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9.4.1 Action aginst Third Parties instituted or taken over by the MRCC

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Subsection 50 of the SRCA applies where damages are recovered:

  1. as a result of a claim, or fresh claim, made by Comcare under section 50 (whether or not that claim progressed to the formal institution of proceedings); or
  2. as a result of Comcare's taking over the conduct of a claim under that section.

Thus, if the MRCC makes a claim or a fresh claim against a third party on behalf of a dependant or takes over the conduct of such a claim, double-dipping is prevented by calculating the amount payable under the SRCA to the dependant as follows:

  • the amount of compensation paid or payable is to be deducted from the damages amount.  Any costs incidental to the claim that were paid by the Commonwealth in the prosecution of the claim are also deducted.
  • If a positive balance remains then the balance has to be paid to the plaintiff.

Note that under sub-section 50(2), where the MRCC takes over a claim it is responsible for paying all costs of the claim.  Only the incidental costs are recoverable as indicated above.

Should the damages be less than the person would have received under the Act if there had been no third party action, an amount of compensation is payable under the SRCA so that the dependant receives the total amount to which they are entitled.  The amount payable is calculated as per the calculations set out above.