Plaintiff v Defendant

PRACTICE AND PROCEDURE - Application to transfer proceeding - No basis for transfer - Application refused.

1 The proceeding in which the current applications are made is one of a number instituted by the plaintiff, Christopher Ross. The first proceeding was one initiated in May 2017 in which Mr Ross made a claim against the Commonwealth of Australia for damages for injuries he alleged he sustained in relation to service in the Australian Army Reserve and as a Australian Army Commando Special Forces candidate.[1] Both before, and since, commencing the proceeding against the Commonwealth, Mr Ross has attempted to engage lawyers to represent him and to obtain funding from different sources to enable this to occur. He remains on that mission.

2 The current proceeding is made by way of originating motion filed 2 September 2022 seeking judicial review of the decision of Victoria Legal Aid ('VLA') to refuse Mr Ross's application for legal aid (the 'VLA Decision').

3 There have been a number of interlocutory hearings in this current proceeding, including one heard by the Honourable Justice Forbes in the Practice Court in January 2023 in which Mr Ross made an application for a positive injunction seeking to compel a grant of legal aid to him for the review of the VLA Decision the subject of the proceeding. The application failed, with her Honour being unconvinced that there was a serious question to be tried.

4 Whilst there are a number of other outstanding summonses,[2] one summons and two separate notices of appeal were dealt with in the hearing before me on 31 October 2024. In addition, there was an application by Mr Ross to transfer the proceeding to another (unspecified) court pursuant to cross‑vesting legislation.

5 Of the outstanding summonses, of note (as it formed the subject of a number of submissions made by Mr Ross) is the VLA summons filed on 8 September 2023 (more than 12 months ago) seeking to summarily dismiss or strike out the proceeding and to seek an extended litigation restraint order ('ELRO') pursuant to the Vexatious Proceedings Act 2014 (Vic). The prospect of any form of litigation restraint clearly agitates Mr Ross as he has a multitude of other proceedings on foot or which he threatens to issue.

6 The first, and substantive, application before me was Mr Ross's appeal against the orders made by Associate Justice Irving on 25 June 2024 (the 'June Irving Orders'). These orders revoked orders made by his Honour on 22 February 2024 referring Mr Ross to the Victorian Civil and Administrative Tribunal ('VCAT') for assessment pursuant to s 179 of the Guardianship and Administration Act 2009 (Vic) and staying the proceeding. The June Irving Orders also included commonplace procedural and timetabling orders. Mr Ross's appeal against the June Irving Orders was brought by way of amended notice of appeal filed 13 September 2024.

7 The second application arose from orders made on 28 August 2024 by Judicial Registrar Conidi, which were timetabling orders for the conduct of Mr Ross's appeal against the June Irving Orders (the 'Conidi Orders'). Mr Ross's summons challenging the Conidi Orders was issued on 20 September 2024.[3]

8 The third application arose from the orders made on 25 September 2024 by Judicial Registrar Lorenz (the 'Lorenz Orders'). The Lorenz Orders were made by consent and provided Mr Ross an extension of time to file submissions pursuant to the Conidi Orders. On 4 October 2024, Mr Ross filed a notice of appeal against the Lorenz Orders.

9 At the commencement of the hearing, the utility of the appeal against the Lorenz Orders and the Conidi Orders was discussed with the parties. Mr Ross accepted that the orders were procedural and timetabling orders of no consequence given his primary concerns. Mr Ross accepted that the appeal against the June Irving Orders raised the relevant matters he wished to ventilate. I indicated that the challenges to the Lorenz Orders and the Conidi Orders would be put aside and that the appropriate course was that they would be dismissed. The parties agreed with this course, Mr Ross conceding that his application in regard to the Lorenz Orders 'probably is vexatious'.

10 Accordingly, I heard oral submissions from the parties in respect of Mr Ross's appeal against the June Irving Orders.

Appeal of the June Irving Orders and application to transfer the proceeding

11 Primarily, Mr Ross claims that there are various processes and decisions made by judicial officers and the Court registry officers (in particular the Prothonotary) which are biased, extremely prejudicial to him and amount to serious misconduct. These propositions are a feature of his oral and written submissions.

12 Mr Ross's oral submissions raised five matters which he submits amounts to unlawful decision‑making against him and which, he submits, should lead to this Court making the orders he seeks. He sought orders directing a grant of legal assistance to him for the proceeding and, in particular, in respect of the orders sought by VLA for an extended litigation order,[4] and that the proceeding be referred to another court on the basis that all judicial officers at the Supreme Court of Victoria be recused on the basis of actual or apprehended bias. The tenor of his submissions were riddled with assertions of conspiracy and bias stretching from Court officers and staff, through to the Returned and Services League of Australia, VLA, the Commonwealth Government, the private legal profession and beyond.

13 I have attempted to summarise the specific submissions he made on the appeal and in support of his application for the proceeding to be transferred elsewhere. Whilst the submissions made were put in an ordered manner, the substance of them lacked logic and were not useful nor persuasive in demonstrating any error affecting the June Irving Orders nor in persuading me that there is any basis to transfer the proceeding away from this Court.

14 I will summarise as best I am able the five propositions put by Mr Ross.

15 First, Mr Ross argued that Associate Justice Irving was in error in 'bundling' a series of summonses together, a procedure he argued was based on an inferred belief that the Associate Justice considered Mr Ross's claim had had 'zero prospect of success.'

16 Second, Mr Ross claimed that he was mentally incapacitated and not competent to run the proceeding on his own behalf. He submitted that health experts had formed this view of him in 2019 and 2020. He said that the VLA application for an ELRO would have a serious effect on his opportunity to represent himself in the various legal proceedings he has instituted, and that he proposes to institute, and that the Court should intervene by directing legal assistance to him.

17 Third, Mr Ross complained that he had been unable to obtain a particular court file which he claimed was of utility to him in demonstrating legal assistance was available to litigants with his type of claim. He claimed that this particular court file would have assisted him to properly plead his earlier case and/or successfully appeal it to the Court of Appeal.

18 He argued that he had 'concrete unequivocal proof' that 'every other military service member' of his generation has obtained legal assistance and the inability for him to access legal assistance and the delay in accessing the file amounted to a 'misfeasance' and/or 'malfeasance'. Mr Ross alluded to the existence of a State or Commonwealth Government conspiracy precluding him from accessing legal representation.

19 Fourth, Mr Ross submitted that his numerous notices of a constitutional matter which should be referred to the Commonwealth Attorney‑General had not been acted upon. This was also said to be proof of bias against him.

20 He argued that whilst he appreciated that a judge could not give legal assistance, a judge must consider his mental health capacity and give notice of a constitutional matter to the Attorney‑General.

21 Fifth, Mr Ross argued that legal service agreements which were entered into between government (and supposedly VLA) to provide legal services by a private firm was unconstitutional. The basis of this alleged unconstitutionality was not further explained. Curiously, Mr Ross then went on to argue that a legal services agreement he claims to have signed two years ago contractually binds the Commonwealth Attorney‑General and Veterans Affairs Minister to represent him in all his legal proceedings pertaining to his military service, including this proceeding.

22 He concluded by asserting that he had grounds to succeed in the Court of Appeal and in all of his proposed proceedings.

23 At the end of the hearing, after each party had made their submissions (including lengthy submissions in reply by Mr Ross) and I had indicated that I would reserve my decision on the appeal, Mr Ross sought to make an application to file further affidavit evidence on the matters he referred to in the hearing. He did so on the basis that he had not had enough time to do so in preparation for this hearing and that he had proof of the matters he alleged he wished to put before me.

24 The application to file further material was opposed by VLA on the basis Mr Ross had more than adequate time to prepare his material, or to seek an adjournment prior to this point in the hearing. Any opportunity to file further material (there being voluminous material on the Court file in any event) would lead to unjustifiable cost and delay.

25 I rejected the application on the basis that Mr Ross had already had a significant amount of time to marshal his material. The matters he raised in his lengthy submissions were matters known and alleged by him for a long time and the material he identified that he wanted to file was not new or different to the submissions he had made. Such a (late) request for filing of additional material of questionable utility in the circumstances was unjustifiable.

26 Mr Ross immediately indicated that he would appeal my decision.

27 VLA submitted that the grounds of appeal in the amended notice of appeal did not establish any error in the exercise of power by Associate Justice Irving in the making of the June Irving Orders.

28 Order 1 of the June Irving Orders revoked orders 1 and 2 of his 22 February 2024 orders referring the plaintiff to VCAT and staying the proceedings. By reference to the transcript of the directions hearing before Associate Justice Irving on 25 June 2024, VLA submitted that the Associate Justice made this order in circumstances where Mr Ross confirmed that he was not going to comply with the referral order to allow an assessment to be done by VCAT and the Associate Justice was satisfied that Mr Ross had the capacity to conduct the proceeding. It was further submitted that the revocation was also made based on the Associate Justice's observation that the stay had literally been ineffective because Mr Ross continued to file material with the Court, culminating in the need to convene the 25 June 2024 directions hearing before his Honour.

29 Orders 2 to 4, being the balance of the substantive orders, were directed to programming to hearing the outstanding summonses in the underlying judicial review proceeding. This included several summonses issued by Mr Ross and the VLA's summons of 8 September 2023. It was submitted that these timetabling orders made by Associate Justice Irving were entirely orthodox.

30 In response to the grounds in the amended notice of appeal and the submissions made by Mr Ross, VLA contended that none of the various overlapping and repetitive grounds of appeal raise any tenable argument that the June Irving Orders were in error.

31 In respect of the referral of a constitutional matter to the Attorney‑General, it was submitted that there was no merit in this assertion and no constitutional violation was identified.

32 In respect of Mr Ross's 'bundling of summonses' submission, VLA submitted that this assertion proceeds on a misapprehension as to the orders and their effect. The orders do no more than timetable several outstanding applications to a hearing and no error is disclosed in this approach.

33 To the suggestion by Mr Ross that there should be no timetabling of the ELRO application against him until the balance of the outstanding summonses are heard and determined, it was submitted that that is a matter which remains open to him to make submissions before Associate Justice Irving on the hearing of the summonses when they come before his Honour.

34 VLA submitted that to the extent that the amended notice of appeal refers to contingent proceedings which Mr Ross alleges must occur before the hearing and determination of the ELRO application, there is no merit in this assertion. None of the separate proceedings identified and described in the amended notice of appeal have any apparent bearing on the power of the Associate Judge in the proceeding to timetable the extent summonses to a hearing.

35 VLA further submitted that it is not incumbent upon Associate Justice Irving to refer Mr Ross to what Mr Ross described as the 'legal referral assistance service' or otherwise. Mr Ross's personal desire to obtain legal assistance is a matter he has sought to agitate across multiple proceedings over several years and does not translate to a fetter on the exercise of the Associate Justice's powers to make the June Irving Orders.

36 As to Mr Ross's contention that VLA does not have standing to bring an application for an ELRO, it was submitted this is a matter he can make submissions to Associate Justice Irving upon the hearing of an application.

37 In respect of Mr Ross's contention that he has not been provided with sufficient time to prepare his materials with respect to the outstanding summonses, it was submitted that the timetabling orders provided a standard period of four weeks for him to file and serve any additional materials, and this was in circumstances where the several summonses had been pending for a considerable period of time and Mr Ross had ample opportunity to file materials with the Court. Moreover, he had filed voluminous materials already. In the circumstances, there cannot be said to be a denial of procedural fairness flowing from the timetabling orders.

38 As to Mr Ross's mental capacity, it was submitted the facts simply do not bear this out. Associate Justice Irving considered and addressed issue. Notably, his Honour did so in circumstances where Mr Ross was recently found by Justice Goodman of the Federal Court of Australia to have capacity in Ross v Attorney‑General (Cth) [2024] FCA 180.

39 In response to Mr Ross's claims of bias and his request for every judicial officer of the Supreme Court of Victoria to recuse themselves, it was submitted that these were baseless.

40 Separately, Mr Ross made submissions that the proceeding be transferred to another court (of this Court's choosing) under the cross‑vesting legislation. The basis of this application was actual or apprehended bias. He submitted that it may be that he would need to sue the Supreme Court of Victoria and the State of Victoria for the bias demonstrated against him, which he said was otherwise unprecedented in the Western world.

41 VLA submitted that there were no grounds to transfer the proceeding to another court and that Mr Ross's assertion that there was no judicial officer at this Court who would be able to hear the proceeding on the basis that all were affected by actual or apprehended bias was baseless.

42 In any event, VLA submitted that there was nothing to demonstrate that it was in the interests of justice for the proceeding to be transferred elsewhere. The originating motion was properly issued within the jurisdiction of the Supreme Court of Victoria, the subject matter was within the Court's jurisdiction, Mr Ross was resident in the State of Victoria and there was no other aspect of the proceeding which would justify the exercise of discretion to vest the proceeding elsewhere.

43 In order to overturn the June Irving Orders, Mr Ross must demonstrate legal, factual or discretionary error.[5]

44 There is simply no substance or merit to the allegation of error in the June Irving Orders.

45 The Ross 'bundling' submission has no substance. Dealing with a number of inter‑related summons within one timetabling application is not only efficient and sensible, it is entirely consistent with the overarching obligations of the Civil Procedure Act 2010 (Vic).

46 The complaint that there is evidence of error (or worse) by the lack of referral of a constitutional matter to the Commonwealth Attorney‑General presupposes that an intelligible constitutional question has been identified. There is simply no basis to this allegation.

47 As to Mr Ross's allegation of his lack of mental incapacity to conduct the proceeding, I reject this submission as a basis of error by his Honour. Mr Ross conducted himself before me with logic and discipline and made his submissions in an orderly manner. That I have formed the view that the substance of his submissions are misguided and without lawful foundation does not equate with a finding that there is a lack of mental capacity on his behalf to run his proceeding as a self‑represented litigant.

48 I note that Associate Justice Irving made his own observation in this regard. He also made reference to the decision in this similar respect as to capacity by Justice Goodman in the Federal Court. Whilst no doubt appearing in a formal court environment is stressful for everyone, in particular for a self‑represented litigant, Mr Ross is an intelligent and capable man and thus capable of representing himself. There was simply no evidence of incapacity before his Honour, or before me.

49 I observe that to pursue litigation as a plaintiff is a choice one makes and that the pathway to resolution of the issues which drive an individual are not always best pursued by this course.

50 It can be seen from the summary of Mr Ross's submissions that his primary aim in bringing the appeal against the June Irving Orders was to relitigate, in an interlocutory application, his primary relief, which is an order for legal assistance from VLA. This is now focused on the pending application for a ELRO sought by VLA.

51 In other words, what Mr Ross seeks is an interlocutory grant of legal assistance - a matter rejected by her Honour Justice Forbes in January 2023 - albeit now for a specific step in this proceeding.

52 Further, as VLA submitted, there is no error in the June Irving Orders arising from his Honour failing to make a positive order against any other entity who might provide legal assistance.

53 The claims of bias are unfounded and without merit.

54 As referred to above, there have been a number of applications made by Mr Ross in this proceeding (and in other proceedings in this and other Courts) which have been unsuccessful in achieving his desired outcome. I observe that a contrary, or negative, decision made against someone is not evidence of bias in the absence of specific evidence or something more than supposition and inuendo. Conspiracy theories, exemplified by Mr Ross's submission that the Prothonotary went 'dark' on him in its communication with Mr Ross and that the alleged conspiracy between the Registry and judicial officers of this Court to prevent Mr Ross from submitting his appeal application within 28 days was carried out with 'military precision', would be entertaining if it was not offensive and without any substance.

55 The unsubstantiated claims of bias and conspiracy have remained a consistent theme from the commencement of the proceeding.

56 I conclude that Associate Justice Irving was correct in exercising his discretion to revoke the earlier orders his Honour made referring Mr Ross to VCAT for an assessment under the Guardianship and Administration Act 2009 (Vic) and staying the proceeding. It is clear that Mr Ross's multiple applications made in contravention of the stay order and the 12 month delay in any action in pursuing the VCAT assessment made it impossible for the proceeding to move forward. The proceeding was thus at an impasse.

57 At almost every stage, Mr Ross seeks to review or appeal the interlocutory steps taken. He indicated that he would do so again at the end of the hearing before me when upon pronouncing my intention to reserve the decision.

58 In respect of the transfer of the proceeding, I accept the submissions of the VLA.

59 I agree that there is no basis at all for the transfer of the proceeding.

60 The submissions by Mr Ross are reliant on his claims of bias, malfeasance and unlawful conspiracy between the judiciary and the registry staff which are unfounded, speculative and scandalous.

61 In any event, even if there was not a judicial officer available or appropriate to hear the matter (which is not the case in this circumstance) that would not be justification for its transfer to another jurisdiction alone. The proceeding was issued in a location, Victoria, and in a Court which has the jurisdiction to determine the proceeding. It is between entities connected with Victoria and there is no factual or policy basis for the matter to be transferred elsewhere.

62 Given the reasons set out above, the appeal against the June Irving Orders is dismissed.

63 As indicated at the hearing, the appeal against the Lorenz Orders will also be dismissed, as will the summons regarding the Conidi Orders.

64 For the reasons set out above, I also refuse the application to transfer the proceeding.

65 I can see no reason why the outstanding summonses, including the VLA summons of 8 September 2023, cannot be listed in the ordinary course of Court business.

66 As to costs, Mr Ross requested costs be reserved. I indicated that depending on the outcome of the appeal and application I would provide the parties an opportunity to make submissions on costs.

67 In my orders, I will direct that the parties provide written submissions, if any, in respect of costs.

[1] See Ross v Commonwealth of Australia [2022] VSC 779.

[2] Being the plaintiff's summons filed 11 July 2023, 22 August 2023, 10 February 2024 and 9 June 2024 and the defendant's summons filed 8 September 2023.

[3] It was subsequently filed with the Court on 25 September 2024.

[4] The determination of leave or the grant of an order under the Vexatious Proceedings Act 2014 (Vic) was not before me in this hearing and is still to be listed.

[5] One Capital Pty Ltd v Casada Holdings Pty Ltd [2024] VSC 520, 15 [40]-[41] citing Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172, 180 [23].