Keane v Woolworths Group Ltd - [2024] SASCA 15

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…

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 Keane v Woolworths Group Ltd

Details

AGLC: Keane v Woolworths Group Ltd [2024] SASCA 15
Case: [2024] SASCA 15
Decision Date: 22 February 2024

CaseChat Overview and Summary

The Supreme Court of South Australia, in the matter of *Keane v Woolworths Group Ltd*, considered an appeal and related applications brought by Thomas Courtney Keane against orders made by McDonald J. The primary dispute concerned a declaration by McDonald J that Mr Keane had persistently instituted proceedings without reasonable grounds, constituting vexatious litigation under s 39(5)(b) of the *Supreme Court Act 1935* (SA). Consequently, McDonald J had prohibited Mr Keane from instituting further proceedings in any South Australian court without the court's permission and permanently stayed proceedings he had commenced in the Adelaide Magistrates Court.

The legal issues before the Court of Appeal included whether McDonald J erred in declaring Mr Keane a vexatious litigant and in making the subsequent orders. Mr Keane contended that the decision was wrong, that evidence was not properly acknowledged, and that the orders hindered other applications. He argued that the application made by Woolworths Group Ltd under s 39 of the *Supreme Court Act 1935* (SA) was itself a vexatious abuse of process, initiated to disrupt his defamation proceedings against Mr Carter. Mr Keane's underlying grievance stemmed from a claim made by Mr Carter in August 2020 regarding alleged statutory rape of a fellow worker, which Mr Keane stated was the basis for his application against Woolworths Group Ltd.

The Court of Appeal, in its reasons, indicated that the appeal would be listed in the ordinary way before the Court of Appeal. The applications dated 12 February 2024 were dismissed.

Orders

Orders of the court

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Background

Background to the litigation

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”.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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