Commonwealth Numbered Acts

SEAFARERS REHABILITATION AND COMPENSATION ACT 1992 No. 234, 1992 - SECT 59

59.(1) This section applies if:

   (a)  an amount of compensation under this Act:

        (i)    is paid to an employee in respect of an injury to the employee
               or in respect of the loss of, or damage to, property used by
               the employee; or

        (ii)   is paid for the benefit of a dependant of a deceased employee
               in respect of an injury that resulted in the death of the
               employee; and

   (b)  the injury, loss, damage or death occurred in circumstances that
        appear to create a legal liability in a person to pay damages in
        respect of the injury, loss, damage or death.

(2) If:

   (a)  this section applies; and

   (b)  the employee or dependant consents, in writing, to the employer
        instituting proceedings, or taking over the conduct of proceedings
        against the person, for the purposes of recovering the damages in
        respect of the injury, loss, damage or death; the employer may
        institute proceedings or fresh proceedings against the person in the
        name of the employee or dependant for the recovery of damages in
        respect of the injury, loss, damage or death or may take over the
        conduct of the proceedings, as the case requires.

(3) If:

   (a)  this section applies; and

   (b)  the employee or dependant does not consent to the employer instituting
        proceedings, or taking over the conduct of proceedings against the
        person, for the purposes of recovering the damages in respect of the
        injury, loss, damage or death; and

   (c)  proceedings against the person for the purpose of recovering such
        damages:

        (i)    have not been instituted by the employee or by or for the
               benefit of the dependant and the delay in instituting the
               proceedings is unreasonable; or

        (ii)   have been so instituted but have not been properly prosecuted;
               the employer may institute proceedings or fresh proceedings
               against the person in the name of the employee or dependant for
               the recovery of damages in respect of the injury, loss, damage
               or death or may take over the conduct of the proceedings, as
               the case requires.

(4) If the employer institutes proceedings or fresh proceedings or takes over
the conduct of proceedings under subsection (2) or (3) the employer must
conduct the proceedings in the interests of the person in whose name the
proceedings were instituted.

(5) The employer is liable to pay all costs of, or incidental to, any
proceedings taken over by it, being costs payable by the plaintiff in those
proceedings, other than those costs unreasonably incurred by the plaintiff.

(6) If the employer institutes, or takes over the conduct of, proceedings
under this section, the employer may:

   (a)  subject to subsection (7), settle the proceedings, either with or
        without obtaining judgment; and

   (b)  if a judgment is obtained in the proceedings in favour of the
        plaintiff-take such steps as are necessary to enforce the judgment.

(7) The employer may only settle the proceedings:

   (a)  with the written consent of the employee or dependant in whose name
        the proceedings were instituted; or

   (b)  without the consent of the employee or dependant in whose name the
        proceedings were instituted if the employee or dependant withholds
        consent unreasonably.

(8) Subject to subsection (7), if the employer requires the employee or
dependant to sign any document relevant to proceedings instituted or taken
over by the employer under this section (including the settlement of the
proceedings), the employee or dependant must sign it and, if he or she fails
to do so, the court or tribunal in which the proceedings are taken may direct
that the document may be signed on his or her behalf by a person appointed by
the employer for the purpose.

(9) If the employer institutes, or takes over the conduct of, proceedings
under this section, the employee or dependant must comply with any reasonable
requirement of the employer for the purpose of the proceedings and, if the
employee or dependant fails do so, the right of the employee or dependant to
compensation under this Act in respect of the injury, loss, damage or death to
which the proceedings relate is suspended until such time as the employee or
dependant complies with that requirement.

(10) If a right to compensation is suspended under subsection (9),
compensation is not payable in respect of the period of the suspension.

(11) Any damages awarded under a judgment obtained in proceedings referred to
in this section, or payable as a result of the settlement of such proceedings,
must be paid to the employer and the employer must deduct from the amount of
those damages:

   (a)  an amount equal to the total of all amounts of compensation paid to
        the employee or dependant under this Act in respect of the injury,
        loss, damage or death to which the proceedings relate; and

   (b)  the amount of any costs of or incidental to those proceedings paid by
        the employer; and must pay the balance (if any) to the employee or
        dependant.

(12) If the employer pays an amount to an employee or dependant under
subsection (11), the employee or dependant is not entitled to receive any
further amounts of compensation under this Act in respect of the injury, loss,
damage or death to which the proceedings related until the amount of
compensation that would, apart from this subsection, have been payable to the
employee or dependant in respect of the injury, loss, damage or death equals
the amount paid by the employer to the employee or dependant under subsection
(11).

(13) In this section:

"person" does not include the employer or an employee.