1. Before he made submissions on the substance of his application for an extension of time within which to seek leave to appeal, Mr Ross made multiple applications for an adjournment of the hearing of this application. While these applications were made during the course of the hearing of his application for an extension of time within which to seek leave to appeal in Ross v Victoria Legal Aid,[42] we took them to be made both in that proceeding and in the present proceeding.
2. 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.
3. 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.
4. 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'. That said, Mr Ross made a new point in oral argument: namely, that the 2017 writ he filed against the Commonwealth was ambiguous and should not have been accepted for filing by the Court.

1. 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.[43]
2. While Mr Ross makes a suite of allegations of wrongdoing against the judge and alleges that the judge was biased against him throughout the proceeding, in the only application made to the judge to recuse himself for bias, the judge noted that Mr Ross's affidavit and submissions began as follows:
   1. I hope that I lose this application 'on the papers'.
   2. I have come to see that Judge Keogh is a good and fair man.
   3. But I still seek to, at least, make this application due to events that largely occurred at the start of this proceeding.[44]
3. In the course of the Bias Reasons, the judge set out the relevant principles in relation to bias,[45] and then set out Mr Ross's evidence and submissions.[46] There was no error in the judge's statement of the relevant principles; and, having considered for ourselves the various allegations made by Mr Ross in the bias application made to the judge, we are unable to see any basis upon which it could be concluded that the judge erred in dismissing that application.
4. More broadly, having examined all of the material relied on by Mr Ross 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.
5. The same may be said in relation to Mr Ross's other allegations of wrongdoing by the judge and others. Like his allegations of bias, there is simply no material upon which this Court could conclude that the judge or any other party had engaged in some form of misconduct vitiating any of the judge's orders.
6. We turn now to Mr Ross's complaints about the judge's refusal to adjourn the trial of the preliminary issues. There is nothing in these complaints. To the contrary, the judge was plainly correct in proceeding with the trial in the circumstances as they unfolded in and from late November 2022. At no time did Mr Ross advance material requiring his Honour to grant yet another adjournment. For the reasons given by the judge,[47] the material Mr Ross advanced in support of his adjournment applications was insufficient to justify any adjournment. There was thus no basis upon which the handing down of the judgment should have been adjourned, halted, stayed, prohibited or enjoined as asserted by Mr Ross.
7. The remainder of Mr Ross's proposed grounds of appeal cavil with the correctness of the judge's decision that s 388 of the MRC Act barred his claim, and that s 389 did not apply because Mr Ross had not given to the Commission the written choice required by s 389 of the MRC Act prior to commencing the proceeding. There is no substance in any of these grounds of appeal. For the reasons given by the judge, the judge was correct when he concluded that:

(a) the proceeding was a proceeding 'in respect of ... a service injury sustained ... by ... a former member [of the Defence Force]', namely, Mr Ross;

(b) s 389 of the MRC Act required any choice to institute a proceeding to be made in writing and given to the Commission prior to commencing that proceeding;

(c) the onus was on Mr Ross to establish that he had given such a written choice to the Commission prior to commencing the proceeding; and

(d) there was no evidence of any choice in writing made by Mr Ross having been given to the Commission prior to the commencement of the proceeding.[48]

1. We would make two further observations in relation to Mr Ross's assertions that the judge erred in his construction and application of ss 388 and 389 of the MRC Act:

(1) First, it is not a question of whether the proceeding should have been classified as a 'common law proceeding' pertaining to Mr Ross's military service or, on the other hand, a 'personal injury proceeding'. The issue was whether the proceeding was a proceeding 'in respect of ... a service injury'. As was said in FJ, conceptually, the phrase 'in respect of' has 'the widest possible meaning of any expression intended to convey some connexion or relation between two subject-matters'.[49]

(2) Secondly, so far as Mr Ross's complaint that the judge failed to accept that he (Mr Ross) had made the choice required by s 389 of the MRC Act 'years ago', there was simply no evidence of any choice being made by Mr Ross prior to the email he sent on 24 February 2018[50] - some eight months after the proceeding was commenced.

1. It follows from the above that Mr Ross's proposed appeal to this Court has no prospects of success. 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. That said, we should say for completeness that the reasons given, and material filed, by Mr Ross in this Court did not go any way towards adequately explaining Mr Ross's delay in commencing proceedings in this Court.

1. 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.[51]

[1] Plainly the Limitation of Actions Act plea meant to refer to s 5(1)(a) of the Limitation of Actions Act 1958 - that section being within Division 2 of Part I of that Act, and relevantly providing that (subject to certain specified exceptions) actions founded in contract or on tort shall not be brought after the expiration of six years from the date on which the cause of action accrued.

[2] Ross v Commonwealth of Australia [2022] VSC 779 ('Reasons').

[4] A different delegate from the one who considered and accepted the stress fracture claim.

[5] We should say for completeness that the correctness of these propositions does not arise for determination in this proceeding, and we express no view in respect of them.

[7] While it is not of great moment, in the context of the other paragraphs of the ASC, it is probable that Mr Ross meant 'psychological' rather than 'physiological' (although the word 'physiological is used in other paragraphs of the ASC: see for example paragraph 67 d.).

[10] Ross v Commonwealth of Australia [2022] VSC 457 ('Bias Reasons').

[16] While the words 'Permanent Forces' and 'Reserves' are also defined in s 5(1) to have the same meanings as those words have in the Defence Act 1903, it is not necessary for present purposes to set out those definitions in these reasons.

[17] For completeness we note that the word 'injury' is defined in s 5(1) to mean 'any physical or mental injury (including the recurrence of a physical or mental injury) ...'.

[18] The word 'treatment' is defined in s 5(1) to have the meaning given to it by s 13. It is not necessary for present purposes to set out s 13 in these reasons.

[19] For completeness, we would also note that there is a definition of 'service with the Defence Force' in s 6(2). It is not, however, necessary to set out that definition in these reasons.

[25] (2017) 55 VR 108, 154-156 [132]-[136] (Tate, Santamaria and Beach JJA) ('FJ').

[28] [1996] NSWSC 451; (1996) 40 NSWLR 199 (Meagher, Sheller and Beazley JJA) ('Flaviano').

[29] [2003] WASCA 220 (Malcolm CJ and McKechnie J) ('Harris').

[30] [2000] HCA 39; (2000) 203 CLR 136 (Gleeson CJ, McHugh, Gummow, Hayne and Callinan JJ) ('Austral').

[32] Harris [2003] WASCA 220, [6], [8].

[35] Reasons, [47]. See Austral [2000] HCA 39; (2000) 203 CLR 136, 149 [34].

[39] Ibid [55]. This was almost certainly a reference to Mr Ross's email sent to the DVA on 24 February 2018 (see paragraph [14] above).

[40] The first five of these dot points are a 'cut and paste' (typographical errors included) from Mr Ross's application for an extension of time in his application for leave to appeal against the dismissal of the judicial review proceeding which he took against Victoria Legal Aid, and in which we have also delivered judgment today. The sixth dot point is new.

[41] See Sunshine Loans Pty Ltd v Australian Securities and Investments Commission [2025] FCAFC 34, [130]-[135] (Perram, Bromwich and Colvin JJ).

[42] A matter which we heard prior to the commencement of this matter.

[43] 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].

[48] See Flaviano [1996] NSWSC 451; (1996) 40 NSWLR 199; Austral [2000] HCA 39; (2000) 203 CLR 136; Harris [2003] WASCA 220; FJ (2017) 55 VR 108.

[49] FJ (2017) 55 VR 108, 155 [135].

[51] Mr Ross also filed two other Applications other than for leave to appeal (one on 24 January 2024, and one on 11 April 2025) 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 the extension of time it is unnecessary to consider these applications.