Attorney-General v O'Sullivan
[2020] VSC 495
•12 August 2020
| 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]Attorney-General v O’Sullivan [2017] VSC 592 [5], [17] (Digby J).
2. The Defendant must not without leave of the Court (save for the exceptions listed in paragraph 3 below) do the following:
a) Continue any proceeding commenced by him (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; or
b) 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.
3. The following exceptions apply to the orders made in paragraph 2:
a) any institution of civil proceedings in this Court, the County Court of Victoria or the Magistrate’s Court of Victoria (except applications and appeals under the Family Violence Protection Act 2008 (Vic) or the Stalking Intervention Orders Act 2008 (Vic)) may be commenced without leave of this Court provided the Defendant is legally represented.
b) Any appeal or application related to any criminal proceeding against the Defendant in this Court, the County Court of Victoria or the Magistrates’ Court of Victoria may be commenced without leave of this Court provided the Defendant is legally represented.
c) Supreme Court proceeding number 9361 of 2009 instituted by Nicholsons Lawyers & Consultants on behalf of the Defendant on 1 October 2009 be allowed to continue.
d) Any application to vary or revoke this order.
Because of the transitional provisions in the VP Act,[2] Pagone J’s order is taken to be a general litigation restraint order made by the Supreme Court under s 29 of the VP Act.[3] In addition in referring to ‘any tribunal constituted or presided over by a person who is an Australian lawyer of the Court’ the order applies to Mr O’Sullivan application to the Firearms Appeals Committee. In contrast, general litigation restraint orders that are made under the VP Act cannot restrain applications to the Firearms Appeals Committee because it is not a Victorian court or tribunal as defined in the VP Act.[4] But I consider that the combined effect of the terms of Pagone J’s order, which remains in force and the transitional provisions of the VP Act is that Mr O’Sullivan must obtain leave under s 55 of the VP Act to commence or continue his application to the Firearms Appeals Committee. I do not accept Mr O’Sullivan’s submission that spent convictions legislation means that Pagone J’s order has expired.
[2]Vexatious Proceedings Act 2014 s 91.
[3]See s 163(3) of the Firearms Act 1996, which when read with s 163(2)(a) and s 155(2)(a), means that Pagone J’s order applies to Mr O’Sullivan’s application to the Firearms Appeals Committee.
[4]Definition in s 3.
On 2 October 2017, Digby J refused Mr O’Sullivan’s application for revocation of the general litigation restraint order.[5] His Honour referred to Mr O’Sullivan’s involvement in many proceedings prior to Pagone J’s order, including proceedings against the Firearms Appeals Committee.[6] But there is no evidence that since the 2009 order, Mr O’Sullivan has made any other applications for leave to commence proceedings in the Firearms Appeals Committee, apart from the present application.
[5]Attorney-General v O’Sullivan [2017] VSC 592.
[6]Ibid [9(e)].
Mr O’Sullivan’s application is made under s 54 of the VP Act. To obtain leave he must satisfy the Court that his application for review made to the Firearms Appeals Committee is not a vexatious proceeding and that there are reasonable grounds for it.[7] The term ‘vexatious proceeding’ is defined as including:[8]
(a) a proceeding that is an abuse of process of a court or tribunal;
(b) a proceeding commenced to harass or annoy, to cause delay or detriment, or for another wrongful purpose;
(c) a proceeding commenced or pursued without reasonable grounds;
(d) a proceeding conducted in a way so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose.
[7]Vexatious Proceedings Act 2014 s 55(2).
[8]Ibid s 3.
Mr O’Sullivan stated that he has not held a ‘Shooter’s Licence in most cases, for 20 years, as I had no need of it anymore’. He explained the reasons for his application for a licence as:
Current circumstances again call for a new Shooter’s Licence application, due to a plague of kangaroos on my son’s property. I hold a current licence to cull kangaroos, and I have been waiting 1 ½ years to get my necessary gun licence to carry out my licenced cull.
Therefore, it’s part of my 40 years of licence history, but it is clearly a new application.
Mr O’Sullivan’s son appears to possess an authorisation to destroy, possess and dispose of protected wildlife and gain possession of protected wildlife, which permits him to arrange for someone else to control wildlife on his behalf.
Mr O’Sullivan commenced his application in this Court in January this year. In most instances, applications for leave under the VP Act are to be determined on the papers. However, after receiving written submissions, including submissions on issues I raised with the parties, I considered that the exceptional circumstances presented by the case, required an oral hearing in the interests of justice.[9] At that hearing, Crown Counsel fairly and properly raised the issues that confronted Mr O’Sullivan’s application and Mr O’Sullivan gave oral evidence and was cross-examined.
[9]See ibid s 63(2).
Having heard that evidence, I find that Mr O’Sullivan has established that he is not a prohibited person under the Firearms Act 1996: that he has not served a term of imprisonment of five years or more and that in the last five years he has not been serving a term of imprisonment or been subject to any of the protection or intervention orders that would make him a prohibited person and unable to obtain a licence.[10] I see no reason not to accept his evidence on these matters.
[10]Firearms Act 1996 s 3(1).
I note that Pagone J’s order is wider than the terms of a general litigation restraint order that could now be made under the VP Act, which would not be able to restrict Mr O’Sullivan making a review application to the Firearms Appeals Committee.[11] I also note that the Chief Commissioner’s delegate concluded that he had concerns that Mr O’Sullivan was not a fit and proper person to hold a firearms licence. He did not say that Mr O’Sullivan was not a fit and proper person to hold a licence. His concerns, which included reference to Mr O’Sullivan’s criminal history, were expressed without much detail. The statutory test was not whether the Chief Commissioner had the concerns he expressed, but whether he was satisfied that Mr O’Sullivan was a fit and proper person.
[11]Because of the definition of ‘Victorian court or tribunal’ in Vexatious Proceedings Act 2014 s 3.
I consider that, as required by s 55 of the VP Act, Mr O’Sullivan has established that:
(a) the proceeding, being his application for review to the Committee, is not a vexatious proceeding; and
(b) that there are reasonable grounds for the proceeding.
Since the order of Pagone J, on at least five occasions, this Court has granted Mr O’Sullivan leave to commence proceedings or make applications. The current proceeding does not repeat a previous proceeding.
Mr O’Sullivan, who is now elderly, seeks to review the Chief Commissioner’s decision. The determination of the review is likely to require an evaluation of whether he has established that he is a fit and proper person to hold a firearms licence. The Committee will be able to give directions to ensure that the review is not conducted in a vexatious manner.[12]
[12]See Firearms Act 1996 s 166(1)(c).
There is no reason on the material before the Court why Mr O’Sullivan should not be able to pursue a right of review of the Chief Commissioner’s refusal of his licence application. It is important to note the width of the right of review that Mr O’Sullivan seeks to invoke as that feature affects the assessment of whether his application is vexatious or does not have reasonable grounds. The review hearing will require the Committee to make its own decision on whether Mr O’Sullivan should be granted a licence. I also take into account that the Chief Commissioner’s decision was not that he was satisfied that Mr O’Sullivan was not a fit and proper person, but that he had concerns about that issue. The Chief Commissioner also assumed that Mr O’Sullivan was seeking the renewal of a licence, whereas, in fact he had let his licence lapse and was seeking a new licence. Then there is the previously mentioned circumstance that if a general litigation restraint order had been made against Mr O’Sullivan under the VP Act, the restraint would not applied to a review application in the Firearms Appeals Committee. The litigation restraint imposed on him was made under a system now replaced, but the order made in 2009 remains in force and is to be taken to be a general litigation restraint order under the VP Act.
In those circumstances, I am satisfied that Mr O’Sullivan has established that his proceeding commenced in the Firearms Appeals Committee is not a vexatious proceeding and that there are reasonable grounds for it.
I also consider that I should exercise the residual discretion contained in s 55(2) of the VP Act to allow Mr O’Sullivan’s application to the Firearms Appeals Committee to be commenced or continued.
The question of Mr O’Sullivan’s candour in presenting material to the Court was raised as a matter relevant to that exercise of discretion. The VP Act required him to present all facts material to the Court. He presented to the Court two versions of his letter to the Committee responding to its notification that he must obtain leave under the VP Act to commence or continue his proceeding. The first was a copy of the letter actually sent to the Committee which described his application as being for the renewal of a firearms permit application. In a later affidavit filed in this Court, he exhibited a copy of that letter with an alteration, the reference to a renewal of the licence appearing to be ‘whited out’ and replaced with words stating that his application was a new firearms permit application. When questioned about this, he explained, in effect, that he did this to correct the inaccuracy in the first letter, as he was seeking a new licence and not a renewal of an existing licence. In many circumstances, altering a document that is to be relied on in a Court or tribunal application would establish that the applicant lacked candour and would damage the application. However, much depends on the significance of the alteration and, in this case, I do not consider that it has that effect. Mr O’Sullivan sought to correct the description of his application, his alteration of the letter was very apparent and he placed both versions of the letter before the Court. Without endorsing his method of correcting an error in a document, I do not consider that Mr O’Sullivan’s actions should lead to the dismissal of his application.
Mr O’Sullivan informed me that if he is unsuccessful in his application to the Committee, he would wish to review its decision in the Victorian Civil and Administrative Tribunal[13] and that he sought leave under the VP Act to make that application, if required, as well. Upon reflection, I do not consider that any application by Mr O’Sullivan for leave to commence a review proceeding in VCAT of the Committee’s future decision should be decided until the time for any such application arises, if and when the Committee makes a decision adverse to his application. It may be that if Mr O’Sullivan’s application to the Committee is unsuccessful, any application for leave to commence proceedings in VCAT can be dealt with on the papers, but I do not consider that any such decision should be made or decided before the Firearms Appeals Committee has made its own decision. It would be premature to do so.
[13]Section 182 of the Firearms Act 1996 would entitle him to do so.
I therefore grant Mr Dale Gary O’Sullivan leave to commence or continue his proceeding in the Firearms Appeals Committee to review the decision of the delegate of the Chief Commissioner of Victoria Police communicated to him by letter of 29 March 2019 refusing his firearms licence application under the Firearms Act 1996. The leave is intended to include his application to review the delegate’s decision however that decision is characterised, whether as a refusal of a renewal application or the refusal of an application for a new licence.
In conclusion, I again record that nothing said in this judgment is intended to convey any view on whether Mr O’Sullivan’s application for review to the Firearms Appeals Committee should be granted. That has not been my task.
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