Keane v Woolworths Group Ltd (No 2) - [2024] SASCA 39

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Civil)
KEANE v WOOLWORTHS GROUP LTD (No 2)
[2024] SASCA 39
Decision of the Honourable President Livesey (ex tempore)
28 March 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).
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.
In connection with his appeal against the vexatious litigant declaration, the appellant has filed another urgent interlocutory application:
1.Seeking various orders, including for interrogatories to be answered and subpoenas to be issued.
2.These orders are said to be relevant to the management of the appeal listed for hearing on 12 September 2024 before the Court of Appeal.
Held - the application must be dismissed:
1.There is a fundamental difference between the hearing and determination of an appellate proceeding and the hearing and determination of the primary proceeding against which the appeal has been taken.
2.The material the subject of the present application is concerned with re litigating the case against Woolworths in connection with the termination of the appellant’s employment, and its aftermath. It is not concerned with whether a vexatious litigant declaration and associated orders should have been made pursuant to s 39 of the Supreme Court Act 1935 (SA).
3.It cannot be said that the application and the various orders sought are “ancillary to the hearing and determination of the appellate proceeding” within the meaning of r 212.5(1) of the Uniform Civil Rules 2020 (SA).

Supreme Court Act 1935 (SA) s 39; Uniform Civil Rules 2020 (SA) r 212.5, referred to.
Keane v Woolworths Group Ltd [2024] SASCA 15; Woolworths Group Ltd v Keane [2024] SASC 12, considered.

KEANE v WOOLWORTHS GROUP LTD (No 2)
[2024] SASCA 39
Court of Appeal – Civil
LIVESEY P (ex tempore):
Introduction

By an application dated 22 March 2024 the appellant has applied for a number of orders, some of which are to procure evidence which he contends is relevant to “the management of [the] appeal” listed for hearing on 12 September this year:
1.Woolworths Group Limited to answer interrogatories;
2.Discovery by category;
3.Subpoenas to the named people;
4.Leave to file with the SAET;
5.Judgment in default of compliance;
6.Judgment set aside until compliance is met;
7.CIV-23-689 unstayed;
8.Injunction for status quo of employment while in default.
The purpose of these orders is explained by the appellant’s affidavit sworn on 22 March 2024.
On 2 February 2024 the appellant was declared 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.[1] The appeal is concerned with setting aside that declaration and associated orders.
[1] Woolworths Group Ltd v Keane [2024] SASC 12; my reasons refusing two earlier applications are Keane v Woolworths Group Ltd [2024] SASCA 15.
For the reasons that follow, the appellant’s application must be dismissed.
The background to the application
For the purposes of determining this application, it is sufficient to recall that on 22 December 2020 the appellant was dismissed for misconduct from his employment at Woolworths Group Ltd (Woolworths).
On 8 January 2021 the appellant filed an unfair dismissal application in the Fair Work Commission seeking reinstatement and compensation. A conciliation conference and a settlement agreement followed. Because of a dispute about the settlement there was a determinative conference. The commissioner who presided over that issued a decision dismissing the unfair dismissal application because a binding settlement had been reached which precluded any further prosecution of the unfair dismissal application.[2]
[2] Woolworths Group Ltd v Keane [2024] SASC 12, [2].
The appellant then 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 the Supreme Court of South Australia.
Following the vexatious litigant declaration hearing, McDonald J concluded that a s 39 declaration and associated orders should be made because the appellant was seeking to relitigate the decisions made by the Fair Work Commission concerning the loss of his employment, as well as the refusal to order reinstatement and compensation following entry into a deed of settlement. As McDonald J observed:[3]
…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, [143].
Justice McDonald found that the appellant had exhausted all legal avenues for full redress and that there were no reasonable grounds for the institution of any of his proceedings.[4]
[4] Woolworths Group Ltd v Keane [2024] SASC 12, [142].
Earlier this year I dismissed two applications, designed to permit the continued litigation of Magistrates Court defamation proceedings (CIV-23-689) and an urgent hearing of the appeal.[5]
[5] Keane v Woolworths Group Ltd [2024] SASCA 15.
The appellant’s forensic purpose
The appellant’s affidavit discloses that his application has been instituted “in relation to [the] appeal … in relation to [the] “vexatious litigant” judgment made by Justice McDonald”.[6] The appellant asserts that Woolworths has employed delaying tactics since making what the appellant describes as “fraudulent and repeated allegations” toward him.[7]
[6] Affidavit of appellant sworn 22 March 2024, [1].
[7] Affidavit of appellant sworn 22 March 2024, [2].
The interrogatories which the appellant wants Woolworths to answer are appended to his affidavit. There are 23 questions. It is fair to characterise the questions as directed to the propriety of the conduct of Woolworths and its employees toward the appellant. For example, proposed interrogatory 1 essentially asks why Mr Shane Carter commenced statutory rape allegations against the appellant regarding a fellow employee who was not under the age of consent. Proposed interrogatory 23 asks for what ulterior purpose Woolworths was investigating the appellant.
It is not necessary to go through all of the questions. They demonstrate that the appellant is concerned to relitigate whether he should have been dismissed from his employment, together with the aftermath of dismissal. The interrogatories are not concerned with whether any error was made in connection with the s 39 declaration and associated orders. That is reinforced by the appellant’s own assessment of the topics to which his questions relate, as set out in paragraph 6 of his affidavit:
·Investigations before termination of Mr Keane’s employment;
·Fair Work Commission hearings;
·Magistrates Court hearings;
·Federal Court hearings;
·Supreme Court hearings;
·Involvement of South Australia Police.
The request for discovery by category is likewise concerned with addressing the merits of the appellant’s dismissal, together with the conduct of Woolworths and South Australia Police following dismissal. For example, the appellant wants discovery of all correspondence between South Australia Police and Woolworths concerning allegations against him commencing in 2020.
The appellant wishes to obtain leave to issue nine subpoenas. He says that “reasons will be included”, presumably, in the subpoena documents.
However, the purpose of these subpoenas is to obtain further evidence from those involved in his employment and his dismissal from employment, as well as the subsequent investigation by South Australia Police. One of these subpoenas is to be issued to a solicitor who was acting for Minter Ellison on behalf of Woolworths. Again, it would seem that the appellant is interested in prosecuting his dismissal and its aftermath, including the Fair Work Commission proceedings rather than obtain evidence which might be relevant for use at the hearing of the appeal.
The application for leave to institute proceedings in the South Australian Employment Tribunal is concerned with commencing a prosecution against Woolworths for false and misleading evidence given in the Fair Work Commission.
The default judgment sought by the appellant is concerned with what he claims are multiple breaches of the Uniform Civil Rules 2020 (SA) by Woolworths which has, he says, manifested an inability and unwillingness to “defend an action with due diligence”.
Although it is a little difficult to determine its relevance to the present application, still less the appeal, the appellant deposes to his concern that Police have threatened to prosecute him for “stalking” and:[8]
The importance of the matter is Mr. Keane’s life, and resolving repeated sexual assault allegations that were made towards Mr. Keane. These are highly prejudicial issues that Woolworths Group fraudulently created for Mr. Keane, and reached a point where Woolworths Group was telling commonwealth judicial officers of such for no better reason then [sic] to humiliate Mr. Keane out of his employment, certainly only because Mr Carter had some undisclosed issue with Mr. Keane.
[8] Appellant’s affidavit sworn 22 March 2024, [29], [30].
The appellant wants the judgment of McDonald J to be set aside until Woolworths “confirms that, fraudulent sexual assault allegations were made, and repeated, including in the very hearing where Woolworths … were attempting to settle the matter.”[9]
[9] Appellant’s affidavit sworn 22 March 2024, [31].
The application for an injunction is based on what the appellant claims is an abuse of process by Woolworths. From this foundation, admittedly neither clear nor obvious, the appellant seeks an order that Woolworths reinstate his contract “until any reasonable basis can be provided for commencing action against Mr Keane”.[10]
[10] Appellant’s affidavit sworn 22 March 2024, [43].
The appellant seeks the preservation of the status quo, which he frames as preservation of his employment status before the controversy of August 2020.[11]
[11] Appellant’s affidavit sworn 22 March 2024, [48].
Finally, the appellant requested that I listen to nearly two hours of audio recordings of Fair Work hearings and Police interviews. I have not done that as the relevance of these to the application and the appeal has not been made clear.
Determination of the application
It is clear that where the jurisdiction to hear and determine an appellate proceeding is vested in the Court of Appeal a single judge may make interlocutory orders and other orders ancillary to the hearing and determination of the appellate proceeding, r 212.5(1) of the Uniform Civil Rules 2020 (SA).
There is, of course, a fundamental difference between the hearing and determination of an appellate proceeding and the hearing and determination of the primary proceeding against which the appeal has been taken.
The material the subject of the present application is concerned with re‑litigating the case against Woolworths in connection with the termination of the appellant’s employment, and its aftermath. It is not concerned with whether a vexatious litigant declaration and associated orders should have been made pursuant to s 39 of the Supreme Court Act 1935 (SA), nor is it concerned with the identification of any error in connection with the reasons given for the making of that declaration and orders by McDonald J.
In these circumstances it cannot be said that the application and the various orders sought are truly “ancillary to the hearing and determination of the appellate proceeding”.
In these circumstances the application should be dismissed.
It is worth remembering that the point of the order made by McDonald J was to preclude re‑litigation of the issues between the appellant and Woolworths associated with the appellant’s dismissal and its aftermath because, following settlement in the Fair Work Commission, the appellant persistently instituted proceedings without reasonable grounds.
This appeal has now been listed for hearing in the Court of Appeal. It is appropriate to defer determining whether the appellant should be permitted to commence or re‑commence any proceedings of the nature sought in this application until the outcome of that hearing before the Court of Appeal.
Conclusion
The application dated 22 March 2024 must be dismissed, with the question of costs referred to the appeal hearing.