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4.2.4 Notification of common law actions
While there is no legislative requirement for the claimant to advise that they intend to sue the Commonwealth, subsection 390(2) states that the claimant must advise the MRCC of a claim under common law not later than 7 days after the common law claim is lodged. This requirement is to allow for the proper application of any restrictions or cessations of compensation under the MRCA.
The need for this requirement to be met is to be communicated strongly in any communication that the delegate has with the claimant. Currently there are comment boxes and notes on the D2051 MRCA claim form highlighting the need for the claimant to inform DVA of any common law action or awards damaged. However, there is no mention of the sanctions that are imposed for a failure to meet these requirements.
Subsection 390(3) provides that a failure to notify the MRCC within the 7 day time period is an offence and carries a penalty of 5 penalty units (one penalty unit stands at $210 as of 1 July 2017. However, the amount of the penalty unit is automatically indexed every three years in line with inflation. The indexation occurs by reference to the March quarter CPI figures of the year in which indexation occurs. Hence the amount of a penalty unit will increase over time). This offence is also identified as an offence of strict liability by subsection 390(4).
An offence of strict liability, such as that committed by a failure to notify the MRCC of a common law action, is used to remove any fault elements from the action that causes the offence.
In plain terms, this means that if a claimant fails to inform the MRCC within the 7 day timeframe, they are guilty of an offence and the defence of a lack of knowledge, intention, recklessness or negligence does not stand. The prosecution does not need to prove fault for an offence of strict liability.
For example, if a claimant failed to notify the MRCC within the 7 day timeframe and the delegate pursued the penalty, the claimant could not claim that they were unaware of the requirement to notify the commission as a valid defence.
An offence of strict liability is prescribed by section 6.1 of the Criminal Code Act 1995.
There is an avenue of defence against an offence of strict liability, that being a mistake of fact. This is where the claimant before or at the time of the conduct (the failure to notify the MRCC) had considered whether or not facts existed about that action, and as a result is under a reasonable but mistaken belief about those facts. If those mistaken facts had existed, the conduct would not have constituted an offence.
Simply put, if the claimant can prove that at or before the time of not notifying the MRCC of the common law action they had considered the ramifications of not notifying the MRCC, and had come to a reasonable (though mistaken) conclusion that it wasn't required, then they are not guilty of committing the offence under subsection 390(3). This lack of guilt would have to be contested in court, with the reasonable nature of the claimant's misconception being accepted by the court and the prosecution failing to negate the hypothesis.
A mistake of fact is described in section 9.2 of the Criminal Code Act 1995.