10Defendant in antitrust proceedings may recover against person who has enforced judgment

#### 10 Defendant in antitrust proceedings may recover against person who has enforced judgment (1) Subject to subsection (3), where: (a) there is in force an instrument made by the Attorney‑General under paragraph 9(1)(c) in relation to a foreign judgment; and (b) the plaintiff or any other person has (whether before or after the making of the instrument referred to in paragraph (a)) recovered from a defendant, in Australia or in any other country, an amount pursuant to that foreign judgment; then (whether or not any liability has arisen previously under this subsection in relation to that foreign judgment) the plaintiff is liable, or, where another person has recovered the amount mentioned in paragraph (b), the plaintiff and that other person are jointly and severally liable, to pay to the defendant an amount equal to the amount recovered pursuant to the foreign judgment as mentioned in paragraph (b). (2) Subject to subsection (3), where: (a) there is in force an instrument made by the Attorney‑General under paragraph 9(1)(d) in relation to a foreign judgment specifying an amount of money for the purposes of paragraph 9(2)(b) (in this subsection referred to as the recoverable amount); (b) the plaintiff or any other person has (whether before or after the making of the instrument referred to in paragraph (a)) recovered from a defendant, in Australia or in any other country, an amount pursuant to that foreign judgment (in this subsection referred to as the relevant amount ); (c) in a case where, before the recovery of the relevant amount, neither the plaintiff nor any other person had recovered any amount from the defendant pursuant to that foreign judgment in Australia or in any other country—the relevant amount exceeds the recoverable amount; and (d) in a case to which paragraph (c) does not apply: (i) the amount recovered, or the sum of the amounts recovered, (whether by the plaintiff or by any other person) from the defendant in Australia or in any other country or countries pursuant to that foreign judgment before the recovery of the relevant amount exceeds, or is equal to, the recoverable amount; or (ii) subparagraph (i) does not apply but the sum of the relevant amount and the amount or amounts recovered as mentioned in that subparagraph exceeds the recoverable amount; then (whether or not any liability has arisen previously under this subsection in relation to that foreign judgment) the plaintiff is liable, or, where another person has recovered the relevant amount, the plaintiff and that other person are jointly and severally liable, to pay to the defendant an amount equal to: (e) where paragraph (c) applies—the amount by which the relevant amount exceeds the recoverable amount; (f) where subparagraph (d)(i) applies—the relevant amount; or (g) where subparagraph (d)(ii) applies—the amount by which the sum mentioned in that subparagraph exceeds the recoverable amount. (3) Nothing in this section renders a person liable to pay an amount to a defendant in relation to a foreign judgment given by a court (including an authority that is a foreign 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 in which the foreign judgment was given, 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 in which the foreign judgment was given, 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. (4) Where a judgment in relation to which an instrument has been made under paragraph 9(1)(d) was given against 2 or more defendants, subsection (2) of this section has effect in relation to each of those defendants as if the references in that subsection to an amount specified in the instrument were references to the amount ascertained by dividing the amount specified in the instrument by the number of defendants against whom the judgment was given. (5) Where a corporation that is the plaintiff in relation to a foreign judgment is, by virtue of this section, liable to pay an amount to the person who is the defendant in relation to that foreign judgment, any corporation that is related to that first‑mentioned corporation is jointly and severally liable with that first‑mentioned corporation to pay that amount to that person. (6) A reference in this section to a person other than the plaintiff recovering an amount pursuant to a foreign judgment is a reference to any person recovering any amount pursuant to the foreign judgment, whether as the successor to the plaintiff, as an assignee of the rights of the plaintiff under the judgment or otherwise. (7) A proceeding in respect of a cause of action arising under this section shall not be commenced after the expiration of the period of 3 years commencing on the date on which the cause of action arises. (8) For the purposes of subsection (7), a cause of action under this section in respect of the recovery of an amount pursuant to a foreign judgment in relation to which an instrument has been made under section 9 shall, where the amount was recovered pursuant to the foreign judgment before the making of the instrument, be taken to have arisen when the instrument comes into force for the purposes of this section. (9) In this section: > defendant in relation to a foreign judgment, means a person against whom the foreign judgment was given; > foreign judgment means a judgment for multiple damages given by a foreign court in antitrust proceedings to which this Part applies, or any other judgment given by a foreign court in antitrust proceedings to which this Part applies; > plaintiff, in relation to a foreign judgment, means the person or persons in whose favour the foreign judgment was given.