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4.3.1 Notification of third party common law actions
While there is no legislative requirement for the claimant to advise that they intend to sue a third party, subsection 391(2) states that the claimant must advise the MRCC of a claim under common law not later than 7 days after the third party 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 the D2051 claim form has a question at point 23 that asks whether the claimant has or intends to claim common law damages against the Commonwealth or a third party. While this question can be used to determine whether there is a claim for the Commonwealth to make or take over, it is not legislatively required for the claimant to fill this out if they intend to claim but haven't yet done so. However, the requirement for the claimant to inform the MRCC of any actual claim made is still to be fulfilled.
Subsection 391(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. Since 1 July 2017, one penalty unit is $210. 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 391(4).
For an explanation of an offence of strict liability see 4.2.4.