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2.1.21 When can a MRCA claim be withdrawn by a client?

While there may be an administrative requirement for a case to be removed (or withdrawn) from a processing system for a number of reasons (i.e. registered in error etc.), this is different to the withdrawal of a claim which can only be initiated by a client

A client may withdraw their claim for permanent impairment at any time up until a determination has been made.  Once a determination has been made, withdrawing a claim is no longer an option open to the client.

The MRCA does not contain any specific provision allowing withdrawal of a MRCA claim. The question then becomes one of statutory construction, ie, what is the intention of the MRCA?  As the MRCA is beneficial legislation it should generally be given a beneficial construction.

The withdrawal of MRCA claims prior to determination is common practice and good administrative practice as it enables claimants to correct errors and improve their claim before they are investigated.  It is also consistent with an individual’s common law right to control their own affairs.

Policy to allow the withdrawal of claims up until a determination has been made is supported by common law such as Uniden Australia Pty Ltd v Collector of Customs [1997] FCA 286 (Uniden).  This case indicates that a person who makes a claim generally has the right to withdraw that claim ‘at any stage up to the delivery of a decision’.  In such cases, the claim is generally taken to have never been made.  There is nothing to indicate that the MRCA contains a contrary intention. Thus, once a final and operative decision is notified to the claimant, the claim cannot be withdrawn.

Generally speaking, once an administrative decision has been made and the claimant notified, the decision-maker will have spent their power with respect to the client’s claim and cannot generally re-open the decision. There may be scope to re-open the decision where an invalidating (jurisdictional) error has been made, but not simply because the decision-maker or the client has had a change of mind. The Commonwealth is then obliged to make payments under the determination within a reasonable time.  The statutory obligation to make a payment does not depend on a person making a ‘choice’ to receive compensation.

It is important to note that whilst a decision to pay MRCA permanent impairment is accompanied by a choice to institute action for damages against the Commonwealth for non-economic loss under s 389, the decision is not an ‘offer’ of compensation, it is a determination of entitlement to compensation that is only prevented by a positive election by the client to seek damages under s 389.  This is also the case with the choice under s78 to take the entitlement of weekly compensation as a lump sum.  The client is entitled to weekly compensation provided they do not make a positive election to seek damages under s389. They can then take up to 6 months to decide to convert this amount to a one-off lump sum amount (or mixture of lump sum and weekly rate depending on the circumstances).