Ross v Victorian Legal Aid

[2023] VSC 15

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST

S ECI 2022 03573

CHRISTOPHER JAMES ROSS	Plaintiff
v
VICTORIAN LEGAL AID OFFICE , STATE OF VICTORIA	Defendant

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JUDGE:	Forbes J
WHERE HELD:	Melbourne
DATE OF HEARING:	27 January 2023
DATE OF RULING:	30 January 2023
CASE MAY BE CITED AS:	Ross v Victorian Legal Aid
MEDIUM NEUTRAL CITATION:	[2023] VSC 15

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PRACTICE COURT – Application for an interlocutory injunction – Judicial review sought of decision made by Victorian Legal Aid – Refusal of grant of legal aid to conduct civil claim for damages – Plaintiff seeking positive injunction to compel grant of legal aid for review of decision – No serious question to be tried - Balance of convenience not made out – Summons dismissed.

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APPEARANCES:	Solicitors
For the Plaintiff	C Ross, self-represented	Not applicable
For the Defendant	T Makamure, solicitor	Barry Nilsson

HER HONOUR:

1. Christopher Ross issued a summons for interlocutory relief in a proceeding seeking judicial review of a decision of Victoria Legal Aid (VLA) dated 5 August 2022. That decision was a refusal of a grant of legal aid to conduct his claims in negligence against the Commonwealth and other named defendants in respect of injury sustained in the course of his service with the Australian Army Reserve between 2003 and 2006. The claim in negligence had been commenced in 2017 (the 2017 damages claim) and was dismissed by Keogh J on 16 December 2022 on the separate trial of a preliminary question. The dismissal was on the ground that the proceeding was null and void. The summons was returnable before me in the practice court. The urgency was that Mr Ross sought an order that he be provided with preliminary legal aid to commence an appeal against the dismissal of his damages claim before the imminent expiry of the time limit for commencing an appeal.

1. The 2017 damages claim sought damages for personal injury both physical and psychological arising from his army service. It alleged that provision of medical treatment provided for an injury that occurred in the course of his service was negligent and that he had sustained psychological injury as a result of negligent conduct by the Commonwealth and particular individuals associated with the army reserve. He made an application for legal aid in July 2022.

1. The judicial review proceeding alleges legal error because of a procedural error that was intentional and malicious, and that the decision was unreasonable. The relief sought was to quash the VLA decision and remit the application for reconsideration. In the alternative it sought a grant of legal aid for a civil proceeding pertaining to his military service and an interim order granting legal representation in the judicial review proceeding. The judicial review is not yet listed for hearing.

1. Essentially, Keogh J found that the 2017 damages claim had not been commenced in accordance with the Military Rehabilitation and Compensation Act 2004 (Cth) (MRCA), in particular because Ross had not made an irrevocable choice, between commencing an action for damages and accepting statutory compensation for permanent impairment arising from the injury as required by s 389 of the MRCA. His Honour construed the choice required by s 389 as being substantive and not procedural. Therefore Mr Ross’ email correspondence in 2018 after commencement of the original proceeding, advising of his choice or election to seek common law damages and not statutory impairment entitlements could not cure the invalidity of the proceeding when it was commenced.

1. In November 2022 Mr Ross attempted to file a further proceeding in respect of the same physical and psychological injuries sustained in his service with the Australian Army Reserve. The new proceeding, which has recently been accepted for filing seeks damages for the same causes of action in negligence as the 2017 damages claim. It identified further causes of action; negligence in his discharge from the army reserve, breach of contract, the torts of deceit and misrepresentation, misfeasance in public office and the intentional infliction of emotional distress. In all, 13 defendants are identified in addition to the Commonwealth. Mr Ross was able to file that proceeding recently, upon dismissal of the original proceeding. He has a similar interlocutory summons in the new proceeding seeking provision of legal funding from the Commonwealth. That application remains on foot.

1. The summons before me was supported by an affidavit of Mr Ross affirmed 25 January 2023 together with 16 exhibits and written submissions dated 24 January 2023.

1. The interlocutory relief sought in fact has two aspects; first it sought the provision of legal aid to assist with a proposed appeal against Keogh J’s judgment and orders and second it sought legal aid to assess the merit of his underlying damages claim by meeting the cost of a report from an expert medical witness (and perhaps other costs). Mr Ross clarified in his oral submission that he wished to appeal the dismissal and keep both damages proceedings on foot, describing them as being ‘merged’, because of concerns regarding the limitation point that had been raised in the 2017 proceedings. Mr Ross submits that any limitation problem can be overcome.[1]

   [1]Plaintiff, ‘Submissions’, Submission in Ross v Victorian Legal Aid, S ECI 2022 03573, 24 January 2023, pg 1 (as to the merit of 2005 and the VLA proceeding).

1. Interim relief pending trial may be granted where it is necessary to preserve the status quo or protect a legal or equitable right in advance of the trial of the matter. An applicant for injunctive relief must demonstrate that:

(a)   there is a serious question to be tried; and

(b)  the balance of convenience favours the grant of the injunction.[2]

[2]Australian Broadcasting Corp (ABC) v O’Neill (2006) 227 CLR 57.

1. The test to be applied is the same whether the injunction sought prohibits action or mandates action.[3] However, as Maxwell P and Charles JA said in Bradto v State of Victoria, where an injunction sought is mandatory in substance, it was not necessary to apply a different higher test of a ‘high degree of assurance’, rather:

[33] In our view, it is desirable that a single test be applied in all cases where an interlocutory injunction is sought. There is nothing in the body of authority to which we have referred, nor any consideration of principle, which requires a special test to be applied to one subcategory of such injunction applications, namely, those where mandatory relief is sought. On the contrary, as pointed out convincingly by Hoffman J in Films Rover, the grant of mandatory interlocutory injunction may be justified in a particular case notwithstanding that the court does not feel the requisite “high degree of assurance”.[4]

[3]Tymbook Pty Ltd v State of Victoria; Bradto Pty Ltd v State of Victoria (2006) 15 VR 65.

[4]Ibid [33].

1. Mr Ross has not identified the legal or equitable right to a grant of legal aid. The review proceeding itself is not concerned with any right to legal aid but is only with the lawfulness of the decision to refuse his application. The decision itself which formed part of Exhibit 1 to Mr Ross’ affidavit in support of the summons, said the application was assessed against the State Civil Law Guideline 1 and the Commonwealth Civil Law Guideline 1.3. Aid was refused on a number of grounds, the last being that:

The Public Interest and Strategic Litigation Guideline does not apply, because matters can only be considered under that Guideline where there is no other Guideline that would otherwise apply.

1. In the event that the decision is infected by procedural error or was unreasonable as he has alleged, those errors would not themselves demonstrate eligibility within the public interest guidelines that Mr Ross says are applicable to his litigation. Those guidelines are not in evidence before me. In any event Mr Ross could not by way of final relief in the judicial review proceeding obtain any more than the setting aside of the decision made. The Court could not go further and engage in a merit review of the application or step into the shoes of VLA as decision maker. To do so would exceed the supervisory jurisdiction to review administrative decisions. Mr Ross has not therefore demonstrated that a serious question to be tried in the judicial review proceeding is the fact of his eligibility for a grant of legal aid.

1. Mr Ross submitted that the refusal of legal aid to prosecute his 2017 damages claim was sufficiently broad to encompass a refusal of aid to bring an appeal against its dismissal and sufficiently broad to encompass a refusal to provide aid to investigate the merit of his 2022 damages claim or to support his desire to ‘merge’ the two claims. Even if that argument were correct, this would not show that the entitlement to legal aid was a serious question to be tried in the judicial review proceeding. Rather the interim relief goes squarely to the merit of the refusal decision. In effect it seeks a substituted decision on the merits.

1. The balance of convenience includes a consideration of the plaintiff’s prospects of success at trial. In that regard I express no view on the merit of setting aside the administrative decision in question. I am specifically considering the prospect of success in obtaining as final relief, that which Mr Ross presently seeks by way of interlocutory relief – an order compelling VLA to provide legal aid in the terms sought in the summons. Whilst no doubt the refusal of an injunction inconveniences the plaintiff who will not have immediate access to funds from legal aid to pursue his desired appeal nor his damages claim, it does not preclude him, as he has done in the past, from taking such steps as he desires to protect his legal right to lodge an appeal against the dismissal of his original claim. The unlikely availability of the relief being obtained on a final basis weighs against the granting of interlocutory relief.

1. For these reasons I am not persuaded that the plaintiff has made out his claim for interlocutory injunctive relief and the summons dated 25 January 2023 will be dismissed. I will make orders accordingly.