Ross v Attorney-General (Cth)

Case [2024] FCA 180

FEDERAL COURT OF AUSTRALIA

Ross v Attorney-General (Cth) [2024] FCA 180  

File number(s): VID 888 of 2023
Judgment of: GOODMAN J
Date of judgment: 7 March 2024 
Catchwords: PRACTICE AND PROCEDURE – application for an extension of time and for leave to appeal orders made by the primary judge, inter alia, dismissing the proceeding – application dismissed
Legislation:

Federal Court of Australia Act 1976 (Cth), s 37M

Judiciary Act 1903 (Cth), s 78B

Military Rehabilitation and Compensation Act 2004 (Cth)

Federal Court Rules 2011 (Cth), rr 4.12, 4.13, 35.13

Guardianship and Administration Act 2009 (Vic), s 179

Supreme Court (General Civil Procedure) Rules 2015 (Vic), r 15
Cases cited:

Barnett v Minister for Housing & Aged Care (1991) 31 FCR 400

BQQ15 v Minister for Home Affairs [2019] FCAFC 218

Decor Corp Pty Ltd v Dart Industries Inc [1991] FCA 844; (1991) 33 FCR 397

Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292

Ex-Christmas Islanders Association Inc v Attorney-General (Cth) [2005] FCA 1867; (2005) 149 FCR 170

McInnis v The Queen [1979] HCA 65; (1979) 143 CLR 575

Ross v Commonwealth of Australia [2022] VSC 457

Ross v Commonwealth of Australia [2022] VSC 779

SZHTI v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 702
Division: General Division
Registry: Victoria
National Practice Area: Administrative and Constitutional Law and Human Rights
Number of paragraphs: 85
Date of hearing: 23 February 2024
Counsel for the Applicant: The applicant appeared in person
Solicitor for the Respondent: Mr K Sypott of Australian Government Solicitor

ORDERS

VID 888 of 2023
BETWEEN:

CHRISTOPHER ROSS

Applicant
AND:

ATTORNEY-GENERAL OF THE COMMONWEALTH OF AUSTRALIA

Respondent

ORDER MADE BY:

GOODMAN J

DATE OF ORDER:

23 FEBRUARY 2024

THE COURT ORDERS THAT:

1.The applicant’s interlocutory application filed on 18 January 2024 be dismissed.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


ORDERS

VID 888 of 2023
BETWEEN:

CHRISTOPHER ROSS

Applicant
AND:

ATTORNEY-GENERAL OF THE COMMONWEALTH OF AUSTRALIA

Respondent

ORDER MADE BY:

GOODMAN J

DATE OF ORDER:

7 MARCH 2024

THE COURT ORDERS THAT:

1.The application for an extension of time and leave to appeal filed on 25 October 2023 be dismissed.

2.The applicant pay the respondent’s costs of this proceeding, as agreed or taxed.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

GOODMAN J

A.       INTRODUCTION

  1. On 7 September 2023, the primary judge dismissed two interlocutory applications brought by the applicant (Mr Ross) and acceded to an interlocutory application brought by the respondent for the dismissal of the proceeding.

  2. On 25 October 2023, Mr Ross filed an application for an extension of time and leave to appeal from the decision of the primary judge.

  3. For the reasons set out below that application should be dismissed, with costs.

    B.       BACKGROUND

    B.1     Generally

  4. The salient evidence on the present application provides the following general background.

  5. Mr Ross was a…

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Details
AGLC
Ross v Attorney-General (Cth) [2024] FCA 180
Case
[2024] FCA 180
Decision Date

CaseChat Overview and Summary

In the case of Ross v Attorney-General (Cth), the applicant, Mr Ross, sought an extension of time and leave to appeal against the primary judge's orders dismissing his proceeding. The dispute centred on Mr Ross's claim for Commonwealth financial assistance for his legal fees related to his military service injuries and his alleged right to legal representation at public expense.

The legal issues the court had to address were whether Mr Ross's application for leave to appeal should be granted, considering the timeliness of the application, and if there was any substantial injustice that would result from denying his request for an extension of time. Additionally, the court examined the merits of the proposed grounds of appeal.

The court found that Mr Ross's application for leave to appeal was not filed within the required time and he provided no satisfactory explanation for the delay. Moreover, the court determined that the proposed grounds of appeal lacked merit and that the primary judge's decision was not in doubt. Consequently, the application for an extension of time and leave to appeal was dismissed. The court also ordered that Mr Ross pay the respondent's costs of the proceeding.

This decision underscores the importance of adhering to procedural timelines and the necessity for applicants to substantiate their claims with credible evidence and arguments.

Orders

Orders of the court

1. The application for an extension of time and leave to appeal filed on 25 October 2023 be dismissed.

2. The applicant pay the respondent’s costs of this proceeding, as agreed or taxed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

For the reasons set out below that application should be dismissed, with costs.B. BACKGROUNDB.1 Generally The salient evidence on the present application provides the following general background. Mr Ross was a member of the Australian Army Reserve during the period from about November 2003 to about May 2006. In the first half of 2005, Mr Ross sustained a stress fracture of his left tibia. In May 2006, this injury was aggravated during a service-related fitness assessment. He resigned from the Army Reserve in the same month. In about 2015, Mr Ross lodged a claim for compensation under the Military Rehabilitation and Compensation Act 2004 (Cth). That claim was accepted on 2 July 2015. Mr Ross holds the following views: (1) he has suffered psychological injuries as a result of his time in the Army Reserve for which he seeks compensation; (2) he has a right (sometimes described as a constitutional right) to be provided with legal representation at public expense and has wrongly been refused such legal and financial assistance; and (3) as he has wrongly been refused such assistance, no other person in Australia should be entitled to receive such assistance. Of direct relevance to the present application are the following matters. On 15 January 2020, Mr Ross made an application for Commonwealth financial assistance with his legal fees (15 January 2020 application). As part of that application, Mr Ross: (1) disclosed that he had previously made unsuccessful applications for legal assistance to Legal Aid Victoria, Justice Connect, the Commonwealth Minister for Veteran Affairs, the present respondent and as part of a proceeding he had underway in the Supreme Court of Victoria; and (2) indicated that his application was made under the “Commonwealth public interest and test cases scheme” and the “Special circumstances scheme – Australian legal matter”, both of which were described on the application form as non-statutory schemes. The two non-statutory schemes nominated in Mr Ross’s application form were established under the Commonwealth Guidelines for Legal Financial Assistance 2012, published and administered by the Commonwealth Attorney-General’s Department. On 30 March 2021, a delegate of the respondent refused the 15 January 2020 application, and notified Mr Ross of his right to seek an internal review of the refusal decision. On 27 April 2021, Mr Ross sought an internal review of the refusal decision. On 3 September 2021, a delegate of the respondent upheld the refusal decision. On 27 July 2022, Mr Ross made a further application for Commonwealth financial assistance with his legal fees (27 July 2022 application). On 30 August 2022, the Commonwealth Attorney-General’s Department wrote by email to Mr Ross, requesting that he identify any substantial differences between his 15 January 2020 application and his 27 July 2022 application. No substantive reply to this email was provided. On 7 September 2022, Mr Ross sent to the Department the originating application and his supporting affidavit in the proceeding below, which had been filed on 5 September 2022.B.2 Mr Ross’s application in the proceeding below

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Mr Ross identified no substantial injustice that would flow from the refusal of his application for leave to appeal. Further, as the respondent submitted, it is open to Mr Ross to make a further application to the respondent for financial assistance. As noted at [15] and [16] above, Mr Ross had an application underway at the time the commenced the proceeding below.E. CONCLUSION As the above analysis demonstrates, the proposed grounds of appeal are devoid of merit. Thus, the primary judge’s decision is not attended by sufficient doubt to warrant reconsideration. This is a sufficient basis upon which to dismiss the application in its entirety. Further, Mr Ross has no satisfactory explanation for his failure to file an application for leave to appeal within time and has not identified any substantial injustice that would flow from the refusal of his application. It follows that Mr Ross’s application for an extension of time and leave to appeal from the decision of the primary judge should be dismissed, with costs. I will make orders accordingly.

Ratio Decidendi

Legal Principle Established

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