Attorney-General v O'Sullivan - [2023] VSC 367

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
PRACTICE COURT

S CI 2008 09891

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

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JUDGE:	Ginnane J
WHERE HELD:	Melbourne
DATE OF HEARING:	24 February 2023 (mention; thereafter on the papers)
DATE OF JUDGMENT:	29 June 2023
CASE MAY BE CITED AS:	Attorney-General v O’Sullivan
MEDIUM NEUTRAL CITATION:	[2023] VSC 367

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PRACTICE AND PROCEDURE – General litigation restraint order – Application to revoke – Whether in the interests of justice to revoke order – Application for revocation dismissed Amendments to update the order– Vexatious Proceedings Act 2014 ss 65, 69(1)(b).

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APPEARANCES:

Counsel

Solicitors

For the Plaintiff

Ms G Suhren
(24 February 2023)

Mr L Brown, Crown Counsel for the State of Victoria and Ms K Brown
(Written submissions)

Victorian Government Solicitor’s Office

For the Defendant

Self-Represented

HIS HONOUR:

Mr Dale Gary O’Sullivan seeks leave to revoke an order which originates in an order made in December 2009 by Pagone J, which declared him a vexatious litigant under the Supreme Court Act 1986. In 2014, the Vexatious Proceedings Act (‘the Act’) was enacted and the order was deemed to continue, on the same terms, as a general litigation restraint order under that Act.

The Attorney-General’s application decided by Pagone J was based on an affidavit establishing that between 1989 and 2008, Mr O’Sullivan commenced at least 100 proceedings, including many against Victoria Police.[1]
[1]See Attorney- General v O’Sullivan [2017] VSC 592, [8]-[10].

On 21 February 2017, I granted Mr O’Sullivan leave to apply to revoke the order made by Pagone J. On 2 October 2017, Digby J heard and dismissed that application.[2] His Honour was not persuaded that the circumstances of Mr O’Sullivan’s age, his stated relationship of peace with Victoria Police, his asserted deteriorating health and lack of financial capacity, or his stated disinclination to pursue litigation, were probative of a material change of his relevant circumstances. Nor was he persuaded that were the original order to be revoked, it would be unlikely that Mr O’Sullivan would revert to the conduct which justified the 2009 order.[3]
[2]Ibid.
[3]Ibid [82].

Since the 2009 order, Mr O’Sullivan has made a number of applications for leave to commence proceedings and, each time, he has been granted that leave. On one such occasion in 2021, Richards J varied the general litigation restraint order so that Mr O’Sullivan could seek leave to continue or commence a proceeding from the Supreme Court or the Victorian court or tribunal in which the proceeding was commenced or was to be commenced.[4]
[4]Attorney-General for Victoria v O’Sullivan [2021] VSC 237.

On 25 January 2022, Mr O’Sullivan filed an application for leave to apply to vary or revoke the general litigation restraint order. On 21 July 2022, I granted him leave to apply to revoke it. After his application was commenced and a mention had occurred, the parties made written submissions and I have…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Attorney-General v O'Sullivan

Details

AGLC: Attorney-General v O'Sullivan [2023] VSC 367
Case: [2023] VSC 367
Decision Date: 29 June 2023

CaseChat Overview and Summary

The case of Attorney-General v O'Sullivan involved a dispute concerning the revocation of a general litigation restraint order made against the respondent. The application to revoke the order was brought before the court, which needed to determine whether such a revocation was in the interests of justice. The court was also required to consider amendments to update the order in accordance with the Vexatious Proceedings Act 2014 sections 65 and 69(1)(b).

The central legal issue before the court was whether the general litigation restraint order should be revoked. The court considered the criteria set out in the Vexatious Proceedings Act 2014, specifically whether the order was still necessary to protect the public interest and whether its continuation was in the interests of justice. Additionally, the court evaluated whether there had been any changes in circumstances that would warrant an amendment to the order.

In delivering its judgment, the court found that the general litigation restraint order should not be revoked. The court determined that the order remained necessary to protect the public interest and that its continuation was in the interests of justice. The court also found that there were no significant changes in circumstances that would necessitate an amendment to the order. Consequently, the application for revocation was dismissed, and the order remained in place.

The court did, however, make amendments to the order to update it in accordance with the Vexatious Proceedings Act 2014 sections 65 and 69(1)(b). These amendments were made to ensure the order remained effective and relevant to the circumstances of the case.

Orders