Attorney-General for Victoria v O'Sullivan

[2021] VSC 237

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
PRACTICE COURT

S CI 2008 09891

THE ATTORNEY-GENERAL FOR THE STATE OF VICTORIA	Plaintiff
v
DALE GARY O’SULLIVAN	Defendant

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JUDGE:	Richards J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	7 May 2021
CASE MAY BE CITED AS:	Attorney-General for Victoria v O’Sullivan
MEDIUM NEUTRAL CITATION:	[2021] VSC 237

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PRACTICE AND PROCEDURE – Vexatious litigant order made under previous legislation – Effect of order as general litigation restraint order under new legislation – Application by defendant for leave to commence proceeding in Victorian Civil and Administrative Tribunal – Direction to give notice to Attorney-General and Chief Commissioner of Police under s 60, Vexatious Proceedings Act 2014 (Vic) – Whether general litigation restraint order should be varied to allow defendant to apply for leave to the court or tribunal in which the proceeding is to be commenced –Vexatious Proceedings Act 2014 (Vic), ss 29, 54, 55, 60.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	No appearance
For the Defendant	No appearance

HER HONOUR:

1. On 2 December 2009, Pagone J made an order in this proceeding under s 21 of the Supreme Court Act 1986 (Vic), declaring Dale Gary O’Sullivan to be a vexatious litigant. His Honour ordered that Mr O’Sullivan must not, without leave of the Court, commence any legal proceedings (whether civil or criminal) in the Court, an inferior court or any tribunal constituted or presided over by a person who is an Australian lawyer of the Court.

1. Section 21 of the Supreme Court Act was repealed on 31 October 2014, on the commencement of the Vexatious Proceedings Act 2014 (Vic). Since then, the order declaring Mr O’Sullivan to be a vexatious litigant has been taken to be a general litigation restraint order made under s 29 of the Vexatious Proceedings Act, in the same terms.[1] This means that Mr O’Sullivan requires leave of the Supreme Court of Victoria to commence a proceeding in any Victorian court or tribunal, although s 54 of the Vexatious Proceedings Act contemplates leave being a matter for the court or tribunal in which the proposed proceeding is to be brought.

   [1]Vexatious Proceedings Act 2014 (Vic), s 91.

1. Since Pagone J first declared Mr O’Sullivan to be a vexatious litigant, he has made a number of successful applications to this Court for leave to proceed, as follows:

(a)   On 16 July 2012, Ferguson J granted leave to commence proceedings in the Magistrates’ Court of Victoria seeking intervention orders against two named individuals (Person 1 and Person 2);

(b)  On 16 August 2012, Cavanough J granted leave to commence proceedings in the Magistrates’ Court of Victoria seeking an intervention order against a third person, under the Personal Safety Intervention Orders Act 2010 (Vic);

(c)   On 26 October 2012, Garde J granted Mr O’Sullivan leave to apply for a rehearing in the Magistrates’ Court of Victoria at Bendigo of a personal safety application seeking intervention orders against Person 1, which had been struck out by a magistrate on 22 August 2012;

(d)  On 19 March 2013, Beach J gave leave to apply to the Magistrates’ Court at Bendigo to vary a condition of an intervention order made against Mr O’Sullivan on 23 October 2012, provided that he was legally represented;

(e)   On 12 May 2014, Rush J gave leave to apply to the Magistrates’ Court of Victoria at Bendigo for a personal safety intervention order against Person 2;

(f)    On 21 February 2017, Ginnane J granted Mr O’Sullivan leave to apply to revoke the order of Pagone J made on 2 December 2009;[2] and

(g)  On 12 August 2020, Ginnane J gave leave to commence and continue an application to the Firearms Appeals Committee to review the decision of the delegate of the Chief Commissioner of Police communicated by letter of 29 March 2019, refusing Mr O’Sullivan’s firearms licence application under the Firearms Act 1996 (Vic).

[2]The application was dismissed by Digby J on 2 October 2017:  Attorney-General v O’Sullivan [2017] VSC 592.

1. On every occasion on which Mr O’Sullivan has applied for leave to proceed, it has been granted.  Only one of those applications related to a proceeding in this Court.

Proposed VCAT application

1. On 3 December 2020, a delegate of the Chief Commissioner of Police made a firearm prohibition order in respect of Mr O’Sullivan, under s 112D of the Firearms Act. The order stated:

This firearm prohibition order has been made because it is in the public interest to do so because of one or more of the following:

•your criminal history;

•your behaviour;

•the people with whom you associate;

•you may pose a threat or risk to public safety based on the information known to the Chief Commissioner.

1. This statement was no more than a list of the grounds on which a firearms prohibition order may be made, set out in s 112E of the Firearms Act. It did not inform Mr O’Sullivan of the particular reasons why the order had been made against him.

1. A person to whom a firearm prohibition order applies may apply to the Victorian Civil and Administrative Tribunal (VCAT) for a review of the Chief Commissioner’s decision to make the order.[3]  Such an application must be made within 28 days,[4] although VCAT may extend that time limit in an appropriate case.[5]

   [3]Firearms Act 1996 (Vic), s 112L.

   [4]Firearms Act, s 182A(2).

   [5]Victorian Civil and Administrative Tribunal Act 1998 (Vic), s 126.

1. Mr O’Sullivan applied to VCAT for review of the Chief Commissioner’s decision within the 28 day time limit.  However, his application was refused by the Registrar of VCAT, because he had not first obtained leave of the Supreme Court to commence the proceeding.  The Registrar’s decision was confirmed by Senior Member Dea, noting VCAT’s discretion to extend time should an application be made at a later time, with leave.

1. Mr O’Sullivan also applied to this Court, under s 54 of the Vexatious Proceedings Act, for leave to commence the VCAT proceeding. Unfortunately, his application was not accepted for filing until 1 March 2021, well after the expiry of the 28 day time limit for filing his application with VCAT. It then took some further weeks before a Judge of the Court was able to consider the application.

1. Section 55 of the Vexatious Proceedings Act provides that, on an application under s 54, the Court may grant leave to commence the proceeding if satisfied that the proceeding is not a vexatious proceeding, and that there are reasonable grounds for the proceeding.

1. On the material currently before the Court, it appears to me that Mr O’Sullivan should have leave to commence a proceeding at VCAT for review of the Chief Commissioner’s decision to make the firearms protection order.  The reasons why I hold a provisional view that the proceeding would not be vexatious, and that there are reasonable grounds for it, are:

(a)   The effect of the order is that Mr O’Sullivan must not acquire, possess, carry or use a firearm or firearm related item.  To do so is a criminal offence, with a maximum penalty of 10 years imprisonment.[6]  The order also imposes a number of other constraints on Mr O’Sullivan that do not apply to other members of the public.

[6]Firearms Act, s 112B.

(b)  Mr O’Sullivan holds an Authorisation to Control Wildlife issued by the Conservation Regulator Victoria in July 2020. The Authorisation is given under s 28A of the Wildlife Act 1975 (Vic), and authorises Mr O’Sullivan to use a gun to destroy, possess and dispose of Eastern Grey kangaroos at a specified location. He obtained the Authorisation in order to stop kangaroos affecting the value of his property. On the face of it, he has demonstrated a valid need to use a gun, and reasonable grounds for his proposed VCAT application.

(c)   The Chief Commissioner’s delegate did not give reasons for the decision to make the order.  The order itself merely recited the grounds on which an order may be made, without identifying what it was about Mr O’Sullivan’s history, behaviour or associations that satisfied the delegate that it was in the public interest to make the order.

(d)  Mr O’Sullivan has provided the Court with copy of a National Police Certificate issued on 13 May 2020, which certified that there were no disclosable court outcomes or outstanding matters recorded against his name.

(e)   A review by VCAT of a decision of the Chief Commissioner to make a firearms prohibition order is a merits review, in which VCAT stands in the shoes of the decision-maker and makes the correct or preferable decision on the material before it.[7]  There is no need for Mr O’Sullivan to identify any jurisdictional error or error of law on the part of the Chief Commissioner’s delegate.

[7]Victorian Civil and Administrative Tribunal Act, s 51. See, e.g., Hoskin v Greater Bendigo City Council (2015) 48 VR 715, [113].

1. While I consider that Mr O’Sullivan has made a case for leave to commence the proposed VCAT proceeding, I may not grant leave without first directing him to give notice in accordance with s 60 of the Vexatious Proceedings Act. The effect of that section is that Mr O’Sullivan must give notice to the Attorney-General and the Chief Commissioner, with a copy of his application for leave to proceed and a statement that they are entitled to make submissions in relation to his application. I will make that direction, together with a direction under s 62(2) for the making of written submissions.

Proposed variation to general litigation restraint order

1. In addition, I have come to the view that it may be in the interests of justice to vary the general litigation restraint order in relation to Mr O’Sullivan, to enable him to seek leave to proceed from the court or tribunal in which he wishes to commence a proceeding.  The reasons for that provisional view are:

(a) In 2009, when Pagone J made the initial order under s 21 of the Supreme Court Act, only the Supreme Court had power to deal with vexatious litigants. That changed with the commencement of the Vexatious Proceedings Act, which gives all Victorian courts and tribunals a range of powers in relation to vexatious litigants.

(b) Section 54(2) of the Vexatious Proceedings Act contemplates that, unless the general litigation restraint order provides otherwise, an application for leave to commence or continue a proceeding is to be made to the court or tribunal that would hear the proceeding. If the order in relation to Mr O’Sullivan were to be made today, it might not have provided otherwise.

(c)   As the history set out at [3] demonstrates, applications for leave to proceed made by Mr O’Sullivan have occupied a good deal of time and energy of a number of judges of this Court, when all but one of his applications was for leave to proceed in another jurisdiction.  Most recently, Ginnane J had to determine whether Mr O’Sullivan should have leave to appeal a decision of the Chief Commissioner to the Firearms Appeals Committee.  This does not appear to me to be an efficient or cost-effective use of judicial resources.

(d) The procedure for obtaining leave to proceed under s 54 of the Vexatious Proceedings Act is fairly complex and time consuming. While Mr O’Sullivan has pursued his application for leave to proceed in this Court, the 28 day time limit for him to apply to VCAT has expired. The process would be simpler and quicker if Mr O’Sullivan were able to seek leave to proceed from the relevant court or tribunal. In this case, for example, VCAT could have dealt with his application for leave to proceed in the time it took to determine whether to reject the application made without leave.

1. I will direct the Prothonotary to give notice to the Attorney-General that the Court is considering varying the general litigation restraint order in this proceeding, to provide that Mr O’Sullivan must not commence or continue any proceeding (whether civil or criminal) in any Victorian court or tribunal, without the leave of the court or tribunal concerned.  I will also make directions for the filing of written submissions on that question by the Attorney-General and by Mr O’Sullivan.