PLAINTIFF WHO IS DECLARED AS A VEXATIOUS LITIGANT UNDER A REPEALED LEGISLATION APPLIES FOR LEAVE TO QUESTION THE DECISION OF THE CHIEF OF COMMISSIONER OF FIREARMS

Attorney-General for Victoria v O'Sullivan [2021] VSC 237 (7 May 2021)

This is a case involves the effect of an order declaring the plaintiff as a vexatious litigant after the repeal of Section 21 of the Supreme Court Act by the Vexatious Proceedings Act.

Facts:

On 2 December 2009, Pagone J made an order in this proceeding under 21 of the Supreme Court Act 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.

Section 21 of the Supreme Court Act was repealed on 31 October 2014, on the commencement of the Vexatious Proceedings Act 2014 (Vic).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. 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.

On 3 December 2020, a delegate of the Chief Commissioner of Police made a firearm prohibition order in respect of Mr O’Sullivan. It did not inform Mr O’Sullivan of the particular reasons why the order had been made against him.

Mr O’Sullivan applied to VCAT (Victorian Civil and Administrative Tribunal Act) 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.

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, well after the expiry of the 28 day time limit for filing his application with VCAT.

Issue: Should the general litigation restraint order be varied to allow the defendant to apply for leave to the court or tribunal in which the proceeding is to be commenced?

Law:

• Vexatious Proceedings Act 2014 SS.29, 54, 55, 60

Analysis:

On the material currently before the Court, it appears 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.

While the court considers that Mr O’Sullivan has made a case for leave to commence the proposed VCAT proceeding, The court 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.

In addition,  the court has 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. 

Conclusion:

The court orders to give notice to the Attorney-General that the Court is considering varying the general litigation restraint order in this proceeding provided 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.

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