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9.10 Notice of any Legal Action to be Given to the Department - Penalties
Section 46 of the SRCA says:
a) compensation is payable under this Act in respect of the death of an employee, and injury to an employee or the loss of, or damage to, property used by an employee
b) the death, injury, loss or damage occurred in circumstances that appear to create a legal liability in a person (other than the Commonwealth, a Commonwealth authority, a licensed corporation or another employee) to pay damages in respect of the death, injury, loss or damage, and
c) the employee or a dependant of the deceased employee, as the case may be, makes a claim against the person for the recovery of such damages
the employee or dependant must, as soon as practicable but in any event not later than 7 days after the day on which he or she first became aware of the claim, notify Comcare of the claim.
Penalty: 5 penalty points
(2)Subsection (1) is an offence of strict liability.
In short, this means that a dependant must advise the Department that he/she has initiated a third party action in respect of the death, within 7 days of doing so, and a formal penalty applies for failure to do so.
Furthermore, Subsection 48(2) says that:
48(2)The employee or dependant shall, not later than 28 days after the day on which the damages were recovered, notify Comcare in writing of the recovery of the damages and the amount of the damages.
Penalty: 10 penalty points
48(2A) Subsection (2) is an offence of strict liability.
In short this means that a dependant who has settled or concluded a third party action in respect of the employees death, is obliged to notify the Department of the amount recovered within 28 days of that settlement. A formal penalty applies for failure to do so.
Delegates who become aware that a dependant has failed to meet obligations under S46 or 48(2) must notify the Department in writing or by e-mail, with a summary of the circumstances. DVA will then consult with Defence about the legal steps to be taken, i.e. for a court of relevant jurisdiction to exact the penalty.