Keane v Woolworths Group Limited

Case [2023] FCA 1634

FEDERAL COURT OF AUSTRALIA

Keane v Woolworths Group Limited [2023] FCA 1634

File number: SAD 132 of 2023
Judgment of: ROFE J
Date of judgment: 19 December 2023
Catchwords: PRACTICE AND PROCEDURE – whether to grant an extension of time to file an application seeking leave to appeal from a decision of this Court – relevant principles discussed – no explanation for significant delay and no reasonable prospects of appeal succeeding – application dismissed.
Legislation:

Judiciary Act 1903 (Cth)

Federal Court Rules 2011 (Cth)
Cases cited:

Attorney-General (NSW) v Quin (1990) 170 CLR 1

BQQ15 v Minister For Home Affairs [2019] FCAFC 218

Hunter Vally Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 3 FCR 344

Kalanje v Minister for Immigration and Multicultural Affairs [2006] FCA 1618

Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 403 ALR 604

Keane v Woolworths Group Ltd [2023] FCA 379

Khondoker v Minister for Immigration and Citizenship [2012] FCA 654

Mehmood v Attorney-General of the Commonwealth (2013) 141 ALD 339

Mr K v The Employer [2021] FWC 2132

Pal v Commonwealth of Australia [2020] FCA 1483

Pfizer Ireland Pharmaceuticals v Samsung Bioepis Au Pty Ltd [2017] FCA 573

Sang v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1572

Tomko v Palasty (No 2) (2007) 71 NSWLR 61
Division: Fair Work Division
Registry: South Australia
National Practice Area: Employment and Industrial Relations
Number of paragraphs: 38
Date of last submission/s: 15 December 2023
Date of hearing: Determined on the papers
Counsel for the Applicant: The applicant was self-represented
Solicitor for the First Respondent: MinterEllison
Solicitor for the Second Respondent: Australian Government Solicitor

ORDERS

SAD 132 of 2023
BETWEEN:

THOMAS COURTNEY KEANE

Applicant
AND:

WOOLWORTHS GROUP LIMITED

First Respondent

FAIR WORK COMMISSION

Second Respondent

ORDER MADE BY:

ROFE J

DATE OF ORDER:

19 DECEMBER 2023

THE COURT ORDERS THAT:

1.The application is dismissed.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

ROFE J:

  1. On 15 July 2022, the applicant sought judicial review pursuant to s 39B(1) of the Judiciary Act 1903 (Cth) (JR Application) of a Fair Work Commission (FWC) decision issued by Commissioner Platt on 19 April 2021 in Mr K v The Employer [2021] FWC 2132.

  2. On 2 May 2023, O'Sullivan J dismissed the JR Application in Keane v Woolworths Group Ltd [2023] FCA 379.

  3. On 9 October 2023, the applicant lodged an application for an extension of time in which to seek leave to appeal O’Sullivan J’s decision (Extension Application). On 27 November 2023, I made orders that the Extension Application be determined on the papers.

  4. The applicant is self-represented. He filed written submissions on 11 December 2023 and relied on two supporting affidavits that he made on 6 October and 7 November 2023 respectively. The applicant also provided (what may be described as) supplementary submissions to the Court through emails to Chambers. The…

Continue reading Keane v Woolworths Group Limited

Sign in free to access the full text

Details
AGLC
Keane v Woolworths Group Limited [2023] FCA 1634
Case
[2023] FCA 1634
Decision Date

CaseChat Overview and Summary

In the matter of Keane v Woolworths Group Limited, the applicant sought an extension of time to file an application for leave to appeal a decision of the Federal Circuit and Family Court of Australia. The background to the case involves the applicant's termination of employment and subsequent litigation with Woolworths, including unsuccessful claims in the Fair Work Commission and the Magistrates' Court of South Australia. Woolworths has also initiated vexatious litigant proceedings against the applicant.

The primary legal issue before the court was whether to grant the applicant an extension of time to file an application for leave to appeal from O'Sullivan J's decision. The court considered the principles governing extensions of time in appeals under Rule 35.13(a) of the Federal Court Rules 2011, which stipulates that an application for leave to appeal must be made within 14 days of the judgment. The court noted procedural deficiencies in the applicant's Extension Application, which did not include the necessary judgment or a draft notice as required by Rule 35.14. Despite these procedural issues, the court focused on whether the applicant had demonstrated any reason justifying an extension of time, bearing in mind that the onus was on the applicant to establish grounds for such an extension.

In its reasoning, the court found that the applicant had not established any arguable ground on which to appeal O'Sullivan J’s decision. Consequently, the court concluded that the proposed application for leave to appeal had no reasonable prospects of success. Given the lack of any compelling reason to extend the time and the absence of reasonable prospects of appeal success, the application for an extension of time was dismissed. The court's decision was unequivocal in this regard, leading to the final orders.

Orders

Orders of the court

1. The application is dismissed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

For the reasons that follow, the application should be dismissed. BACKGROUND The background to this matter is usefully set out by O’Sullivan J at [1]–[5]:[1] Until 21 December 2020, the applicant was employed by the first respondent, Woolworths Group Limited at which time his employment was terminated. He filed an unfair dismissal application with the Fair Work Commission seeking reinstatement of his employment and compensation for lost wages. [2] On 18 March 2021, the parties participated in a Conciliation conducted by Commissioner Hampton of the Commission. Woolworths contend that at that Conciliation, the parties reached a binding settlement. [3] Subsequently, there was a dispute between the parties as to whether in fact a binding settlement had been reached. [4] Woolworths issued an application pursuant to s 587 of the Fair Work Act 2009 (Cth) seeking dismissal of the application on the basis that the parties had reached a binding settlement. [5] Commissioner Platt heard that application on 9 April 2021 and delivered a decision on 19 April 2021. The Commissioner found the parties had reached a binding settlement. Accordingly, the Commissioner dismissed the applicant’s unfair dismissal application (Decision). The history of the litigation between the applicant and Woolworths is extensive. This history is largely set in the affidavit of Ms O’Keeffe dated 2 November 2022. Woolworths submitted that since 2 November 2022, the applicant has brought further proceedings against Woolworths or its employees in both the FWC and the Magistrates’ Court of South Australia. None of the applicant's claims have been successful. Woolworths commenced vexatious litigant proceedings against the applicant in the Supreme Court of South Australia on 3 May 2023. Woolworths noted that McDonald J reserved her judgment in that matter on 11 October 2023.LEGAL PRINCIPLES Rule 35.13(a) of the Federal Court Rules 2011 (Cth) provides that an application to seek leave to appeal must be made within 14 days after the date on which the judgment was pronounced. O’Sullivan J pronounced judgment on 2 May 2023 and therefore the applicant’s application for leave to appeal had to be filed by 16 May 2023. Rule 35.14 of the Rules permits a party to apply for an extension of time to seek leave to appeal and subrule (3) sets out several documents that must accompany the application, including the judgment from which leave to appeal is sought, an affidavit and a draft notice. The applicant’s Extension Application did not comply with r 35.14 as it did not include O’Sullivan J’s decision or a draft notice. Putting those procedural failings to one side for a moment, has the applicant demonstrated any reason why the Court should exercise its discretion to allow the extension of time in which to seek leave to appeal? The applicant bears the onus of establishing that an extension should be granted: Khondoker v Minister for Immigration and Citizenship [2012] FCA 654 at [56] (per Foster J).

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The applicant has not raised any arguable ground on which to appeal O’Sullivan J’s decision and therefore I do not consider that the proposed application for leave to appeal has any reasonable prospects of success.CONCLUSION Accordingly, the application for an extension of time be dismissed.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.