Payment of damages to Commonwealth
76 Payment of damages to Commonwealth
Where:
a person other than the Commonwealth appears to be liable:
to pay damages to a member of the Forces or a member of a Peacekeeping Force in respect of the incapacity of the member from an injury or disease to the member; or
to pay damages to a dependant of a deceased member of the Forces or a deceased member of a Peacekeeping Force in respect of the death of the member; and
pension under this Part is payable or has been paid to the member in respect of the same incapacity of the member from that or any other injury or disease or to the dependant in respect of the death of the member;
the Commission may, by notice in writing to the person, require the person, in the event of the person agreeing to pay damages to the member in respect of the incapacity of the member, or to pay damages to the dependant in respect of the death, or in the event of damages against the person being awarded to the member in proceedings instituted in respect of the incapacity of the member, or to the dependant in proceedings instituted in respect of the death, to pay to the Commonwealth so much of the amount of the damages as does not exceed the aggregate, at the time the payment is made to the Commonwealth, of the amounts of pension under this Part that have been paid to the member in respect of the incapacity of the member, or to the dependant in respect of the death of the member, and the person shall comply with the notice.
Subject to subsection (3), where:
a person other than the Commonwealth has agreed:
to pay damages to a member of the Forces or a member of a Peacekeeping Force in respect of the incapacity of the member from an injury suffered by, or a disease contracted by, the member; or
to pay damages to a dependant of a deceased member of the Forces or member of a Peacekeeping Force in respect of the death of the member;
and pension under this Part is payable, or has been paid, to the member in respect of the same incapacity of the member from that or any other injury or disease or to the dependant in respect of the death of the member; or
damages against a person other than the Commonwealth have been awarded:
to a member of the Forces or member of a Peacekeeping Force in respect of the incapacity of the member from an injury suffered by, or a disease contracted by, the member; or
to a dependant of a deceased member of the Forces or member of a Peacekeeping Force in respect of the death of the member;
and pension under this Part is payable, or has been paid, to the member in respect of the same incapacity of the member from that or any other injury or disease or to the dependant in respect of the death of the member;
the Commission may, by notice in writing to the person, require the person to pay to the Commonwealth so much of the amount of the damages as does not exceed the aggregate, at the time the payment is made to the Commonwealth, of the amounts of pension under this Part that have been paid to the member in respect of the incapacity of the member or to the dependant in respect of the death of the member, and the person shall comply with the notice.
Where, before a notice under subsection (2) was received by a person, the person had paid to or in respect of the member or dependant the whole or any part of the damages to which the notice relates:
if the whole of the damages had been paid—the notice has no force or effect; or
if part only of the damages had been paid—the reference in that subsection to the amount of the damages shall be read as a reference to so much of that amount as has not been paid.
If a person fails to pay an amount to the Commonwealth in pursuance of a notice under this section, the Commonwealth may recover that amount from the person as a debt due to the Commonwealth by action in a court of competent jurisdiction.
The payment of an amount to the Commonwealth in pursuance of a notice under this section is, to the extent of the amount paid, a discharge of the liability of that person to the member or dependant.
In this section, damages does not include an amount that has been paid in pursuance of a notice under section 51 of the Safety, Rehabilitation and Compensation (Defence‑related Claims) Act 1988.
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