Ross v Commonwealth of Australia (Ruling)

[2018] VSC 766

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

PERSONAL INJURIES LIST

S CI 2017 02005

CHRISTOPHER JAMES ROSS	Plaintiff
v
COMMONWEALTH OF AUSTRALIA	Defendant

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JUDGE:	KEOGH J
WHERE HELD:	Melbourne
DATE OF HEARING:	30 October 2018
DATE OF RULING:	7 December 2018
CASE MAY BE CITED AS:	Ross v Commonwealth of Australia (Ruling)
MEDIUM NEUTRAL CITATION:	[2018] VSC 766

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APPLICATION – No connection with subject matter of proceeding – No basis established for orders sought – Application dismissed.

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APPEARANCES:	Counsel	Solicitors
The Plaintiff appeared in person
For the Defendant	N Abrams (solicitor)	Moray and Agnew Lawyers

HIS HONOUR:

1. The plaintiff, Mr Ross, alleges that between 2003 and 2006 he sustained physical and psychiatric injuries while serving as a member of the Australian Defence Force.  He brings this proceeding alleging breach of duty by the Commonwealth of Australia which was a cause of his injuries.  The defendant does not admit the injuries, denies negligence and alleges contributory negligence.  Further, the defendant alleges the plaintiff commenced the proceeding more than six years after the alleged cause of action accrued, and therefore the claim is barred by reason of Division 2 of the Limitation of Actions Act 1968 (Vic). Finally, the defendant alleges no action for damages lies against it in respect of the injuries to Mr Ross by reason of operation of Part 2 of Chapter 10 of the Military Rehabilitation and Compensation Act 2004 (Cth).

1. A timetable has been set for determination of the Military Rehabilitation and Compensation Act and Limitation of Actions Act defences.

1. Mr Ross filed a summons on 30 July 2018 seeking various orders in the proceeding.  When it came on for hearing before me on 30 October, Mr Ross withdrew the application in part.  What remained was an application in the following terms:

(a)I request that the Supreme Court of Victoria make the appropriate order such that I be provided funds from the Commonwealth of Australia to pay the legal fees of the solicitor (Mr Bryan Cook) and barrister (Mr Paul Panayi) who have agreed to represent me in this case on a fee-paying basis. More specifically, I seek that this order be given such that it overrules the previous decision by the Australian Attorney General and/or the Australian Veterans’ Affairs Minister, who both previously decided not to grant the provision of funds to me for this lawsuit.

(b)I request that the Supreme Court of Victoria make the appropriate order such that I be provided funds from the State of Victoria and/ or the Supreme Court of Victoria to pay the legal fees of the solicitor (Mr Bryan Cook) and barrister (Mr Paul Panayi) who have agreed to represent me in this case on a fee-paying basis for the Preliminary Hearing on the Statutory Defences component of this lawsuit.

Background

1. In November 2003 Mr Ross enlisted in the Australian Defence Force as an Australian Army Reservist.

1. In October 2004 Mr Ross signed an application for Special Forces selection with the Australian Army.  He made a second application in May 2005.

1. Mr Ross alleges that as part of the process of his application for Special Forces selection he was instructed by the defendant to undertake a ’13-week preselection forces selection training guide’, and that after undertaking a ‘pack march’ as required by the guide, he began experiencing abnormal pain in his lower left leg.  Mr Ross alleges a bone scan performed in June 2005 demonstrated injury to his lower left leg.

1. Mr Ross alleges there was a subsequent failure by the defendant to provide appropriate medical treatment for the injury, he was subjected to bullying as a consequence of his incapacity caused by the injury, the pain associated with the injury returned in May 2006 when he performed a basic fitness assessment as ordered by the defendant, and as a consequence he was forced to resign from the Australian Army Reserve.  Mr Ross alleges he still suffers physically and psychologically from the injury, has required treatment, and has been incapacitated for employment.

1. Mr Ross alleges that in October 2014 he requested a copy of his personal and medical files maintained by the defendant, and that after receiving those files he concluded there were irregularities and inaccuracies in the records, which he alleges are fraudulent.

1. Mr Ross alleges negligence by the defendant in relation to the instructions contained in the training guide, for failure to provide reasonable and appropriate treatment to him in respect of the physical and consequent psychological injuries, and for failure to provide appropriate instructions to him in respect of the injuries.  He claims pecuniary and non-pecuniary damages.

Procedural history

1. This proceeding was commenced by Mr Ross on 26 May 2017.  He alleges he made earlier attempts to commence the proceeding in November 2015 and May 2016.  Mr Ross is aggrieved by what he alleges were actions of the Supreme Court Registry which frustrated his earlier attempts to commence proceedings.

1. Mr Ross is unrepresented.  He has made numerous unsuccessful attempts to obtain legal representation and to obtain funding for legal representation.

Application for funding of legal costs by Commonwealth of Australia

1. Mr Ross applied to the Australian Attorney-General’s Department and to the Australian Department of Veterans’ Affairs for funding for his legal costs in this proceeding.  Those applications have been refused. 

1. The arguments made by Mr Ross in support of his application to this Court may be summarised as follows:

(a)   There is significant merit in the claim he makes in the principal proceeding;

(b)   His claim is highly complex factually and legally;

(c)    His capacity to present his claim and represent himself is limited by his injuries and the complexity of the claim;

(d)  Legal representation would significantly aid his ability to expose what happened to him in his military service and its effect on him;

(e)   Ex-members of the armed services seeking compensation at common law for injuries sustained relating to their military service are the most legally underrepresented segment of the Australian population.  There is a lack of specialist knowledge and willingness within the legal industry to take on such claims on a ‘no win no fee’ basis.  As a consequence, few claims are made;

(f)     The thousands of current and future Army Reservists and other service people who have suffered injury relating to their military service would benefit greatly from him being granted funding for legal costs so that he might adequately expose what occurred to him during, and as a consequence of, his military service;

(g)   The purpose of the Department of Veterans’ Affairs is to support the welfare of current and past military personnel.  Mr Ross alleged that, consistent with that purpose, the department had previously provided a very significant level of funding for the legal costs of another veteran; and

(h)   There is no proper basis for a decision by the Office of the Attorney-General to decline his request for financial assistance under the provisions of the Judiciary Act 1903 (Cth) (the ‘Act’), and his application for judicial review of the decision has merit.

1. Mr Ross’s application is without merit. First, he has not established any basis on which the application is properly made in this proceeding. Whilst the application to fund legal costs is made against the Commonwealth of Australia, being the named defendant, it is an application against the Commonwealth acting in a different capacity. Had Mr Ross been able to identify a cause of action, right or obligation which gave him a potential entitlement for an order that the Commonwealth fund legal costs, that claim would be of a very different nature, and be based on completely different evidence to the cause of action pleaded in this proceeding. It is inconvenient and inappropriate for the application for an order to fund legal costs to be agitated in this proceeding. The claim for funding of legal costs by the Commonwealth of Australia does not arise on the current pleadings. Second, Mr Ross has not identified any legal basis for the orders he seeks. Mr Ross has not specified the provisions of the Act upon which he relies. It may be that Mr Ross intended to rely on the provisions in Part VIIIB of the Act, which govern the provision of legal services by the Australian Government Solicitor. If so, his reliance on that part of the Act was misguided, at least because it relates to provision of legal services by the Australian Government Solicitor and not the funding of private legal services. Further, Part VIIIB of the Act appears to be directed towards enabling the Australian Government Solicitor to provide legal services for certain persons or bodies, not to giving those persons or bodies an actionable right to have legal services provided to them by the Australian Government Solicitor.

Application for the State of Victoria to fund the plaintiff’s legal fees to the stage of determination of the preliminary issues

1. Mr Ross alleges the Supreme Court Registry frustrated his attempts to commence this proceeding earlier than he did, causing him prejudice in respect of the effect of further delay in commencing proceedings on the Limitation of Actions Act defence. He argued his psychological condition was adversely impacted by the delay and frustration he experienced attempting to commence proceedings, which has further impaired his capacity to represent himself. Mr Ross repeated many of the arguments I summarised in paragraph [13]. In oral submissions he said he could not identify a legal right pursuant to which an order granting funding for legal costs should be made, but argued the State or Court was obliged to make funding available because of the detriment or prejudice he had suffered.

1. There is no merit to Mr Ross’s application.  He has not identified a cause of action, legal right or obligation which would entitle him to the order for funding of legal costs which he seeks.  The application for funding does not arise on the pleadings, and is not relevant to any issue between the parties.  Mr Ross has not established any basis for agitating the issue of funding of legal costs by the State in this proceeding.

Conclusion

1. I will order that the summons dated 30 July 2018 be dismissed.  Mr Ross agreed that in those circumstances an order for costs should follow the event.  However, he submitted assessment of those costs should be made, and the obligation to pay arise, only upon completion of the proceeding.  That submission was not opposed by the defendant.  I will order that Mr Ross pay the defendant’s costs of and incidental to the application.  I will stay that order until the proceeding is complete.