New South Wales Consolidated Acts

WORKPLACE INJURY MANAGEMENT AND WORKERS COMPENSATION ACT 1998 - SECT 318A

318A Mediation of claim before commencement of court proceedings

(1) A claimant must refer a claim for work injury damages for mediation under this Division before the claimant can commence court proceedings for recovery of those work injury damages. The claim cannot be referred for mediation until at least 28 days after the pre-filing statement has been served on the defendant under Division 3.

(2) The claimant need not refer a claim for work injury damages for mediation if the defendant has failed to respond to the claimant's pre-filing statement as required under Division 3 within 42 days after it is served on the defendant.

Note : A defence can still be filed in the 28-42 day period. A defence can be filed after 42 days but such a defence cannot dispute liability. A defence filed after 42 days can deal with such matters as quantum of damages or contributory negligence.

(3) The defendant may decline to participate in mediation of the claim if the defendant wholly disputes liability in respect of the claim, but in any other case the defendant cannot decline to participate in mediation.

(4) Court proceedings for recovery of work injury damages cannot be commenced while the claim is the subject of mediation in the Commission.

(5) A claim is referred for mediation by being referred to the President for mediation by a mediator. The President is to give directions as to which mediator is to mediate on a particular claim referred for mediation.

(6) The Commission rules may make provision for or with respect to mediation under this Division.