Commonwealth Consolidated Acts Commonwealth Consolidated Acts(1) Where:
(a) pension is, or has been, payable in respect of the incapacity of a member of the Forces or a member of a Peacekeeping Force from a defence - caused injury or a defence - caused disease or in respect of the death of such a member that was defence - caused;
(b) a person other than the Commonwealth appears legally liable to pay damages in respect of the same incapacity of the member from that or any other injury or disease or in respect of that death; and
(c) proceedings against that person for the purpose of recovering damages in respect of the same incapacity of the member, or in respect of that death, have not been instituted by the member, or by or for the benefit of a dependant of the member, or have been so instituted but have been discontinued or have not been properly prosecuted;
the Commission may, by notice in writing to the member or dependant, request the member or dependant to institute proceedings or fresh proceedings against that person for that purpose, or properly to prosecute the proceedings, as the case may be.
(2) Where a member of the Forces or a member of a Peacekeeping Force or a dependant of such a member is requested, in accordance with subsection (1), to institute proceedings against a person:
(a) if the member or dependant refuses or fails within a reasonable time after the making of the request to institute the proceedings or, having instituted the proceedings, discontinues the proceedings--the Commonwealth may institute proceedings or fresh proceedings, as the case may be, against the person in the name of the member or dependant for the recovery of damages in respect of the incapacity or death; or
(b) if the member or dependant, having instituted proceedings, fails properly to prosecute the proceedings--the Commonwealth may take over the conduct of the proceedings.
(3) Where a member of the Forces or a member of a Peacekeeping Force, or a dependant of such a member, who is requested, in accordance with subsection (1), properly to prosecute proceedings instituted against a person refuses, or fails within a reasonable time after the making of the request, to do so, the Commonwealth may take over the conduct of the proceedings.
(4) The Commonwealth is liable to pay all the costs of or incidental to proceedings referred to in subsection (1), (2) or (3), being costs payable by the plaintiff in those proceedings, but not including costs unreasonably incurred by the plaintiff.
(5) Where, in accordance with this section, the Commonwealth institutes proceedings in the name of a member of the Forces or a member of a Peacekeeping Force or of a dependant of such a member, or takes over the conduct of proceedings that have been instituted in the name of such a member or of a dependant of such a member:
(a) the Commonwealth may:
(i) settle the proceedings either with or without obtaining judgment in the proceedings; and
(ii) if a judgment is obtained in the proceedings in favour of the plaintiff--take such steps as are necessary to enforce that judgment; and
(b) the member or dependant shall sign any document relevant to the proceedings, including the settlement of the proceedings, that a person acting in the proceedings on behalf of the Commonwealth requires that member or dependant to sign and, if he or she fails to sign any such document, the court or tribunal in which the proceedings are being taken may direct that the document be signed on his or her behalf by a person appointed by the court or tribunal for the purpose.