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 found against her was unreasonable or excessive.  Her appeal was conducted only on the basis that the finding of the Bundaberg Hospitals Board of improper conduct was unjustified.  After her appeal against the decision of the Bundaberg Hospitals Board was dismissed the applicant on 22 October 1990 sought a re-opening of the appeal to allow arguments and submissions to be addressed on the question of penalty by way of dismissal.  However on 15 November 1990 the Chairman of the Appeal Board refused to reconvene the Board on the ground that the appeal had been argued only on the basis of the applicant's innocence of the charges and not with respect to the severity of punishment.  The notice of appeal had asserted that the dismissal was an excessive punishment however this had not been debated before the Appeal Board.
           It appears from the material that the applicant was understandably upset at the outcome of her appeal.  However it was not until July, 1991 that she sought legal advice as to avenues of appeal from the decision of the Hospitals Appeal Board that might be open to her.  By a letter of 31 July 1991 the applicant received legal advice that there were no avenues of appeal available and that she should "put this unfortunate matter behind her". 
           The legal advice that the applicant received is understandable.  The decision of the Bundaberg Hospitals Board resulting in the applicant's dismissal was a "decision" within the meaning of cl.22 of the Third Schedule to the Hospitals Act 1936-1988 which provided:-  

"2. No appeal from Appeal Board. Notwithstanding anything contained in any other Act, no appeal from a decision of an Appeal Board shall lie or be permitted to the Industrial Court constituted under 'The Industrial Conciliation and Arbitration Acts 1932 to 1955', or to any other Court or tribunal whatsoever, and no writ of prohibition or mandamus or certiorari shall lie in respect thereof."

The Judicial Review Act 1991 came into force about five months after the legal advice given to the applicant in July 1991.
           It was suggested if not contended by the applicant that having regard to various matters canvassed upon this application, it was strongly arguable that there had been a breach of various rules of natural justice and that it was strongly arguable that the privative cl.22 would have been no obstacle to the applicant's claim for prerogative relief based upon an absence of jurisdiction - the jurisdiction having been aborted by breaches of rules of natural justice.
           On the assumption that the applicant would have succeeded in obtaining relief by way of certiorari under RSC O.81 had she sought this relief within six months of the Appeal Board's decision it was further contended that disregarding the effect of s.41 of the Judicial Review Act she would have obtained an extension of time under O.81r.7 at the time between the order of the Appeal Board in September 1990 and the making of this application for extension of time under the Judicial Review Act made on 11 August, 1994 - that is at any time during a period of nearly four years. 
Section 41(2) of the Judicial Review Act provides:-

"(2)  If, before the commencement of this Act, the Court had jurisdiction to grant any relief or remedy by way of a writ of ... certiorari, the Court continues to have the jurisdiction to grant the relief or remedy, but must grant the relief or remedy by making an order, the relief or remedy under which is in the nature of, and to the same effect as, the relief or remedy that could, but for subsection (1), have been granted by way of such a writ.

Under s 41(1) the prerogative writ of certiorari could no longer be issued by the court after the Judicial Review Act 1991 came into force. The source of power to grant an extension of time is to be found in s.46(1) of the Act. However, in my view, where the decision to be reviewed is one which could have been reviewed in compliance with RSC O.81 prior to s.41(1) coming into effect the time constraints upon applicants for an order of certiorari imposed by O.81 r.7 are relevant to the exercise of discretion to enlarge time under s.46 of the Act.
On the facts of the present case therefore in the exercise of discretion under s.46(1)(b) it must be kept in mind that had the applicant sought to review the decision of the Hospitals Appeal Board by way of certiorari she would have had a right to make that application within six months of the decision - i.e. by 7 March 1991 or within such extended time as the court might allow "under special circumstances".
           A period of approximately nine months elapsed before the applicant consulted solicitors concerning possible avenues of appeal against the Hospitals Appeal Board's decision.  She obtained this advice in July 1991 - nine months after the Appeal Board decision had been given.  At that time therefore she had no right to seek a writ of certiorari but she might have applied for an extension of time (by three months) relying upon whatever "special circumstances" she might be able to show.
          She received legal advice against pursuing what rights she may then have had to seek an extension of time within which to challenge the decision of the Hospitals Appeal Board. On 27 March 1992 - about 18 months after the decision of the Appeal Board had been given - the applicant commenced consultations with a psychologist.  These consultations extended over a period of approximately two years and the opinion of the psychologist is that the applicant suffered from a post traumatic stress disorder as the result of her dismissal from the Gin Gin Hospital and her unsuccessful efforts to have this dismissal reversed.  The applicant asserts that the psychological disorder from which she suffered prevented her "from directly pursuing the matter of my dismissal until late 1993" - that is for a period of nearly two and a half years after she received legal advice that there were no avenues of appeal open to her.
           Assuming that the applicant was prevented or inhibited by psychological factors from pursuing whatever rights she may have had to challenge the decision of the Hospitals Appeal Board in September, 1990 those factors had ceased to be operative by "late 1993".  Her application for extension of time under the Judicial Review Act 1991 was not made until August 1994 and I infer that a period of between six months and something less than 12 months elapsed from the time she had no psychological impediment to her seeking an extension of time to the time when she actually made this application on 11 August 1994. The period of delay certainly exceeded the six month period specified in RSC O.81r.7 and the three month period specified in s.46(1) of the Judicial Review Act 1991.
           There is authority for the proposition that upon application for a certiorari on the ground of lack of jurisdiction apparent on the face of the proceedings a Court has no discretion to refuse it.  In such a case delay is not regarded as a sufficient reason to overturn a decision which on the face of the record was made without jurisdiction.  In this respect I refer to Honnery v. Smith (1957) 57 SR (NSW) 598, Yirrell v. Yirrell (1939) 62 CLR 287 at p. 297 per Latham CJ and Ex Parte Thomas; Re Arnold (1966) 2 NSWR 197 at 198 per Wallace P. In this last case it was held that a delay of more than 25 years did not deprive an applicant of a remedy to quash a decision which was on its face and the face of the proceedings made without jurisdiction.
           On the other hand where the defect of jurisdiction does not appear on the face of the record but is based upon the contention that there has been a breach of the rules of natural justice a Court has a discretion if there is a delay and may take into account such matters as the conduct of the applicant.
           It is not appropriate for me upon this application to investigate to any significant extent the matters which would be debated upon an application to review if an extension of time were granted.  On the other hand if it emerges that the conduct or attitude of the applicant in this case was such as to permit the Hospitals Appeal Board to arrive at the decision at which it did arrive and to which it would probably have arrived upon the evidence and material placed before it, quite apart from any failure to abide the rules of natural justice, then that is a matter relevant to the exercise of discretion.
           In my view, this is not a case where any lack of jurisdiction can be detected upon the face of the material.  The strongest argument upon which the applicant seeks to rely is that the terms of her letters written to three nursing sisters under her control at Gin Gin Hospital, even in the light of a previous direction concerning such matters given by the Bundaberg Hospitals Board on 27 November 1989, are incapable in law of constituting "harassment" and therefore cannot amount to improper conduct.  Essentially this is a question of fact determined against the applicant firstly by the Bundaberg Hospitals Board on 10 May 1990 and secondly by the Hospitals Appeal Board on 7 September 1990. 
           Upon the hearing of the application the applicant focused upon the decision of the Bundaberg Hospitals Board confirmed by the Hospitals Appeal Board that by writing a letter to each of three nursing sisters in the Gin Gin Hospital dated 19 February 1990 she was guilty of improper conduct as superintendent of the Gin Gin Hospital.  It must be kept in mind however that this charge was only one of four charges dealt with by the Bundaberg Hospitals Board and again by the Hospitals Appeal Board on 7 September 1990.  Although her dismissal was based upon this conduct, it seems to me to have been open to the Appeal Board to view the writing of the letter in question not merely in the context of the activities of the applicant directly connected with the writing of that letter but also in the context of the other four charges proved to the satisfaction of the Bundaberg Hospitals Board and confirmed by the Hospitals Appeal Board after a long hearing in which the four matters, all of which took place within a period of a couple of months, were considered as well as two other matters charged which were held to be not proved.
           The first charge upon which she was convicted by the Hospitals Board and in respect of which she failed on her appeal to the Hospitals Appeal Board was that she interfered in medical treatment that was being given by a doctor who was a medical superintendent of the Bundaberg Hospital.  The Appeal Board held that the interference in question was improper, it seems not only upon the application of ordinary rules to be followed by the nursing profession, but also because it was in breach of the expressed policy of the Bundaberg Hospitals Board.
           The second charge upon which she was convicted and her appeal dismissed was that she confronted the medical superintendent in the course of patient treatment and this confrontation was contrary to the expressed policy of the Hospitals Board.
           The third charge upon which she was convicted and her appeal dismissed was her conduct in refusing the request of the medical superintendent of the hospital to distribute instructions to registered nurses within the hospital.  The hospital policy in the event of the applicant's wish to refuse to circulate instructions as required by the superintendent was to consult with the Director of Nursing at Bundaberg.  In this matter the medical superintendent had advised the applicant that the Director of Nursing in Bundaberg had told him to give copies of the proposal to the applicant and request that she distribute them.  In spite of this the applicant declined to distribute the material and the expressed policy of the Hospitals Board was that in that event she should have consulted with the Director of Nursing at Bundaberg and in failing to do so she was guilty of improper conduct.  The fourth charge upon which she was convicted by the Hospitals Board and in respect of which her appeal to the Hospitals Appeal Board failed was the charge, her conviction upon which resulted in her dismissal. This was the decision addressed by the applicant upon her application for leave to have time extended within which to initiate a review.
           Because the applicant confined her consideration to her conviction upon this charge which led to her dismissal, it is appropriate to mention shortly the essence of the matters which were canvassed at great length apparently before both the Bundaberg Hospitals Board and the Hospitals Appeal Board.  In the course of its decision confirming the decision of the Hospitals Board, the Hospitals Appeal Board observed that the charge:

"Had its genesis in the appellant's address delivered orally to some nursing staff in October 1989 and made available as required reading by the absentee nursing staff.  The document has been rightly condemned.  It obviously upset three registered nurses sufficiently for them to refer it to the Board's manager thereby bypassing an agreed grievance resolution procedure.  This resulted in the appellant receiving the third degree in an interrogation at a Board Meeting after which the document was withdrawn from the folder.  About two months later each of the three registered nurses were called upon by the appellant in writing to write a concise report.  Each wrote in reply that they did not wish to discuss the issues, each giving similar expressions, with two stating that the Queensland Nursing Union advice was being followed.  It is obvious even without resort to the evidence that the third probably followed that advice too.  That should have ended the matter but the appellant persisted with another letter to each of them.  It is the combination of the two letters to each registered nurse that is said to constitute harassment, no doubt regard also being had to the history of the matter.  The three registered nurses were not happy after receiving the second letter, the correspondence being passed to the Board's manager resulting in a charge of improper conduct by harassment ... 

... In the circumstances applying in this case the Board is of the view that the second letter was sufficient to constitute harassment especially having regard to its contents."

The statement in writing is of about three foolscap pages.  It is unnecessary to set out the whole of it but helpful to cite some of its contents.  Before the Bundaberg Hospitals Board the applicant was questioned in detail concerning any instances of behaviour on the part of the nursing staff which would justify the terms of the "address."  She seemed unable to supply any concrete examples of failure of the registered nurses in the performance of their professional obligations which might justify the extremely critical observations in the statement.
           The statement reads that when the applicant arrived at the hospital in 1983 - about six years prior to the date of her statement - she found "a very unhappy establishment".
           The statement continues:

"I found bully boy, domineering intimidation, petty and malicious small bloody mindedness predominating in intercollegiate relationships.  This type of behaviour comes under the collective heading of lateral violence of an oppressed group.  Such behaviour is in itself, self fulfilling and self sustaining and maintains the image of nurses not being capable of being responsible and accountable for themselves, as they are their own worst enemies, a classic case of blaming the victim.

I found a parallel in this behaviour of low self esteem which in turn was reflected in subjective nursing evaluations, which allowed patients to be victimised and ostracised, and for attitudes of racism, sexism and uneducated opinions to prevail.

Bigotry, prejudice and unkindness were also evident."

The statement continued in the following passages:

"I broke my leg and within a week I find lateral violence once again rampant and Mrs Pearce's personhood being victimised, ostracised and labelled.  A zoo animal is given better labelling treatment.  My demand that this situation be corrected is ignored.  I hold Sister Johnson responsible and accountable as Sister was in charge.  I hold Sister Still responsible and accountable as Sister wrote the wall notice, and I hold all the staff who were present at this time responsible and accountable for not acting as patient advocates and challenging this devaluation of Mrs Pearce's personhood.   ....

...  because as professionals I have waited for you to self correct your own behaviour as you are all individually responsible and accountable for your own behaviour.  ... 

My expectation is that you will endeavour to maintain nursing standards and that if you cannot accommodate those standards and work in the manner that is in nursing's and the patient's best interest then you really need to think about why you are nursing.  Everyone is a free agent with choices to make and if I am so difficult to work with and you cannot accommodate quality patient sided and centred nursing care then you are all free to leave."

Not surprisingly, some of the nursing sisters identified in this published statement were offended at its terms.  It was apparently written at a time when her performance as Director of Nursing, in the view of the Hospitals Board, left something to be desired.
           In any event the applicant was called before the Bundaberg Hospitals Board and taken to task.  An extract of the recorded proceedings before the Hospitals Board in which as the Appeal Board said the applicant was "interrogated" has been placed before me.  It is unhelpful to set out the detail of this "interrogation".  However what emerges quite clearly is that the applicant did not concede that the writing and publication of her statement was in anyway "improper".  When pressed for examples of conduct of the sort asserted in her statement during the five year period in which she had been Director of Nursing in the hospital prior to publishing that statement she was unable to do so with the exception of events relating to only one patient which occurred during the time she was apparently on leave having broken her leg and with respect to whom she asserted "Mrs Pearce's personhood being victimised, ostracised and labelled."
           In the course of addressing the Bundaberg Hospitals Board on 9 November 1989 and in material she placed before it the applicant criticised the previous hospital administration and indeed the nurses who were at the hospital or who had been there prior to the applicant's arrival. In the course of that interview it emerged clearly that the applicant, far from expressing contrition or remorse for the publication of her statement when it was suggested to her that the document was "slanderous and defamatory", said merely that "that is an opinion."  She then went on to express her view to the Board that the problems in the Gin Gin Hospital were not confined to that hospital but indeed were "nursing board problems".

In 1990 - presumably shortly before the hearing of the Bundaberg Hospitals Board in September - the applicant placed before the Board submissions in writing relating to the charges.  In those submissions the applicant stated inter alia:-

"1.I have not harassed members of the nursing staff as alleged.

2.The nurses mentioned in the charge had given a copy of the nursing services talk from myself to the nursing staff at Gin Gin, to the Board.  I wrote letters to them requesting them to answer some questions.

3.To ask questions, expect explanations and clarification is part of my role as the Director of Nursing and permanent head of Nursing Services for Gin Gin for the conduct of the business and working of my branch.  In order to maintain and ensure nursing service standards and compliance to Nursing Service Policy.

4At no time had these registered nurses communicated to me their concern relating to the 'alleged harassment', nor have they followed the grievance procedure agreed to by the nursing staff of Gin Gin and agreed to by the Q.N.U and which have been in place since 1985.

5.The correspondence does not constitute harassment."

In my view the attitude displayed by the applicant in these submissions prior to the hearing of the Bundaberg Hospitals Board of the charges laid against her has not varied but in fact has remained constant to the present time.  They are consistent with the submissions made on her behalf for an extension of time in which it was asserted that it was arguable as a matter of law that the decision of both the Bundaberg Hospital Board and the Hospitals Appeal Board could not stand because the facts proved could not on any basis demonstrate that she had been guilty of a disciplinary offence under s.44(1)(g) of the Hospitals Act 1936-1983 which provides:-

"(1)An employee of a Board who -

--

(g)is guilty of disgraceful or improper conduct, or of any act or conduct that shows unfitness to continue in the service of the Board

--

commits an offence that in this Part is called a 'disciplinary offence'."

In para.2 of the longer of the two written submissions placed before the Board the applicant contends -

"The matters which have come before the Board arise from difficulties I have experienced with Dr Phillips and with a small number of the nursing staff.  I have previously presented a Petition of support from the other nursing staff."

In para.3:-

"As a result of the friction which has been present in the past, the matters referred to in the charges have been grossly exaggerated and have become out of proportion to the actual facts."

In para.4 she submits:-

"... Some of the matters written in letters to the Board [by Dr Phillips] are defamatory and obviously the Board has taken notice of same.  In an attempt to maintain a working relationship with Dr Phillips I have refrained from making any such allegations or scathing comments in relation to him.  I find such comments unprofessional and harmful to maintaining a working relationship"

In para.6 she states-

"...  I will continue to avoid making any personal attack on Dr Phillips or the other three nurses as I would believe it would be unprofessional to do so and only create further disharmony in our working relationship --"

In para.11 she states -

"These are serious charges and if I am found to have committed same will have a disastrous effect on my future career.  The matters of the charges in question, even if the Board is satisfied I have acted as alleged (which is emphatically denied), are not such as to amount to disciplinary offences within the meaning of the Act."

At one stage during the discussion of her publication of the statement which led to the Board "interrogation" she said "I would probably do it again.  Not exactly, I may make changes."
           Subsequent to that discussion with the Board on 9 November 1989 the Board wrote a letter to the applicant dated 27 November 1989 in the following terms:

"The Board at its General Meeting held on 27th November, 1989 considered its discussion with you at the Board Meeting held on 9th November, 1989 concerning the document promulgated by you and signed on 18th October, 1989.  Advice from the Chief Nursing Officer was also considered.

The Board decided that you be advised as follows:-

'The Policies of the Board were detailed to you on 15th July, 1988.

It is the opinion of the Board that you have not complied with these policies.  The Board at its General Meeting held on 27th November, 1989 expressed its lack of confidence in your administration of Gin Gin Hospital.

The Board hereby gives you a FINAL WARNING that, if the Board's policies are not followed or your conduct is such that the Board feels that you should no longer continue in their employ, disciplinary charges under the 'Hospitals Acts 1936-1988 will be laid against you'"

The policies of the Board to which reference was made were sent to the applicant under cover of a letter dated 15 July 1988.  The last of the seven policy directives reads:

"There must be no outbursts of aggressiveness and expressions of dissent in situations where patients, staff and anyone else can observe or hear".

On 16 January 1990 the applicant wrote letters to each of three nursing sisters employed at the Gin Gin Hospital.  It is unnecessary to set forth the contents of those letters verbatim.  However, each letter required the addressee to make to the applicant:

"a concise report relating to:

a)the issues and problems that required you to go as part of a deputation to the Bundaberg Hospitals Board.

b)why my authority which is clearly stated in the Standards for Nursing Services Gin Gin and your signed job description was circumvented.

c)why the grievance procedure for Gin Gin Nursing Services was not followed."

In the letter addressed to Sister Johnson an additional matter was specified:

"(d)I would like to understand why you were unable to follow your signed statement of role of Acting Relieving Don relating to conflict resolution."

Each of the letters then continued:

"After I have studied your reply we will then sit down and discuss the issues and problems and seek a solution".

Acting upon advice received from the Queensland Nursing Union each of the three nursing sisters declined to discuss or enter into correspondence about the matters raised by the applicant and suggested that issues which the applicant sought to have considered "should be accepted as part of the past and quite unproductive to re‑examine".
           On 19 February 1990 the applicant wrote yet another letter to each of the three nursing sisters asserting inter alia that the "issues" between her and the sisters would remain unresolved until a further discussion took place, and that she would remain unhappy until such discussion had taken place and that their past misbehaviour could not be disregarded in the evaluation of their future behaviour.  She finished each of the three letters in the following terms:

"Am I to understand that you refuse to comply with my lawful request for a concise report concerning the issues described in my letter of  the 16/1/90."

The essence of the finding of the Hospitals Board confirmed by the Hospitals Appeal Board was that the writing of this second letter dated 19 February 1990 to each of the three nursing sisters when considered in the light of the previous events to which I have referred constituted a "harassment" of the those nursing sisters. In my view, the determination as to whether the writing of these letters by the applicant to nursing sisters under her supervision at Gin Gin Hospital could amount to harassment constituting "improper conduct" is the very sort of factual matter or matter of fact and law that the legislature intended should be determined by the Hospitals Board and the Hospitals Appeal Board and not be subject to review by courts of law.
           Upon this application for extension of time within which to apply to have the decision of the Hospitals Appeal Board reviewed (together with other procedural decisions leading to the applicant's dismissal) there are three distinct matters for consideration.  While there may be considerations common to those distinct matters, nevertheless for convenience the matters may be stated as follows:

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.

   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. ...

My random thought processes seem to have a consistency tempered by irrationality:

* I don't want to be here, I am tired of this world

* I am dead to nursing
           * The patriarchal world condones and protects liars and thieves
           * Suicide is an increasingly thought-about option
           * But if I die, that would be a useless statement, the act of a woman

* Who would care, outside of immediate friends and family?  Would it make a difference to the liars and thieves who stole my career?  I think not.

* I want my own space, I want a single bed

* I wonder about going on a hunger strike.  Gandhi keeps coming into my mind; that one person made a difference and that injustice identified had to be exposed.  Here I am, nearly 50, to find that justice is a myth, that democracy is a myth, that being innocent until proved guilty is a myth, and that patriarchy and greed prevail, indeed is a fact."

Shortly after this letter on 14 June 1992 she wrote further letters to the Queensland Anti-discrimination Commission and to the Premier.  She continued with her academic studies and in June 1993 sent her psychologist a copy of a letter she had written to the Queensland Minister of Health.  That letter is an annexure to the psychological report.
           In October 1993 she wrote to her psychologist from Chillagoe Hospital where she was working as a relieving director of nursing and enclosed a copy "of a piece she had written for the Whistleblower's Action Group."  In the course of this statement apparently prepared for the "WAG" members relating to "whistleblowing" the following observations appeared in the third paragraph:

"My background is in nursing.  I had a thirty year career terminated by people who forgot the basic medical ethical premise which is: Above all, do no harm."

She continued:

"As a woman I was no different from men in that I identified myself with my career role.  Separating myself from that role has been part of the difficulty and part of the sorrow that has followed me since my career has been ruined as a result of my whistleblowing ...

I believe that I functioned well in my career role, and my problems were in part caused by my peers perceiving that as a threat.  My expectation was that my peers would treat work problems professionally.  That expectation was naive and idealistic.

Although I have felt deep violent sorrow, I have no regrets about how I conducted myself, and I still believe that the principles I believed in (and still believe in) remain valid.  However I do regret the heavy burden that I have carried on my stressful journey, and it is very difficult to rationalise this journey as a necessary learning experience."

The psychologist observes in her report that the applicant "continually went over and over the events in her mind;  she could not stop thinking or talking about it and she had a persistent need to redress the wrong that had been done".  The psychologist assessed her personality and concluded "she is a feminist, reads widely and appeared to be very intelligent.  She tends to become involved in issues."  Upon my appreciation of the psychological report it shows that the applicant's attitude towards the Gin Gin Hospital Board, the nursing staff there, the superintendent of the hospital and the Hospital Appeals Board was maintained and indeed developed in the course of the history she gave to the psychologist concerning the development of her psychological problems.  Indeed some of the expressions in my view are quite similar to the expression of her opinion concerning her conduct which was given to the Hospitals Board on 9 November 1989.  She still maintained that her conduct relating to the October statement published in the hospital and the letters written to the three nursing sisters which led to her dismissal were not improper but were on the contrary professionally justified actions by her as Director of Nursing and Permanent Head of Nursing Services at Gin Gin.  She clearly has always conveyed to the psychologist that she was justified in what she did and was unjustly dismissed as the result of a conspiracy between persons who gave evidence against her and that she felt "powerless in a situation where she perceived people (using manipulation and perjury) playing with her life and career as though she had no worth, as though her life and nursing experiences up to that point in time were of no consequence." 
           The psychological report seems to be based upon the truth of the matters asserted by the applicant as to the conspiracy against her that had led to people connected with hospital committing perjury with a view to having her dismissed because she acted as a whistleblower on them and who failed to perform their medical and nursing duties in a way she thought they ought to have been performed.
           The psychological reaction of the applicant as detailed in the report placed before me supported by the annexures is a matter to which I give some weight.  However, I have the reservation that the cause of the reaction dealt with in the report seems to have been an unwillingness to even admit that her conduct which led to her dismissal was "improper";  it demonstrates what might be thought to be a rationalisation that her dismissal was explicable only upon the basis of something in the nature of a conspiracy against her by persons connected with the Gin Gin Hospital and the Hospitals Appeal Board.
           Upon the facts of this case in so far as they have been canvassed before me, I take the view that the prospects of success of the applicant upon an application to review the decisions complained of are not good. 

           No evidence of prejudice emerged upon the application - except of course that which ordinarily arises in meeting arguments and controverting matters of fact ‑ led in evidence after a period of four and one half years have passed since the impugned decision was given.  However I give no more weight to such prejudice in this case than would be reflected in my adopting the approach already indicated that prima facie the proceedings in which the applicant now seeks an extension of time ought to have been taken in accordance with the provisions of RSC O.81 within six months of those decisions.
Taking the various matters which I have canvassed into consideration I am not persuaded to exercise my discretion under s.46 of the Act in favour of the application.
           The application for extension of time within which to apply for judicial review is dismissed.