FEDERAL COURT OF AUSTRALIA

Ross v Attorney-General (Cth) [2024] FCA 180

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s interlocutory application filed on 18 January 2024 be dismissed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time and leave to appeal filed on 25 October 2023 be dismissed.

2.    The applicant pay the respondent’s costs of this proceeding, as agreed or taxed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

GOODMAN J

A.    INTRODUCTION

1    On 7 September 2023, the primary judge dismissed two interlocutory applications brought by the applicant (Mr Ross) and acceded to an interlocutory application brought by the respondent for the dismissal of the proceeding.

2    On 25 October 2023, Mr Ross filed an application for an extension of time and leave to appeal from the decision of the primary judge.

3    For the reasons set out below that application should be dismissed, with costs.

B.    BACKGROUND

B.1    Generally

4    The salient evidence on the present application provides the following general background.

5    Mr Ross was a member of the Australian Army Reserve during the period from about November 2003 to about May 2006.

6    In the first half of 2005, Mr Ross sustained a stress fracture of his left tibia. In May 2006, this injury was aggravated during a service-related fitness assessment. He resigned from the Army Reserve in the same month.

7    In about 2015, Mr Ross lodged a claim for compensation under the Military Rehabilitation and Compensation Act 2004 (Cth). That claim was accepted on 2 July 2015.

8    Mr Ross holds the following views: (1) he has suffered psychological injuries as a result of his time in the Army Reserve for which he seeks compensation; (2) he has a right (sometimes described as a constitutional right) to be provided with legal representation at public expense and has wrongly been refused such legal and financial assistance; and (3) as he has wrongly been refused such assistance, no other person in Australia should be entitled to receive such assistance.

9    Of direct relevance to the present application are the following matters.

10    On 15 January 2020, Mr Ross made an application for Commonwealth financial assistance with his legal fees (15 January 2020 application). As part of that application, Mr Ross: (1) disclosed that he had previously made unsuccessful applications for legal assistance to Legal Aid Victoria, Justice Connect, the Commonwealth Minister for Veteran Affairs, the present respondent and as part of a proceeding he had underway in the Supreme Court of Victoria; and (2) indicated that his application was made under the “Commonwealth public interest and test cases scheme” and the “Special circumstances scheme – Australian legal matter”, both of which were described on the application form as non-statutory schemes.

11    The two non-statutory schemes nominated in Mr Ross’s application form were established under the Commonwealth Guidelines for Legal Financial Assistance 2012, published and administered by the Commonwealth Attorney-General’s Department.

12    On 30 March 2021, a delegate of the respondent refused the 15 January 2020 application, and notified Mr Ross of his right to seek an internal review of the refusal decision.

13    On 27 April 2021, Mr Ross sought an internal review of the refusal decision. On 3 September 2021, a delegate of the respondent upheld the refusal decision.

14    On 27 July 2022, Mr Ross made a further application for Commonwealth financial assistance with his legal fees (27 July 2022 application).

15    On 30 August 2022, the Commonwealth Attorney-General’s Department wrote by email to Mr Ross, requesting that he identify any substantial differences between his 15 January 2020 application and his 27 July 2022 application. No substantive reply to this email was provided.

16    On 7 September 2022, Mr Ross sent to the Department the originating application and his supporting affidavit in the proceeding below, which had been filed on 5 September 2022.

B.2    Mr Ross’s application in the proceeding below

17    The originating application filed on 5 September 2022 was superseded by an amended originating application filed on 11 January 2023. In that application, Mr Ross sought the following orders by way of final relief (as written):

1.    I seek a review the decision of Commonwealth of Australia Attorney General in relation to my application for legal aid and to:

1.    Refer this decision back to Commonwealth of Australia Attorney General for reconsideration so that the decision is made according to law and/or

2.    Grant me legal aid for a civil law proceeding pertaining to my military service.

3.    Grant a stay order – a prohibition order – that prohibits the current Royal Commission into Veterans Suicides from allowing and facilitating the submission of a CDDA ex-gratia payment through the use of free legal services provided by this Royal Commission.

18    On 2 March 2023, the respondent filed his interlocutory application seeking summary judgment.

19    On 3 March 2023 – following claims by Mr Ross that he lacked the capacity to prosecute his proceeding – the primary judge made the following order:

Pursuant to r 4.12 of the Federal Court Rules 2011 (Cth), a referral certificate be issued to the applicant for legal assistance, being the engagement of a solicitor in order to secure an expert medical assessment as to the applicant’s mental health and whether the applicant requires a litigation guardian in this proceeding.

20    Allen & Overy, solicitors, accepted the pro bono referral in April 2023. In June 2023, a Registrar of the Court released Allen & Overy from their responsibilities to the applicant.

21    On 30 June 2023, Mr Ross filed two interlocutory applications. The first sought a variety of interlocutory orders (discussed in more detail below). The second sought review of the Registrar’s decision to grant Allen & Overy permission to cease providing legal assistance to the applicant.

22    On 17 July 2023, the primary judge set the three interlocutory applications down for hearing on 7 September 2023. The notification of that hearing to the parties included notice to Mr Ross that if he did not appear on 7 September 2023, orders may be made in his absence. Mr Ross corresponded with the Associate to the primary judge, seeking an adjournment of that hearing date, and was informed that any such application should be made at the hearing on 7 September 2023.

B.3    The hearing on 7 September 2023

23    Mr Ross did not appear at the hearing on 7 September 2023. The primary judge noted that he was satisfied that Mr Ross had been on notice that his foreshadowed application for an adjournment, his two interlocutory applications, and the respondent’s interlocutory application would be dealt with that day. His Honour proceeded to hear Mr Ross’s two applications, followed by the respondent’s application, in the absence of Mr Ross.

24    At the conclusion of that hearing, the primary judge made orders dismissing Mr Ross’s two interlocutory applications and granting the respondent’s interlocutory application for summary dismissal of the proceeding. His Honour also ordered that Mr Ross pay the respondent’s costs of those applications. His Honour provided ex tempore reasons for making those orders.

C.    THE PRIMARY JUDGE’S REASONS

C.1    Mr Ross’s first interlocutory application

25    The primary judge succinctly summarised the relief sought by Mr Ross in his first interlocutory application:

By the first in time interlocutory application of Mr Ross, filed on 30 June 2023, it is to be noted that he seeks 12 forms of relief by way of interlocutory relief ... commencing with a positive injunction that he be deemed a person who is granted a fee waiver on financial grounds in this proceeding; that he had a referral certificate for a pro bono lawyer pursuant to rule 4.12; that this proceeding be converted to a writ, that he have appointed a litigation guardian, which I have mentioned; some sort of relief in relation to a decision made by pro bono lawyers who were at one point acting for him, that is, the firm Allen & Overy; that their decision to cease acting for him be, to use the words of Mr Ross, rescinded, refused or overturned; a subpoena be issued to obtain his medical records from a Dr Gelman, his first psychiatrist; an application that he obtain a list of the financially supported law firms for legal services in Victoria and Australia by various Commonwealth departments and agencies; an injunction apparently to the effect that he be provided with legal representation in this proceeding that appears to be in the nature of an application for a mandatory injunction; a further mandatory injunction application relating to the Royal Commission in Veteran Suicides to accept him as a person; to submit, to use the words of Mr Ross, written and oral submissions to it in person and thus, in turn, be provided was a law firm to assist him in that process; eleventhly, that some form of notice of constitutional matter be issued in this proceeding; and, finally, an application for leave from this proceeding be granted for the above actions to be heard, taken, if granted, before the application by the respondent for summary dismissal.

26    His Honour rejected that application, for the reasons set out below.

27    His Honour dealt first, for obvious reasons, with Mr Ross’s claim for the appointment of a litigation guardian on the basis that he was under a disability. His Honour rejected that claim for the following reasons:

The first matter that I must address is whether I have real concerns about whether Mr Ross is a person under a legal incapacity within the meaning of rule 9.62. That arises because if one navigates to the fifth paragraph of one of the interlocutory applications filed by Mr Ross on 30 June 2023, one sees this:

Application for me to be deemed a person under a disability in this proceeding – temporary order granting me litigation guardianship in order to provide required material, evidence and submission material, including Professor Alexander McFarlane, that this Court requires to be granted a permanent litigation guardianship order for this proceeding.

Mr Ross has not filed any evidence in support of that application and has not appeared before me this morning to press it. It is often the case that when self-represented litigants appear in this court that they demonstrate a degree of confusion, a lack of understanding of process and procedure and that they seek to have agitated various grievances for which there is either no factual or no legal – or both – reasonable basis.

I am not satisfied that Mr Ross suffers or is a person under a legal incapacity in that he is uncapable by reason of mental illness of understanding the nature of this proceeding. That is borne out, in my view, by the fact that he has managed to file numerous documents in this court in relation to his application and engage in intelligible correspondence with my chambers over a prolonged period. For those reasons, I was satisfied that I should proceed to hear the three interlocutory applications notwithstanding the absence of Mr Ross this morning. Mr Sypott, who appears for the Minister, quite properly submitted that the applications should be dealt with in the following order: first, the two interlocutory applications of Mr Ross filed on 30 June 2023; and, secondly, the interlocutory application for summary termination filed by the respondent on 2 March 2023.

28    His Honour then turned to the remainder of Mr Ross’s first interlocutory application. After summarising the forms of relief sought by Mr Ross (as expressed at [25] above), his Honour explained:

I am satisfied that none of those forms of relief could possibly be granted by this Court upon interlocutory application. I have had the benefit of reading the written submissions of Mr Sypott of 31 August 2023, which submissions I entirely agree with and endorse as part of my ex tempore reasons from paragraph 27 to and including paragraph 39. There is no point in reading those submissions into the transcript. There is no point in summarising these submissions. It is sufficient to say that I am convinced that the submissions are entirely correct, and I adopt them as part of my reasons; hence, there is a proper basis to simply dismiss that interlocutory application, and I make that order.

29    Paragraphs 27 to 39 of the respondent’s submissions, which his Honour adopted as part of his reasons, were in the following form:

27.    Interlocutory order 1: Fee waiver – The applicant seeks an order that he be “deemed a person who is granted a Fee Waiver on Financial grounds for this proceeding”. An interlocutory application is not the appropriate vehicle through which to seek a fee waiver; the applicant can make an application for a general or financial hardship exemption using the forms on the Court’s website.

28.    Interlocutory order 2: Referral certificate – The applicant seeks a referral for legal assistance pursuant to r 4.12 of the FC Rules. He has no entitlement to apply for such a referral. In any event, such a referral should not be made when regard is had to the nature of the proceeding; there are fundamental issues with the relief sought by the applicant, which will not be overcome by a referral for legal assistance.

29.    Interlocutory orders 3 and 4: “Writ” – The applicant seeks orders that this proceeding be “made into a Writ” and that he be granted leave to file an amended writ and statement of claim for the purpose of “add[ing] the Commonwealth Veterans Affairs Minister as a Secondary Defendant”.

30.    Proceedings in this Court’s original jurisdiction are not commenced by way of, or capable of conversion into, a writ. A further amendment of the originating application should not be entertained in circumstances where the proceeding has been on foot since 5 September 2022, where the applicant has already filed an amended application, and where the proposed amendment seeks to join a party with no involvement in the decision under review.

31.    Interlocutory order 5: Litigation guardian – The applicant seeks an order that he be “deemed a person under a disability in this proceeding”, with an order “granting [him] litigation guardianship”. The threshold question before considering the appointment of a litigation representative in this Court is whether the applicant is under a legal incapacity. There is no basis, on the material before the Court, for a conclusion that the applicant is a person under a legal incapacity.

32.    The respondent further notes that, in one of his proceedings in the Supreme Court of Victoria, the applicant was the subject of an independent medico-legal report, which concluded that he was not incapable of managing his affairs in relation to that proceeding. The presiding judge in that proceeding also observed that, although the applicant has a diagnosed mental health condition, “he has taken numerous steps in different legal proceedings and various forums outside formal court proceedings to pursue and advance his legal rights”. That observation remains apposite here.

33.    Interlocutory order 6: Review of Registrar’s decision – The sixth order sought by the application is of a similar nature to the orders sought in the second interlocutory application. For the reasons set out below, it is not open to the Court to grant orders of this nature.

34.    Interlocutory order 7: Application for leave to file subpoena – The applicant seeks leave to file a subpoena directed to Dr Mat Gelman, a psychiatrist. The proposed subpoena has no legitimate forensic purpose relating to the judicial review of the decision before this Court.

35.    Interlocutory order 8: List of legal services – The applicant seeks a “list of financially supported law firms or legal services in Victoria and Australia”. Such a list, whether provided by the Court or the respondent, is irrelevant to the judicial review of the decision before this Court.

36.    Interlocutory order 9: “Injunction” orders – The applicant seeks orders to compel various law firms, statutory legal services providers and community legal centres to represent him in this proceeding. The Court has no power to compel legal practitioners to act for the applicant.

37.    Interlocutory order 10: Orders relating to Royal Commission – The applicant seeks to compel the Royal Commission to allow him to provide submissions to it and compel a law firm to represent him in that process. For the reasons outlined above, an order compelling the Royal Commission to accept submissions from the applicant has no relationship to the decisions and conduct under review, and a law firm cannot be compelled to represent the applicant.

38.    Interlocutory order 11: Notice of Constitutional matter – The applicant does not need to issue a Notice of a Constitutional matter. The respondent does not consider this matter to be one arising under the Constitution or involving its interpretation.

39.    Interlocutory order 12: “Leave” – The applicant appears to seek that his interlocutory applications be heard prior to the respondent’s application for summary judgment. The Court has now determined that all three applications are to be heard on the same date.

(emphasis in original; citations omitted)

C.2    Mr Ross’s second interlocutory application

30    In Mr Ross’s second interlocutory application, he sought the following orders:

FINAL RELIEF:

1.    I seek to make this application to:

1.    Review the decision of Registrar Curnow to accept the cessation of the Pro Bono Referral of Allen and Overy in VID 505 of 2022.

2.    Send this decision back to Registrar Curnow for reconsideration.

INTERIM RELIEF:

1.    I seek to make an application for this proceeding of:

1.    A Pro Bono referral to be made.

2.    An order made that I require Litigation Guardianship for this proceeding.

3.    An injunction order be made for one of the following entities to represent me:

1.    Barwon Community Legal Service

2.    Victoria Legal Aid Legal Service

3.    RSL Legal Service

4.    National Defence and Veterans Legal Service

5.    Australian Government Solicitors Office or a law firm appointed by them, pursuant to the Judiciary Act 1903.

(emphasis in original)

31    His Honour’s reasons for rejecting this application were expressed as follows:

The second interlocutory application lodged by Mr Ross on 30 June 2023 seeks both final and interim relief the purport of which is to review a decision of a Registrar of this Court, and I will use the words of Mr Ross, to accept the cessation of the pro bono referral of Allen & Overy and to send this decision back to Registrar Curnow for reconsideration. By way of interim relief, Mr Ross seeks a pro bono referral and an injunction requiring five legal service providers to represent him in this proceeding. It is said that this application is made pursuant to the Administrative Decisions (Judicial Review) Act 1976, section 39B of the Judiciary Act and certain provisions of the Federal Court Rules.

That application is utterly misconceived. Once again, I have the benefit of the submissions of Mr Sypott, this time from paragraphs 40 through to 44. I adopt those submissions as correct and as forming the basis of my reasons for dismissing the second interlocutory application of Mr Ross filed on 30 June 2023.

32    Paragraphs 40 to 44 of the respondent’s submissions, which his Honour adopted, were in the following form:

40.    The applicant’s second interlocutory application seeks review of a decision of a Registrar, made pursuant to r 4.16 of the FC Rules, granting Allen & Overy permission to cease providing legal assistance to the applicant in this proceeding. That application is misconceived, and should be refused.

41.    The application is said to have been made, in part, pursuant to the Judiciary Act 1903 (Cth) and Administrative Decisions (Judicial Review) Act 1977 (Cth). An application for judicial review under either or both of those Acts is to be made in accordance with the relevant Court rules; such an application is not capable of being made by way of an interlocutory application filed in another proceeding seeking judicial review of a decision made by a different decision-maker.

42.    The application is also said to have been made pursuant to r 3.11(1) of the FC Rules, which provides that a party may apply to the Court under s 35A(5) of the FCA Act for review of the exercise of a power of the Court by a Registrar. An application for review is to be conducted as a hearing de novo.

43.    The exercises of power of the Court that are capable of review under s 35A(5) are set out in s 35A(1) of the FCA Act and r 3.01(1) of the FC Rules. The power to grant permission to a pro bono lawyer to cease providing legal assistance is not listed as a power capable of review by a judge of this Court.

44.    Accordingly, the applicant’s second interlocutory application should be refused. The interim relief sought in the application is similar to that sought in the first interlocutory application, and should be refused for the reasons set out above.

(emphasis in original; citations omitted)

C.3    The respondent’s interlocutory application

33    In his interlocutory application, the respondent sought an order:

Pursuant to s 31A of the Federal Court of Australia Act 1976 and r 26.01(1)(a) of the Federal Court Rules 2011, the Respondent applies for summary judgment against the Applicant because the Applicant has no reasonable prospect of successfully prosecuting the proceeding.

34    The primary judge acceded to this application and made an order dismissing the proceeding. His reasons for doing so were expressed as follows (paragraph numbering added for ease of reference):

1.    That application is concerned with the amended originating application of Mr Ross for judicial review as filed on 11 January 2023. It takes some while to read through that application in an endeavour to understand just what it is that Mr Ross seeks to have reviewed and why. Now, without wishing to discredit the no doubt considerable effort that Mr Ross has gone to in formulating that interlocutory application, the kernel of it relates to a decision or decisions taken some time prior to 24 August 2022 not to grant legal assistance to Mr Ross pursuant to the terms of a non-statutory scheme referenced in a document described as the Commonwealth Guidelines for Legal Financial Assistance 2012. A copy of those guidelines in their relevantly current form is attached to the affidavit of Mr Sypott made on 3 March 2023. It is relevant to note from those guidelines the following. First, paragraph 1.3:

The scheme is established in line with the access to justice principles that the government decided to increase the reach of financial assistance to more Australians in need by moving to a focus on assistance for disbursements with legal representation costs available in exceptional circumstances. This policy also aims to support the work of pro bono lawyers.

2.    The purpose of the policy is set out at paragraph 1.4. The guidelines deal with the making of grants of financial assistance to parties to particular legal actions. There are two types of schemes, (1) statutory or legislative schemes and (b) non-statutory schemes, the latter of which depend on the executive power of the government rather than the power conferred by legislation. The scheme confers in favour of the relevant Commonwealth Minister or agency permissive power to provide grants of legal assistance pursuant to non-statutory schemes pursuant to clause 3.11, subparagraph (b), which relevantly includes, for present purposes, subparagraph (iii), Commonwealth public interest and test cases and, subparagraph (iv), Royal Commissions and inquiries but not including the Royal Commission Into Institutional Responses to Child Sexual Abuse.

3.    The scheme is established for non-statutory purposes by clause 3.5. By clause 3.8, the purpose of the scheme for Commonwealth public interest and test cases is to settle an uncertain area or question of Commonwealth law or resolve an important question arising under Commonwealth law that affects the rights of a section of the public, which is a group of individuals who are socially or economically disadvantaged. By clause 3.9, the purpose of the scheme relating to Royal Commissions and inquiries is to provide financial assistance for an entity, if the entity’s testimony will assist a commission or inquiry. As is readily apparent from the balance clauses of the scheme, it is entirely discretionary. There is no compulsive element, and, more importantly, there is no statutory duty which obliges the scheme to be administered in any particular way.

4.    Now, that is important because, as pointed out by Mr Sypott and by reference to a decision of French J, as he then was, in Ex-Christmas Islanders Association v the Attorney-General, which is reported at [2005] 149 FCR 170, mandamus or orders in the nature of mandamus do not go unless one is able to identify a duty that is obliged to be performed by a public official. That is abundantly clear from his Honour’s reasoning at paragraphs 99 to 100, which - I pause to observe his Honour was concerned with a non-statutory scheme for the granting of legal assistance in public interest and test cases which would appear to be the forerunner of the present scheme.

5.    I will not read into the transcript, but I adopt, with respect, as plainly correct his Honour’s reasoning at paragraphs 99 to 100, in particular, by picking up something that Heerey J had said in another case called Barnett where, with characteristic succinctness, Heerey J had said that a writ of mandamus does not issue except to command the fulfilment of some duty of a public nature which remains unformed and, further, that Ministers cannot make law unless in the exercise of a power conferred by statute.

6.    It follows from that reasoning and the general principles that sit behind it that the final relief that is sought in the three paragraphs in the amended originating application simply cannot be granted to Mr Ross. Now, the first ground of relief that he seeks, each prefaced by the words:

I seek a review of the decision of the Commonwealth of Australia Attorney-General in relation to my application for Legal Aid and to make a determination to, firstly, refer this decision back to the Commonwealth of Australia Attorney-General for reconsideration so that the decision is made according to law.

7.    Now, the problem – the fundamental problem with that component of the amended originating application is that Mr Ross seeks mandamus or an order in the nature of mandamus, which is only available if he establishes that the Commonwealth Attorney-General has either actually or constructively failed to perform a duty of a public nature. By application of the Christmas Islander Association case, that is plainly not so in relation to this statutory scheme. It is lacking a link to any duty to consider the application according to law or, indeed, according to any other prescribed statutory criteria.

8.    Accordingly, the first paragraph of the final relief sought by Mr Ross is just misconceived and cannot be granted in his favour even if one were to accept all of his other arguments as to why, on his application, the decision was wrongly, to use a neutral word, made.

9.    The second paragraph of final relief sought by Mr Ross is expressed as follows, that is:

Grant me Legal Aid for civil law proceeding pertaining to my military service.

10.    Well, once again, that final relief is misconceived. This court simply has no jurisdiction and certainly no power to determine that he be the recipient of the grant of legal assistance.

11.    The third relief sought by way of final relief in the amended originating application is expressed as follows:

Grant a permanent and final stay order – a prohibition order – that prohibits the current Royal Commission Into Veteran Suicides from allowing and facilitating the submission of a CDDA ex gratia payment through the use of free legal services provided by this Royal Commission.

12.    To the extent to which that paragraph is intelligible, there are certainly difficulties in the way it has been expressed, and, on a fair reading, what seems to be sought is some sort of legal assistance in favour of Mr Ross as provided through the auspices of the Royal Commission. The problem is that has no relationship to the decision not to grant legal assistance pursuant to the non-statutory scheme which forms the basis of the application for review. This is not an application for review of any decision or conduct or the Royal Commission. This final relief is factually and legally utterly misconceived.

13.    Now, I should mention that Mr Ross seeks far more extensive relief by way of interim relief at paragraphs 1, 2 and 3 of his amended originating application. I need not interrogate those paragraphs in any detail for the simple reason, as established by the High Court decision in Australian Broadcasting Corporation v Lenah Game Meats Pty Limited (2001) 208 CLR 199, there is no entitlement to interim relief in a case where there is no entitlement to final relief.

14.    I am, therefore, satisfied that the threshold required by section 31A of the Federal Court of Australia Act 1976 is met in the circumstances of this case, that is, I am positively satisfied that Mr Ross has no reasonably prospect of successfully prosecuting the proceeding or any part of it, noting that it is not necessary that I conclude that his case is hopeless or bound to fail, but, in any event, were they to be the relevant criteria, I am so satisfied. Accordingly, for those reasons, I am satisfied that the respondent should have the relief that it seeks.

(italics added)

35    Paragraphs 99 and 100 of the judgment of French J (as his Honour then was) in Ex-Christmas Islanders Association Inc v Attorney-General (Cth) [2005] FCA 1867; (2005) 149 FCR 170 at 191, to which the primary judge referred, are in the following form:

99.    Although not expressed with great clarity, it seems that the applicants seek a writ of mandamus against the Attorney-General pursuant to s 39B of the Judiciary Act. However as noted earlier, the claim for a writ of mandamus is expressed in a way that is unintelligible. What is sought is a writ of mandamus directing orders of review in respect of decisions of the respondent. In para 2 of the minute of amended application the applicants seek an order that a writ of mandamus be issued against the respondent directing it to make the reviews or decisions specified in paras 1.1 to 1.9 of the application. However, none of these decisions are made pursuant to an identified legal duty to make them. As already pointed out, the scheme is set up as an administrative exercise. It is not a statutory scheme nor does it derive from any statute. There is no legal duty identified which is enforceable by mandamus requiring the Attorney-General either to consider applications or to make a grant pursuant to the criteria set out in the guidelines.

100.    A similar issue arose in Barnett where the applicant sought mandamus as well as judicial review under the ADJR Act. Heerey J said (at 403):

A writ of mandamus does not issue except to command the fulfilment of some duty of a public nature which remains unperformed:

    In the case before his Honour the program was not established by statute or regulation. It was “a matter entirely within the discretion of the Minister whether to establish the programme or to modify or revoke it”. His Honour pointed out that the departmental circular in that case did not have the force of law (at 403):

Ministers cannot make law unless in the exercise of a power conferred by statute.

D.    MR ROSS’S APPLICATION FOR AN EXTENSION OF TIME AND LEAVE TO APPEAL

36    As noted above, the primary judge’s orders were made on 7 September 2023. Those orders were interlocutory. By dint of rr 35.12 and 35.13 of the Federal Court Rules 2011 (Cth), any application for leave to appeal was required to be filed within 14 days of 7 September 2023. This did not occur; and the present application for an extension of time and leave to appeal was filed on 25 October 2023.

37    On 11 December 2023, I set that application down for hearing at 10:15am on 23 February 2024, with a timetable for the filing of evidence and submissions.

D.1    Mr Ross’s 18 January 2024 interlocutory application

38    On 18 January 2024, Mr Ross filed an interlocutory application (18 January 2024 interlocutory application), supported by affidavit evidence, seeking the following orders (as written):

1.    Referral of legal assistance pursuant to rule 4.12 for:

1.    Constitutional Law Barrister and/or Solicitor.

2.    Medico-Legal Barrister and/or Solicitor.

3.    Statute of Limitations/EOT Barrister and Solicitor.

2.    Nature of legal assistance of which referral is made:

1.    Any/All assistance necessary.

2.    To assist in refiling my application for leave/EOT documents.

2.    Stay and/or Leave and/or Adornment Order: before expiration of 18 January 2024, pursuant to orders of Judge Goodman made on 11/12/2023.

3.    Merge of proceeding Order.

4.    Order that I give notice of a Constitutional issue pursuant to s78B of the Judiciary Act 1903 (Cth).

5.    Order that I be permitted to refile my Application for Leave/EOT documents either through an Amendment of these documents or another way as directed by this Court.

6.    Interim order for legal aid by Defendant to be provided to Rhys Roberts of Roberts Gray or any other solicitor to assist me in this legal proceeding.

39    On 2 February 2024, I listed the 18 January 2024 interlocutory application for hearing on 16 February 2024 and made orders for the filing of any further evidence and submissions in advance of the hearing of that application. Both parties filed submissions. Neither party filed further evidence.

40    On 16 February 2024, I heard the 18 January 2024 interlocutory application, but on the application of Mr Ross – who wished to file evidence in addition to that which he had already filed – the application was adjourned to 9:30am on 23 February 2024 and Mr Ross was directed to file any further evidence and submissions by 20 February 2024. Despite his request for an adjournment to allow him to file further evidence, Mr Ross did not file such evidence (or submissions) in accordance with the timetable set on 16 February 2024.

41    On 23 February 2024, the hearing of Mr Ross’s interlocutory application continued. In addition to the evidence he had previously filed, Mr Ross relied upon a further affidavit made that day. He also relied upon an order made by Associate Justice Irving of the Supreme Court of Victoria on 22 February 2024 (i.e. the previous day) in a proceeding in that Court pursuant to s 179 of the Guardianship and Administration Act 2009 (Vic), referring to the Victorian Civil and Administrative Tribunal (VCAT) for assessment the issue of whether Mr Ross may be in need of a “guardian, a supportive guardian, an administrator or a supportive administrator”. After further hearing, I dismissed Mr Ross’s interlocutory application and indicated that I would subsequently publish my reasons for doing so. Those reasons are as follows.

D.1.1    Referral for pro bono assistance

42    Paragraph 1 of the 18 January 2024 interlocutory application related to a referral for pro bono assistance under r 4.12 of the Rules. Mr Ross submitted that as a self-represented litigant he is eligible for assistance under rule 4.12 of the Rules and has a legal right to obtain legal representation, including with respect to this interlocutory application.

43    There is no such right (see [46] and [47] below. Nevertheless, the Court has a discretion, under r 4.12 of the Rules to issue a referral certificate for legal assistance. However, I did not consider it appropriate to issue such a certificate in circumstances where:

(1)    I was not satisfied that Mr Ross was unable to obtain legal assistance. In this regard:

(a)    Mr Ross did not provide evidence of his present asset or income position;

(b)    as part of his 23 February 2024 affidavit, he annexed a written advice of counsel obtained in November 2022 and indicated during the hearing that the fees of counsel and an instructing solicitor had been paid by his wife and his brother; and

(c)    as part of one of his 18 January 2024 affidavits, Mr Ross stated that he had spoken with Mr Rhys Roberts of Roberts Gray Lawyers on 11 January 2024 and “paid a retainer” to him on 15 January 2024;

(2)    I was not satisfied that Mr Ross lacked the capacity to represent himself in this proceeding because:

(a)    there was no evidence before me suggesting that he lacked such capacity. In this regard, Mr Ross did include in his evidence some psychological reports (dated between 2017 and 2019) which suggested that he had as at that time a recurrent major depressive disorder associated with comorbid anxiety and rumination, and that he exhibited obsessional and narcissistic personality traits. However, those reports did not suggest that Mr Ross had (and much less, has in 2024) a mental health condition which prevents him from representing himself in this proceeding;

(b)    he does not present as a person of limited intelligence, and had made written and oral submissions and prepared affidavit evidence which did not display any absence of capacity;

(c)    Mr Ross has represented himself in various other proceedings; and

(d)    although his submissions to the Court displayed on occasions a lack of understanding of the law, this is not unusual among self-represented litigants and is not of itself a basis for the issue of a referral certificate;

(3)    the reference to VCAT by Associate Justice Irving referred to at [41] above was not a sound basis for the issue of a referral certificate in this case. There was no evidence before me of the reasons why such a referral was made, the scope of evidence before his Honour (save for Mr Ross’s assertions that this included the psychological reports contained in his evidence before me) or whether the other party or parties to that proceeding consented to such a referral. For similar reasons, I also did not take into account the statement by Keogh J in Ross v Commonwealth of Australia [2022] VSC 457 at [13] that a medical report obtained in that proceeding was consistent with Mr Ross having capacity in accordance with r 15 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic), or the statement that his Honour made in Ross v Commonwealth of Australia [2022] VSC 779 at [33] that an appropriately qualified specialist had concluded that Mr Ross was capable of managing his affairs in relation to that proceeding; and

(4)    my preliminary assessment of the merits of Mr Ross’s application for an extension of time and leave to appeal led to a tentative view that that application was not: (a) significantly complex; or (b) particularly meritorious.

D.1.2    Stay and/or leave and/or adjournment order

44    Paragraph 2 of the 18 January 2024 interlocutory application appeared to seek a stay or adjournment of the application for an extension of time and leave to appeal.

45    Mr Ross submitted that this should occur so as to allow time for the appointment of a legal representative by the Court and a mental health assessment. For the reasons set out at D.1.1 above it was not appropriate to stay the proceeding to allow that to occur.

46    Mr Ross also submitted that there should be a stay or an adjournment of this proceeding to allow him to file a proceeding concerning a constitutional or other writ in the High Court of Australia, which proceeding he wished to be heard before the hearing of his application for an extension of time and leave to appeal. The basis of such a proceeding appeared to be Mr Ross’s view that he has a constitutional right to legal representation at public expense. It was not appropriate to stay the present proceeding for that reason, given that: Mr Ross had had ample time to file such an application; Mr Ross had provided no explanation as to why he had not done so earlier; and the self-evident weakness in the proposition that he has a constitutional right to legal representation at public expense in a civil proceeding that he has instituted. In this regard, the High Court of Australia held in McInnis v The Queen [1979] HCA 65; (1979) 143 CLR 575 and Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292, that there is no right to legal representation at public expense. As Deane J explained in Dietrich at 330:

It must be stressed that the applicant does not argue that he had a directly enforceable common law “right” to be provided with legal representation at public expense. Clearly, he did not. The common law does not impose upon the government or any section or member of the community an enforceable duty to provide free legal advice or representation to anyone. What the common law requires is that, if the government sees fit to subject an accused person to a criminal trial, that trial must be a fair one.

(emphasis added)

47    See also SZHTI v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 702 at [3] to [4], where Gyles J noted that there was “no doubt about the correctness” of the proposition that “there is no right to free legal advice”.

D.1.3    Merge of proceedings order

48    Paragraph 3 of the 18 January 2024 interlocutory application (as expanded upon by Mr Ross in his submissions) sought an order merging the present application for an extension of time and leave to appeal with other proceedings.

49    Mr Ross submitted:

I submit that I seek to ‘merge into one’ – into VID 555/2022 – applications to Commonwealth Legal Aid for many recent legal proceeding applications that I have made, and will make, in Courts in Australia: in particular, in the Supreme Court of Victoria and the Supreme Court of NSW.

50    This appeared to be a submission that the Court should consolidate into this proceeding all of the various proceedings that Mr Ross had commenced. There was no basis to do so, particularly in view of the limited nature of the present proceeding, being an application for an extension of time and leave to appeal from the decision of the primary judge.

D.1.4    Notice of a constitutional issue

51    Paragraph 4 of the 18 January 2024 interlocutory application sought an order that Mr Ross give notice of a constitutional issue pursuant to s 78B of the Judiciary Act 1903 (Cth).

52    I declined to make such an order as I was not satisfied that this proceeding involved a matter arising under the Constitution or involving its interpretation, within the meaning of s 78B(1).

D.1.5    Permission to file an amended application

53    Paragraph 5 of the 18 January 2024 interlocutory application sought an order that Mr Ross have leave to file an amended application.

54    No proposed amended application was provided. Nor was the nature of the proposed amendment described. Instead, this order appeared to have been sought in conjunction with orders seeking a referral for legal assistance or seeking to compel legal practitioners to act for the applicant (who would presumably draft the amended application); and on the basis that Mr Ross lacked the mental capacity to pursue the appeal. For the reasons set out above, this did not provide a basis for the order sought.

D.1.6    Interim legal aid from the respondent

55    Paragraph 6 of the 18 January 2024 interlocutory application sought an interim order that the respondent provide interim financial assistance to Mr Ross for the purpose of him retaining a solicitor in this proceeding.

56    Mr Ross submitted that he had a constitutional right to legal representation in this proceeding; and that he had a right to financial assistance equivalent to persons who did receive such assistance from the respondent and the Commonwealth Veterans Affairs Minister. Mr Ross also relied upon his asserted lack of mental capacity. For the reasons set out above, I considered those submissions to have been misconceived and to have provided no basis for the order sought.

D.1.7    Conclusion on the 18 January 2024 interlocutory application

57    For all of the above reasons, I dismissed the 18 January 2024 interlocutory application.

D.2    The substantive application

58    After dismissing the 18 January 2024 interlocutory application, I heard the application for an extension of time and leave to appeal and reserved my decision. I have now decided to dismiss that application. My reasons for doing so follow.

D.2.1    Relevant principles

59    In BQQ15 v Minister for Home Affairs [2019] FCAFC 218 at [33] (Yates, Wheelahan and O’Bryan JJ) explained, in relation to an extension of time:

Under rule 36.05, the Court may grant an extension of the time within which an appeal is to be filed. The principles applicable to the exercise of the Court’s discretion were set out in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-9, which were adopted by the Full Federal Court in Parker v R [2002] FCAFC 133 at [6]:

(a)    Applications for an extension of time are not to be granted unless it is proper to do so; the legislated time limits are not to be ignored.

(b)    There must be some acceptable explanation for the delay.

(c)    Any prejudice to the respondent in defending the proceedings that is caused by the delay is a material factor militating against the grant of an extension.

(d)    The mere absence of prejudice to the respondent is not enough to justify the grant of an extension.

(e)    The merits of the substantial application are to be taken into account in considering whether an extension is to be granted. Leave will not be granted where there are no reasonable prospects of success on the appeal: Kalanje v Minister for Immigration and Multicultural Affairs [2006] FCA 1618 at [5]. The applicant will have no real prospects of success where the case is devoid of merit or clearly fails; is hopeless; or is unarguable. In making an assessment the Court is not required to go into too great a detail, but is to “assess the merits in a fairly rough and ready way”: Jackamarra v Krakouer (1998) 195 CLR 516 at [7] – [9].

60    The question of whether leave to appeal should be granted turns principally upon whether: (1) the orders of the primary judge are attended by sufficient doubt to warrant the grant of such leave; and (2) substantial injustice would result from a refusal of such leave: Decor Corp Pty Ltd v Dart Industries Inc [1991] FCA 844; (1991) 33 FCR 397 at 398 to 400 (Sheppard, Burchett and Heerey JJ).

D.2.2    Delay

61    The application for leave to appeal was required to be filed within 14 days of 7 September 2023, when the primary judge made his orders: r 35.13 of the Rules.

62    This did not occur. The application for an extension of time and leave to appeal was filed on 25 October 2023. The delay was a period in the order of five weeks. Mr Ross’s affidavit evidence provided no explanation for the delay. In circumstances where: (1) Mr Ross was on notice – from the text of the form he used to make the application for an extension of time and leave to appeal and from the respondent’s written submissions filed on 1 February 2024 – of the requirement for an explanation as to why the application for leave to appeal was not filed in time; (2) Mr Ross had ample opportunities to file such evidence; and (3) Mr Ross filed a series of affidavits including one on the day of the hearing, none of which provided such an explanation, I infer that he has no satisfactory explanation.

D.2.3    Merits of the proposed appeal

63    The proposed grounds of appeal are discussed, in turn, below, using the numbering in Mr Ross’s draft notice of appeal.

D.2.3.1    First proposed ground of appeal

64    The first proposed ground of appeal is:

1.    No valid grounds to dismiss this proceeding.

b.    One case 18 years ago is not a strong case-law basis.

c.    There is only a ‘limited’ connection between my case and this case anyway.

65    As is apparent from the reasons of the primary judge on the respondent’s summary dismissal application set out at [34(1) to (8)] above, his Honour’s reasoning with respect to Mr Ross’s claim for an order requiring the respondent to provide financial assistance to him was in essence that:

(1)    Mr Ross sought an order in the nature of mandamus, requiring the respondent to grant him financial assistance for legal fees;

(2)    an order in the nature of mandamus is only available where there is an identifiable duty upon a public official to act in a particular way, citing Ex-Christmas Islanders Association at 191 [99] to [100] and Barnett v Minister for Housing & Aged Care (1991) 31 FCR 400 at 403 as authority for that proposition;

(3)    in the present case no such duty had been identified. Further, each of the schemes under which Mr Ross sought legal assistance was a non-statutory scheme and the decision whether to grant such assistance was entirely discretionary; and

(4)    it followed that the Court is unable to grant the order in the nature of mandamus sought by Mr Ross.

66    Mr Ross contended that Ex-Christmas Islanders Association was not good authority because it was decided in 2005. I do not accept that contention. The age of an authority is not determinative of its force; and the legal propositions set out at [99] of Ex-Christmas Islanders Association to which the primary judge referred are well-established. Mr Ross also contended that Ex-Christmas Islanders Association had only a limited connection to his circumstances. I accept that the facts are different, however that does not gainsay the force of the legal propositions set out in that case.

D.2.3.2    Second proposed ground of appeal

67    The second proposed ground of appeal is:

4.    Complete prejudice since I submitted two interlocutory applications.

68    This ground is devoid of merit. Mr Ross’s two applications were dealt with by the primary judge on 7 September 2023, prior to the hearing of the respondent’s interlocutory application. Mr Ross has not identified how he has been prejudiced.

D.2.3.3    Third proposed ground of appeal

69    The third proposed ground of appeal is:

5.    Bundling of 3 interlocutory applications, and the hearing date of all three of these, together into the same day.

70    This ground is also devoid of merit. The hearing of the three applications on the same day was a discretionary decision on a matter of case management made by the primary judge. There is no reason suggested as to why the exercise of that discretion miscarried. To the contrary, it reflects observance of the requirement of s 37M of the Federal Court of Australia Act 1976 (Cth), that such a discretion be exercised in the way that best promotes the overarching purpose of facilitating the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible. Further, as the primary judge recorded (see [27] above), the applications were dealt with in an order which provided for the hearing of both Mr Ross’s interlocutory applications (rather than considering the respondent’s application first which, in the circumstances of the granting of that application, would have rendered Mr Ross’s applications otiose).

D.2.3.4    Fourth proposed ground of appeal

71    The fourth proposed ground of appeal is:

6.    Failing to have valid, merited and proper mental health assessment completed.

72    Mr Ross did not, in the two interlocutory applications filed by him and heard by the primary judge, seek such an order. There can be no error by the primary judge in failing to make an order in those terms (assuming, without deciding, that the Court had power to do so). To the extent that this ground might be construed as a ground that the primary judge erred with respect to Mr Ross’s second interlocutory application – in which he sought a review of the Registrar’s decision to release Allen & Overy from their responsibilities to Mr Ross – I discern no error in the primary judge’s reasoning (at [31] and [32] above).

D.2.3.5    Fifth proposed ground of appeal

73    The fifth proposed ground of appeal is:

7.    Ignoring all Constitutional Ground arguments made in this proceeding.

h.    I seek in this proceeding to made Constitutional Grounds to either:

ix.    a. Obtain Public Interest Legal Aid; or – and this is basically just as good for me -

x.    b. Prohibit the existence of Public Interest Legal Aid for all Australians; for all public servants; for all soldiers/veterans.

74    In his first interlocutory application, Mr Ross sought the following order (as written):

Notice of Constitutional Matter

11.    Application for Notice of Conditional Matter to be made for:

1.    Many matters pertaining to this interlocutory application.

2.    This proceeding in its entirety.

•    I note:

•    This is a serious ‘thing’ – ie. Notice of Constitutional Matter.

•    Yesterday the US Supreme Court on Constitutional Grounds prohibited ‘Affirmative Action’ grounds by US Universities and Colleges.

•    Last month a Judge in Texas on Constitutional Grounds prohibited an Abortion Drug, which was latter overturned by the US Supreme Court in an emergency hearing.

1.    Application for the Commonwealth Attorney General – pursuant to the Judicial Act 1903 – to grant me legal representation for a valid matter pertaining to Constitutional Grounds.

2.    Application for Judge McElwaine to grant me legal representation due to Constitutional Grounds for:

1.    This interlocutory proceeding.

2.    This proceeding in its entirety.

(underlining in original)

75    The primary judge declined to make such an order for the reasons submitted by the respondent, namely, that Mr Ross did not need to issue a notice of a constitutional matter in circumstances where the matter did not arise under the Constitution or involve its interpretation. I discern no error in the primary judge’s reasoning (at [28] and [29(38)] above).

D.2.3.6    Sixth and seventh proposed grounds of appeal

76    It is convenient to consider the sixth and seventh proposed grounds of appeal together. Those grounds are:

11.    Substantial grounds for ‘some kind’ of preliminary legal assistance to be provided to me for this proceeding from one/someone on the Defendants payroll.

12.    Application for Amended Judicial Review to be granted with legal assistance to complete this with me.

77    These grounds appear to be a complaint by Mr Ross that he was not provided with some financial assistance by the respondent to pay for legal assistance for him in the proceeding below. In Mr Ross’s first interlocutory application, he sought (as written):

2.    Application for this Court to refer me to a Pro Bono lawyer be made, pursuant to 4.12, for:

1.    This proceeding, in its entirety.

2.    For the mental health determination of me, including the input of Professor Alexander McFarlane.

...

78    The primary judge declined to make this order for the reasons submitted by the respondent, namely that Mr Ross had no entitlement to apply for such a referral (r 4.13 of the Rules) and because such a referral should not be made when regard is had to the nature of the proceeding; and there were fundamental issues with the relief sought by him, which would not be overcome by a referral for legal assistance (see [28] and [29(28)] above). I discern no error in his Honour’s reasoning.

D.2.3.7    Eighth proposed ground of appeal

79    The eighth proposed ground of appeal is:

13.    Application for this proceeding to be made into a Writ.

80    This appears to be a complaint by Mr Ross that the relief sought in the third paragraph of his first interlocutory application was not granted.

81    The primary judge declined to make such an order for the reason set out in the respondent’s submissions, namely that proceedings in this Court’s original jurisdiction are not commenced by way of, or capable of conversion into, a writ (see [28] and [29(29)] above). I discern no error in the primary judge’s reasoning.

D.2.4    Prejudice

82    The respondent accepts that he would suffer no prejudice from the grant of an extension of time that could not be remedied by an order for costs. However, the absence of prejudice is, of itself, insufficient to justify the grant of an extension of time.

D.2.5    Substantial injustice

83    Mr Ross identified no substantial injustice that would flow from the refusal of his application for leave to appeal. Further, as the respondent submitted, it is open to Mr Ross to make a further application to the respondent for financial assistance. As noted at [15] and [16] above, Mr Ross had an application underway at the time the commenced the proceeding below.

E.    CONCLUSION

84    As the above analysis demonstrates, the proposed grounds of appeal are devoid of merit. Thus, the primary judge’s decision is not attended by sufficient doubt to warrant reconsideration. This is a sufficient basis upon which to dismiss the application in its entirety. Further, Mr Ross has no satisfactory explanation for his failure to file an application for leave to appeal within time and has not identified any substantial injustice that would flow from the refusal of his application.

85    It follows that Mr Ross’s application for an extension of time and leave to appeal from the decision of the primary judge should be dismissed, with costs. I will make orders accordingly.

Associate:

Dated:    7 March 2024