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:
1	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. 
2	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.
3	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. 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.
4	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. 
5	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 decided Mr O’Sullivan’s application on the papers. 
Legislation
6	Section 65(1)(a) enables an application for the revocation of a litigation restraint order. It provides: 
65	Application for variation or revocation of litigation restraint order
(1)	… a person who is subject to a litigation restraint order may apply to vary or revoke the order—
(a) 	to the Court that made the order with leave of that Court …
7	Section 69(1) contains the power to revoke a litigation restraint order. It provides: 
69 	Court or VCAT may vary or revoke litigation restraint order
(1)	If it considers it is in the interests of justice to do so, a Court or VCAT may by order —
(a)	vary a litigation restraint order in any manner the Court or VCAT considers appropriate; or
(b) 	revoke a litigation restraint order.
(2) 	A Court or VCAT may make an order under subsection (1) —
(a) 	on its own motion; or
(b) 	on an application under section 65(1) or (2).
Mr O’Sullivan’s submissions 
8	Mr O’Sullivan’s application contained three generally expressed supporting grounds. They were that he had learnt his lesson, that the order was spent and had done its job and, to let it remain in operation would be an abuse and that Victoria Police ‘can’t be trusted anymore’. He referred also to the grounds in his application for leave to apply to revoke the 2009 order, which included: that Victoria Police was taking advantage of the order, that there were exceptional new circumstances, which had restricted his safety, including a Firearm Prohibition Order, that the 2009 order had ‘put a target on [his] back’ enabling others to settle old scores and that the order was causing more trouble than originally intended and may cause unknown consequences.
9	Mr O’Sullivan relied on his National Police Certificate issued on 13 May 2020 which stated that ‘there are no disclosable court outcomes or outstanding matters’ recorded against his name.
10	Mr O’Sullivan argued that his circumstances had substantially changed since Digby J’s decision in 2017 refusing his revocation application. He claimed that Victoria Police had a fixation with him and referred to their refusals to answer his freedom of information requests, which left him with no course but to complain in order to obtain fair justice in his dealings with them. He said that this had been Victoria Police’s modus operandi that caused the original orders in 2009 and existed again in 2022.
11	He described the police’s conduct towards him as ‘hate behaviour’. He alleged that Victoria Police had raided his property with a ‘false search warrant’ in September 2020, using considerable resources to look for six non existing firearms they claimed were missing, or which had been stolen over 20 years previously. He also alleged that a Shire employee had hatched a plan with local police to assist in ‘a fishing expedition style of raid’. He said that his ‘criticisms of Victoria Police are all true and are specific to police behaviour towards myself and members of my family’.
12	In addition to the search warrant, Mr O’Sullivan pointed to the fact that a few days before the scheduled hearing on 3 December 2020 of his application to the Firearms Appeals Committee to review the Chief Commissioner of Police’s refusal of his application for a firearms licence, Victoria Police had issued him with a Firearm Prohibition Order, thereby preventing him from possessing, carrying or using a firearm. He described this action as ‘the worst police abuse’ and as showing ‘the limits that police go, to stop a simple shooter’s licence for farm purposes’. He alleged that Victoria Police had ‘been deliberately driving all gun issues directly to the Supreme Court in an attempt to wear me out and no doubt to confirm that I am still a “Vexatious Litigant”.’ 
13	Mr O’Sullivan contended that Pagone J’s orders had been in place for more than 13 years and he had not commenced any further vexatious proceedings and had only pursued litigation with the leave of this Court. Each time he had sought leave to commence a proceeding, the Court had granted it. He argued that it was not in the interests of justice to continue the order as he had committed no crime and the order was being used a tool to continue vendettas against him.
14	Mr O’Sullivan explained the circumstances in which he had in recent years commenced proceedings without the leave of the Court. In respect of his application to the Magistrates’ Court under the Personal Safety Intervention Order Act 2010 (‘PSIO Act’), he explained that he had written to the Magistrates’ Court, stating:
I have filed an application with the Supreme Court to revoke my litigation restraint order on 30th June 2021. As such I cannot comment further (enclosure). 
15	He said that, although he advised the Magistrates’ Court of the general litigation restraint order, ‘no proven procedures were in practice, nor was an expected revocation order made on [the] papers alone, causing the matter to be settled out of court’.
16	But it appears that Mr O’Sullivan sent this communication to the Magistrates’ Court after he had commenced the application. It appears also that he unsuccessfully applied for an interim order and that he withdrew the application on the day that it was listed for a contested hearing. 
17	The Attorney-General also referred to proceedings that Mr O’Sullivan had commenced in the Victorian Civil and Administrative Tribunal. He was granted leave by Richards J to apply to VCAT for a review of the Chief Commissioner’s decision to make a Firearm Prohibition Order.
18	Mr O’Sullivan commenced two other VCAT proceedings which appear to have been applications for review of Victoria Police’s decisions about his freedom of information applications. Mr O’Sullivan and his son were the joint applicants in one proceeding and Mr O’Sullivan the sole applicant in the other. VCAT appears to have stayed these proceedings because Mr O’Sullivan had not sought leave to commence them or because there was a question whether he was permitted to commence a proceeding in the Tribunal.
19	Mr O’Sullivan stated that he no longer has the financial means to engage a lawyer. He described that as a significant change of circumstance which Victoria Police had used to their advantage. He gave as an example his 2017 application, ‘where a lawyer would have given me a better outcome’. 
The Attorney-General’s submissions: 
20	The Attorney-General opposed Mr O’Sullivan’s application and emphasised the public interest considerations that it raised. She submitted that vexatious litigants inhibit the efficient operation of the State’s justice system and affect the wider community by creating delays in the judicial system and reducing access to justice for others.
21	The Attorney-General submitted that an application for revocation of an order did not require the review of the original order, but rather a contemporaneous assessment of the application applying the standard of the interests of justice. The phrase ‘in the interests of justice’ in s 69(1)(b) encompasses broad considerations extending beyond those affecting a party or parties to the proceeding. While there is no formal burden of proof, an applicant will ordinarily have to establish to the Court’s satisfaction that, for cogent reasons, they will not continue the conduct which justified the original order.
22	The Attorney-General argued that Mr O’Sullivan had not established that, if the order was revoked, that he would not again engage in the conduct that led to the original order, nor that it was in the interests of justice to revoke that order. The material filed to support his application actually indicated that he had an ongoing fixation with Victoria Police and showed a lack of insight into the difference between meritorious and unmeritorious proceedings. These were matters that had led to the original order. 
23	The Attorney-General submitted that the effluxion of time alone was not a ‘material change’ warranting the revocation of the order. In any event, Mr O’Sullivan appeared to have commenced proceedings in the Magistrates’ Court under the PSIO Act as a self-represented litigant and also commenced VCAT proceedings without leave. The general litigation restraint order remained an appropriate filter, which fairly balanced Mr O’Sullivan’s interest against the public purposes of the Act.
Analysis
24	Section 69(1)(b) of the Act enables the Court to revoke, or to vary, a general litigation restraint order where it would be in the interests of justice to do so. The Court is therefore given a broad discretion to consider not only the circumstances and actions of the person subject to the order, but also the effect of their actions on other persons and on the justice system. 
25	I take into account Mr O’Sullivan’s age, his financial circumstances and the negative status that is likely to follow from being a ‘vexatious litigant’. He argued that he has complied with the general litigation restraint order since 2009 and that he has learnt his lesson and therefore that the order has achieved its purpose. I take into account that each of his applications for leave to commence proceedings has been granted.
26	Whilst I agree that Mr O’Sullivan’s age may be a factor deterring him from commencing litigation, as is the fact that the order has been in force for 13 years, they are not in themselves, sufficient reason to revoke the order. 
27	I consider that Mr O’Sullivan’s long standing enmity and grievances towards Victoria Police are likely to continue to make it difficult for him to reach reasonable decisions about whether to commence proceedings against them. His FOI applications indicate that he remains likely to commence such proceedings. His enmity towards Victoria Police is apparent from his descriptions of their conduct which I have set out previously in this judgment. The issuing of the Firearm Prohibition Order and the search warrant are recent matters involving Victoria Police that rankle with Mr O’Sullivan, and which have reignited hostilities, at least to his perception. I do not attempt to assess the merits of those matters – it would not be appropriate in this judgment to do so. Nor should Mr O’Sullivan be unreasonably prevented from bringing legitimate claims against Victoria Police. Pagone J’s order was not intended to confer any immunity from suit on Victoria Police. That would not be in the interests of justice. But, neither is it is not in Mr O’Sullivan’s interests, viewed objectively, or in the interests of the community, to allow him to commence proceedings which have no prospects of success. Hostilities arising from the recent matters and disputes to which I have referred earlier in this paragraph, weaken his contention that he is not likely to commence new litigation, or that, at least, in the case of Victoria Police, that he will be able to determine whether he has a proper basis for litigation that he may contemplate. In my opinion, Mr O’Sullivan has not displayed the insight to suggest that he can distinguish proceedings against Victoria Police that have a proper foundation from those that do not. Commencing unmeritorious proceedings will adversely affect the justice system, including other litigants who are waiting to have their cases heard.
28	Mr O’Sullivan’s recent actions in commencing litigation are also relevant. In 2021, he applied to the Magistrates’ Court for a PSIO against a Shire employee. The 2009 order did not refer to the PSIO Act, which was only enacted in 2010, so commencing the application did not breach that order. However, the Magistrates’ Court proceeding was on foot for at least six months before Mr O’Sullivan discontinued it. It had been listed for hearing and then adjourned and it appears that on one occasion Mr O’Sullivan made an unsuccessful application for an interim order. That proceeding, although ultimately discontinued, consumed court time and resources as well the time and resources of the respondent, but achieved no positive outcome for Mr O’Sullivan. Although not breaching the 2009 order, Mr O’Sullivan’s conduct of that application is relevant in determining how he may commence and conduct proceedings if the general litigation restraint order is revoked.
29	Also, in 2021 Mr O’Sullivan commenced FOI proceedings in VCAT against Victoria Police without leave and, therefore, in breach of the 2009 order. Although one of the VCAT proceeding was commenced with his son as a joint applicant, Mr O’Sullivan was still a party who had commenced it. 
30	The continuation of the general litigation restraint order will not prevent Mr O’Sullivan applying for leave of the relevant court or tribunal to commence proceedings. He has been able to obtain leave on every occasion on which he has applied. What it will do, is to confine proceedings that he may wish to commence to those that have a proper basis. The continuation of the order means that his access to courts and tribunals is regulated by the leave process, not extinguished. The 2009 order allows him to bring some litigation without the leave of the Court if he is legally represented.
Attorney-General’s application for variation of the litigation restraint order
31	The Attorney-General applied for the 2009 order to be varied so as to deal with current legislation which has replaced legislation to which it refers. This includes the Stalking Intervention Orders Act 2008 which was repealed by the PSIO Act. Secondly, under s 65(1) of the Act, a person such as the defendant, requires leave of the Court to commence a proceeding to vary or revoke a restraint order. That is inconsistent with paragraph 3(d) of the 2009 order which excluded from its operation, the leave requirement for bringing a proceeding to vary or revoke the 2009 order. It is appropriate, and in the interests of justice, to make the variations to the 2009 order sought by the Attorney-General. 
Conclusion
32	I will order that:
1.	Mr O’Sullivan’s application filed 12 August 2022 pursuant to s 65(1) of the Vexatious Proceedings Act 2014 be dismissed. 
2.	There be no order as to costs of the application.
3.	The order of Pagone J of 2 December 2009, as varied, be further varied as follows:
(a)	the words ‘Stalking Intervention Orders Act 2008 (Vic)’ in paragraph 3(a) of are deleted and replaced by ‘Personal Safety Intervention Orders Act 2010’.
(b)	paragraph 3(d) is deleted.
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