Keane v Woolworths Group Ltd
[2024] SASCA 15
•22 February 2024
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Civil)
KEANE v WOOLWORTHS GROUP LTD
[2024] SASCA 15
Decision of the Honourable President Livesey (ex tempore)
22 February 2024
PROCEDURE - STATE AND TERRITORY COURTS: JURISDICTION, POWERS AND GENERALLY - VEXATIOUS LITIGANTS, PROCEEDINGS AND RELATED MATTERS - OTHER MATTERS
The appellant has been declared a vexatious litigant pursuant to s 39 of the Supreme Court Act 1935 (SA). Accordingly, the appellant is prohibited from instituting proceedings in any court or tribunal of South Australia without the permission of the Supreme Court.
Associated with the vexatious litigant declaration, the Judge ordered that defamation proceedings against an employee of the respondent, which are part-heard in the Magistrates Court, be permanently stayed pursuant to s 39 of the Supreme Court Act 1935 (SA).
In connection with his appeal against the vexatious litigant declaration, the appellant filed two interlocutory applications:
1.The appellant seeks an order that his defamation proceedings re-commence as soon as possible.
2.The appellant seeks an order that there be an urgent hearing of his appeal to the Court of Appeal.
The vexatious litigant proceedings were commenced by the respondent following the termination of the appellant’s employment with the respondent in December 2020 and entry into a binding deed of settlement between the parties in the Fair Work Commission. The appellant subsequently lodged 29 applications in the Fair Work Commission, an application for judicial review in the Federal Court of Australia, six applications in the Magistrates Court and seven applications in this Court.
Held - both applications must be dismissed:
1.Whether the defamation proceedings should re-commence is in large measure bound up with whether the vexatious litigant declaration should have been made under s 39 of the Supreme Court Act 1935 (SA). That must await the outcome of the appeal.
2.The appellant did not demonstrate any genuine case for urgency and accordingly the appeal must be listed for hearing before the Court of Appeal in the usual way.
Supreme Court Act 1935 (SA) s 39; Defamation Act 2005 (SA) s 28, referred to.
Cook v Flaherty [2021] SASC 73; Georganas v Barkla [2021] SASC 47; Roberts v Bass (2002) 212 CLR 1; Woolworths Group Ltd v Keane [2024] SASC 12, considered.
KEANE v WOOLWORTHS GROUP LTD
[2024] SASCA 15
Court of Appeal – Civil
LIVESEY P (ex tempore):
Introduction
On 2 February 2024, McDonald J declared the appellant a vexatious litigant pursuant to s 39 of the Supreme Court Act 1935 (SA). As a result, he is prohibited from instituting proceedings in any court or tribunal of South Australia without the permission of the Supreme Court. The declaration has been published in the Gazette.
On 12 February 2024, the appellant commenced an appeal against that decision. Associated with the appeal, the appellant filed two interlocutory applications:
1.The appellant seeks an order that his defamation proceeding against Mr Shane Carter, an employee of the respondent, which was commenced in the Magistrates Court on 27 January 2023 (file number CIV-23-000689), and on which Magistrate Vozzo is part-heard, “re-commence at the soonest possible date”; and
2.There be an urgent hearing of the appeal to the Court of Appeal.
For the following reasons, these applications must be dismissed.
Factual background
For the purposes of addressing the present applications, it is sufficient to provide only a very brief summary of the context in which the appellant’s appeal and applications arise.
The declaration and orders made by McDonald J were relevantly as follows:[1]
I declare that Thomas Courtney Keane has instituted vexatious proceedings as defined in s 39(5)(b) of the Supreme Court Act 1935 (SA), by persistently instituting proceedings without reasonable grounds.
I order that Thomas Courtney Keane be prohibited from instituting further proceedings in any Court of the State of South Australia without the permission of this Court pursuant to s 39(1)(a) of the Supreme Court Act 1935 (SA).
I order that the proceedings commenced by Mr Keane in the Adelaide Magistrates Court on 27 January 2023 (file number CIV-23-000689) are permanently stayed pursuant to s 39(1)(b) of the Supreme Court Act 1935 (SA)
[1] Woolworths Group Ltd v Keane [2024] SASC 12.
In addition, her Honour made the following direction:
Should Mr Keane wish to commence proceedings or make an application in a South Australian Court or Tribunal, he must first correspond only with the Registrar of this Court, who will then determine whether and how to deal with what the respondent proposes.
The appellant contends that the decision is wrong and there has been a failure to acknowledge evidence and several orders “that … hindered other applications before the courts”.
The appellant wants his appeal heard urgently because “in his opinion” the application made by the respondent under s 39 of the Supreme Court Act 1935 (SA) was itself “a vexatious abuse of process”, only commenced in order to disrupt his defamation proceeding against Mr Carter once it became clear that Magistrate Vozzo was not going to “throw Mr Keane’s application out”.
As is explained in the judgment under appeal, the appellant has consistently maintained that in August 2020, Mr Carter claimed that the appellant “statutorily raped [a female fellow worker]”. In his supporting affidavit he described his “entire application against Woolworths Group Limited [as] due to the fact” that this claim was made over a period of seven months between August 2020 and April 2021. The appellant’s affidavit goes on to describe his concern that there were comments made during the Fair Work Commission hearings that followed the termination of his employment with Woolworths Group that are yet to be corrected.
The evidence exhibited to the appellant’s affidavit includes a letter to him from Woolworths Group dated 13 August 2020 advising of the commencement of an investigation into allegations of inappropriate conduct by the appellant towards a female fellow worker. A number of serious allegations were outlined in that correspondence. That correspondence was signed by Mr Carter in his capacity as Group Manager.
The exhibited correspondence includes another letter from Woolworths Group to the appellant dated 1 September 2020 following completion of the investigation. In substance, this correspondence records that most of the allegations were regarded as “not substantiated” due to “insufficient evidence”.
What was substantiated was that the appellant and his fellow worker had engaged in a consensual sexual relationship during the first half of 2020 and, following this, the appellant made a number of comments to his fellow worker, including “I want you to know that when this gets out it will be your fault and it will have nothing to do with me”. The appellant questioned whether his fellow worker was “on LSD” during a shift and he made other comments which made his fellow worker feel uncomfortable such as “I hope it was worth it …” and “Have you gained weight recently?”.
As a result of the investigation, the appellant was advised that he would be issued with a letter of expectations and warned that in the event of further incidents of unacceptable behaviour, misconduct or a breach of the policies of Woolworths Group, disciplinary action may be taken, including termination of employment.
In the course of her reasons, McDonald J addressed the appellant’s termination of employment for misconduct in December 2020 and the settlement deed which was later agreed:[2]
On 22 December 2020 Mr Keane was dismissed from his employment at Woolworths for misconduct. On 8 January 2021 Mr Keane filed an unfair dismissal application in the Fair Work Commission pursuant to s 394 of the Fair Work Act 2009 (Cth) seeking reinstatement of his employment and compensation for lost wages. That application resulted in a conciliation conference and a settlement agreement between the parties. There was some dispute surrounding the settlement which resulted a determinative conference. Following that the commissioner who had presided over the conference issued a decision dismissing the unfair dismissal application on the basis that a binding settlement had been reached which prevented Mr Keane’s further pursuit of the unfair dismissal application.
[2] Woolworths Group Ltd v Keane [2024] SASC 12, [2].
Justice McDonald concluded her reasons on the s 39 application on the basis the appellant wished to re-litigate the decisions made by the Fair Work Commission concerning the loss of his employment and the refusal to order reinstatement following entry into the deed of settlement as follows:[3]
Taking all of that into account I have arrived at the view that it is appropriate to make an order pursuant to s 39. I am satisfied that Mr Keane has persistently instituted vexatious proceedings. The proceedings instituted in the Magistrates Court and in this Court have been commenced for the sole purpose of Mr Keane attempting to relitigate the Fair Work Commission’s decisions in relation to Mr Keane’s employment and to a lesser extent compensation. Mr Keane has been repeatedly told by various members of the judiciary that he has exhausted all legal avenues for the redress of this issue. He chooses to ignore what he has been told. There have been no reasonable grounds for the institution of any of these proceedings.
In determining whether it is appropriate to make such an order I take into account the various Federal Court proceedings as well as Mr Keane’s overall conduct in persistently advocating for his cause in emails, telephone calls and in person. It is plain that absent an order of this Court Mr Keane will not desist. Mr Keane has repeatedly said as much during the various hearings in this Court. During submissions on the vexatious litigant application Mr Keane was unable to deviate from arguing his cause about the conspiracy that he believes is central to his inability to be reinstated to his previous employment.
[3] Woolworths Group Ltd v Keane [2024] SASC 12, [142]-[143].
Given that her Honour found that the appellant had persistently instituted vexatious proceedings in State courts, it was not necessary to consider whether orders should be made in the exercise of the court’s inherent power.[4]
[4] But McDonald J would have had no hesitation in doing so if necessary, Woolworths Group Ltd v Keane [2024] SASC 12, [145], cf Georganas v Barkla [2021] SASC 47.
Determination of the applications
The evidence adduced by the appellant does not demonstrate a proper basis for “recommencing” the proceedings against Mr Carter. Those proceedings raise defamation allegations which are out of time and require an extension of time. The appellant seeks reinstatement as well as compensation in the sum of $11,000.[5] The proceedings were dismissed when the appellant did not attend a hearing on time. The appellant later applied to reinstate those proceedings, and the magistrate was yet to finally rule on that application when the s 39 application was heard.
[5] Woolworths Group Ltd v Keane [2024] SASC 12, [78].
As the terms of the stay order made by McDonald J make clear, whether a permanent stay of those Magistrates Court proceedings should have been made depends in large measure on whether the declaration under s 39 should have been made. In consequence, the evaluation of that stay should await the outcome of the appeal.
The appellant did not suggest that it was relevant to independently address the merits of his defamation claim against Mr Carter at this time and, accordingly, issues such as whether an extension of time might be obtained, whether there were no reasonable grounds for the institution of that proceeding, or whether Mr Carter can rely on a defence of qualified privilege, whether at common law or under statute, need not now be addressed.[6]
[6] Roberts v Bass (2002) 212 CLR 1, [14] (Gleeson CJ); see also s 28 of the Defamation Act 2005 (SA) reviewed in, for example, Cook v Flaherty [2021] SASC 73, [164]-[174].
So far as the urgent hearing of his appeal is concerned, the appellant is concerned to rectify what he describes as an “error of judgment” including the striking out by McDonald J of evidence which he wished to adduce. The appellant is very critical of the statement recorded by her Honour that “Woolworths Group Ltd never claimed Mr Keane had sexually assaulted [a female fellow worker]”.[7] This, the appellant claims, is an “obviously untrue statement”.
[7] Woolworths Group Ltd v Keane [2024] SASC 12, [155].
The appellant claims that his appeal is urgent for various other reasons which include that he wishes to vindicate his position against Woolworths Group and, if that occurs, that will have “on-flowing affects on multiple others matters before the courts and tribunals, and for that reason, it is also urgent” [sic].
In short, the appellant wishes to vindicate his contention that Woolworths Group and Mr Carter have repeatedly made fraudulent and defamatory rape and sexual assault allegations against him.
Whilst the appellant is understandably concerned to achieve vindication and to set aside the vexatious litigant declaration, none of the reasons he has advanced demonstrate any genuine case for urgency.
The appeal will be listed in the ordinary way before the Court of Appeal.
Conclusion
Accordingly, the applications dated 12 February 2024 must be dismissed.
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