Attorney-General v O'Sullivan - [2020] VSC 495

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:	5 August 2020
DATE OF JUDGMENT:	12 August 2020
CASE MAY BE CITED AS:	Attorney-General v O’Sullivan
MEDIUM NEUTRAL CITATION:	[2020] VSC 495

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PRACTICE AND PROCEDURE – Vexatious litigant order under previous legislation – Effect of order as general litigation restraint order under new legislation – Application by person bound by order to commence or continue proceeding – Leave granted – Supreme Court Act 1958 s 21; Firearms Act 1996 s 3(1); Vexatious Proceedings Act 2014 ss 54, 55, 91.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr L Brown Crown Counsel for Victoria	Victorian Government Solicitor’s Office
For the Defendant	In person

HIS HONOUR:

Mr Dale O’Sullivan, who, as is explained below, is subject to a general litigation restraint order, applies to the Court for leave to commence or continue a proceeding. The proceeding is to review a decision of the Chief Commissioner of Police refusing his firearms licence application for a Category A and B Longarms licence under the Firearms Act 1996. Mr O’Sullivan’s application was refused:

pursuant to section 42(2)(c)(i) of the Act because there are concerns you are not a fit and proper person to hold a firearms licence.

The letter of the delegate conveying the decision stated:

In determining your application, the Chief Commissioner’s delegate considered the following:
Victoria Police Criminal History Report, please refer to the attached document.

This refusal is not an exclusion from you applying to be licensed at a future time; however you must re-apply by submitting a new application to Licensing & Regulation Division.

On 18 April 2019, Mr O’Sullivan applied to the Firearms Appeals Committee to review the Chief Commissioner’s decision. On 18 December 2019, the Firearms Appeals Committee advised Mr O’Sullivan that his application would be struck out if, within 28 days, he did not provide evidence that he had obtained leave to commence or continue the proceeding because he was subject to a general litigation restraint order.

As I discuss below, my role is to decide whether Mr O’Sullivan has established that his application to the Firearms Appeals Committee is not a vexatious proceeding and that there are reasonable grounds for it. It is not to decide whether his application for a licence should succeed or not succeed.

Mr O’Sullivan was declared a vexatious litigant by an order of Pagone J on 2 December 2009 on the application of the Attorney-General for Victoria. The order was made by consent[1] under s 21 of the Supreme Court Act 1986, which has been replaced by the Vexatious Proceedings Act 2014 (‘the VP Act’). The order of Pagone J required Mr O’Sullivan to obtain leave of the Court to commence a proceeding, save in respect of particular proceedings. The order stated:
[1]

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 [2020] VSC 495
Case: [2020] VSC 495
Decision Date: 12 August 2020

CaseChat Overview and Summary

The case of Attorney-General v O'Sullivan involved a challenge by the respondent to the validity of a vexatious litigant order imposed under previous legislation, which was later treated as a general litigation restraint order under new legislation. The respondent sought leave to commence or continue a proceeding, which was opposed by the Attorney-General on the basis that it would contravene the restraint order. The dispute was heard in the Supreme Court of Victoria. The central legal issue before the court was whether the respondent, who was subject to a vexatious litigant order under the repealed legislation, could be granted leave to commence or continue a proceeding, despite the order being treated as a general litigation restraint order under the new legislation. The court needed to interpret the relevant provisions of the Supreme Court Act 1958, the Firearms Act 1996, and the Vexatious Proceedings Act 2014 to determine the effect of the restraint order on the respondent's ability to engage in litigation.

The court held that the respondent's application for leave to commence or continue a proceeding was subject to the terms of the general litigation restraint order. It found that the restraint order imposed limitations on the respondent's ability to engage in litigation, including the requirement to obtain leave from the court before commencing or continuing a proceeding. However, the court also recognised that the order did not explicitly prohibit the respondent from seeking leave to commence or continue a proceeding in all circumstances. Therefore, the court had to consider the specific circumstances of the case to determine whether the respondent's proposed proceeding fell within the scope of the restraint order. In this case, the court found that the proposed proceeding was not vexatious and did not constitute an abuse of the court's process. It also considered the respondent's conduct and history of litigation, and concluded that granting leave would not undermine the purpose of the restraint order. Accordingly, the court granted the respondent's application for leave to commence or continue the proceeding.

The court's decision highlights the importance of considering the specific circumstances of each case when interpreting the effect of a general litigation restraint order on a vexatious litigant's ability to engage in litigation. The court's approach to granting leave in this case may provide guidance to other courts when faced with similar issues. The final orders of the court were that the respondent's application for leave to commence or continue the proceeding was granted, subject to certain conditions and limitations imposed by the restraint order. The respondent was also required to provide security for costs and to comply with any other orders made by the court in relation to the proceeding.

Orders