I will set out my understanding of the context of this matter at some length for the guidance of the parties. I perceive that Mr Ryan, in particular, may have little experience in proceedings of this kind. Although this Panel is not a court of law, it attempts to do justice between parties before it in a way that will be amenable to the scrutiny of a court of law when the occasion necessitates.

The application for review was lodged in conformity with section 72 of the Act. Section 72 provides as follows--

72. (1) Where an employer considers that a decision of the Corporation as to--

(b) the imposition of penalty interest or a fine;

(c) the imposition or variation of a condition of a kind that may lead to the imposition of a supplementary levy,

is unreasonable, the Board must, on application by the employer, review the decision.

(2) An application for review does not suspend a liability to pay a levy, penalty interest or a fine.

(3) The review will be conducted, in accordance with procedures determined by the Board, by the Board itself, or by a committee or person to whom the Board has delegated its powers of review under this section, and the Board has an absolute discretion as to whether it will permit the employer or a representative of the employer to be heard orally on the review.

(d) quash or vary a condition imposed by the Corporation.

(5) An application under this section for review of a decision of the Corporation--

(a) must, if the decision relates to a class of employer, be made within four months after notice of the decision was given;

(b) must, if the decision relates to an individual employer, be made within two months after the employer was given notice of the decision,

unless the Board (or its delegate) allows an extension of time for making the application.

The Board is the Board of WorkCover (see section 3(1) of the Act). The WorkCover Levy Review Panel is the Board's duly appointed delegate, pursuant to a determination of the Board ("the WLRP Determination") published in the South Australian Government Gazette on 29 June 2000. at page 3472 --

Date of commencement. This determination takes effect on 1 July 2000.

Establishment of WorkCover Levy Review Panel. The WorkCover Levy Review Panel ("the Panel") is hereby established.

Function and powers under section 72 of Workers Rehabilitation and Compensation Act 1986. The function of the Panel shall be to perform the functions of the Board under section 72 of the Workers Rehabilitation and Compensation Act 1986 ("the Act") as delegate of the Board under that section and (subject to the succeeding clauses of this determination) all powers of the Board under that section, other than the power of delegation, are delegated to the Panel for that purpose.

Constitution of Panel. (1) The Panel shall sit comprising three members appointed by the Board consisting of--

(a) a president, who shall be a legal practitioner (wherever in Australia admitted), and who shall decide any questions of law;

(b) a member with expertise in the interests of registered employers, and

(c) a member with expertise in the interests of the Corporation.

(2) Where the unavailability of appointed members, or the volume of work necessitates, deputy members may be appointed by the Board.

(3) The President or a Deputy President may sit alone to determine procedural matters, such as listings, the promotion of conciliation, and the seeking of evidence, but otherwise the Panel shall sit as a Panel of three.

(4) A decision of a majority of members of the Panel, other than a decision as to a matter of law, shall be the decision of the Panel, but a member not agreeing with a decision of the majority may give reasons for not agreeing.

(5) If a member of the Panel becomes unavailable after the commencement of a hearing, the application must be heard again by the Panel properly constituted or (with the concurrence of the parties) adjourned until the absent member becomes available again, unless the decision of the remaining members is unanimous.

Indemnity of members. Any liability attaching to a member of the Panel for an act or omission by the member, or by the Panel, in good faith and in the exercise or purported exercise of a power or function, or in the discharge or purported exercise of a duty, of the member or the Panel is assumed by the Corporation.

Tenure of members. Members shall be appointed for a term of two years.

Conciliation as condition precedent to jurisdiction. (1) Upon receipt of any application lodged under section 72(1) of the Act, the registry of the Panel will forward a copy to the operating unit of the Corporation responsible for the disputed decision, which will reconsider the decision (disregarding any question of whether the application is out of time) and must inform the Panel and the applicant within 7 days of the result of the reconsideration (and its attitude to any question of an extension of time).

(a) the Corporation, on reconsideration of a disputed decision, confirms the decision; or

(b) the Corporation, on reconsideration of a disputed decision, varies the decision and the applicant expresses dissatisfaction with the variation,

the registry of the Panel must refer the dispute for conciliation by a conciliator who will use his or her best endeavours to bring the applicant and the operating unit of the Corporation that is responsible for the disputed decision to an agreed resolution of the matters referred to in the application, and the Panel may not hear and determine any application unless it is satisfied that conciliation has been attempted and failed or it is satisfied that such attempts have no realistic prospects of success.

(3) If, during the hearing of any matter, it appears to the Panel that there is a realistic prospect of a negotiated outcome being achieved, it may refer the matter back for further conciliation or the Panel may make such other attempts to promote conciliation as it thinks appropriate.

and the format of conciliation in any particular case shall be at the discretion of the conciliator in consultation with the parties, with the proviso that no confidential information provided during conciliation shall be divulged to the Panel unless the provider of that information agrees.

Principles of operation of Panel. (1) The Panel shall be bound and is hereby directed to follow the principles of natural justice.

(a) shall act according to equity, good conscience and the substantial merits of the case, without regard to technicalities and legal forms; and

(b) is not bound by the rules of evidence, but may inform itself by such material as it thinks fit; and

(c) shall act as expeditiously as the circumstances of a particular case permit.

(3) The Panel must ascertain whether the parties to any proceedings desire to be heard by way of oral evidence or submissions and must in that event give at least 14 days' notice of the date, time and place of hearing, but if both parties to particular proceedings wish to have the application determined on the documents the Panel need not hold a hearing but must give the parties at least 14 days' notice to make final submissions before proceeding to make a determination.

(4) If only one party to proceedings desires to present oral evidence or submissions, the Panel must give the other party at least 14 days' notice of the hearing and inform that party that there is a danger that at the hearing the Panel may hear things from the first party that the other party will be unable to respond to if it does not attend.

(5) A party may appear in person or (if a body corporate) by any proper officer or may be represented by counsel or by any duly appointed and authorised agent.

Powers of President of Panel. The President of the Panel, or a Deputy President acting in that office may, while so acting, exercise the powers of, and is hereby appointed as, an authorised officer under the Act. For the purposes of this clause, operating units of the Corporation and its agents are directed to comply with any requirements of the President or Deputy President as though they were subject to section 110 of the Act.

Reservation of Board's discretion to decide. The Panel is required to determine all applications that fail to resolve through reconsideration or at conciliation, unless the Corporation, within 14 days of receipt of the application, advises the Board that a particular dispute is of unusual significance and the Board or its relevant Board Committee, prior to the hearing of the application by the Panel, serves notice on the Panel and the applicant that the Panel is to make a recommendation only and refer the matter to the relevant Board Committee of the Board for--

(b) exercise by the Standing Committee of its delegation by unanimous decision; or

(c) referral by the Standing Committee to the Board for its determination.

Revocation. The determinations of the Board published in the South Australian Government Gazette on 25 September 1997 at pages 907 and 910 are revoked from the commencement of this determination.

Transitional. Where an application for review lodged before 1 July 2000 has not been determined at that date, the applicant may elect to have the matter completed under the procedures applying before that date, or to have the matter heard by the Panel constituted under this determination.

For completeness, I set out the relevant portion of section 67 of the Act, relating to the assessment of levies --

Adjustment of levy in relation to individual employers

67. (1) The Corporation may, in relation to a particular employer, having regard to all or any of the following matters--

(a) the adequacy or inadequacy of measures taken by the employer to reduce the incidence of work related traumas;

(b) the incidence or costs of claims in respect of compensable disabilities suffered by the employer's workers (disregarding claims of a class excluded from the ambit of this paragraph by regulation);

(c) the rehabilitation facilities or services for disabled workers provided by the employer, or the absence or inadequacy of such facilities or services provided by the employer;

(d) the employer's practices as to the retention, employment or re-employment of disabled workers (and in particular, any failure on the employer's part to provide, in accordance with this Act, employment to a worker who has suffered a compensable disability in the employer's employment);

(e) such other matters (whether similar or dissimilar to those referred to above) as the Corporation considers relevant,

grant to the employer a remission of the levy that would be otherwise payable or impose on the employer a supplementary levy (as the case may require).

(2) If the Corporation imposes a supplementary levy on an employer under subsection (1), it may also require the employer to observe conditions stipulated by the Corporation in a written notice given by the Corporation to the employer.

(3) If an employer fails to comply with a condition imposed under this section, the Corporation may impose on that employer a further supplementary levy.

(a) vary or revoke a condition imposed under this section;

(b) revoke or reduce a supplementary levy imposed, or a remission of levy granted, under this section. ...

As indicated previously, it seems to me that section 67(1)(b) is the provision under which the Corporation has acted in relation to the employer's levy in this case.

The issues that appear to be raised by the employer's application for review

I have perused the review file, and it seems that the employer may have had some objection to the acceptance of a stress claim by a particular worker, which is described in Mr Ryan's correspondence dated 5 April 2001, accompanying his application, as "a malicious claim". However, that assertion is not explained, and it seems to me that the proper place for any such argument to be made would be the Workers Compensation Tribunal, with which a notice of dispute could have been lodged within a month[1] of the employer being notified of the claims agent's acceptance of the claim, pursuant to the specific right conferred upon employers under section 90 of the Act. Employers are normally advised of this right in the letter informing them of the acceptance of a claim.

The focus of the present proceedings seems to be representations the employer alleges were made to it by WorkCover's claims agent in the nature of an assurance that the claim in question would have no effect on the employer's levy. The exact content of the alleged representations is not entirely clear, and may be a matter of factual dispute between the parties. If that is the case, the parties may wish to bring relevant witnesses to the hearing to give sworn evidence about what was said.

If, however, the documents that were shown to the conciliator (which will be before the Panel if the parties agree to that course[2]) are the source of the assurances the employer says were given, the examination of witnesses may not be necessary.

Additionally, there is a question of law as to the extent to which representations of the kind alleged, if made by a claims agent of WorkCover, are binding on WorkCover. Without pre-judging what the Panel is to hear, if it is assumed that it would be beyond the actual authority of a claims agent of WorkCover to give assurances about levy rates on behalf of WorkCover, what are the consequences if an agent nevertheless gives such assurances? If representations are made by an agent who, while lacking the authority to give them, might reasonably appear to the employer as having that authority, do ordinary principles of the law of agency suggest that WorkCover is bound, as principal, by those representations?

The answers are by no means clear. The question of whether there was any consideration for any representations that may have been made may be of significance. Alternatively, the result may turn upon the question of whether, as a result of WorkCover's representations (if, indeed, such representations were made), the employer changed its position in any way to its detriment. Refraining from lodging with the Tribunal in the appropriate time a notice of dispute that it may otherwise have intended to lodge may, or may not, be an example of such a change of position.

And, of course, the Panel will need to focus on the precise content, and circumstances, of the representations alleged to have been made.

The assistance of the parties in doing what they can to establish the facts of the matter, and giving the Panel the benefit of any understanding they may have of the relevant law, will be of importance. As I pointed out to the Mr Ryan and Mr Batchelor at the directions hearing, this does not mean either of the parties is required to engage a lawyer. Other possible avenues of advice, if required, were pointed out: among them, in the case of the employer, the employer association of which it is a member. Whether of not either party seeks any kind of outside assistance, the Panel will of course listen carefully to whatever the parties wish to put to us, and consider our conclusions of fact and the legal implications of those findings on the basis of those submissions and my own[3] legal researches.

After discussion, it was agreed that WorkCover will make written submissions by close of business, Thursday, 11 October 2001. The employer will then have a period to consider those submissions and these remarks, seek advice if it wishes, and attend the hearing of the Panel, which I have scheduled for two weeks later, where it will have the opportunity of presenting whatever evidence and/or submissions it may wish.

Further consideration of the application herein is adjourned to Thursday, 25 October 2001 at 3.30 p.m. I indicate that if the matter is resolved by that time, the parties need not attend, as long as the Registrar is informed.

[1] Or longer, if grounds for an extension of time are made out: see section 90A. The relevant provisions of sections 90 and 90A are as follows --

90. (1) A person with a direct interest in a reviewable decision (the "applicant") may lodge a notice of dispute with the Registrar.

(2) A notice of dispute must be in writing and in the form prescribed by regulation.

(3) A person has a direct interest in a reviewable decision if the person--

(b) is the employer from whose employment the compensable disability arose or is alleged to have arisen.

90A. (1) The notice of dispute must be lodged within one month after the applicant receives notice of the reviewable decision unless the Tribunal allows an extension of time. ...

[2] See the proviso to clause 7(4) of the WLRP Determination, above (page 4).

[3] The President of the Panel has exclusive responsibility for questions of law: see the WLRP Determination, clauses 4(1)(a) and 4(4) above (page 3).