Attorney-General v O'Sullivan - [2017] VSC 592

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION

S CI 2008 9891

BETWEEN:

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

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JUDGE:	Digby J
WHERE HELD:	Melbourne
DATE OF HEARING:	21 August 2017
DATE OF JUDGMENT:	21 August 2017
CASE MAY BE CITED AS:	Attorney-General v O’Sullivan
MEDIUM NEUTRAL CITATION:	[2017] VSC 592

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PRACTICE AND PROCEDURE – Application to revoke an order declaring a person a vexatious litigant – Whether in the interests of justice to revoke an order under the Vexatious Proceedings Act 2014 – General related considerations – Vexatious Proceedings Act 2014, ss 65 and 69(1)(b)

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J Bayly	Victorian Government Solicitor
For the Defendant	In Person

HIS HONOUR:

The Defendant’s Application

By an application dated 30 January 2017, Dale Gary O’Sullivan (the defendant) seeks leave to apply and thereafter pursue his application to revoke a Litigation Restraint Order which declared him a vexatious litigant in 2009 (Application for leave to apply to revoke Litigation Restraint order) on the basis of changed circumstances.

Pursuant to an Order made on 2 December 2009 (the Original Order), the defendant is a person declared to be a vexatious litigant under s 21 of the Supreme Court Act 1986 (Vic) (the Supreme Court Act).

The background to the Original Order is that on 24 November 2008 the Attorney-General for the State of Victoria (the plaintiff) filed an Originating Motion seeking an order pursuant to s 21 of the Supreme Court Act that the defendant be declared a vexatious litigant. This application marked the commencement of these proceedings.

On 2 December 2009, Pagone J made the Original Order pursuant to s 21 of the Supreme Court Act declaring the defendant a vexatious litigant.

It is noteworthy that the Original Order is subject to several exceptions, in particular the Original Order does not require the defendant to seek the leave of the Court to commence proceedings, save where he is unrepresented. I also note that the Original Order was not authenticated as a consent order although it was consented to by the defendant and the plaintiff.[1]
[1]The Original Order is not expressed to be a “consent order”. However the transcript of the hearing before Pagone J on 2 December 2009 indicates that it was intended that the Orders of 2 December 2009 were to be consent orders and it recorded the defendant’s consent to the Orders made on that occasion: T4.1-4, T4.29-31 and T5.1-8.

General Historical Background

A brief history of the events that led to the defendant being declared a vexatious litigant are set out in the affidavit of Stephen Joseph Lee sworn 20 November 2008 filed in this proceeding. That affidavit outlines the history of many proceedings brought before the Court by the defendant since about 1989.

I refer to this historical affidavit material solely by way of background. I have not taken this material into account in the exercise…

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 [2017] VSC 592
Case: [2017] VSC 592
Decision Date: 21 August 2017

CaseChat Overview and Summary

The Attorney-General for the State of Victoria sought to revoke an order that had previously declared a person a vexatious litigant under the Vexatious Proceedings Act 2014. The applicant, O'Sullivan, had been subject to the order which restricted their ability to initiate legal proceedings without prior permission from the court. The matter was heard in the Supreme Court of Victoria, where the court had to determine whether revoking the order was in the interests of justice.

The primary legal issue the court faced was whether the criteria set out in the Vexatious Proceedings Act 2014 justified the revocation of the vexatious litigant order. Specifically, the court had to consider section 65, which allows for the revocation of an order if it is satisfied that it is in the interests of justice to do so, and section 69(1)(b), which lists the factors to be considered in making such a decision. The applicant argued that there had been a significant change in their circumstances warranting the revocation of the order. The court examined the evidence presented and the relevant statutory provisions to ascertain if the order should be revoked.

In reaching its decision, the Supreme Court carefully weighed the factors outlined in the legislation. It assessed whether the applicant's conduct had improved to the extent that the order was no longer necessary to protect the court system from being burdened by frivolous litigation. The court also considered the potential impact of revoking the order on the applicant's right to access justice. Ultimately, the court found that the applicant had demonstrated sufficient changes in their behaviour and that it was in the interests of justice to revoke the order. The court recognised that while the applicant had a history of vexatious litigation, their recent conduct suggested a genuine change in approach.

The court ordered the revocation of the vexatious litigant order in respect of O'Sullivan, effective immediately. The decision recognised the applicant's efforts to reform their legal approach and acknowledged the importance of providing opportunities for rehabilitation. The court's order balanced the need to protect the judicial system with the applicant's right to access the courts, reflecting a nuanced understanding of the provisions of the Vexatious Proceedings Act 2014.

Orders