Ross v Commonwealth of Australia
[2025] VSCA 108
•22 May 2025
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCI 2023 0104 |
| CHRISTOPHER JAMES ROSS | Applicant |
| v | |
| COMMONWEALTH OF AUSTRALIA | Respondent |
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| JUDGES: | BEACH and KENNEDY JJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 19 May 2025 |
| DATE OF JUDGMENT: | 22 May 2025 |
| MEDIUM NEUTRAL CITATION: | [2025] VSCA 108 |
| JUDGMENT APPEALED FROM: | [2022] VSC 779 (Keogh J) |
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NEGLIGENCE – Proceeding for damages brought by former member of Defence Force against Commonwealth in respect of service injury – Proceeding dismissed for failure to comply with s 389(2) of Military Rehabilitation and Compensation Act 2004 (Cth) before proceeding commenced – Application for extension of time within which to seek leave to appeal against dismissal of proceeding – Proposed appeal having no prospects of success – Futile to grant extension of time to seek leave to appeal – Application for extension of time refused.
Military Rehabilitation and Compensation Act 2004 (Cth), ss 388 and 389.
Commonwealth of Australia v Flaviano (1996) 40 NSWLR 199; Austral Pacific Group Ltd v Airservices Australia (2000) 203 CLR 136; Harris v The Commonwealth of Australia [2003] WASCA 220; FJ v Commonwealth (2017) 55 VR 108, applied.
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| Counsel | |||
| Applicant: | In person | ||
| Respondent: | Mr CM McDermott | ||
Solicitors | |||
| Applicant: | |||
| Respondent: | Australian Government Solicitor | ||
BEACH JA
KENNEDY JA:
Between November 2003 and July 2006, Christopher Ross (‘Mr Ross’ or ‘the applicant’) was a serving member of the Australian Army Reserve. In 2015, he made a claim under the Military Rehabilitation and Compensation Act 2004 (Cth) (‘the MRC Act’) for compensation for a service injury described as a stress fracture of the left leg. Liability for this injury was accepted under s 23(1) of the MRC Act by a delegate of the Military Rehabilitation and Compensation Commission (‘the Commission’).
In May 2017, Mr Ross commenced a proceeding (‘the proceeding’) in the Trial Division against the Commonwealth for damages and ‘educational assistance’ in respect of his left leg injury and psychological conditions which he alleges were caused by the negligence of the defendant.
In its defence filed in the proceeding, the Commonwealth denied liability and, amongst other defences, pleaded that Mr Ross’s claims were barred by s 388 of the MRC Act and ‘Division 2 of the Limitation of Actions Act 1968 (Vic)’.[1]
[1]Plainly the Limitation of Actions Act plea meant to refer to s 5(1)(a) of the Limitation of Actions Act 1958 — that section being within Division 2 of Part I of that Act, and relevantly providing that (subject to certain specified exceptions) actions founded in contract or on tort shall not be brought after the expiration of six years from the date on which the cause of action accrued.
Pursuant to an order made on 24 November 2017, the proceeding was fixed ‘for trial of the preliminary issues in relation to the Limitation of Actions Act 1958 (Vic) and the Military Rehabilitation and Compensation Act 2004 (Cth) defences’ (‘the preliminary issues’).
The trial of the preliminary issues was heard by Keogh J over two days in November and December of 2022. On 16 December 2022, his Honour made an order dismissing the proceeding.[2] In dismissing the proceeding, his Honour concluded that Mr Ross’s claim was barred by s 388 of the MRC Act because Mr Ross had not established that he had made a choice in writing to commence a proceeding for damages as required by s 389 of the MRC Act.[3]
[2]Ross v Commonwealth of Australia [2022] VSC 779 (‘Reasons’).
[3]Ibid [47]–[49].
On 4 October 2023, a little over nine months after the dismissal of the proceeding, Mr Ross filed an application for leave to appeal and an application for an extension of time within which to seek leave to appeal to this Court. For the reasons which follow, Mr Ross’s application for an extension of time within which to seek leave to appeal must be refused.
Background in more detail
Mr Ross’s claim under the MRC Act was dated 19 March 2015. It was received by the Department of Veterans’ Affairs (‘the DVA’) on 9 April 2015.
In response to a question in the claim form about how his injury was caused, Mr Ross said:
I was following the 13 week Special Forces Training Program that was given to me by the Army when I applied for a transfer to the Special Forces. Prior to this, I was also undertaking the physical training program in this booklet: (Preparation Guide for Special Forces).
In answer to the question, ‘When did the injury happen (if applicable)?’, Mr Ross wrote, ‘02/06/2005’. In answer to a subsequent question, ‘When did you first notice signs or symptoms of the injury or disease?’, Mr Ross wrote (perhaps inconsistently with his earlier answer), ‘05/2005’.
The claim form was signed by Mr Ross and his general practitioner, Dr J. Lichtblau. In that part of the claim form completed by Dr Lichtblau, the medical diagnosis is recorded as ‘Left tibial stress fracture’.
As we have already said, liability for the stress fracture of Mr Ross’s left leg was accepted on 2 July 2015. The reasons provided by the delegate of the Commission for accepting liability for the stress fracture of Mr Ross’s left tibia contained the following:
Your service medical records indicate that the above injury was caused by your training for the Special Forces in satisfying the above [statement of principles] factor. I am therefore reasonably satisfied that your Stress Fracture of the Left Tibia arose out of your defence service employment.
On 16 July 2015, Mr Ross made a further claim under the MRC Act in respect of ‘psychological conditions’. On 19 August 2016, this claim was rejected by another delegate of the Commission.[4] In the letter rejecting this claim, the delegate stated, ‘Psychological conditions — No Incapacity Found’.
[4]A different delegate from the one who considered and accepted the stress fracture claim.
As we have already said, in May 2017, Mr Ross filed a writ in the Trial Division, commencing the proceeding. We describe the proceeding in greater detail below.
On 24 February 2018, Mr Ross sent an email to the DVA in which he advised that he intended to pursue a common law claim for damages in the Supreme Court of Victoria rather than accepting any permanent impairment benefits that might be payable under the MRC Act. On 6 March 2018, an officer of the DVA replied to Mr Ross as follows:
I acknowledge your email dated 24 February 2018 as confirmation of your choice in writing to the Commission pursuant to s 389 of the MRCA to institute an action for damages in relation to your stress fracture and psychiatric conditions rather than avail yourself of compensation under [the MRC Act].
I have placed a copy of your email on your records reflecting your choice. Please note your choice under s 389 of the MRCA is irrevocable.
On 17 August 2018, an officer of the DVA with the title ‘Assistant Director – Permanent Impairment’ sent a letter to Mr Ross dealing with the email which had been sent to Mr Ross on 6 March 2018. The letter provided:
Regrettably, the DVA officer’s acknowledgment email [of 6 March 2018] did not validly reflect the MRCA legislation. While it is the case that individuals can take action against the Commonwealth for common law damages, this choice is only available after permanent impairment compensation becomes payable under sections 68, 71 or 75 of the MRCA. In other words, before a valid choice can be made to institute an action for damages at common law, it is necessary for the Department to assess (and generally determine) that you are entitled to Permanent Impairment compensation for your accepted compensable conditions.[5]
[5]We should say for completeness that the correctness of these propositions does not arise for determination in this proceeding, and we express no view in respect of them.
On 26 September 2018, Mr Ross sent an email to the DVA as follows:
I would like to proceed with DVA doing a permanent impairment assessment pertaining to my left leg stress fracture.
…
Please note, in my common law lawsuit, I will be seeking both compensation for economic and non-economic loss and damages, and for non-economic loss that is outside of the DVA legislation. For this reason, at no stage will I ever accept any compensation from the DVA, however I will follow your instructions as stated, so my lawsuit is ‘valid’.
By letter dated 31 January 2019, a delegate of the Commission advised Mr Ross that he was not entitled to receive Permanent Impairment compensation for his service-related condition under the MRC Act. The letter provided:
In order for Permanent Impairment compensation to be paid under s 68 of the MRCA, I must be reasonably satisfied based on medical evidence that your conditions meet a minimum of 10 impairment points. The medical evidence provided by the doctor(s) indicates that this minimum is not met at this time.
This is not to say that your impairment will not meet this threshold in the future. If your conditions deteriorate or there are new conditions accepted under the MRCA, I invite you to request a new assessment. As things change, your entitlement to compensation may also change.
Mr Ross’s claims in the proceeding
Mr Ross’s claims in the proceeding are made in an amended statement of claim dated 29 August 2017 (‘the ASC’). The ASC was divided into four parts, headed as follows:
•‘Summary’, paragraphs 1 to 4;
•‘Statement of facts’, paragraphs 5 to 65;
•‘Claims’, paragraphs 66 to 73; and
•‘Relief sought’, paragraph 74.
In the summary, Mr Ross pleaded that he is a former member of the Australian Defence Force, and that he filed this claim pursuant to the Wrongs Act 1958:
in relation to the medical care given to the Plaintiff during his time in the Australian Army Reserve in relation to an injury ascertained as an Australian Army Commando Special Forces Candidate.
In the summary, Mr Ross alleged that he suffered and continues to suffer both physical and psychological harm ‘from this care’. In paragraph 4, he then pleaded:
The relief sought, as outlined in the Wrongs Act 1958 (VIC), is the following:
a.Damages in the form of monetary compensation for both past and future economic loss, due to deprivation or impairment of earning capacity;
b.Damages in the form of monetary compensation for non-economic loss damages are sought for pain and suffer (scil, suffering) loss of amenities of life and loss of enjoyment of life.
The statement of facts part of the ASC consisted of 61 paragraphs of detailed allegations of fact and circumstances commencing when the plaintiff was a teenager, but mainly covering a period between 2003 and 2014. At paragraph 28 of the ASC, Mr Ross pleaded:
After completing a “Pack march” as required in the latter stages of the Program Guide, Plaintiff begun experiencing abnormal pain in his lower left leg and went to see his local GP, Dr J. Lichtblau, who instructed Plaintiff to undergo a Bone Scan and see a Sports Physician.
In paragraph 36 of the ASC, Mr Ross pleaded that, on 30 August 2005, he was told that ‘the Army would treat his injury’. Mr Ross then pleaded that he was ‘not given medical advice … to continue to seek treatment by a civilian doctor’, and that he did not return to a civilian sports physician because he was ‘led to believe the Australian Army was now responsible for treating his injury’.[6]
[6]ASC, paragraphs 40 and 41.
In paragraph 45 of the ASC, Mr Ross pleaded:
In May 2006, the Plaintiff resumed full duties, despite not being seen by Army doctors, following consistent and pervasive bullying and harassment from Army members.
In paragraphs 48 and 49 of the ASC, Mr Ross pleaded what he believed was a recurrence of his left leg stress fracture which had occurred during a Basic Fitness Assessment run on 9 May 2006.
In paragraph 51 of the ASC, Mr Ross pleaded:
To date Plaintiff still suffers physically and psychologically from this injury and has been forced to consult with numerous medical professionals for treatment.
In paragraph 63 of the ASC, Mr Ross pleaded that the Commonwealth’s actions had caused him ‘distress and psychological harm’, and that these conditions:
are directly due to the negligent actions by the Defendant in relation to the medical treatment and care of Plaintiff’s injury that he sustained as an Australian Army Special Forces Candidate in his time in the Australian Army Reserve.
In paragraph 66, which was in the claims section of the ASC, Mr Ross pleaded:
The negligent medical treatment given to the Plaintiff has caused considerable harm over an extended period, covering many, if not all, facets of the Plaintiff’s life. This negligence has led to numerous reoccurrences and aggravations of the physical injury, and has further caused significant emotional and physiological[7] distress.
[7]While it is not of great moment, in the context of the other paragraphs of the ASC, it is probable that Mr Ross meant ‘psychological’ rather than ‘physiological’ (although the word ‘physiological is used in other paragraphs of the ASC: see for example paragraph 67 d.).
Paragraph 67 of the ASC contained particulars of negligence, an example of which is:
a.Fraudulently creating two medical appointments related to this injury, preventing the Plaintiff from receiving appropriate treatment for his injury.
In paragraph 74 of the ASC, Mr Ross identified the relief he sought. In addition to the damages referred to in paragraph 4 of the ASC,[8] Mr Ross pleaded a claim for:
Educational Assistance for the Plaintiff to vocationally rehabilitate himself to the level he was at, prior to this negligence occurring.
[8]See paragraph [20] above.
History of the proceeding
As the judge described it, this proceeding has had ‘a long and difficult history’.[9] Part of this history is set out in a judgment given by his Honour on 10 August 2022, when his Honour rejected a bias application made by Mr Ross.[10]
[9]Reasons, [18].
[10]Ross v Commonwealth of Australia [2022] VSC 457 (‘Bias Reasons’).
Some of the matters of procedural history relevant to the present applications were set out by the judge at Reasons [19] to [33]. These matters may be briefly summarised as follows:
(1)The trial of the preliminary issues was listed on a number of occasions. On each occasion, Mr Ross resisted the trial proceeding. These included the adjournment of hearings fixed for 13 September 2022 and 6 October 2022. On 6 October 2022, the trial of the preliminary issues was adjourned to 28 November 2022.
(2)In the week prior to 28 November 2022, Mr Ross communicated with the judge’s chambers on a number of occasions, seeking an adjournment on the basis that he was unwell and would be unable to attend the trial on 28 November. Mr Ross was told that any application for an adjournment should be supported by medical evidence from his doctor as to his incapacity to attend the hearing.
(3)On the afternoon of 27 November 2022, Mr Ross provided a document dated 25 November, headed ‘Medical Certificate’. The document appeared to be signed by a medical practitioner and provided:
THIS IS TO CERTIFY THAT
Mr Christopher Ross has a medical condition and has been unfit for work from 22/11/2222 to 28/11/2222 inclusive.
(4)At the same time as this document was provided, Mr Ross provided a draft summons and an affidavit and submissions in support of an application for an adjournment. The affidavit exhibited documents ‘relating to [the] engagement of lawyers and the attempts by Mr Ross to arrange to be examined by a medico-legal psychiatrist’.[11] The affidavit did not, however, contain any evidence going to the health issues relevant to Mr Ross’s adjournment application. In the result, as explained below, the judge determined that the trial should proceed on 28 November, after providing further opportunity for Mr Ross to be heard.
(5)The trial of the preliminary issues was conducted remotely by audio-visual link, as all hearings in the proceeding had been conducted in the previous two and a half years. When the matter commenced at 10:30 am on 28 November, Mr Ross did not appear. The judge stood the matter down until 12 noon. The judge’s chambers contacted Mr Ross to inform him that the trial had not been adjourned, and to invite him to attend remotely when the hearing reconvened at 12 noon. Mr Ross did not appear at 12 noon. No evidence was provided by him that explained or justified his alleged inability to engage in a remotely conducted court hearing on 28 November 2022.[12]
(6)For reasons that we will refer to in more detail below, the judge concluded that the trial of the preliminary issues should not be further adjourned.
(7)When the hearing recommenced at 12 noon on 28 November 2022, the judge heard the Commonwealth’s submissions relevant to the trial of the preliminary issues. He then adjourned the hearing to allow Mr Ross a further opportunity to make submissions in writing or orally in relation to the preliminary issues.
(8)On 29 November 2022, the judge’s chambers provided a copy of the transcript of the hearing of 28 November 2022 to Mr Ross. Mr Ross was then provided with an opportunity to make submissions in writing by 10:30 am on 2 December 2022, or to appear remotely at a reconvened hearing at that time to make oral submission.[13]
(9)On 30 November 2022, Mr Ross emailed the judge’s chambers requesting a further adjournment of four to six weeks for him to make submissions about the preliminary issues. In the email, Mr Ross did not say that he could not attend a hearing on 2 December because of ill-health or for any other reason. Ultimately, Mr Ross did not take the opportunity afforded to him to provide any further written submissions on the preliminary issues, and he did not appear at the reconvened hearing on 2 December 2022.[14]
(10)On 5 December 2022, Mr Ross forwarded to the judge’s chambers an unfiled application seeking an injunction to delay the delivery of the Reasons. The application was accompanied by an affidavit and submissions. The judge concluded that there was no basis for any injunction restraining the delivery of judgment on the preliminary issues.[15]
[11]Reasons, [25].
[12]Ibid [26]–[27].
[13]Ibid [31].
[14]Ibid [32].
[15]Ibid [33].
Relevant provisions of the MRC Act
The bar on taking a proceeding for damages against the Commonwealth in respect of a service injury sustained by a member or former member of the Defence Force is contained in s 388 of the MRC Act. Section 388(1) relevantly provides:
(1)Subject to section 389, an action or other proceeding for damages does not lie against the Commonwealth, or a potentially liable member, in respect of:
(a)a service injury sustained … by another member or a former member … .
Section 389 of the MRC Act provides:
Choice to institute action for damages against the Commonwealth etc. for non-economic loss
(1)A person may choose to institute an action or proceeding against the Commonwealth or a potentially liable member for damages for non-economic loss suffered by the person if:
(a)compensation is payable under section 68, 71 or 75 in respect of a service injury or disease of the person but the compensation has not yet been paid; and
(b)the Commonwealth or the potentially liable member would, apart from subsection 388(1), be liable for damages for that loss.
(2) A choice must be in writing and must be given to the Commission.
(3) A choice is irrevocable.
(4) If the person chooses to institute the action or proceeding:
(a)subsection 388(1) does not apply to the action or proceeding; and
(b) compensation under section 68, 71 or 75 in respect of the injury or disease is not payable after the date of the choice.
(5)In any action or proceeding instituted as a result of the person’s choice, the court must not award the person damages of more than $110,000 for non-economic loss suffered by the person.
(6) The person’s choice to institute an action or proceeding against the Commonwealth or the potentially liable member does not prevent the person from doing any other thing that constitutes an action for non-economic loss before, or instead of, formally instituting such an action or proceeding.
Relevantly, ‘member’ is defined in s 5(1) to mean ‘a member of the Defence Force’, and ‘Defence Force’ is defined to mean ‘the Permanent Forces … and the Reserves’. The expression ‘former member’ is also defined in s 5(1), and means a ‘person who has ceased to be a member’. Plainly, Mr Ross is a ‘former member’ within the meaning of s 388(1).[16]
[16]While the words ‘Permanent Forces’ and ‘Reserves’ are also defined in s 5(1) to have the same meanings as those words have in the Defence Act 1903, it is not necessary for present purposes to set out those definitions in these reasons.
Section 27 of the MRC Act defines the expression ‘service injury’ in the following terms:
For the purposes of this Act, an injury sustained ... by a person is a service injury … if one or more of the following apply:
(a)the injury ... resulted from an occurrence that happened while the person was a member rendering defence service;
(b)the injury … arose out of, or was attributable to, any defence service rendered by the person while a member;
…[17]
[17]For completeness we note that the word ‘injury’ is defined in s 5(1) to mean ‘any physical or mental injury (including the recurrence of a physical or mental injury) …’.
Section 29 of the MRC Act extends the definition of ‘service injury’ to injuries caused by, or aggravated by, treatment[18] provided by the Commonwealth. Section 29 relevantly provides:
[18]The word ‘treatment’ is defined in s 5(1) to have the meaning given to it by s 13. It is not necessary for present purposes to set out s 13 in these reasons.
(1)For the purposes of this Act, an injury (the relevant injury) sustained … by a person is a service injury … if:
(a)all of the following apply:
(i)the person receives treatment for an earlier service injury …;
(ii)the treatment is paid for or provided wholly or partly by the Commonwealth;
(iii)as a consequence of that treatment, the person sustains the relevant injury …; or
(b)… .
(2)For the purposes of this Act, an injury (the relevant injury) sustained … by a person is a service injury … if:
(a)all of the following apply:
(i)the person receives treatment for an earlier service injury …;
(ii)the treatment is paid for or provided wholly or partly by the Commonwealth;
(iii)as a consequence of that treatment, the relevant injury … or a sign or symptom of the relevant injury … is aggravated by the treatment; or
(b)...
The expression ‘defence service’, used in s 27 of the MRC Act, is defined in s 6(1) to mean ‘warlike service’, ‘non-warlike service’ or ‘peacetime service’. The expressions, ‘warlike service’, ‘non-warlike service’ and ‘peacetime service’ are also defined in s 6(1). For present purposes, it is not necessary to set out the definitions of ‘warlike service’ and ‘non-warlike service’. It is sufficient to note that ‘peacetime service’ is defined to mean ‘any other service with the Defence Force’.[19]
[19]For completeness, we would also note that there is a definition of ‘service with the Defence Force’ in s 6(2). It is not, however, necessary to set out that definition in these reasons.
Sections 68, 71 and 75, referred to in s 389(1)(a) deal with the Commonwealth’s liability to pay compensation (including additional compensation and interim compensation) for permanent impairment. For present purposes, it is not necessary to set out any of those provisions in these reasons.
Reasons for judgment
After describing the proceeding[20] and setting out the factual background of the proceeding,[21] the judge turned to the history of the proceeding and the various adjournment applications that had been made by Mr Ross.[22]
[20]Reasons, [1]–[5].
[21]Ibid [6]–[17].
[22]Ibid [18]–[33].
In respect of the material provided by Mr Ross on the afternoon of 27 November 2022 in support of an application for an adjournment, the judge said:
No evidence was provided by Ross that explained or justified his alleged inability to engage in a remotely conducted court hearing on 28 November. The medical document is not evidence that Ross was unfit to attend the hearing. It does not record a diagnosis. It refers only to unfitness to attend work. No explanation is given of the work duties contemplated, or why Ross was incapable of attending to them. The document carries no weight.
At the same time as he was claiming incapacity, Ross prepared and provided to the Court a number of documents upon which he sought to rely. These included an affidavit, which he attended the Magistrates’ Court at Geelong to affirm. There is an apparent inconsistency, which is unexplained by Ross, between his ability to engage in these activities and his alleged inability to attend a remote court hearing on 28 November.
I also note that the lawyers currently engaged by Ross, having informally requested of the Court a six-week adjournment from early October in order that they could provide advice to him, did not further communicate with the Court in relation to the trial on 28 November.
For these reasons I concluded on 28 November that the preliminary trial should not be further adjourned, and that the hearing should proceed in the manner indicated below, providing a further opportunity to Ross to be heard.[23]
[23]Ibid [27]–[30].
The judge commenced his analysis of the preliminary issues by setting out the relevant provisions of the MRC Act.[24]
[24]Ibid [34]–[39].
Citing FJ (a pseudonym) v Commonwealth,[25] the judge observed that the phrase ‘in respect of’, used in s 388 of the MRC Act ‘has the broad effect of barring a claim based on a member having suffered a service injury’.[26]
[25](2017) 55 VR 108, 154–156 [132]–[136] (Tate, Santamaria and Beach JJA) (‘FJ’).
[26]Reasons, [40].
The judge noted that a number of authorities have considered the operation of ss 44 and 45 of the Safety Rehabilitation and Compensation Act 1988 (Cth) (‘the Safety Act’). His Honour observed that, in a similar manner to s 388 of the MRC Act, s 44 of the Safety Act provided that an action for damages does not lie against the Commonwealth in certain cases; and that s 45 of the Safety Act covered ‘similar ground’ to s 389 of the MRC Act.[27]
[27]Ibid [42].
Next, the judge discussed relevant authorities that had considered ss 44 and 45 of the Safety Act. These included Commonwealth of Australia v Flaviano,[28] Harris v The Commonwealth of Australia[29] and Austral Pacific Group Ltd v Airservices Australia.[30]
[28](1996) 40 NSWLR 199 (Meagher, Sheller and Beazley JJA) (‘Flaviano’).
[29][2003] WASCA 220 (Malcolm CJ and McKechnie J) (‘Harris’).
[30](2000) 203 CLR 136 (Gleeson CJ, McHugh, Gummow, Hayne and Callinan JJ) (‘Austral’).
The judge said that while there was no reference in s 389 of the MRC Act to a ‘proceeding subsequently instituted’ (a phrase which appears in s 45(2) of the Safety Act), it was clear from s 389(5) that ‘an irrevocable choice must be made in writing before a proceeding is instituted’.[31] Relying upon Harris,[32] the judge said that ‘Initiating proceedings alone does not amount to such a choice’.[33]
[31]Reasons, [44].
[32]Harris [2003] WASCA 220, [6], [8].
[33]Reasons, [45].
Relying upon what was said by the plurality in Austral,[34] the judge said that the onus of demonstrating that an election has been validly made under s 389 of the MRC Act is on a plaintiff who wishes to institute a proceeding caught by s 388 of the MRC Act.[35]
[34]Gleeson CJ, Gummow and Hayne JJ.
[35]Reasons, [47]. See Austral (2000) 203 CLR 136, 149 [34].
The judge found that there was no evidence of any irrevocable choice in writing having been made by Mr Ross in accordance with s 389 of the MRC Act before he commenced the proceeding. His Honour said that, as a result, s 388 applied ‘to deny the existence of the cause of action against the defendant’.[36] The judge held that the invalidity of Mr Ross’s claim could not be cured by Mr Ross taking steps in accordance with s 389 after the proceeding was instituted.[37] His Honour therefore concluded that the proceeding should be dismissed.[38]
[36]Reasons, [48].
[37]Ibid.
[38]Ibid [49].
The judge observed that it appeared that Mr Ross had now made the choice required by s 389 of the MRC Act and (if that was correct) there was nothing to prevent him issuing a proceeding against the Commonwealth claiming damages in respect of a service injury.[39]
[39]Ibid [55]. This was almost certainly a reference to Mr Ross’s email sent to the DVA on 24 February 2018 (see paragraph [14] above).
Finally, the judge said that, having regard to his conclusion about the operation and effect of s 389 of the MRC Act, it was not necessary for him to deal with the Limitation of Actions Act defence relied upon by the Commonwealth.
The application for an extension of time within which to seek leave to appeal to this Court
As we have already said, a little over nine months after the judge made orders dismissing the proceeding, Mr Ross filed an application for an extension of time within which to seek leave to appeal to this Court. In that application, Mr Ross gave the following reasons for not filing his appeal documents in time:
•I have been substantial traumatice (sic) and pyshologically (sic) impacted by the events of (ending of) [the proceeding] and S ECI 2022 02130, as briefly described above and described and written about in my Leave and Statement of Case documents.
•I will provide expert medical opinion of this at a later date; which may be a Judge order hearing of if an extension of time will be allowed.
•I have taken steps to seek to obtain an appropriate mental health forensic and capacity assessment of me. I have come to the logically and merited position that if Jason Gray cannot, or will not, do this for me; that there is a substantial number of Government-funded Independent legal aid solicitors in Australia who could do this task; no to mention, it is my position that I have a merited legal proceeding to obtain a solicitor to do this step from various other entities inclduing (sic): Operation Legal Australia; Angus Campbell and Greg Moriarty; the Department of Veterans Affairs, DAVLS, the Commando Welfare Trust and the RSL Legal Service.
•This has meant I have been completely unable to continue to self-represent myself in this Court during this time – due to how I have been treated in these recent events as a self-represented person, in order to complete these two relatively straight forward COA applications.
•I submit: The High Chort (sic) of Australia has ruled that there is no ‘finite’ time limit in Australia and that complete discretion on a case by case basis is provided in order to consider the individual unique circumstances.
•This lawsuit is, and always will be: one of the most complex, and ‘high profile’/’ in the public’ areas of law which is why it has always been ‘given’ to Slater and Gordon or Maurice Blackburn.[40]
[40]The first five of these dot points are a ‘cut and paste’ (typographical errors included) from Mr Ross’s application for an extension of time in his application for leave to appeal against the dismissal of the judicial review proceeding which he took against Victoria Legal Aid, and in which we have also delivered judgment today. The sixth dot point is new.
On 7 October 2024, Mr Ross filed an affidavit affirmed by him on the same day (‘the affidavit’) in which he exhibited a number of documents, including an amended application for an extension of time within which to seek leave to appeal (‘the amended extension application’). While the original extension application ran to some seven pages, the amended extension application runs to some 32 pages. That said, the reasons given in the amended extended application for not filing documents within time are the same as those given in the original extension application.
The application for leave to appeal
The application for leave to appeal contains 15 proposed grounds of appeal. A number of them are divided into parts, and a number of the parts are divided into sub-parts, with some sub-parts being divided into further parts.
Amongst the material exhibited to the affidavit is a proposed amended application for leave to appeal (‘the amended application for leave to appeal’). The amended application for leave to appeal runs to some 40 pages, 35 of these containing proposed grounds of appeal. Many new grounds have been added. While the documents suggests that there are now a total of 22 proposed grounds of appeal, most grounds are expressed across a number of paragraphs and multiple complaints.
While Mr Ross’s proposed grounds of appeal (both as originally formulated and as set out in the amended application for leave to appeal) are prolix, difficult to follow, and fail to comply with the requirements of r 64.04(c)(i) of the Supreme Court (General Civil Procedure) Rules 2015,[41] themes of the complaints Mr Ross wishes to make include:
[41]See Sunshine Loans Pty Ltd v Australian Securities and Investments Commission [2025] FCAFC 34, [130]–[135] (Perram, Bromwich and Colvin JJ).
•wrongly classifying the proceeding as a ‘personal injury proceeding’, when it was in fact a ‘common law proceeding’ pertaining to Mr Ross’s military service;
•‘colluding with 2 other Registry Offices of Supreme Courts in Australia’;
•‘bundling together’ interlocutory applications with the trial of the proceeding;
•failing to permit Mr Ross to file an amended writ in 2022;
•wrongly ‘throwing out’ an amended statement of claim, said to have been filed in 2019 or 2020, ‘without going to an interlocutory application proceeding’;
•the judge ‘obstructing and interfering with legal representatives’ consulted by Mr Ross; intimidating and bullying Mr Ross; colluding with the Commonwealth and ‘other outside parties’; and ‘psychologically manipulating’ Mr Ross;
•actions of ‘various Registry and Judicial Officers … that were unconstitutional and/or done intentionally to cause [Mr Ross] detriment’;
•failing to accept that Mr Ross had ‘revoked [his] MRCA rights years ago’;
•procedural irregularities;
•‘complete[ly] disregard[ing] … civil law procedures in Australia and in the Supreme Court of Australia’;
•abuse of process;
•‘bias and prejudice against [Mr Ross] throughout this proceeding’;
•‘complete disregard of all the evidence [Mr Ross] had submitted for various interlocutory applications’;
•failing to ‘look at any of the evidence, submissions, affidavits, exhibits and other material’ presented by Mr Ross;
•failing to permit Mr Ross to obtain court files from other proceedings;
•‘failure [by the judge] to recuse himself, which grounds that any reasonable judge would content were warranted (sic)’;
•‘failure to exercise common sense and reasonable judgment’;
•making decisions that were ‘so unreasonable that no other judge would make’;
•making decisions that were outside the judge’s jurisdiction;
•making decisions that were ‘guesses’;
•failing to allow Mr Ross ‘to have heard [his] legally valid and made application to adjourn; halt; stay; prohibit; injunction order to have the judgment of [the proceeding] made, which should never have been made’ (sic); and
•‘setting [Mr Ross] up’ with a ‘court ordered mental health assessment that did not [meet] the standard of any court in Australia and was biased and prejudiced against [Mr Ross]’.
The hearing of the application in this Court
Before he made submissions on the substance of his application for an extension of time within which to seek leave to appeal, Mr Ross made multiple applications for an adjournment of the hearing of this application. While these applications were made during the course of the hearing of his application for an extension of time within which to seek leave to appeal in Ross v Victoria Legal Aid,[42] we took them to be made both in that proceeding and in the present proceeding.
[42]A matter which we heard prior to the commencement of this matter.
The reasons given for needing an adjournment included Mr Ross’s own mental health, a serious diagnosis that had recently been made in respect of Mr Ross’s father, the need for Mr Ross to give a very complex notice of a constitutional matter or matters, the need for Mr Ross to continue investigating matters, and the possibility of Mr Ross producing a solicitor or solicitors who he alleged had previously provided him with advice and/or acted for him. Mr Ross did not produce any material in support of any of his adjournment applications, and there was no basis for any adjournment of the matter.
Upon each adjournment application being refused, Mr Ross made an oral application for leave to appeal that refusal, coupled with another adjournment application for the purposes of prosecuting an appeal from this Court’s refusal of the adjournment application. We refused these applications as well on the grounds that there was no basis for any of them.
Following the refusal of his adjournment applications, Mr Ross commenced to make submissions along the lines of those made in the written material he had already filed in this Court. Essentially, his point was that, having regard to the complaints he has made, he (Mr Ross) would succeed in overturning the orders made by the judge ‘on the basis of reasonability’. That said, Mr Ross made a new point in oral argument: namely, that the 2017 writ he filed against the Commonwealth was ambiguous and should not have been accepted for filing by the Court.
Consideration
Determining whether an applicant, whose application for leave to appeal to this Court is filed out of time, should be given an extension of time within which to seek leave to appeal involves a consideration of the merits of the proposed appeal, the length of the delay, the reasons for the delay and the extent of any prejudice suffered by the respondent if an extension of time were to be granted.[43]
[43]See Jackamarra v Krakouer (1998) 195 CLR 516, 521 (Brennan CJ and McHugh J); Trkulja v Dobrijevic [2015] VSCA 281, [27]; Beling v Victorian Legal Services Commissioner [2024] VSCA 49, [14].
While Mr Ross makes a suite of allegations of wrongdoing against the judge and alleges that the judge was biased against him throughout the proceeding, in the only application made to the judge to recuse himself for bias, the judge noted that Mr Ross’s affidavit and submissions began as follows:
1.I hope that I lose this application ‘on the papers’.
2.I have come to see that Judge Keogh is a good and fair man.
3.But I still seek to, at least, make this application due to events that largely occurred at the start of this proceeding.[44]
[44]Bias Reasons, [8].
In the course of the Bias Reasons, the judge set out the relevant principles in relation to bias,[45] and then set out Mr Ross’s evidence and submissions.[46] There was no error in the judge’s statement of the relevant principles; and, having considered for ourselves the various allegations made by Mr Ross in the bias application made to the judge, we are unable to see any basis upon which it could be concluded that the judge erred in dismissing that application.
[45]Ibid [6].
[46]Ibid [7]–[16].
More broadly, having examined all of the material relied on by Mr Ross in this application, we are unable to see any basis upon which this Court might conclude that, at any stage of the proceedings below, there was any ostensible or actual bias on the part of the judge. Mr Ross’s assertions of bias are simply without foundation.
The same may be said in relation to Mr Ross’s other allegations of wrongdoing by the judge and others. Like his allegations of bias, there is simply no material upon which this Court could conclude that the judge or any other party had engaged in some form of misconduct vitiating any of the judge’s orders.
We turn now to Mr Ross’s complaints about the judge’s refusal to adjourn the trial of the preliminary issues. There is nothing in these complaints. To the contrary, the judge was plainly correct in proceeding with the trial in the circumstances as they unfolded in and from late November 2022. At no time did Mr Ross advance material requiring his Honour to grant yet another adjournment. For the reasons given by the judge,[47] the material Mr Ross advanced in support of his adjournment applications was insufficient to justify any adjournment. There was thus no basis upon which the handing down of the judgment should have been adjourned, halted, stayed, prohibited or enjoined as asserted by Mr Ross.
[47]Reasons, [22]–[33].
The remainder of Mr Ross’s proposed grounds of appeal cavil with the correctness of the judge’s decision that s 388 of the MRC Act barred his claim, and that s 389 did not apply because Mr Ross had not given to the Commission the written choice required by s 389 of the MRC Act prior to commencing the proceeding. There is no substance in any of these grounds of appeal. For the reasons given by the judge, the judge was correct when he concluded that:
(a)the proceeding was a proceeding ‘in respect of … a service injury sustained … by … a former member [of the Defence Force]’, namely, Mr Ross;
(b)s 389 of the MRC Act required any choice to institute a proceeding to be made in writing and given to the Commission prior to commencing that proceeding;
(c)the onus was on Mr Ross to establish that he had given such a written choice to the Commission prior to commencing the proceeding; and
(d)there was no evidence of any choice in writing made by Mr Ross having been given to the Commission prior to the commencement of the proceeding.[48]
[48]See Flaviano (1996) 40 NSWLR 199; Austral (2000) 203 CLR 136; Harris [2003] WASCA 220; FJ (2017) 55 VR 108.
We would make two further observations in relation to Mr Ross’s assertions that the judge erred in his construction and application of ss 388 and 389 of the MRC Act:
(1)First, it is not a question of whether the proceeding should have been classified as a ‘common law proceeding’ pertaining to Mr Ross’s military service or, on the other hand, a ‘personal injury proceeding’. The issue was whether the proceeding was a proceeding ‘in respect of … a service injury’. As was said in FJ, conceptually, the phrase ‘in respect of’ has ‘the widest possible meaning of any expression intended to convey some connexion or relation between two subject-matters’.[49]
(2)Secondly, so far as Mr Ross’s complaint that the judge failed to accept that he (Mr Ross) had made the choice required by s 389 of the MRC Act ‘years ago’, there was simply no evidence of any choice being made by Mr Ross prior to the email he sent on 24 February 2018[50] — some eight months after the proceeding was commenced.
[49]FJ (2017) 55 VR 108, 155 [135].
[50]See paragraph [14] above.
It follows from the above that Mr Ross’s proposed appeal to this Court has no prospects of success. Having no prospects of success, it would be futile to grant him the extension of time he seeks within which to file his application for leave to appeal. That said, we should say for completeness that the reasons given, and material filed, by Mr Ross in this Court did not go any way towards adequately explaining Mr Ross’s delay in commencing proceedings in this Court.
Conclusion
There being no merit in Mr Ross’s proposed appeal, his application for an extension of time within which to seek leave to appeal must be refused.[51]
[51]Mr Ross also filed two other Applications other than for leave to appeal (one on 24 January 2024, and one on 11 April 2025) which sought a range of orders as to the future conduct of his application, including that it be adjourned and/or stayed. Given that we have refused the applications for an adjournment as well as the application for an the extension of time it is unnecessary to consider these applications.
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