Plaintiff v Defendant

2 In 2016 Ross applied to the defendant, Victoria Legal Aid ('VLA'), for legal assistance under the Legal Aid Act 1978 (Vic) ('Act') in relation to his proposed personal injuries claim against the Commonwealth. VLA refused Ross's application in March 2016. After Ross applied for reconsideration VLA affirmed the initial refusal in a reconsideration decision in May 2016. Ross sought a review of the reconsideration decision. In September 2016 an independent reviewer affirmed the decision to refuse Ross's application for legal assistance.

3 Ross brings this proceeding seeking judicial review of the independent reviewer's decision.

4 Ross commenced this proceeding by filing the originating motion seeking judicial review on 8 June 2022. He therefore requires an extension of time to commence the proceeding pursuant to r 56.02 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) ('Rules').

5 For the reasons that follow the application by Ross to extend the time to commence this proceeding is refused.

(a) Ross, affirmed 8 June 2022 and 18 August 2022;

(b) Tinashe Makamure, solicitor for VLA, affirmed 20 July 2022.

7 Ross also filed written submissions in support of his application to extend time dated 11 August 2022, reply submissions dated 15 August and additional documents comprising:

(a) list of documents dated 17 August 2022; and

(b) further documents attached to a draft version of his affidavit dated 18 August 2022.

I have had regard to those submissions and documents.

8 On 26 January 2016, Ross submitted an application for a grant of legal assistance to VLA ('grant application'). The grant application requested funding to pursue a claim against the Australian Defence Force ('ADF') and/or the Commonwealth for an injury allegedly sustained in 2005. Ross alleged his left leg was injured as a result of training for the Special Forces Selection Course, that he was re-injured when required to resume physical activities and infantry field activities as part of his Army Reserve service, and that medical treatment of his injuries provided through the ADF was negligent. In the grant application, Ross requested that his application be assessed under VLA's Public Interest Strategic Litigation Guideline ('PISL guideline').

9 On 31 March 2016, VLA wrote to Ross communicating its decision to refuse his grant application ('Refusal Decision'). The Refusal Decision read in part:

Legal assistance has been refused.

Thank you for your application for legal assistance. All applications for assistance are assessed under our funding guidelines. We have carefully considered your case, and have decided to refuse funding on the basis that it does not meet our requirements.

We have refused your application because Victoria Legal Aid 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 i.e. where the lawyer is willing to represent you under a "no win - no fee" arrangement.

...

Your rights if you disagree with our decision

You may have the right to ask that this decision be reconsidered. If you would like this decision reconsidered, you or your lawyer must contact us by 14 April 2016. You should also understand that under the Legal Aid Act not all decisions can be reconsidered.

10 On 4 April 2016, Ross requested that VLA reconsider the Refusal Decision.

11 On 8 April 2016, VLA emailed Ross to notify him that an extension of time to provide further material to support the request to reconsider the Refusal Decision had been granted. The email also stated Ross's grant application was assessed under the Civil Law Guideline 1 ('Civil Guideline').

12 Ross provided material supporting his request for reconsideration on 28 April 2016 and requested a further two week extension to provide additional material. Ross told VLA that his case was being considered by Maurice Blackburn Lawyers. He again requested that the grant application be considered under the PISL guideline. Amongst the material 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. One practitioner, who gave Ross some advice about the matter pro bono, was negative about the prospects of him succeeding with a claim against the Commonwealth.

13 On 4 May 2016, VLA notified Ross that an extension of time was granted for him to provide further material until 16 May 2016. On 16 May 2016, Ross notified VLA that Maurice Blackburn Lawyers had declined to represent him.

14 On 20 May 2016, VLA wrote to Ross affirming the Refusal Decision ('Reconsideration Decision'). VLA again assessed the grant application under the Civil Guideline. In relation to the request by Ross that his application be considered under the PISL guideline the letter read:

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.

Your rights of independent review if you disagree with our decision

You may have the right to ask for an independent reviewer to look at our decision again if you disagree. If you would like your matter reviewed, you or your lawyer must contact us by 10 June 2016. We will then provide an independent reviewer with a memo referring the decision for review along with all material received from you and your lawyer that we have on our file in support of your application for legal assistance.

15 On 6 June 2016, Ross notified VLA that he wanted to 'appeal' the Reconsideration Decision. VLA responded on 10 June 2016 confirming the grant application had been submitted for independent review.

16 Ross requested further time to provide additional information for the independent review. Time was allowed, and there was email correspondence between Ross and VLA about the additional material he sought to provide.

17 On 11 August 2016, VLA sent to the chairperson of the panel of independent reviewers a referral for review and a memo of the same date from Samantha Bishop, Legal and Policy Officer. The comprehensive memo detailed the history of Ross's grant application, the reasons for VLA's decision to refuse a grant of assistance, and Ross's submissions. The memo referred to an extensive list of documents that were attached relating to Ross's grant application.

18 On 8 September 2016, the independent reviewer made a decision affirming VLA's refusal of Ross's grant application ('Independent Review Decision').

19 On 15 September 2016, VLA wrote to Ross notifying him of the Independent Review Decision. The letter stated:

An independent reviewer has reviewed our decision. The independent reviewer has confirmed the decision. This decision is final and cannot be reviewed.

The independent reviewer's reasons for this decision are as follows:

The independent reviewer has confirmed the decision to refuse legal assistance because your matter is outside the guidelines determined under the Legal Aid Act (Victoria) 1978.

Legal assistance has been refused.

20 On 21 April 2018, Ross emailed VLA requesting access to all the information VLA had regarding his previous applications for funding. VLA notified Ross that his request would be treated as a request under the Freedom of Information Act 1982 (Vic) ('FOI application').

21 On 17 May 2018, VLA notified Ross that it had identified documents totally 504 pages relating to the FOI application and that VLA would grant him total access to 495 pages and partial access to the remaining 9 pages. Included in those documents were copies of:

(a) internal correspondence within VLA in relation to Ross's grant application and his request that it be considered under the PISL guideline;

(b) the Independent Review Decision dated 8 September 2016;

(c) correspondence between VLA and Ross;

(d) voluminous amounts of material Ross provided to VLA.

22 Since 2018, Ross has contacted VLA on three other occasions. First, to enquire about VLA's guidelines and stating that he may 'choose to use this information in [his] legal proceeding'. Second, to make a second FOI application on 29 June 2022. Third, in relation to making a new application for a grant of legal assistance in around January 2022.

23 VLA did not submit any documents to the independent reviewer in relation to the PISL guideline application made by Ross. The independent reviewer therefore made their decision without considering the merits of Ross's grant application pursuant to that guideline as he had requested. It was not until 22 May 2022 that Ross understood that the independent reviewer did not review his grant application by reference to the PISL guideline. VLA's actions amount to fraud, concealment or mistake for the purpose of s 27 of the Limitation of Actions Act 1958 (Vic) ('Limitation of Actions Act'), thereby postponing any limitation period applying to his judicial review application until such time as Ross has discovered the fraud or mistake.

24 Since the Independent Review Decision, Ross has spent years exploring alternative means of securing legal assistance, including by making an application in the personal injury proceeding. The other avenues for defence forces personnel or public servants to obtain legal assistance in public interest matters are elusive and secretive. Ross now understands that VLA is the only independent body that can and does provide legal assistance for public interest matters of this nature. Had he been aware this was the case he would have commenced judicial review much earlier.

25 Ross has been diagnosed with a mental illness which impacts his ability to make decisions.

26 There are no special circumstances that warrant an extension of time.

27 Ross wishes to pursue underlying litigation in respect of a case in which the injury occurred in around 2005 or 2006 and accordingly, is itself likely time barred. Ross has not established that his underlying claim has reasonable prospects of success.

28 Ross has known of VLA's decisions since they were made and has not provided an adequate reason for delay in bringing this proceeding. During the period of delay, it is clear that Ross elected to pursue alternative claims after exhausting the review mechanisms available to him under the Act such that the delay is entirely attributable to him.

29 The delay is significant and Ross has identified no arguable error in his judicial review case. Ross's primary ground appears to be that VLA failed to consider the operation of the PISL guideline in its refusal decisions. VLA adequately considered the applicability of the PISL guideline in assessing and subsequently refusing the grant application. Ross has not identified any arguable jurisdictional error or error on the face of the record in the manner in which the PISL guideline was considered by the decision makers.

30 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.

31 The supporting material provided by Ross to VLA regarding the claim he intended to agitate does not demonstrate that it has reasonable prospects of success, let alone public interest. It is not in the public interest to allow an extension of time to challenge a legal aid grant decision in circumstances where 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.

32 Order 56 of the Rules applies to this proceeding. Under r 56.02 it was a requirement that this proceeding be commenced within 60 days after the date on which the grounds for relief sought first arose.[2] The time to commence proceedings under ord 56 may be extended where 'special circumstances' exist.

33 In Garrett v Legal Services Commissioner, Derham AsJ said:

The factors relevant to the exercise of the discretion under the rule 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.[3]

34 The Independent Review Decision was communicated to Ross almost six years ago. By any standard, the period of delay by Ross in commencing this proceeding has been significant.

35 Ross does not argue that he was unaware that judicial review of the Independent Review Decision was available. Rather he says that he did not pursue judicial review because it was not until May this year that he noticed what he argues to be an error by the independent reviewer in not assessing his grant application under the PISL guideline, and clarified in his own mind that VLA is the only proper independent source in Victoria of legal assistance in cases with a significant public interest such as his personal injury proceeding. Ross also relies on the effect of a mental health condition on his decision-making.

36 For the following reasons VLA's decision not to assess Ross's grant application under the PISL guideline does not, alone or in combination with other matters, adequately explain the delay in commencing this proceeding. First, VLA clearly informed Ross in 2016 that his application was assessed under the Civil Guideline. After Ross reiterated his request for the application to be assessed under the PISL guideline, VLA confirmed the Refusal Decision, and informed Ross that the PISL guideline did not apply, and why.

37 Second, the reliance by Ross on s 27 of the Limitation of Actions Act is misplaced. That provision has no direct application to the time for commencing the proceeding under r 56 of the Rules. More importantly, there is no factual basis for the assertions by Ross that his application for review of VLA's decision is based on fraud, concealment or any relevant mistake. It is clear that the independent reviewer was told by VLA that Ross sought to have his grant application assessed under the PISL guideline, and was provided with documents from the VLA file setting out the positions of Ross and VLA relevant to that issue.

38 Third, the documents provided to Ross by VLA in 2018 included internal memos that clearly outlined VLA's consideration of Ross's request and the reasons for its decision not to assess his grant application under the PISL guideline.

39 The issue of whether the grant application was to be assessed under the PISL guideline was repeatedly agitated by Ross in 2016. VLA clearly communicated to Ross at the time that his application was not assessed under that guideline. A number of the grounds for review relied on by Ross seek to challenge that aspect of VLA's decision to refuse him legal assistance. Ross was well aware of the controversy between he and VLA about assessment of his application under the PISL guideline in 2016. This matter was brought to his attention again when he was provided with a bundle of documents by VLA in 2018. There is no adequate reason for Ross not commencing a review proceeding in relation to the PISL guideline issue within time in 2016, or at least in 2018 after the further documents were provided to him by VLA.

40 Ross submitted that as a result of VLA's refusal of his grant application he pursued funding for the personal injury proceeding from many other bodies on the basis of what he alleges to be a very strong public interest aspect to his case. All of the funding applications by Ross were unsuccessful. Ross now makes various criticisms of these bodies and characterises funding by them of legal costs in public interest cases as being 'unofficial', 'incorrect' or 'improper'. He submitted that VLA is the only independent body able to assess applications for legal assistance on public interest guidelines, and to provide such assistance when appropriate. He submitted that pursuing funding through these other bodies somehow took away his right to seek to review VLA's decision refusing assistance to him.

41 There is no merit in this argument. There was nothing preventing Ross from commencing the review application within time, while at the same time pursuing other avenues of legal assistance. Even if that were wrong, it is clear from the materials he has provided that Ross unsuccessfully pursued these alternate sources of legal assistance some years ago. One such application was the subject of a ruling by me on 7 December 2018 in the personal injury proceeding.[4] There is no basis upon which it could be concluded that pursuing alternate sources of funding for legal costs adequately explains Ross delaying commencing this proceeding until June 2022.

42 The final reason for delay given by Ross related to his mental health. I accept that Ross has been diagnosed with a mental health condition. However, I note that in the period since 2016 Ross has taken numerous steps in different legal proceedings. He commenced the personal injury proceeding in 2017 by filing a relatively complex writ and statement of claim. He has commenced other proceedings in different courts, and has made applications in the personal injury proceeding. It is also clear from the documents Ross has provided that he has taken steps to pursue his rights in various forums outside formal court proceedings. Ross has made numerous decisions on which he has acted to advance his legal rights in the period since 2016. I do not accept that Ross's mental health condition adequately explains his delay in commencing this proceeding.

43 I will briefly address the merit of the application for judicial review. Ross relies on 20 grounds for review. A number of those grounds alleging bad faith, bias and abuse of power currently have no apparent factual basis or merit.

44 The central theme of the remaining grounds is the failure to consider Ross's grant application under the PISL guideline, or to give adequate reasons for not doing so.

45 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.

46 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.

47 I am not satisfied there are special circumstances justifying extension of time under r 56.02(3) to commence the judicial review proceeding.

48 The time to commence the judicial review proceeding is not extended. The proceeding is dismissed. I will hear from the parties as to costs.

[3] [2015] VSC 465, [23] (citations omitted). See also Mann v Medical Practitioners Board of Victoria [2004] VSCA 148; Daher v Bell [2020] VSC 346, [23].

[4] Ross v Commonwealth of Australia [2018] VSC 766.