS (EXCESS OF JURISDICTION) ACT 1984 - SECT 11 Defendant may recover reasonable costs and expenses

FOREIGN PROCEEDINGS (EXCESS OF JURISDICTION) ACT 1984 - SECT 11

  (1)   Subject to subsection   ( 2), where:

  (a)   private proceedings, being antitrust proceedings to which this Part applies, are instituted in or before a court (including an authority that is a foreign court) of a country other than Australia or of a part of such a country;

  (b)   the private proceedings are prescribed proceedings;

  (c)   under any law that is applicable in relation to those proceedings, only the plaintiff is entitled to recover any amount in respect of his or her costs in the proceedings; and

  (d)   the Attorney - General is satisfied that:

  (i)   the making of an order under this section in relation to those proceedings is desirable for the protection of the national interest; or

  (ii)   the assumption of jurisdiction or the manner of exercise of jurisdiction by that court, or the exercise of a power or the manner of exercise of a power by that court, in those proceedings was contrary to international law or inconsistent with international comity or international practice;

    the Attorney - General may make an order that the plaintiff in those proceedings is liable or, if the plaintiff is a corporation, the plaintiff and any related corporation are jointly and severally liable, to pay to a defendant in the proceedings an amount equal to the reasonable costs of, and expenses incidental to, the proceedings (in this section referred to as recoverable costs and expenses ), being costs and expenses incurred by the defendant and including, without limiting the generality of the foregoing, any costs or expenses associated with obtaining legal advice in connection with, or legal representation in or in connection with, the proceedings, and that order has effect accordingly.

  (2)   Nothing in this section renders a person liable to pay an amount to a defendant in proceedings instituted in or before a court of a country other than Australia or of a part of such a country unless:

  (a)   the defendant is an Australian citizen, other than a person who, at the time of the institution of the proceedings, was ordinarily resident in that country;

  (b)   the defendant is a corporation incorporated or deemed to be incorporated under a law in force in a State or Territory, other than a corporation whose principal place of business, at the time of the institution of the proceedings, was in that country; or

  (c)   the defendant is the Commonwealth, a State or a Territory or an authority of the Commonwealth, of a State or of a Territory.

  (3)   Proceedings in respect of a cause of action arising under this section (in this subsection referred to as costs proceedings ) in relation to proceedings instituted in or before a foreign court (in this subsection referred to as the foreign proceedings ) may be instituted, notwithstanding that the foreign proceedings are still pending, in respect of recoverable costs and expenses that have been incurred by a defendant in the foreign proceedings at any time before he or she institutes the costs proceedings (other than recoverable costs and expenses in respect of which costs proceedings have previously been instituted as provided by this subsection), and the institution of costs proceedings under this section in relation to foreign proceedings that are still pending does not prevent the defendant from instituting costs proceedings, after judgment has been given in the foreign proceedings or the foreign proceedings have been discontinued or otherwise terminated, in respect of recoverable costs and expenses (other than recoverable costs and expenses in respect of which costs proceedings have previously been instituted as provided by this subsection).

  (4)   Proceedings in respect of a cause of action arising under this section in relation to proceedings instituted in or before a foreign court (in this subsection referred to as the foreign proceedings ) may be instituted by a defendant in the foreign proceedings notwithstanding that judgment has been given in favour of the plaintiff in the foreign proceedings.

  (5)   Proceedings in respect of a cause of action arising under this section in relation to proceedings instituted in or before a foreign court (in this subsection referred to as the foreign proceedings ) shall not be commenced after the expiration of the period of 3 years commencing on the date on which judgment is given in the foreign proceedings, or the foreign proceedings are discontinued or otherwise terminated.