52AComcare’s rights and obligations in respect of certain action for non‑economic loss

#### 52A Comcare’s rights and obligations in respect of certain action for non‑economic loss (1) If: (a) an employer has paid Comcare an amount to cover liability for actions for non‑economic loss brought by its employees; and (b) an employee takes action for non‑economic loss against the employer or another employee of the employer (the party claimed against); this section applies in relation to such action. (2) Comcare may, at any time during the course of the action to which this section applies: (a) take over the conduct of that action on behalf of the party claimed against in the proceeding; and (b) if the action is before a court and Comcare thinks it appropriate to do so—apply to the court to join any other person as a party to the action. (3) If Comcare takes over the conduct of the action, it becomes liable to pay all costs of or incidental to the prosecution of the action that would otherwise be payable by the party claimed against other than costs unreasonably incurred by that party. (4) If Comcare takes over the conduct of an action to which this section applies, Comcare may: (a) take whatever steps are appropriate to bring the proceedings to a conclusion; and (b) if the action is before a court—settle the proceeding, either with or without obtaining judgment; and (c) if judgment is obtained in favour of the party claimed against—take such steps as are necessary to enforce the judgment. (5) If Comcare takes over the conduct of an action to which this section applies, the party claimed against must comply with any reasonable requirement of Comcare for the purpose of the action including signing of any document relevant to the conduct or settlement of the action. (6) If the party claimed against fails to sign a document in accordance with a requirement under subsection (5): (a) if the action to which this section applies is not before a court or tribunal at the time of the failure—the Federal Court of Australia, on the application of Comcare, may direct that the document be signed on the party’s behalf by a person appointed by Comcare; and (b) otherwise—the court or tribunal in which proceedings relating to the action are being heard, on the application of Comcare, may so direct. (7) If Comcare proposes to make an application under subsection (6): (a) Comcare must notify the party concerned of the fact that it is proposing to so apply; and (b) the party concerned has a right of representation in the hearing of that application. (8) If, in an action to which this section applies: (a) damages are awarded against the party claimed against; or (b) a settlement is agreed on that involves the payment of an amount by the party claimed against; then, whether or not the conduct of that action was taken over by Comcare, Comcare must, on behalf of that party, pay any damages and costs awarded against that party in that action or any amount agreed to be paid by that party under the terms of settlement of that proceeding. (9) Any payment made by Comcare under subsection (8) is taken to have been made in satisfaction of the liability of the party claimed against to whom the payment relates. (10) If, in an action to which this section applies the conduct of which has been taken over by Comcare, any amount is payable by way of costs to the party claimed against, that amount is payable to Comcare.