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Australian Practice in Relation to Relation to Recognition of Foreign Judgments Containing Punitive or Multiple Damage Elements

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There is some uncertainty as to enforcement of foreign judgments making awards not limited to the amounts of actual damages.

Although there is a lack of settled jurisprudence in Australia, the indications are that otherwise enforceable judgments containing multiple damage elements would be regarded as penalties and unenforceable at common law or under the Foreign Judgments Act 1991, where judgments for taxes, fines and penalties are excluded from the definition of "enforceable judgments".

Further, in Australia there are laws which in anti-trust matters make specific provisions to exclude or limit such damages. The Foreign Proceedings (Excess of Jurisdiction) Act 1984 was passed in general terms to deal with the specific problems of the Westinghouse Case in the United States, in which the Australian corporation cra was a defendant. Subject to being satisfied as to the national interest or an inconsistency with international law, comity or practice, the Attorney-General is able to prohibit the enforcement of foreign judgments for multiple damages in anti-trust proceedings, either to the whole amount or beyond such monetary limit as is specified. Although this Act was principally concerned with countering the exercise of long-arm jurisdiction, it was stated in the Parliament that the Australian Government regarded multiple damages as penal.

The category of exemplary damages is admitted in Australian jurisdictions, but their award is not much favoured by judges and legislators and mostly limited to intentional torts and defamation. (A recent discussion is by B. W. Collis, (1996) 70 Australian Law Journal 47.) Some States have abolished exemplary damages in particular areas such as motor accident and industrial injury cases.

Although in principle foreign judgments containing punitive damage elements might be recognized in particular instances, in anti-trust matters the 1984 Act, above referred to, would enable an executive prohibition on enforcement of punitive as well as treble damages. Speaking generally, within Australian jurisdictions it must be expected that policy considerations would affect the enforcement of a foreign judgment which included significant punitive damage elements.

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