Ross v Victoria Legal Aid
[2025] VSCA 107
•22 May 2025
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCI 2023 0103 |
| CHRISTOPHER JAMES ROSS | Applicant |
| v | |
| VICTORIA LEGAL AID | 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 107 |
| JUDGMENT APPEALED FROM: | [2022] VSC 473 (Keogh J) |
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JUDICIAL REVIEW – Application for extension of time within which to seek leave to appeal against primary judge’s refusal to extend time within which to commence judicial review proceeding – Judicial review proceeding commenced 5 years and 8 months out of time – Primary judge finding that delay not adequately explained – Primary judge not satisfied of existence of special circumstances justifying extension of time – Proposed appeal having no prospects of success – Futile to grant extension of time to seek leave to appeal – Application for extension of time refused.
Supreme Court (General Civil Procedure) Rules 2015, rr 56.02(1) and 56.02(3).
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| Counsel | |||
| Applicant: | In person | ||
| Respondent: | Ms GA Costello KC with Ms E Levine | ||
Solicitors | |||
| Applicant: | |||
| Respondent: | Barry Nilsson Lawyers | ||
BEACH JA
KENNEDY JA:
On 26 January 2016, Christopher Ross (‘Mr Ross’ or ‘the applicant’) submitted an application for a grant of legal assistance to Victoria Legal Aid (‘VLA’ or ‘the respondent’). The application was made under the Legal Aid Act 1978 (‘the Act’), in relation to a proposed claim for common law damages to be brought against the Australian Defence Force and/or the Commonwealth in relation to injuries allegedly sustained in or about May 2005.
By letter dated 31 March 2016, VLA advised Mr Ross that his application for legal assistance had been refused (‘the Refusal Decision’). On 4 April 2016, Mr Ross requested that VLA reconsider the Refusal Decision.
By letter dated 20 May 2016, VLA advised Mr Ross that, after reconsidering the Refusal Decision, the decision had not been changed (‘the Reconsideration Decision’). On 6 June 2016, Mr Ross requested a review of the Reconsideration Decision.
On 11 August 2016, VLA referred the Reconsideration Decision to the Chairperson of the Panel of Independent Reviewers under s 35(1) of the Act.
By letter dated 15 September 2016, VLA advised Mr Ross that an independent reviewer had reviewed VLA’s decision and that that independent reviewer had ‘confirmed the decision’ (‘the Independent Review Decision’).
On 8 June 2022, a little over five years and eight months after the Independent Review Decision was communicated to Mr Ross, Mr Ross filed an originating motion seeking judicial review of VLA’s refusal to provide him with legal assistance. Recognising that his application for judicial review under O 56 of the Supreme Court (General Civil Procedure) Rules 2015 (‘the Rules’) was out of time, Mr Ross also sought an extension of the 60 day time limit provided by r 56.02(1).
Mr Ross’s applications for an extension of time and judicial review were heard in the Trial Division by Keogh J on 15 August 2022. On 15 September 2022, in accordance with reasons published on 19 August 2022,[1] his Honour made orders dismissing the proceeding. The proceeding was dismissed because his Honour was not satisfied that there were special circumstances justifying an extension of time under r 56.02(3) to commence the judicial review proceeding.[2]
[1]Ross v Victoria Legal Aid Office [2022] VSC 473 (‘Reasons’).
[2]Ibid [47].
On 15 September 2023, some 12 months after the dismissal of his judicial review 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 in 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
The background to, and particulars of, VLA’s decisions are set out in more detail at Reasons [8]–[22]. For present purposes, the following may be noted:
(1)In his application for a grant of legal assistance, Mr Ross requested that the application be assessed under VLA’s Public Interest Strategic Litigation Guideline (‘the PISL Guideline’).
(2)In informing him of the Refusal Decision, VLA advised Mr Ross that his application had been refused because VLA ‘will not grant assistance to a person seeking damages from another person if the action could be conducted under a conditional costs agreement with a private lawyer’.
(3)In an email sent by VLA to Mr Ross on 8 April, advising Mr Ross that he had been granted an extension of time to provide documents that he wanted VLA to take into account when reconsidering the Refusal Decision, VLA informed Mr Ross that his matter had been ‘assessed under Commonwealth civil law Guideline 1’ (‘the Civil Guideline’). The email provided a link to the Civil Guideline and asked Mr Ross to ‘take note of guideline 1.3 which discusses compensation claims ie “damages actions”’.
(4)On 28 April 2016, Mr Ross provided further material, and told VLA that his case was being considered by ‘Australia’s largest personal injury law firm: Maurice Blackburn’. Amongst the material Mr Ross forwarded to VLA were documents from a number of law firms that had declined to act on his behalf in relation to the proposed personal injury claim.
(5)On 16 May 2016, Mr Ross notified VLA that Maurice Blackburn had declined to represent him.
(6)In the Reconsideration Decision of 20 May 2016, VLA stated the following in relation to the request by Ross that his application be considered under the PISL guideline:
We have not considered your application under the PISL guideline because matters can only be considered under the PISL guideline where it is not otherwise covered by VLA guidelines.
(7)After he was informed of the Reconsideration Decision, Mr Ross requested further time from VLA to provide additional information for the independent review.
(8)Accompanying the referral by VLA to the Chairperson of the Panel of Independent Reviewers on 11 August 2016, was a comprehensive memorandum provided by VLA detailing the history of Mr Ross’s grant application, the reasons for VLA’s decision to refuse a grant of assistance, and Mr Ross’s submissions. The memorandum referred to an extensive list of documents that were attached for the purposes of the review.
(9)In the letter informing him of the Independent Review Decision, VLA advised Mr Ross that the independent reviewer had ‘confirmed the decision to refuse legal assistance because your matter is outside the guidelines determined under [the Act]’.
(10)On 21 April 2018, Mr Ross emailed VLA requesting access to all the information VLA had regarding his previous applications for legal assistance. VLA responded by advising Mr Ross that his request would be treated as a request under the Freedom of Information Act 1982.
(11)On 17 May 2018, VLA provided Mr Ross with copies of internal correspondence with VLA in relation to his grant application and his request that it be considered under the PISL Guideline; the Independent Review Decision;[3] correspondence between VLA and Mr Ross; and ‘voluminous amounts of material’ which Mr Ross had provided to VLA.
(12)Between 2018 and 2022, Mr Ross contacted VLA on three occasions: first, to inquire about VLA’s guidelines and stating that he may ‘choose to use this information in [his] legal proceeding’; secondly, to make a second Freedom of Information application; and thirdly, in relation to making a new application for a grant of legal assistance.
[3]Dated 8 September 2016.
The applications for judicial review and an extension of time within which to seek judicial review
The originating motion identifies some 20 grounds upon which judicial review was sought by Mr Ross. Three of these were identified as primary grounds.[4] The grounds are prolix and, as the judge observed, a number of them, in which allegations are made of bad faith, bias and abuse of power, ‘currently have no apparent factual basis or merit’.[5] It is sufficient for present purposes to set out the core of the three primary grounds:
1.In particular, in deliberately, maliciously, intentionally and in bad faith not assessing my application against the “discretionary” guideline of Public and Strategic Litigation (PISL) Guideline, which I had asked and elected it to be assessed against, VLA did not follow the proper government administrative processes to properly and reasonably assess my application for legal aid.
2.In particular, how the widespread use of public funds for public servants, and especially military servicemembers/veterans, legal proceedings is in place but not for me, yet whereby I believe and plead that my legal proceeding is one of the most important of modern military history times and of tremendous public interest.
3.I plead that, pursuant to 1) the Commonwealth of Australia Constitution Act 1900 and 2) the practice and policy of common-law and equity law, I have the same democratic right to Commonwealth and/or State legal aid resources, be it in the form of financial legal aid and/or legal resources, to pursue the course of action and proceeding that is best for me in relation to, and pertaining to my military service in the Australian Defence Force.
[4]Grounds 1, 18 and 20.
[5]Reasons, [43].
In the originating motion, the first primary ground is described as ‘Intentional and malicious procedural error’, the second primary ground is described as ‘Unreasonableness’, and the third primary ground is described as ‘Violation of Constitution of Australia Act 1901’.
Recognising that r 56.02(3) provides that an extension of the 60 day time limit in r 56.02(1) cannot be granted ‘except in special circumstances’, the originating motion set out some 18 paragraphs of ‘special circumstances’. These included:
•The wide range of ways … that the Australian government has provided legal aid to other public servants, and especially to other military veterans and/or servicemembers, has made it impossible to me to reasonable (sic) understand the appropriate way for me to apply for legal aid.
•The way in which public funds, and especially for public servants and military servicemembers, has been disbursed is unconstitutional, of bad faith and not in accordance with the democratic principles that underpin the Constitution of Australia Act 1901.
…
•As I have stated above, it is only now that I have seen this independent review did not include a review of the Public and Strategic Interest guideline because in the previous procedural stage — the first appealed decision I made to Victoria Legal Aid, they (Victoria Legal Aid) made a decision for my application to not be considered against the Public and Strategic Interest guideline.
…
•Upon obtaining a rejection from the Commonwealth Legal Aid Office, and a rejection of my appeal from the Commonwealth Legal Aid Office, I decided I would commence a Judicial Review of their decision.
•I submitted this Judicial Review with the Federal Court of Australia, which was rejected.
•After obtaining this rejection by the Federal Court of Australia I took some time away/off from this legal proceeding due to the psychological strain/impact it was having on me.
…
•Finally, I have a diagnosed mental health illness: Major Depressive Disorder, which impacts my ability to make decisions as best I could, and especially, used to.
Reasons for judgment
After describing the proceeding,[6] identifying the evidence and written submissions filed by the parties,[7] and setting out the factual background of the proceeding,[8] the judge turned to the submissions of the parties.
[6]Reasons, [1]–[5].
[7]Ibid [6]–[7].
[8]Ibid [8]–[22].
The judge identified Mr Ross’s submissions as follows:
(1)VLA did not submit any documents to the independent reviewer in relation to the PISL Guideline application made by Mr Ross. The independent reviewer therefore made the Independent Review Decision without considering the merits of Mr Ross’s application pursuant to the PISL Guideline as he had requested.[9]
(2)It was not until 22 May 2022 that Mr Ross understood that the independent reviewer did not review his application by reference to the PISL Guideline.[10]
(3)VLA’s actions amounted to fraud, concealment or mistake for the purpose of s 27 of the Limitation of Actions Act 1958, thereby postponing any limitation period applying to his judicial review application until such time as he had discovered the fraud or mistake.[11]
(4)Following the Independent Review Decision, Mr Ross spent years exploring alternative means of securing legal assistance. The other avenues for defence forces personnel or public servants to obtain legal assistance in public interest matters are elusive and secretive. Had Mr Ross been aware that VLA was the only independent body that could provide legal assistance for public interest matters, he would have commenced his judicial review proceeding much earlier.[12]
(5)Mr Ross has been diagnosed with a mental illness which impacts his ability to make decisions.[13]
[9]Ibid [23].
[10]Ibid.
[11]Ibid.
[12]Ibid [24].
[13]Ibid [25].
The judge summarised VLA’s submissions as follows:
(1)There are no special circumstances that warrant an extension of time.[14]
(2)The claim which Mr Ross wishes to pursue with legal assistance concerns an injury which occurred in or around 2005 or 2006 and accordingly is likely to be statute-barred. Mr Ross has not established that his underlying claim has reasonable prospects of success.[15]
(3)Mr Ross has known of VLA’s decisions since they were made and has not provided an adequate reason for delay in bringing his judicial review proceeding. During the period of delay, it is clear that Mr Ross elected to pursue alternative claims after exhausting the review mechanisms available to him under the Act. The delay in this case is thus entirely attributable to Mr Ross.[16]
(4)The delay is significant and Mr Ross has identified no arguable error in his judicial review proceeding. VLA adequately considered the applicability of the PISL Guideline in assessing and subsequently refusing Mr Ross’s application. Mr Ross has not identified any arguable jurisdictional error or error on the face of the record in the manner in which the PISL Guidelines were considered by VLA.[17]
(5)Mr Ross’s case can be characterised as a collection of his personal views as to the merits of VLA’s decisions, descriptions of his underlying claims and the attempts he has made to obtain legal assistance to bring his underlying claims. The supporting material he provided regarding the claim he intends to agitate does not demonstrate that it has reasonable prospects of success, let alone public interest. Mr Ross has not identified an arguable underlying cause of action in the case for which he sought legal aid, or any error in VLA’s decisions not to grant assistance.[18]
[14]Ibid [26].
[15]Ibid [27].
[16]Ibid [28].
[17]Ibid [29].
[18]Ibid [30]–[31].
The judge commenced his analysis by noting that the 60 day time limit within which to commence proceedings under O 56 may be extended where ‘special circumstances’ exist.[19] Referring to authority,[20] the judge referred with approval to the proposition that the factors relevant to the exercise of the discretion under r 56.02(3) include, but are not limited to, the period of the delay, the reason for the delay, whether the plaintiff has an arguable case, the justice to both parties (which includes the prejudice to the parties) and the public interest in the finality of litigation.[21]
[19]Ibid [32].
[20]Including Garrett v Legal Services Commissioner [2015] VSC 465, [23] (Derham AsJ); and Daher v Bell [2020] VSC 346, [23] (Derham AsJ) (‘Daher’).
[21]Reasons, [33].
The judge observed that the Independent Review Decision was communicated to Mr Ross almost six years before he commenced the judicial review proceeding. In what might be described as an understatement, the judge said that, ‘By any standard, the period of delay … in commencing this proceeding has been significant’.[22]
[22]Ibid [34].
The judge rejected Mr Ross’s reason (that it was not until May 2022 that he realised that the independent reviewer had not assessed his application under the PISL Guideline) for not commencing the judicial review proceeding before June 2022. In saying that Mr Ross’s late discovery of the fact that the PISL Guideline had not been used did not, alone or in combination with other matters, adequately explain the delay in commencing the judicial review proceeding, the judge said:
(1)First, VLA clearly informed Mr Ross in 2016 that his application was assessed under the Civil Guideline. After Mr Ross reiterated his request for the application to be assessed under the PISL Guideline, VLA confirmed the Refusal Decision, and informed Mr Ross why the PISL Guideline did not apply and had not been used.[23]
(2)Secondly, the reliance by Mr Ross on s 27 of the Limitation of Actions Act was misplaced. That provision has no direct application to the time for commencing a proceeding under O 56. Moreover, there was no factual basis for the assertions by Mr Ross that his application for review of VLA’s decision was based on fraud, concealment or any relevant mistake. The independent reviewer was told by VLA that Mr Ross sought to have his application assessed under the PISL Guideline, and the reviewer was provided with documents from the VLA file setting out the positions of Mr Ross and VLA on that issue.[24]
(3)Thirdly, the documents provided to Mr Ross by VLA in 2018 included internal memos that clearly outlined VLA’s consideration of Mr Ross’s request and the reasons for its decision not to assess his application under the PISL Guideline.[25]
(4)Fourthly, the issue of whether Mr Ross’s application was to be assessed under the PISL Guideline was repeatedly agitated by Mr Ross in 2016. VLA clearly communicated to him at that time that his application was not assessed under that guideline. Mr Ross was well aware of the controversy on this issue in 2016. The matter was brought to his attention again when he was provided with documents by VLA in 2018. There was no adequate reason for Mr Ross not commencing a review proceeding in relation to the PISL Guideline issue within time in 2016, or at least in 2018 after further documents had been provided to him.[26]
[23]Ibid [36].
[24]Ibid [37].
[25]Ibid [38].
[26]Ibid [39].
In relation to Mr Ross’s submissions about pursuing funding from other bodies, the judge said that there was nothing preventing Mr Ross from commencing the judicial review proceeding within time, while at the same time pursuing other avenues of legal assistance.[27] The judge said that there was no basis upon which it could be concluded that pursuing alternate sources of funding for legal costs adequately explained Mr Ross’s delay in not commencing the judicial review proceeding before June 2022.[28]
[27]Ibid [40]–[41].
[28]Ibid.
In relation to Mr Ross’s assertion that his mental health was a sufficient reason for his delay in commencing the judicial review proceeding, the judge noted that in the period since 2016, Mr Ross has taken ‘numerous steps in different legal proceedings’. These included commencing a proceeding against the Commonwealth in 2017 (‘the Commonwealth proceeding’), ‘by filing a relatively complex writ and statement of claim’; commencing other proceedings in different courts; and making applications in the Commonwealth proceeding. The judge also observed that Mr Ross had taken steps to pursue his rights in various forums outside formal court proceedings. Ultimately, the judge did not accept that Mr Ross’s mental health condition adequately explained his delay in commencing the judicial review proceeding.[29]
[29]Ibid [42].
Having dealt with the issue of delay, the judge then turned to what he described as the ‘central theme’ of the applicant’s remaining grounds — namely, VLA’s failure to consider Mr Ross’s grant application under the PISL Guideline, or to give adequate reasons for not doing so. The judge said:
The PISL guideline states that legal assistance may be granted where a case is not otherwise covered by another guideline and carries significant public benefit. VLA assessed the grant application under the Civil Guideline which applies to general civil claims of $5,000 or more. The guideline provides that VLA may make a grant of legal assistance to a person in a general civil matter if the amount of the claim is $5,000 or more, subject to certain restrictions. VLA refused the application for legal assistance by Ross under the guideline on two bases. First, that the common law action proposed by Ross could be conducted under a conditional costs agreement with a private lawyer. Second, based on the material in its possession the prospects of Ross succeeding with his proposed claim were not sufficient to justify a grant of legal assistance. The independent reviewer confirmed VLA’s decision to refuse legal assistance.
It is at least arguable that both the above grounds for refusing Ross a grant of legal assistance were open to VLA. While Ross was not successful in his attempts to retain a private practitioner to represent him, it is very frequently the case that plaintiffs in personal injury and medical negligence proceedings are represented under a conditional costs agreement with a private lawyer. Further, VLA had material that questioned the prospect of Ross succeeding with his proposed claim. The material does not disclose that Ross had a strongly arguable case for judicial review of the decision refusing a grant of legal assistance to him.[30]
[30]Ibid [45]–[46].
The judge then concluded his reasons for judgment by saying that he was not satisfied that there were special circumstances justifying an extension of time under r 56.02(3) to commence the judicial review proceeding.[31]
[31]Ibid [47].
The application for an extension of time within which to seek leave to appeal to this Court
As we have already said, some 12 months after the judge made orders dismissing the judicial review 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) S CI 2017 02005[32] 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.
[32]S CI 2017 02005 is the Court file number of the Commonwealth proceeding.
The application for an extension of time was supported by an affidavit sworn or affirmed by Mr Ross on 25 January 2024 (‘the first affidavit’). The first affidavit exhibited 93 pages of material. Amongst this material were a number of medical reports dealing with the plaintiff’s psychiatric health during the period 2017 to 2019.
On 25 October 2024, Mr Ross filed a second affidavit, which had been affirmed by him on 18 October 2024 (‘the second affidavit’). The second affidavit exhibited a further 125 pages of material. Amongst this material was an amended application for an extension of time within which to seek leave to appeal (‘the amended extension application’). This was a far more detailed document than the original, running to some 32 pages. It contains many allegations of wrongdoing by the judge, other judicial officers, the Prothonotary and Registry offices. Some of the allegations in it are particularly detailed, others are at a high level of generality. For example, one of the ‘substantial wrong[s] or miscarriage[s] of justice’ alleged in the document was:
Substantial and unprecedented unconstitutional bias and prejudice against me as a self-represented litigant across the entirety of [the Commonwealth proceeding].
In the amended extension application, Mr Ross expanded on his reasons for not filing his appeal documents in time. In those expanded reasons, Mr Ross makes additional complaints about the way his proceeding has been handled, and refers to investigations he has continued to undertake. There is, however, little (if any) additional detail directed to the question of why Mr Ross did not file his application for leave to appeal the judge’s orders within the time provided by the Rules.[33]
[33]Rule 64.05 provides that an application for leave to appeal shall be filed within 42 days after the decision to which the application relates.
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 second 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, 34 of these containing proposed grounds of appeal. Many new grounds have been added. It is not possible to say how many new grounds have been added due to a somewhat confusing numbering system in the document.
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 requirement in the Rules that they be set out specifically and concisely,[34] themes of the complaints Mr Ross wishes to make can be discerned. Without attempting to be comprehensive, these include:
[34]See r 64.04(c)(i) and Sunshine Loans Pty Ltd v Australian Securities and Investments Commission [2025] FCAFC 34, [130]–[135] (Perram, Bromwich and Colvin JJ).
•‘unprecedented levels of bias and prejudice’ exhibited in the stages leading up to the trial, as well as in the conduct of the trial;
•failing to permit Mr Ross ‘to make this Judicial Review a Writ’;
•numerous matters which were each described as ‘an error of law and a substantial wrong or miscarriage of justice’;
•a number of matters which were described as ‘unconstitutional and a substantial wrong or miscarriage of justice’;
•that the judge was ‘intimidating and bullying’;
•collusion by [the judge] with VLA ‘and other outside parties’;
•disallowing subpoena applications;
•procedural irregularities;
•‘disregarding numerous matters of a constitutional nature’;
•‘completely disregarding’ Australian civil law procedures;
•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;
•‘failing to exercise common sense and reasonable judgment’;
•making decisions ‘that are so unreasonable that no other judge would make’;
•making decisions that were outside the judge’s jurisdiction;
•making decisions that were ‘guesses’; and
•errors made by the judge in the conduct and handling of the Commonwealth proceeding, including the alleged act of ‘setting [him] up’ with a mental health assessment
None of the matters identify any basis for challenging the VLA decision confirmed by the independent reviewer. More particularly, none suggest any basis upon which we could find that the VLA applied an incorrect guideline and/or that it wrongly applied the guideline that it did (the Civil Guideline).
The hearing of the application in this Court
At the commencement of his oral submissions, Mr Ross made multiple applications for an adjournment of the hearing of his application for an extension of time. 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’.
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.[35] We turn first to the merits of the proposed appeal.
[35]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].
In Daher,[36] after a comprehensive analysis of the authorities concerning the meaning of the expression ‘special circumstances’ in r 56.02(3), Derham AsJ summarised the relevant principles as follows:
[36][2020] VSC 346.
(a)The rule requires the Court to be objectively satisfied that special circumstances exist;
(b)The existence of special circumstances is to be determined by reference to all the circumstances of a case;
(c)The factors relevant to the exercise of the discretion under Rule 56.03(2) include, but are not limited to:
(i)the period of the delay;
(ii)the reason for the delay;
(iii)whether the plaintiff has an arguable case;
(iv)the justice to both parties, including the prejudice to the parties; and
(v)the public interest in the finality of litigation.[37]
[37]Ibid [23] (citations omitted).
We gratefully adopt that summary, as well as his Honour’s observation that the expression ‘except in special circumstances’ is ‘discouraging rather than encouraging’ because of ‘its negative expression’.[38]
[38]Ibid [22].
Mr Ross’s application for an extension of time was made after a delay of some five years and eight months. The judge did not accept that the reasons given by Mr Ross for this delay were sufficient to establish special circumstances when one considered all of the circumstances of the case, including the merits of the proposed judicial review proceeding.
Having examined the voluminous amount of material filed 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 assertions of prejudice, procedural irregularities, and complaints that the judge disregarded matters of a constitutional nature and/or civil law procedures. Moreover, and contrary to Mr Ross’s submissions, there is nothing in the material that suggests that the judge failed to look at or take into account relevant material in the conduct or determination of the judicial review proceeding.
An appeal to this Court is an appeal by way of rehearing. In an appeal by way of rehearing, this Court is bound to conduct a ‘real review’ of the evidence given at first instance and of the judge’s reasons for judgment to determine whether the judge has erred in fact or law.[39] Notwithstanding the confused nature of the voluminous assertions made by Mr Ross in the material he has filed in this Court, we have reviewed all of that material and are unable to conclude that there is any arguable basis upon which this Court could find that the judge erred either in fact or law.
[39]Lee v Lee (2019) 266 CLR 129, 148 [55] (Bell, Gageler, Nettle and Edelman JJ).
The delay in commencing the judicial review proceeding was, in the circumstances, extraordinary. Notwithstanding the multiple explanations given by Mr Ross for this delay, the delay was not well explained. On a proper analysis of the material, there was little reason why the judicial review proceeding could not have been commenced in 2016 — and even less reason why it could not have been commenced in 2018 after the VLA provided Mr Ross with the material it provided at that time.
When one couples the extraordinary (and largely unexplained) delay with the merits of the proposed judicial review proceeding, which were thin at best (if not non-existent), there was no realistic basis upon which a court could have concluded that special circumstances existed as required by r 56.02(3). In our view, the judge was plainly correct when he refused Mr Ross’ application for an extension of time within which to commence the judicial review proceeding.
Mr Ross’s proposed appeal to this Court 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. In the circumstances, it is not necessary for us to consider the reasons given by him for his delay in this Court. For completeness, however, we would say that this delay (like the delay in the Trial Division) was not well explained. Medical reports relating to Mr Ross during the period 2017 to 2019 say little about his ability to file an application for leave to appeal to this Court at any time between September 2022 and September 2023. The other ‘reasons’ given by Mr Ross for his delay in this Court were not reasons which in any way explained that delay in any relevant sense.
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.[40]
[40]Mr Ross also sought to file an Application other than for leave to appeal on 25 January 2024 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 extension of time, it is unnecessary to consider this application.
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