Lambert v Dalzeill - [1995] QSC 48

IN THE SUPREME COURT

OF QUEENSLAND

No 542 of 1994
Brisbane

Before Mr Justice Ambrose

[Lambert v Dalzeill & Ors]

BETWEEN:

TERI MARION LAMBERT
  Applicant
AND:
R DALZEILL
  First Respondent
R F GRAHAM
  Second Respondent
D JENKIN
Third Respondent

P J AUGUSTINE
  Fourth Respondent
P NEVILLE
  Fifth Respondent
THOMAS JOHN BECK SM AND OTHERS
  Sixth Respondent

REASONS FOR JUDGMENT - B W AMBROSE J.

Judgment Delivered: 24/03/1995

CATCHWORDS: CHAMBERS - Judicial Review - s. 41 and s. 46 Judicial Review Act 1991 - 3 considerations:(1)The period of time that elapsed between the decision sought to be reviewed and the application for extension; (2)The explanation (if any) for the failure to make a more timely application to review the decision either under RSC O.81 or s.46 of the Judicial Review Act 1991; and (3)The prospects of success upon the application to review should time to apply be extended. - Unpersuasive explanation for delay - negligible prospect of success on an application to review - no evidence of extraordinary prejudice.

Counsel:Mr R. I. Hanger Q.C. for the applicant
Mr J. Griffin Q.C. with him Mr P Flanagan for the respondents

Solicitors:Messrs Mangano & Co for the applicant
Crown Solicitor for the respondents

Hearing Date: 20 March 1995

IN THE SUPREME COURT

OF QUEENSLAND

No 542 of 1994
Brisbane

Before Mr Justice Ambrose

BETWEEN:

TERI MARION LAMBERT

Applicant

AND:

R DALZEILL
  First Respondent
R F GRAHAM
  Second Respondent
D JENKIN
  Third Respondent
P J AUGUSTINE
  Fourth Respondent
P NEVILLE
  Fifth Respondent

THOMAS JOHN BECK SM AND OTHERS
Sixth Respondent
REASONS FOR JUDGMENT - B W AMBROSE J.

Judgment delivered :    24/03/1995
This is an application under s.46 of the Judicial Review Act 1991 for an extension of time within which to make application for review of a decision of the Hospitals Appeal Board given on 7 September 1990. As a consequence of that decision, the decision of the Bundaberg Hospitals Board that the applicant be dismissed from the position she held as Nursing Superintendent of the Gin Gin Hospital prior to May 1990 was allowed to stand.
           The Hospitals Appeal Board heard de novo matters considered by the Bundaberg Hospitals Board which resulted in her dismissal. The hearing seems to have been a long one, the Board sitting 3 to 7 September 1990. On 7 September 1990 the Hospitals Appeal Board upheld the decision of the Bundaberg Hospitals Board with respect to its finding that the applicant had been guilty of improper conduct as Director of Nursing at the Hospital because she had harassed nursing sisters at that hospital.
           The applicant's appeal against the decision of the Bundaberg Hospitals Board having been dismissed by the Appeal Board, her dismissal by the Bundaberg Hospitals Board on 21 May 1990 upon the approval of the Chief Nursing Officer in the Department of Health given on 18 May 1990, remained effective.
           Upon her appeal to the Hospitals Appeal Board the applicant did not seek to argue that her dismissal on the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Lambert v Dalzeill

Details

AGLC: Lambert v Dalzeill [1995] QSC 48
Case: [1995] QSC 48
Decision Date: 24 March 1995

CaseChat Overview and Summary

In the matter of Lambert v Dalzeill, the applicant sought an extension of time to apply for a review of certain decisions, raising the issue of whether the court should grant an extension of time under s.46 of the relevant Act. The decisions in question were made four and a half years prior to the application, and the applicant had failed to meet the statutory time limit for filing the application. The central issue before the court was whether the applicant had provided a reasonable explanation for the delay and whether granting an extension would prejudice any party, including the respondent or any third party.

The court examined the applicant's reasons for the delay, noting that she had not provided a satisfactory explanation for why she had not filed her application within the prescribed time. The applicant had consulted a psychologist who provided a report indicating that she had experienced traumatic stress neurosis due to her dismissal. However, the court observed that the applicant had been pursuing a university degree and had been actively involved in various other activities, including writing letters of complaint to various organizations, during the period when she was supposed to be pursuing her legal remedies. The court held that the absence of a reasonable explanation for the delay weighed heavily against granting an extension, especially given the significant passage of time since the decisions in question.

Ultimately, the court found that the applicant had not provided a satisfactory explanation for the delay, and there was no evidence to suggest that the application would succeed if an extension were granted. The court also noted that granting an extension would likely prejudice the respondent, as it would allow the applicant to pursue a review after a significant lapse of time. Accordingly, the court refused to grant an extension of time for the applicant to file her application for review.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

The prospects of success upon the application to review should time to apply be extended.Upon application for extension of time under s.46 of the Act - at least where the matter of complaint does not involve a decision or order made with a lack of jurisdiction appearing on its face or upon the face of the record - a court will approach the matter assuming that prima facie proceedings ought be commenced within the specified time and to succeed on an application for extension the applicant must show why the discretion to extend time ought be exercised in her favour. In this respect I refer to Kuku Djungon Aboriginal Corporation v. Christensen (1993) 2 Qd R 663 per Moynihan J at 655 and Lucic v. Nolan (1982) 45 ALR 441 per Fitzgerald J at 416. Where a significant period of time has passed and the time limit has long expired the absence of a reasonable explanation will weigh more heavily against an extension being granted although of course the giving of a reasonable explanation must not regarded as an essential pre-condition of the granting of an extension. See Lucic at p. 46 per Fitzgerald J. Kuku at p. 665 per Moynihan J and Hoffman v. Queensland Local Government Superannuation Board (1994) 1 Qd R 369 per Thomas J at 370. It is relevant upon an application for extension to look at the prospects of success of the application to review if an extension of time is granted. See Kuku at p. 666; Lucic at p. 417 and Hoffman at p. 370. Prejudice to the respondent or to any third party is also a matter to be weighed up in determining whether to grant an extension. See Hoffman at p. 374. In this case a very long period has elapsed since the decisions sought to be reviewed were given - a period in fact of four and one half years. I am unpersuaded upon the evidence that an acceptable explanation has been given for the delay. A report from a psychologist was put in evidence by the applicant to show that her health had deteriorated as the result of her dismissal. Upon the evidence she first interviewed the psychologist on 27 March 1992 - 18 months after the impugned decision and 9 months after she had been given legal advice that there were then no avenues of appeal available. I do not propose to analyse the long 9 page psychologist's report with the annexures to it in detail. While that report certainly indicates that the applicant complained to the psychologist of matters attributable to "traumatic stress neurosis" it also indicates that from the very outset she attributed her dismissal to a conspiracy against her involving the medical superintendent of the Gin Gin Hospitals Board at the material time who she asserted "perjured himself" at the hearings. She asserted that the medical superintendent "influenced" registered nurses. She wrote letters of complaint to a variety of organisations, to the Minister for Health, the Premier and to the Nursing Union. However, while doing these things apparently she was pursuing a university course at Armidale and by 1992 had almost finished studying for a degree at that university. While out of work she put a good deal of her time to study. It is the view of the psychologist that at about this time she was "emotionally labile" and was obsessed by the "injustice" done to her by the various persons connected with the Gin Gin Hospital who had combined together to procure her unjust dismissal. During 1992 while studying for her university degree she wrote letters asserting her view of the matters that led to her unjust dismissal to the Medical Board of Queensland and the Criminal Justice Commission. The letters contained observations such as:"I find myself profoundly depressed and struggling with this semester's unit in critical thinking and preparing for an exam on 24/6/92 ... I seem to be functioning on a 'need-to' basis physically. ...