It is unlikely that many claims for compensation now received for a 1971 Act injury will meet the requirements of S54(1) that the claim be made within six months commencing on the da — y of the injury. Accordingly it will usually be necessary to test whether the failure to make a claim in time did not prejudice the Commonwealth or 'resulted from the death, or absence from Australia, of a person, from ignorance, from a mistake or from any other reasonable cause'. The test for this discretion is in similar terms to the discretion in S53(3)(c) of the SRCA to deem notice of injury to have been given. For discussion of this discretion, refer to:
7.1.8Interpretation – 'prejudice'
7.1.9Interpretation – 'death, or absence from Australia, of a person'
7.1.10Interpretation – 'from ignorance, f — rom a mistake, or from any other reasonable cause'
7.1.11Discussion – When does S53(1) apply?
The deeming provision should be applied having regard to all the circumstances of the case. However, as a matter of policy, it is recommended that the deeming provision should be applied to admit the claim in borderline cases as it is generally preferable to consider a claim on its merits rather than reject it.
In relation to the form of claim, Delegates s — hould follow procedures which are consistent with those for claims under the 1988 Act.
Before the amendments made by Act No 33 of 1986, former S54(2) of the 1971 Act imposed a 6 month time limit on making a claim for compensation. The Defcare Liability Mo — dule tests this time limit, and the discretion in former S54(6) to disregard the time limit.
54(1) Compensation in relation to an employee is not payable under this Act to a person unless a claim in writing for the compensation was served, as prescribed, on the Commissioner by or on behalf of the person within the prescribed period.
54(2) If the claimant is the employee, the prescribed period for the purposes of the last preceding subsection is:
a)in the case of a claim in relation to an injury to the claimant:
(i)the period of six months commencing on the day of the injury, or
(ii)if the claimant was not, immediately after the injury, aware that he had sustained an injury-the period of six months commencing on the day on which he became so aware
b)in the case of a claim in relation to a disease contracted, or an aggravation, acceleration or recurrence of a disease suffered, by the claimant-the period of six months commencing on the day on which the claimant became aware of the contraction of the disease, of the commencement of the aggravation or acceleration of the disease or of the recurrence of the disease, or
c)in the case of a claim in relation to loss of, or damage to, an artificial limb or other artificial substitute, or a medical, surgical or other similar aid or appliance, used by the claimant, being a loss or damage that arose in circumstances referred to in Section 28:
(i)the period of six months commencing on the day of the occurrence of the accident that resulted in the loss or damage, or
(ii)if the claimant was not, immediately after the accident, aware that the accident had resulted in the loss or damage-the period of six months commencing on the day on which he became so aware.
...
54(6) Where:
a)a claim purporting to be a claim referred to in Subsection (1) has been served on the Commissioner
b)the claim, as regards the time or manner of service, failed to comply with the requirements of that Subsection, and
c)the Commonwealth would not, by reason of the failure, be prejudiced if the claim were treated as a sufficient claim, or the failure resulted from the death, or absence from Australia, of a person, from ignorance, from a mistake or from any other reasonable cause
the claim shall be deemed to have been served in accordance with that Subsection.