Jurisdiction : WORKERS' COMPENSATION ARBITRATION SERVICE (WA)

Workers' Compensation - Appeal from Workers' Compensation Arbitration Service - Interlocutory order - Leave to appeal - Whether extension of time for late appeal available - Whether question of law was involved - Whether substantial injustice must be shown where appeal is from interlocutory order - Whether proper notice of injury under s 178 is jurisdictional pre­requisite for arbitration hearing - Whether First Medical Certificate should be read together with notice of injury - Whether insurer obliged to ask particulars to supplement information required under s 178(2) - Whether employer suffered prejudice under s 178(1)(c) - Whether arbitrator gave adequate reasons for decision

Workers' Compensation and Injury Management Act 1981 (WA) s 57A(1), s 178, s 213(4), s 247

All Saints College v Carolyn Bendotti [2009] WACC C18-2009

Antonio Suero v Georgiou Group Pty Ltd [2009] WACC C12-2009

Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321

Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430

BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250

Catholic Education Office (WA) v Granitto [2012] WASCA 266

Collector of Customs v Agfa-Gevaert Limited [1996] HCA 36; (1996) 186 CLR 389

Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280

Gretchen Brooke Copeman v Elderbloom Community Care Services [2006] WACC C1-2006

Hayes v Federal Commissioner of Taxation [1956] HCA 21; (1956) 96 CLR 47

Jackson v Chrisp [2012] WASCA 158

Manonai v Burns [2011] WASCA 165

Minister for Immigration and Ethnic Affairs v Wu [1996] HCA 6; (1996) 185 CLR 259

Monopak Pty Ltd v Thanh Hai (Paul) Nguyen [2007] WACC C1-2007

Mount Lawley Pty Ltd v Planning Commission (WA) [2004] WASCA 149; (2004) 29 WAR 273

Pacific Industrial Co v Jakovljevic [2008] WASCA 60

Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361

Peter Nardi v Department of Education and Training [2006] WACC C22-2006

Secretary to the Department of Premier and Cabinet v Hulls [1999] VSCA 117; [1999] 3 VR 331

SNF (Australia) Ptd Ltd v Jones [2008] WASCA 121

Summit Homes v Lucev (1996) 16 WAR 566

Total Marine Services Pty Ltd v Rohan Phillip Hutchinson [2009] WACC C7-2009

Velez Pty Ltd v Tudor [2011] WASCA 218

Western Australia v Bond Corp Holdings Ltd (1991) 5 WAR 40

Wilson v Metaxas [1989] WAR 285

XCO Pty Ltd v Commissioner of Taxation (Cth) [1971] HCA 37; (1971) 124 CLR 343

1 SCHOOMBEE DCJ: St John Ambulance Australia (WA) Inc, the appellant, appeals against two interlocutory orders made by Arbitrator Powles on 21 September and 19 October 2012 respectively. St John Ambulance applies for the quashing of the orders and for a permanent stay of the arbitration hearing.

2 Mr Annesley had been employed by St John Ambulance for more than 30 years, initially as an ambulance driver and then a paramedic. In April 2011 he filed a workers' compensation claim for weekly payments on the basis that he had developed a psychiatric illness arising from him having witnessed various traumatic incidents at work. Mr Annesley had filed a similar claim relating to traumatic incidents experienced at work approximately eight or nine years earlier.

3 It seems from the submissions filed by both parties that the main issue at any future hearing of Mr Annesley's workers' compensation claim will be not so much whether he currently suffers from a psychiatric illness, but whether this arose from recent experiences of traumatic incidents at work or from much earlier traumatic incidents leading to the first workers' compensation claim which had been redeemed by payment of a lump sum. Pursuant to s 67(5) of the Workers' Compensation and Injury Management Act 1981 (WA) (the Act) Mr Annesley is not entitled to any further weekly payments of compensation in respect of the earlier claim which was redeemed.

4 The first interlocutory order appealed against relates to the refusal of the arbitrator to order Mr Annesley's general practitioners, psychiatrist and psychologist to produce their clinical notes and related documents. The second interlocutory order relates to the rejection by the arbitrator of an application by St John Ambulance that the hearing should be permanently stayed because Mr Annesley had not complied with the prerequisites for making a workers' compensation claim by not giving adequate notice of injury as required by s 178 of the Act.

5 The notice of appeal dealing with the first interlocutory order was filed approximately six weeks out of time. Section 247 of the Act provides for a party aggrieved by an arbitrator's decision to appeal to the District Court. Leave to appeal is required and a court is not to grant leave unless a question of law is involved.

6 Section 247(4) provides that an application for leave to appeal cannot be made later than 28 days after the day on which the written reasons for the decision appealed against were given to the party making the application. There is no provision in the Act giving power to the District Court to extend the time within which an application for leave to appeal can be filed.

7 The full wording of s 247, for ease of reference, is the following:

Appeal against arbitrator's decision made under Part XI

(1) If written reasons for an arbitrator's decision under Part XI in respect of a dispute are given to a party to the dispute (whether as required by section 213(3) or otherwise), the party may, with the leave of the District Court, appeal to the District Court against the decision.

(2) Subject to subsection (3), the District Court is not to grant leave to appeal unless -

(a) in the case of an appeal in which an amount of compensation is at issue -

(i) a question of law is involved and the amount at issue in the appeal is both -

(I) at least $5 000 or such other amount as may be prescribed by the regulations; and

(II) at least 20% of the amount awarded in the decision appealed against;

(ii) a question of law is involved and, in the opinion of the District Court, the matter is of such importance that, in the public interest, an appeal should lie;

(b) in any other case, a question of law is involved.

[(3) deleted]

(4) An application for leave to appeal cannot be made later than 28 days after the day on which the written reasons for the decision appealed against were given to the party making the application.

(5) An appeal under this section is to be by way of review of the decision appealed against and, except as provided by this Part or section 267, is to be conducted in accordance with the rules of court of the District Court.

(6) Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against cannot be given on an appeal to the District Court except with the leave of the District Court.

(7) On hearing an appeal made under this section, the District Court may -

(a) affirm, vary, or quash the decision appealed against, or substitute, and make in addition, any decision that should have been made in the first instance; and

(b) subject to section 267, make any further or other decision, as to costs or otherwise, as the District Court thinks fit.

8 In Gretchen Brooke Copeman v Elderbloom Community Care Services [2006] WACC C1-2006 [4], Commissioner Nisbet held that he did not have any power under the Act or the then applicable rules promulgated under the Act to allow an extension of time within which an application for leave to appeal could be lodged.

9 The District Court has power to extend the time for the filing of an appeal which is filed pursuant to r 51(4) of the District Court Rules. However, the District Court does not have any power to extend the time for the filing of an appeal which is brought pursuant to a statute which confers the right of appeal, such as the Magistrates Court (Civil Proceedings) Act 2004 (WA): Jackson v Chrisp [2012] WASCA 158 [127]. By analogy, the District Court also does not have power to extend the time for the filing of an appeal which is brought under s 247 of the Act.

10 Counsel for St John Ambulance referred the court to the decision of Commissioner McCann in Total Marine Services Pty Ltd v Rohan Phillip Hutchinson [2009] WACC C7-2009 [24] for the proposition that an interlocutory decision could be reviewed at any time. However, it is clear from the findings made at [25] - [26] that all that Commissioner McCann was saying is that a party could wait before appealing against an interlocutory decision until the final determination of the matter and then challenge the interlocutory decision as part of an appeal regarding the final determination. Commissioner McCann made it clear that if a party sought leave to appeal under s 247(2)(b), he or she would have to do so within 28 days of the interlocutory decision.

11 The appeal against the first interlocutory decision refusing an order that Mr Annesley's medical practitioners provide their clinical notes must be dismissed. This court has no jurisdiction to entertain this appeal.

The arbitrator's decision in respect of the second interlocutory order

12 St John Ambulance essentially contends that the learned arbitrator erred when she found that she had jurisdiction to determine Mr Annesley's claim for weekly payments despite the inadequacy of the notice of injury which Mr Annesley was required to give to the employer pursuant to s 178 of the Act.

13 Pursuant to s 57A(1) of the Act, an employer can only make a claim on its workers' compensation insurance policy if a claim for weekly payments has been made on the employer by a worker and if the worker has served on the employer a First Medical Certificate substantially setting out the information sought in the prescribed form for the medical certificate.

14 Pursuant to s 178(1) of the Act proceedings by a worker for weekly payments are not maintainable unless the worker has given a written notice of the occurrence of the injury on his employer and the notice contains substantially the information required by s 178(2). This information is the name and address of the person injured, the cause of the injury, stated in ordinary language, and the date and place at which the injury occurred.

15 Although s 178 does not prescribe any particular form for giving the notice of injury, it is practice to complete a standard form headed 'Workers' Compensation Claim Form', also known as a Form 2B.

16 Mr Annesley left substantial gaps in this form. He did not complete the date of occurrence or the address at which the occurrence happened. He also did not provide any information in response to the following question:

(i) What action was involved (ie, fall, struck by object).

(ii) What object/machine/substance was involved (ie, fumes, door frame).

(iii) The most serious injury or diseased caused (ie, fracture, burn, abrasion).

(iv) The bodily location of the injury or disease (ie, upper arm).

17 In response to the question where the occurrence happened, Mr Annesley filled in 'ambulance station'. Asked what he was doing at the time of the occurrence, he inserted 'sitting'. He did not respond to a question as to when he first reported the occurrence, but stated that he did report the occurrence to Gerard, his team leader. Mr Annesley also responded to the question as to when he first sought medical attention by filling in the date 25 March 2011. Asked whether the present injury completely related to this occurrence and to give details of any similar injury prior to this occurrence, Mr Annesley left the answer to both questions blank.

18 Counsel for St John Ambulance submitted before the arbitrator and on appeal that, other than his name and address, Mr Annesley had not complied with the requirements of s 178(2) because he did not provide the cause of the injury, nor the date and place at which the injury occurred.

19 The notice, Form 2B, was signed by Mr Annesley on 11 April 2011. It is not clear exactly when it was provided to St John Ambulance, but it must have been prior to 27 April 2011, as St John Ambulance completed its claim form for its insurer on that day.

20 At the hearing before the arbitrator Mr Annesley relied on s 178(1)(c) of the Act which essentially provides that any defect in the notice of injury is not a bar to the maintenance of proceedings, if at the time of the proceedings any prejudice arising from the lack of information in the notice was or could be cured by the worker providing an amended notice, even if this caused the need for the postponement of the hearing. Section 178(1)(c) also provides that any defect in the notice is not a bar to proceedings if it was occasioned by mistake, absence from the State or other reasonable cause.

21 Mr Annesley provided St John Ambulance with a First Medical Certificate which is undated, but states that the date of examination of Mr Annesley was on 25 March 2011. The First Medical Certificate also recorded that date of 'injury/first notice of disease' was on 25 March 2011 and that the worker's description of the injury or disease was 'stress'. The First Medical Certificate stated that the worker's description of how the injury or disease occurred was 'recent increase number of stressful incidents at work'.

22 Counsel for St John Ambulance argued that, even though it was accepted that the employer received the First Medical Certificate at about the same time as the Form 2B, St John Ambulance was nevertheless disadvantaged because it was unable to determine from these documents what psychiatric illness, if any, Mr Annesley claimed to be suffering from and from exactly what traumatic incidents his illness was said to have arisen. Further, the employer did not know whether Mr Annesley claimed to have incurred his current mental illness because of recent traumatic events at work or whether he acknowledged that his mental illness arose, at least partly, from traumatic incidents experienced by him prior to 2003 when the redemption of the earlier workers' compensation claim had taken place.

23 Counsel for St John Ambulance explained that Mr Annesley had given conflicting information in subsequent statements and reports by his medical practitioners with regard to the particular incidents which had caused his current psychiatric illness. It was therefore important for the insurer to know exactly what illness Mr Annesley claimed to be suffering from at the time that the Form 2B and the First Medical Certificate were submitted, when this illness arose and what exactly the cause of it was.

24 Counsel for St John Ambulance submitted that a properly completed notice under s 178 was a prerequisite to the jurisdiction of the arbitrator to hear Mr Annesley's claim for compensation and that this threshold had not been met by Mr Annesley.

25 The learned arbitrator rejected this argument and came to the conclusion that the Form 2B completed by Mr Annesley, when read together with the First Medical Certificate, met the requirements of s 178 of the Act.

26 The arbitrator found that St John Ambulance had the opportunity to fully investigate Mr Annesley's claim and noted that after receipt of the Form 2B and the First Medical Certificate, the workers' compensation insurer of St John Ambulance had obtained numerous other medical documents.

27 The learned arbitrator referred to the notice issued by the insurer pursuant to s 57A(3) of the Act on 2 May 2011 stating that it needed more time to investigate Mr Annesley's claim. The notice specified that the insurer was waiting for a factual investigation report from its assessors, a report from Dr Terace and the clinical notes from Dr Michelle Rooke, Mr Annesley's general practitioner.

28 On 20 September 2011 the insurer issued a second notice informing Mr Annesley that his claim had been declined. The stated reason for this was that his claim was a reoccurrence of prior injuries for which liability had been redeemed in August 2003.

29 Although the learned arbitrator did not list all the medical reports received by the insurer between the date of the first and the second notice from the insurer, it is apparent from the documents provided on appeal that prior to 20 September 2011 the insurer received a report from Dr Bruce Willett, Mr Annesley's psychologist, dated 27 April 2011, a written statement by Mr Annesley dated 19 May 2011, taken by the insurer's claims investigator, and a report from Dr Michelle Rooke, dated 20 May 2011, in which she answered questions asked by the insurer relating to all consultations by Mr Annesley for stress related symptoms. The insurer had also instructed Dr Terace, psychiatrist, to prepare a medico-legal report on Mr Annesley's mental health which report was dated 25 May 2011.

30 The learned arbitrator came to the conclusion that any prejudice suffered by St John Ambulance by reason of the inadequacy or deficiency in the Form 2B could be overcome by the employer requiring Mr Annesley to provide particulars 'as a necessary step to progress the proceeding'.

31 The learned arbitrator also found that at the time that Mr Annesley completed the Form 2B he was suffering from a 'serious and incapacitating psychiatric condition'. She held that the adequacy of the information provided in the Form 2B had to be considered in that context.

32 She concluded that if the Form 2B and the First Medical Certificate were given a reasonable construction, they constituted adequate notice to St John Ambulance of the injury which Mr Annesley claimed to have suffered. She held that Mr Annesley had complied with s 178 of the Act.

33 At the hearing of the appeal, St John Ambulance relied on five grounds of appeal. It abandoned another two grounds that dealt with an additional finding by the arbitrator that there had been no abuse of process by reason of Mr Annesley having made the current claim despite the earlier claim having been redeemed. The five grounds that were maintained may be summarised as follows:

1. The arbitrator gave inadequate reasons for her decision.
2. The arbitrator erred in law in finding that any failure by Mr Annesley to provide the information required by s 178(2) of the Act and any prejudice suffered by St John Ambulance by reason of that failure, could be overcome by requiring Mr Annesley to provide written particulars as a necessary step to progress the proceedings.
3. The arbitrator erred in law in finding that Mr Annesley had complied with the necessary claims procedures pursuant to s 57A(1) of the Act by serving on St John Ambulance an adequate notice of injury pursuant to s 178(1) and a First Medical Certificate.
4. The arbitrator erred in law in finding that Mr Annesley was suffering from a serious and incapacitating psychiatric condition at the time of completing the notice of injury without identifying the evidence on which she had relied for this finding.
5. The arbitrator erred in law in finding that the adequacy of the Form 2B should be considered in the context of Mr Annesley suffering from a serious and incapacitating psychiatric condition and that this would overcome the defects in the Form 2B when given a reasonable construction. The arbitrator failed to provide adequate reasons to explain what she considered to be a 'reasonable construction'.

Leave to appeal from an interlocutory decision - s 247 of the Act

34 Pursuant to s 247 of the Act, the leave of the District Court is required in order to appeal an arbitrator's decision. The District Court can only grant leave if a question of law is involved. It is well established law that an appeal 'involves' a question of law where either an error of law, or an error of mixed law and fact, is involved: BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250 [3]. However, if no question of law can be identified as arising from the arbitrator's decision, there is no jurisdiction to grant leave to appeal: Catholic Education Office (WA) v Granitto [2012] WASCA 266 [53] - [54].

35 A decision does not involve an error of law unless the error is material to the decision, in the sense that it contributes to the result, so that but for the error the decision may have been different: Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, 353 and BHP Billiton Iron Ore Pty Ltd v Brady [15].

36 It is not sufficient for an appellant to merely assert that the arbitrator made an error of law. On the other hand, in order to be granted leave, an appellant does not have to establish that an error of law was made by the arbitrator. All that the appellant has to show is that there is a real or significant argument to be put which involves a question of law. There must be at least sufficient doubt about the validity of the argument to justify the grant of leave: Secretary to the Department of Premier and Cabinet v Hulls [1999] VSCA 117; [1999] 3 VR 331.

37 If a ground of appeal, properly analysed, is not a question of law, linguistic gymnastics in the formulation of the ground cannot convert it into a question of law: Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361 [53].

38 Once it has been established that a ground involves a question of law, it is unnecessary to consider whether additional questions of law arise, as the whole decision of the arbitrator, and not merely the question of law identified, is open to review: XCO Pty Ltd v Commissioner of Taxation (Cth) [1971] HCA 37; (1971) 124 CLR 343, 349 and Pacific Industrial Co v Jakovljevic [2008] WASCA 60 [20].

39 If a question of law is involved and leave to appeal has been granted, the District Court must undertake a 'real review' of the application, but on the materials before the arbitrator. It is not a hearing de novo. Before the court may disturb the arbitrator's decision the appellant must establish some error, either of fact, law or logic: Pacific Industrial Co v Jakovljevic [20] and [26].

40 Counsel for Mr Annesley submitted that in addition to the requirement in s 247(2) that a question of law be involved the principles pertaining in common law to the grant of leave to appeal from interlocutory orders were also applicable. The question whether the decision sought to be appealed from was in fact in the nature of an interlocutory order was not argued before me.

41 The order made by the learned arbitrator was that the objection to jurisdiction raised by St John Ambulance was dismissed. If the decision had gone the other way, the order would have finally disposed of the rights of the parties. It is therefore not certain that this was indeed an interlocutory order. However, because the issue of the application of the common law principles regarding appeals from interlocutory orders to appeals brought under s 247 was raised and argued before me, I shall deal with it on the basis that the arbitrator's order may have been interlocutory.

42 Counsel for Mr Annesley relied on the decision in Wilson v Metaxas [1989] WAR 285, 294 where Malcolm CJ held that the object of the requirement that an appeal was only possible from an interlocutory order by leave of the court, was to reduce appeals from such orders as much as possible. In general it had to be shown that the decision in respect of which leave was sought was wrong or, at least attended with sufficient doubt to justify the grant of leave and, in addition, that substantial injustice would be done by leaving the decision unreversed. Counsel for Mr Annesley submitted that as the decision by the arbitrator was an interlocutory decision it was necessary that the appellant show substantial injustice if the decision were left unreversed in addition to proving that a question of law was involved.

43 However, Malcolm CJ had qualified his earlier statement requiring that substantial injustice be shown by saying that this was no more than a guideline and that the court considering the leave application had a broad discretion.

44 In Western Australia v Bond Corp Holdings Ltd (1991) 5 WAR 40 Malcolm CJ repeated that the statement that there should be substantial injustice if the decision was left unreversed was only a guideline and that he had not intended to lay down any rigid or exhaustive criteria for the grant or refusal of leave to appeal from an interlocutory order.

45 Section 247 of the Act does not provide all-inclusive criteria that have to be met or taken into account when a decision whether to grant leave or not is considered. Section 247(2) merely provides that the District Court is not to grant leave unless a question of law is involved. There is no indication that the provisions of s 247 were meant to override or exclude the common law principles.

46 In Antonio Suero v Georgiou Group Pty Ltd [2009] WACC C12-2009 [10] Commissioner McCann accepted that the common law principles set out in Wilson v Metaxas applied in addition to the requirements of s 247(2). I respectfully agree with that decision, subject to the point made by Malcolm CJ that the criterion of substantial injustice is only a guideline and not a requirement.

47 Counsel for Mr Annesley relied on Paridis v Settlement Agents Supervisory Board [16] where Buss JA held that the power to grant leave under s 247 was conferred in general terms and was not restricted or qualified. Buss JA found that leave should be granted if, in all the circumstances of the particular case, it was in the interests of justice that there be a grant of leave.

48 Paridis did not deal with an appeal against an interlocutory order, but there is no reason why such a criterion should not also be applied to an appeal from an interlocutory order. The interests of justice are clearly paramount in the exercise of any discretion to grant leave to appeal.

49 Accordingly, I accept that the common law principles pertaining to the grant of leave to appeal against an interlocutory order apply to appeals brought under s 247 of the Act, but that the issue whether substantial injustice would be caused to the appellant if the decision was left unreversed is not a requirement but only a guideline for the court to consider in the exercise of its discretion. The court should grant leave if, in all the circumstances, it is in the interests of justice that leave to appeal be granted.

Is a question of law involved and would it be in the interests of justice if leave to appeal was granted?

50 The next issue is whether the appeal involves a question of law. It seems to me that at least one of the grounds of appeal on which St John Ambulance relies involves a question of law. On proper analysis it appears that ground 3 in fact comprises two allegations of error. Firstly, it raises the issue whether adequate completion of a notice of injury is a jurisdictional prerequisite to the arbitrator hearing the claim for compensation or whether the information provided in the notice may be supplemented by the worker at a later stage pursuant to s 178(1)(c). Secondly, ground 3 deals with the issue whether the information provided in the Form 2B and in the First Medical Certificate was adequate to meet the requirements in s 178(2) that the cause of the injury and the date and place of its occurrence be stated.

51 Where the words in a statute can be given a variety of meanings, a value judgment is involved about the meaning of the statutory provision and this is a question of law: Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280, 288 - 289; Collector of Customs v Agfa-Gevaert Limited [1996] HCA 36; (1996) 186 CLR 389, 394 - 396. The allegation that a properly completed notice of injury was a pre-requisite for the arbitrator hearing Mr Annesley's claim for compensation involves the proper construction of s 178.

52 Once the proper construction of a section has been determined the issue whether established facts fall within the words of a statute is also a question of law: Pozzolanic Enterprises 287 - 288; Hayes v Federal Commissioner of Taxation [1956] HCA 21; (1956) 96 CLR 47, 51. However, if the words of the statute carry their ordinary meaning, the application of established facts to those words is a question of fact: Pozzolanic Enterprises (288).

53 The relevant words used in s 178(2) are words of ordinary English language, as they refer to 'the date and place at which the injury occurred' and 'in ordinary language the cause of the injury'. Accordingly, the second aspect of ground 3 only involves a question of fact.

54 Nevertheless, ground 3 raises a question of law, or at least, a question of mixed law and fact.

55 Ground 2 deals with the question whether the employer or its insurer has an obligation to ask for further particulars in order to supplement any information missing from the notice of injury. This is also a matter of interpretation of s 178.

56 As grounds 2 and 3 raise issues of law, St John Ambulance should be granted leave to appeal the arbitrator's decision. Once a question of law is involved, the whole of the decision is open to review: Pacific Industrial Co v Jakovljevic [18]. It is not necessary to consider whether any of the other grounds of appeal involve issues of law.

57 It is also in the interests of justice that St John Ambulance be entitled to leave to appeal. It is doubtful that the decision by the learned arbitrator was truly interlocutory in the sense that it determined procedural steps which would not have led to a final disposition of the rights of the parties. If St John Ambulance were to be successful in arguing that the notice of injury was inadequate and that it was a jurisdictional prerequisite to the hearing of a claim for compensation, the employer would be entitled to a permanent stay of the arbitration proceedings. But even if the arbitrator's order was technically interlocutory, in all the circumstances of the case, it is in the interests of justice that this matter be determined on appeal.

58 This leaves the issue of considering the guideline that substantial injustice be shown. It is not certain that this appeal in fact involves an interlocutory order. Insofar as it does, I would not have exercised my discretion any differently, if I had taken into account the guideline of substantial injustice which is applicable to appeals from interlocutory orders.

59 I shall first deal with ground 3 as this seems to be directed at the main conclusion arrived at by the arbitrator and it would be logical to deal with that ground first. Ground 3 alleges that the arbitrator erred in law in finding that Mr Annesley had complied with the necessary claims procedures pursuant to s 57A(1) and s 178 of the Act by serving on St John Ambulance a notice of injury (the Form 2B) and the First Medical Certificate. Ground 3 involves the question whether a properly completed notice of injury was a prerequisite to the arbitrator hearing the claim for compensation or whether the notice could have been supplemented by information in the First Medical Certificate or in reports supplied by Mr Annesley at a later stage. The ground also raises the issue whether the information supplied to St John Ambulance complied with the requirements of s 178(2).

60 Counsel for St John Ambulance conceded at the hearing of the appeal that Mr Annesley had taken the steps required by s 57A(1) of the Act in that he had made a claim for compensation by way of serving the completed Form 2B and a First Medical Certificate on his employer. Counsel also agreed that it was incumbent upon St John Ambulance to read the content of the Form 2B together with the First Medical Certificate. The main issues relied upon by counsel were that in completing Form 2B Mr Annesley had not provided the cause of his injury and when and where it had occurred, as required by s 178(2), and that this meant that he had not met the jurisdictional prerequisites for a claim.

(1) Proceedings for the recovery under this Act of compensation for an injury are not maintainable unless -

(a) a notice of the occurrence of the injury has been given under section 179 in writing containing substantially the information required by subsection (2) as soon as practicable after the occurrence; and

(b) the claim for compensation with respect to such injury has been made within 12 months from the occurrence of the injury or, in case of death, within 12 months from the time of death,

(c) the want of or any defect or inaccuracy in such notice is not a bar to the maintenance of such proceedings, if it is found in the proceedings for settling the claim that the employer is not, or would not, if a notice or an amended notice were then given and the hearing postponed, be prejudiced in defending the proceedings by the want, defect or inaccuracy, or that such want, defect or inaccuracy was occasioned by mistake, absence from the State, or other reasonable cause; and

(d) the failure to make a claim within the period mentioned in paragraph (b) is not a bar to the maintenance of such proceedings, if it is shown that the employer has not been prejudiced in defending the proceedings by such failure, or if it is found that the failure was occasioned by mistake, absence from the State, or other reasonable cause.

(2A) For the purposes of showing that the employer has not been prejudiced in defending the proceedings for subsection (1)(d), the period from the occurrence of the injury, or from the time of death, to the time the claim is made is to be taken into account.

(2) Notice in respect of an injury under this Act is to state -

(a) the name and address of the person injured; and

(b) in ordinary language the cause of the injury; and

(c) the date and place at which the injury occurred,

and is to include such other information, if any, as may be prescribed by the regulations.

62 Section 178(1)(a) makes it clear that proceedings for the recovery of compensation are not maintainable unless a notice of injury has been given containing substantially the information required by s 178(2). This part of the section supports the submission by St John Ambulance that a properly completed notice is a prerequisite to the arbitrator hearing Mr Annesley's claim.

63 However, s 178(1)(c) specifically provides that any defect in the notice of injury is not a bar to the maintenance of proceedings by the worker if it is found 'in the proceedings for settling the claim' that the employer is not, or would not, be prejudiced if an amended notice were then given. The phrase 'in the proceedings for settling the claim', is presumably a reference to either the final hearing of the claim or an earlier conciliation hearing, as the subsection also refers to the possibility of 'the hearing' being postponed in order for the amended notice to be supplied.

64 Section 178(1)(c) therefore specifically allows for the information in the Form 2B to be supplemented up to the time of the hearing to which it is relevant, or even up to a postponed hearing, as long as this would not cause prejudice to the employer in defending the proceedings.

65 This means that there is no cut-off point after the Form 2B has first been served at which a determinative assessment is made whether the notice complies with s 178(2) or not. It can therefore not be said that a jurisdictional prerequisite for the hearing of a worker's claim has not been met because an incomplete Form 2B was served initially, unless consideration is also given to the question whether the worker has subsequently supplemented the information in the form and whether the employer has suffered prejudice as provided for in s 178(1)(c).

66 There is also no requirement in s 178(1)(c) that the subsequent information must be in the form of an amended Form 2B. Firstly, the section does not prescribe any particular form for the notice of injury. Secondly, s 178(1)(c) excuses any defect in the original notice if there would be no prejudice to the employer should the worker give an amended notice at that stage. If the employer is already in possession of the relevant information which was provided in a format other than a notice of injury, the employer would not be prejudiced if at that point an amended notice of injury was provided incorporating the information that the employer is already privy to.

67 The information provided in the First Medical Certificate would therefore have to be taken into account in considering what information the worker had supplied to the employer and whether the employer had suffered prejudice by reason of lack of information in the Form 2 B. Any subsequent medical reports or statements provided by the worker to the employer would also impact on the question whether the employer had suffered prejudice.

68 When the Form 2B completed by Mr Annesley is read together with the First Medical Certificate it is quite obvious what his claim entails. The First Medical Certificate states that the injury suffered was 'stress' and that this arose by reason of a 'recent increase (in the) number of stressful incidents at work'. Seeing that St John Ambulance knew that Mr Annesley was working as a paramedic, it must have been obvious that the stressful incidents at work were likely to be traumatic experiences as a paramedic and not arguments with his superiors or colleagues. St John Ambulance must also have been aware of the fact that Mr Annesley had suffered from post traumatic stress syndrome some eight or nine years earlier and that this had arisen from traumatic incidents that he had experienced in the course of his duties as a paramedic.

69 The First Medical Certificate indicated that the injury was first noticed on 25 March 2011 and Mr Annesley said in the Form 2B that it occurred while he was at the ambulance station.

70 This means that Mr Annesley provided the basic information regarding the date and place that the injury was suffered and the cause of it.

71 Counsel for St John Ambulance submitted that neither Form 2B nor the First Medical Certificate told the employer over which period the stressful incidents at work had occurred and exactly which traumatic incidents had given rise to the onset of stress. Counsel also argued that 'stress' was not a psychiatric illness which fell within any of the categories identified in the DSM-IV diagnostic and statistical manual of psychiatric disorders and that the employer did not know exactly what disease Mr Annesley claimed to suffer from.

72 The problem with this argument is that s 178(2) requires that the worker state the cause of his injury 'in ordinary language'. It is often not possible for a lay person to correctly diagnose his or her mental illness or to say from exactly which stressors it arose.

73 It should also be noted that Form 2B is not geared to a situation where the worker suffered a mental illness. Any lay person would be confused by the sub-questions under the question 'Describe the occurrence'. These questions enquire whether the worker fell or was struck by an object, what object or machine was involved, what the most serious injury or disease was that incurred, and mentions as examples, a fracture, burn or abrasion. The sub-questions also ask where on the body the injury was incurred and mention as examples the upper arm or an eye.

74 Counsel for St John Ambulance submitted that Mr Annesley should have responded to the sub-question asking about the most serious injury caused that he had incurred post traumatic stress syndrome. However, it is understandable that a lay person would not have filled in anything in response to these questions on the basis that he had not suffered any injury in the nature of the examples mentioned, such as 'fracture, burn, abrasion'.

75 In any event, this information was provided in the First Medical Certificate because the injury suffered was described as 'stress'. The First Medical Certificate requires the doctor to state the worker's description of the injury or disease and this is probably why Dr Rooke described this as 'stress' rather than as 'post traumatic stress syndrome'. In any event, at that stage a psychiatric report had not been obtained and it is unlikely that a general medical practitioner would have been able to make a firm diagnosis of a mental illness falling within the categories identified in the DMS-IV manual after a brief consultation.

76 Counsel for St John Ambulance further submitted that Mr Annesley had not replied to the question whether the present injury completely related to the occurrence described in the form and also not to the question requiring details of any similar injury prior to this occurrence. However, there is no statutory requirement that the worker provide these details to the employer.

77 The learned arbitrator referred to the decision in All Saints College v Carolyn Bendotti [2009] WACC C18-2009 [12] in which Commissioner McCann expressed the opinion that the First Medical Certificate had to be given a reasonable construction. The arbitrator relied on this decision to come to the conclusion that if the Form 2B and the First Medical Certificate were read together and given a reasonable construction, they provided adequate notice to the employer of the injury which Mr Annesley claimed entitled him to weekly payments.

78 Counsel for St John Ambulance submitted that if the original notice of injury had not been completed to the extent required by s 178(2), the arbitrator did not have jurisdiction to entertain the claim for workers' compensation. Counsel relied on the decision in Monopak Pty Ltd v Thanh Hai (Paul) Nguyen [2007] WACC C1-2007 [15] - [16] in which Commissioner Nisbet held that a notice of injury pursuant to s 178(1) of the Act and a First Medical Certificate were jurisdictional prerequisites to an arbitrator hearing an application by the worker for weekly payments and determining the employer's liability.

79 In Monopak Pty Ltd no First Medical Certificate had been served on the employer as part of the initial step of making a claim for compensation. Section 57A(1)(b), which deals with the requirement of service of a First Medical Certificate, does not have a provision equivalent to s 178(1)(c) stating that the want of or any defect in such a document would not be a bar to the maintenance of proceedings if the insurer had not suffered any prejudice at the time of the hearing, or the prejudice could be cured by an amended document being provided. The want of or defect of a notice of injury is treated differently in the Act than the want of or defect of a First Medical Certificate.

80 I am therefore of the view that this authority does not support the submission by St John Ambulance that an adequately completed Form 2B is a jurisdictional prerequisite to the hearing of Mr Annesley's claim. Section 178(1)(c) specifically allows for the matter to proceed to a hearing and for an amended notice of injury being filed at the hearing or prior to a postponed hearing, as long as this does not occasion prejudice to the employer.

81 In any event there is no error in the finding made by the learned arbitrator that the Form 2B read together with the First Medical Certificate constituted adequate compliance with the requirements of s 178 regarding notice of the occurrence of the injury.

83 Ground 2 claims that the arbitrator erred in law when she held that any failure to adequately complete the Form 2B could be overcome by requiring the employer to ask written particulars from Mr Annesley.

84 There is no duty pursuant to s 178 of the Act for an employer to have to ask particulars to supplement the lack of information required under s 178(2) If this is what the learned assessor had found, this would have been an error of law.

85 However, the learned assessor did not find that the employer had a duty to ask particulars to supplement the required information in the notice of injury. She said any prejudice to the employer arising from a lack of detail regarding the specific traumatic incidents which had given rise to Mr Annesley's stress could be overcome by the employer requiring Mr Annesley to provide particulars 'as a necessary step to progress the proceeding'.

86 This was clearly a reference to s 178(1)(c) and the fact that an incomplete notice of injury is not a bar to the maintenance of proceedings, if it is found at the time that the employer was not, or would not, be prejudiced in defending the proceedings if an amended Form 2B was provided at that stage. The learned arbitrator implicitly relied on the provisions of s 178(1)(c) which focus on the question whether the employer has suffered prejudice by reason of the lack of detail in the notice and whether that prejudice can be cured by the provision of further information at that time.

87 It should be noted that the arbitrator raised the issue of further particulars and the lack of prejudice in the context of St John Ambulance complaining about lack of detail of the specific incidents that had given rise to Mr Annesley's current psychiatric illness. She did not rely on s 178(1)(c) to supplement the particulars required by s 178(2), ie, the date and place of occurrence and the cause of the injury. She found that these particulars had been supplied in the Form 2B read together with the First Medical Certificate.

88 The learned arbitrator referred to the fact that St John Ambulance had had the opportunity to investigate Mr Annesley's claim and had obtained numerous other medical documents (in addition to the Form 2B and the First Medical Certificate). Although she did not list these reports, she must have been aware of the extent of further information that was furnished to the employer.

89 It is apparent from the documents provided for purposes of the appeal that St John Ambulance was in possession of various progress medical certificates from 27 June 2011 onwards which referred to Mr Annesley's increasing flashbacks to work as a paramedic and a report from Dr Bruce Willett, psychologist, dated 27 April 2011, which stated that Mr Annesley was suffering from nightmares, flashbacks and intrusive images associated with incidents that he had witnessed in his role as a paramedic. The report further stated that Mr Annesley had scored in the extremely severe range for anxiety and in the severe range for depression and stress on the applicable scale. A psychiatrist, appointed by the insurer of St John Ambulance, Dr Terace, provided a report, dated 25 May 2011, in which Mr Annesley was diagnosed as suffering from chronic post traumatic stress disorder. Mr Annesley's psychiatrist, Dr Stephen Proud, furnished a report on 1 February 2012 in which he diagnosed Mr Annesley with moderate to severe chronic post traumatic stress disorder.

90 St John Ambulance also received a treating doctor's report dated 29 September 2011 completed by Dr Dhillon, from the same medical practice as Dr Michelle Rooke. This report diagnosed Mr Annesley with major depression and post traumatic symptoms relating to long standing exposure to trauma at work. St John Ambulance also obtained two further statements from Mr Annesley, one dated 18 April 2012 and the other 11 July 2012, which appear to have been prepared by the insurer's assessor.

91 It was in the context of St John Ambulance having obtained numerous further medical reports from Mr Annesley's medical practitioners that the learned arbitrator came to the conclusion that any prejudice to St John Ambulance regarding information about the specific traumatic incidents which gave rise to the psychiatric illness could be overcome by a request for further particulars.

92 Counsel for St John Ambulance submitted that the employer's main difficulty was that the statements provided by Mr Annesley and the medical reports furnished by the various practitioners were contradictory insofar as some of them referred to incidents which had occurred prior to Mr Annesley having redeemed his earlier worker's compensation claim, whereas others had referred to more recent incidents. However, the question whether more recent traumatic incidents contributed materially to Mr Annesley's current mental health condition, or whether this arose exclusively from incidents which had been the subject of his earlier worker's compensation claim is not a matter that the worker has to provide particulars about pursuant to s 178 or in the First Medical Certificate. These are certainly matters which the insurer is entitled to investigate, but it has to do so by following the procedures provided for in the Act which include allowing the employer to ask particulars of the worker.

93 Its seems that St John Ambulance expected Mr Annesley to outline in the Form 2B the exact traumatic incidents he claimed had contributed to his current mental health condition, but there is no requirement in s 178 that he do so. All that a worker is required to do is to state the cause of his injury 'in ordinary language'. The questions of which incidents caused the current mental illness and to what extent are in any event more appropriately answered by a psychiatrist and not by the worker himself.

94 Counsel for St John Ambulance submitted that under the current regime outlined by the Act an employer was restricted in the number of medical reports it could provide at the final hearing and that pursuant to rule 59 of the Workers' Compensation and Injury Management Arbitration Rules 2011, a party could only file one report of a medical practitioner in a particular area of medical practice. This is why it was important for the Form 2B to contain all the information in sufficient detail.

95 However, rule 59 is subject to leave being granted by the arbitrator for further medical reports to be filed. Further, s 193 of the Act provides for the arbitrator to require another party to furnish information to the arbitrator or the opposing party. These provisions allow the employer to make an application to the arbitrator for an order for further information or medical reports to be supplied with regard to any specific issue. The employer is also entitled to ask particulars of the worker's claim. Accordingly, there are pathways for St John Ambulance to obtain the information it requires for purposes of the hearing.

96 The arbitrator did not err when she stated that any prejudice suffered by St John Ambulance by reason of the lack of information regarding exactly which traumatic incidents Mr Annesley relied on as being the cause of his current psychiatric illness could be overcome by requiring him to provide the necessary particulars prior to the hearing.

98 Ground 4 alleges that the arbitrator erred in law by finding that Mr Annesley suffered from a serious and incapacitating psychiatric condition at the time that he completed the Form 2B without stating what evidence she relied upon and how she came to her conclusion.

99 It is true that the arbitrator does not refer to the evidence relied upon or the reasoning process that she employed. However, it does not seem that it was ever in dispute that Mr Annesley was suffering from post traumatic stress at the time he completed the Form 2B. Dr Terace, the psychiatrist engaged by the insurer of St John Ambulance, stated in his report filed on 25 May 2011 that Mr Annesley suffered from chronic post traumatic stress disorder. Dr Terace listed Mr Annesley's then current psychological symptoms as including nightmares over the past two years about people dying in the workplace, intrusive images several times per month about injured and dead people, panic attacks or acute clusters of anxiety symptoms in physical form, hyper-sensitivity to noise, mood disturbance, appetite and weight loss and chest pain.

100 Dr Terace also referred to events just prior to Mr Annesley seeing his general practitioner on 25 March 2011 - the date on which the injury arose according to the First Medical Certificate. On 5 March 2011 Mr Annesley called an ambulance to his home by reason of chest pains and was taken to hospital. On 18 March he collapsed at work, feeling unwell, had chest heaviness and was again taken to hospital. In her report of 20 May 2011 Dr Rooke referred to Mr Annesley's hospital stay in coronary care and noted that Mr Annesley's cardiologist, Dr Nidorf, felt that the symptoms were stress related.

101 Dr Stephen Proud, Mr Annesley's treating psychiatrist, provided a report on 1 February 2012 in which he diagnosed Mr Annesley with moderate to severe chronic post traumatic stress disorder.

102 Although the learned arbitrator did not specifically refer to these reports, it can hardly be said to have been in dispute that Mr Annesley was suffering from a serious and incapacitating psychiatric condition at the time of completing the Form 2B. Dr Terace's report, obtained by the insurer of St John Ambulance, made that clear. The issue in dispute in this case does not appear to be whether Mr Annesley suffered from a mental disease at the time of making the claim, but whether this condition arose from recent traumatic incidents or was a continuing manifestation of a mental illness incurred prior to 2003.

103 Ideally the learned arbitrator should have given short reasons as to why she accepted that Mr Annesley was suffering from a serious and incapacitating psychiatric condition at the time, but this was not in dispute between the various medical practitioners. Further, her finding was only made in order to highlight the circumstances under which Mr Annesley is likely to have completed the Form 2B. It was not made to establish the type and extent of his injury for purposes of supporting his claim for weekly payments.

104 In common law a judicial officer has a duty to give reasons: Wainohu v New South Wales (2011) 278 ALR 1 [55] - [56]. In Summit Homes v Lucev (1996) 16 WAR 566, 571, Ipp J held that the common law principles also applied to review officers who conducted hearings under the former regime applicable under the Act.

105 The function of reasons is to give effect to any right of appeal, to enable an appeal court to determine whether or not an appealable error was made, and to allow the parties to understand why they were or were not successful: Mount Lawley Pty Ltd v Planning Commission (WA) [2004] WASCA 149; (2004) 29 WAR 273 [27].

106 In Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430, 443 - 444, Meagher JA held that there were three fundamental elements of a statement of reasons. Firstly the judicial officer should refer to the relevant evidence on which he or she relied and where there was conflicting evidence both sets of evidence should be referred to. Secondly, a judicial officer should set out the material facts that were accepted and any conclusions that were reached and why one set of facts was accepted above another. Thirdly, a judicial officer should explain his or her reasoning in applying the law to the facts found.

107 Whether the extent of the reasons provided is adequate will depend on the circumstances of the case, including the nature of the jurisdiction being exercised: Wainohu [56]. It is also necessary to look at the reasons as a whole and to determine whether, in the context of the evidence, they give a sense of what was intended in a way that would have met the requirements for reasons: SNF (Australia) Pty Ltd v Jones [2008] WASCA 121.

108 These common law principles have to be applied in light of and subject to s 213(4) of the Act: Velez Pty Ltd v Tudor [2011] WASCA 218 [58].

(a) need only identify the facts that the arbitrator has accepted in coming to the decision and give the reasons for doing so; and

(b) need only identify the law that the arbitrator has applied in coming to the decision and give the reasons for doing so; and

(c) need not canvass all the evidence given in the case; and

(d) need not canvass all the factual and legal arguments or issues arising in the case.

110 In Velez Pty Ltd v Tudor [70] Murphy JA held that in identifying the facts accepted and the reasons for doing so and the law applied and the reasons for doing so, as required by the section, the arbitrator was still obliged to expose the reasoning process linking them and to justify the ultimate result.

111 In Peter Nardi v Department of Education and Training [2006] WACC C22-2006 [31] Commissioner McCann came to the conclusion that the common law principles still applied but were modified by s 213(4) of the Act. Commissioner McCann expressed the view that the purpose of s 213(4) was to promote expedition, simplicity and transparency in the giving of reasons for the decision, but that this section was not intended to encourage over-brevity, the compression of reasons to the point of obscurity, or the excessive use of implied reasoning.

112 It has often been said that the realities of pressure of work and limited time in the Magistrates' Court must be acknowledged: Manonai v Burns [2011] WASCA 165 [56]. The same would apply to the workload of an arbitrator in the Dispute Resolution Directorate.

113 In Minister for Immigration and Ethnic Affairs v Wu [1996] HCA 6; (1996) 185 CLR 259, 272, the High Court held that reasons of an administrative decision-maker should not be scrutinised over-zealously by seeking to discern whether some inadequacy might be gleaned from the way in which the reasons were expressed.

114 In my view it was obvious that the arbitrator relied on the medical reports filed by both sides which were in agreement that Mr Annesley was then suffering from chronic post-traumatic stress syndrome. The fact that the arbitrator did not refer to these reports is of not import, because there was no dispute about this issue and because she only relied on it to explain the circumstances under which Mr Annesley completed the Form 2B.

115 Accordingly, the learned assessor made no error when she did not provide reasons for her finding that Mr Annesley was suffering from a serious and incapacitating psychiatric condition at the time of completing the Form 2B.

117 It should be noted, for purposes of the issue of leave to appeal that the inadequacy of reasons does not generally constitute an error in law unless the inadequacy is such as to give rise to a miscarriage of justice: Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430, 444. However, as there were other questions of law involved, this ground was also under review.

118 Ground 5 comprises two separate allegations of error. It firstly alleges that the learned arbitrator erred in law in finding that the question whether the Form 2B had complied with s 178 of the Act should be considered in the context of Mr Annesley having suffered from a serious and incapacitating psychiatric condition at the time of its completion.

119 Having found that this context was relevant, the learned arbitrator concluded that if the Form 2B together with the First Medical Certificate were given a reasonable construction, they constituted adequate notice of injury to St John Ambulance. The second leg of ground 5 alleges that the arbitrator erred in law by failing to provide reasons as to what she regarded as a 'reasonable construction'.

120 Section 178(1)(c) provides that any defect in the notice is not a bar to the maintenance of proceedings if the employer was not prejudiced or if the defect was occasioned by mistake, absence from the State or 'reasonable cause'. Although the learned arbitrator did not specifically refer to s 178(1)(c), it is obvious that the medical condition of a worker may, under certain circumstances, provide a reasonable cause for the defective completion of a Form 2B.

121 It was therefore not erroneous for the arbitrator to state that Mr Annesley's serious and incapacitating psychiatric condition should be taken into account when the adequacy of the information provided in the Form 2B was considered. The arbitrator did not fully spell out her reasoning process by not referring to s 178(1)(c), but it is obvious that she relied on this section when she held that Mr Annesley's psychiatric condition was relevant to how he completed the Form 2B. Section 178(1)(c) also provides a legitimate basis for the learned arbitrator's finding because it allows any reasonable cause to constitute an excuse for an inadequately completed Form 2B.

122 This ground of appeal seems to turn again on an allegation that the arbitrator did not provide adequate reasons. Counsel for St John Ambulance conceded during the hearing that this was the real complaint in respect of ground 5.

123 The second complaint, namely, that the learned arbitrator did not explain sufficiently what she meant by a 'reasonable construction' of the Form 2B and the First Medical Certificate has no basis. The arbitrator was clearly referring to the statement by Commissioner McCann in All Saints College v Bendotti that the First Medical Certificate had to be given a reasonable construction. The learned arbitrator simply came to the conclusion that taking into account the mental health of Mr Annesley when he completed the Form 2B and reading Form 2B and the First Medical Certificate together, in a reasonable manner, they provided adequate notice to the employer of the injury.

124 It was not necessary for the learned arbitrator to explain any further what a 'reasonable construction' involved.

125 No error is established and ground 5 must be dismissed.

126 Ground 1 is merely a 'catch-all' provision alleging that the arbitrator did not provide adequate reasons for her decision. I have already pointed out in respect of the other grounds that the arbitrator did not always spell out her reasoning to the fullest extent, but her reasons give a clear sense of what was intended and why she came to the conclusion that the Form 2B completed by Mr Annesley, read together with the First Medical Certificate, complied with s 178.

128 I accept that grounds 2 and 3 involve a question of law and that leave should therefore be granted to St John Ambulance to bring this appeal. The fact that a question of law was involved obliged this court to conduct a review of all the matters decided upon by the arbitrator. However, none of the five grounds of appeal that were proceeded with have been made out.