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…

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.

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Details

Case: [2024] SASCA 39
Decision Date: 28 March 2024

CaseChat Overview and Summary

This matter came before the Supreme Court of South Australia on an application by the appellant, Mr Keane, seeking to continue litigation against Woolworths Group Ltd. Mr Keane had been dismissed from his employment with Woolworths for misconduct and subsequently filed an unfair dismissal application in the Fair Work Commission. Following a settlement agreement and a decision by the Commission dismissing his application, Mr Keane initiated numerous proceedings in various courts, including the Fair Work Commission, the Federal Court of Australia, the Magistrates Court, and the Supreme Court of South Australia. Justice McDonald had previously declared Mr Keane a vexatious litigant under section 39 of the Supreme Court Act 1935 (SA), finding that he was attempting to relitigate concluded matters and that there were no reasonable grounds for his proceedings.

The legal issues before the Court of Appeal concerned whether Mr Keane should be permitted to commence or recommence proceedings, specifically in relation to his application dated 22 March 2024, which sought to pursue interrogatories against Woolworths. These interrogatories were directed at the propriety of Woolworths' conduct and that of its employees towards Mr Keane, including allegations of a conspiracy and improper investigations. The Court was required to determine if these proposed proceedings were warranted, particularly in light of the prior vexatious litigant declaration.

The Court determined that it was appropriate to defer a decision on whether Mr Keane should be permitted to commence or recommence proceedings until the outcome of his appeal against the vexatious litigant declaration was known. The Court reasoned that the appellant's application was intrinsically linked to the appeal concerning the vexatious litigant judgment. Therefore, the application dated 22 March 2024 was dismissed, with the question of costs to be determined at the appeal hearing.

Orders

Orders of the court

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Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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