Woolworths Group Limited v Keane (No 2)

[2024] SASC 13

SUPREME COURT OF SOUTH AUSTRALIA

(Civil: Application)

WOOLWORTHS GROUP LIMITED v KEANE (No 2)

[2024] SASC 13

Judgment of The Honourable Justice McDonald  

PROCEDURE - STATE AND TERRITORY COURTS: JURISDICTION, POWERS AND GENERALLY - VEXATIOUS LITIGANTS, PROCEEDINGS AND RELATED MATTERS - VEXATIOUS LITIGANT

The applicant – the respondent’s former employer, applied to the Court seeking orders that the respondent be prohibited from instituting proceedings in a prescribed court without the permission of the Supreme Court under s 39 of the Supreme Court Act 1935 (SA), as well as in the Court’s inherent jurisdiction. The applicant also sought orders permanently staying pending civil proceedings in the Adelaide Magistrates Court.

During the above-mentioned proceedings, the respondent filed various interlocutory applications seeking, inter alia, the dismissal of the proceedings, the joinder of third parties, the interim re-instatement of his employment and the issue of subpoenas for various individuals to give evidence.  The Court determined to consider each application as it was made on its merits, and provide reasons later.

Held, dismissing the interlocutory applications: each application filed by the respondent was entirely unmeritorious, and largely sought to re-litigate the circumstances of the respondent’s dismissal from employment by the applicant. None of the applications filed disclosed a proper basis for the orders sought by the respondent.

These are the reasons for arriving at those decisions.

Supreme Court Act 1935 (SA) s 39, referred to.

WOOLWORTHS GROUP LIMITED v KEANE (No 2)
[2024] SASC 13

Civil: Application
McDONALD J.

1. Woolworths Group Limited (‘Woolworths’) made an application seeking an order that Thomas Courtney Keane be prohibited from instituting proceedings in a prescribed court without the permission of the Supreme Court. The application was made under s 39 of the Supreme Court Act 1935 (SA) and in the Courts inherent jurisdiction.

2. On 2 February 2024 I granted the application and made the order for the reasons set out in (Woolworths Group v Keane (No 1)).[1]

   [1] FDN [2024] SASC 12.

3. Woolworths filed the Originating Application on 3 May 2023.  Subsequent to the filing of the Originating Application, Mr Keane has filed or attempted to file a number of applications that I have struck out or dismissed.  I provide the following reasons for those rulings.

   26 May 2023 – Interlocutory Application (FDN 3)

4. On 26 May 2023 Mr Keane filed an Interlocutory Application seeking the Originating Application (FDN 1) be dismissed and that an injunction be granted “for reinstatement of employment.”  He filed an affidavit in support of the application that was sworn on that same date.

5. In that affidavit Mr Keane makes allegations of fraud against Woolworths, a number of their employees, and their legal advisors.  He claims to have been falsely accused of sexual assault and of having been the subject of a criminal conspiracy.  I set out the following paragraphs of Mr Keane’s affidavit as illustrative of the overall tenor and nature of the matters raised.

   13.I would also note, I am attempting to do so by civil means, not via hurled bricks, slashed tires and threats of violence.  Minter Ellison has been so rude and so aloof they legitimately refused to let me file, or in some cases even enter their offices until April of 2023.  They have been legitimately ignoring me while telling judicial officers of the fair work commission I had sexually assaulted AN, then later telling various magistrates that they didn’t, and that police were never involved, even with evidence provided to them and the magistrate we are currently before.

   19.I would also like to bring my (sic) attention to the extent of the pointless and needless suffering I have endured.  I find myself in multiple lawsuits, false allegations and severely disadvantaged economically.  None of this has been necessary.  Having suffered homelessness, harassment, and been a victim of this crime so long, I am becoming agoraphobic, due to having to take “hibernation days” in order to save money, and having nothing substantive in my life to discuss then addressing a supermarkets claims of sexual assault they themselves fabricated.

6. On 23 June 2023 I dismissed the Interlocutory Application.  I did so as there was a proper basis upon which to file the Originating Application.  There was a reasonable basis for Woolworths prosecuting the cause of action.  In relation to the application for an injunction requiring Woolworths to reinstate Mr Keane’s employment, it sought relief that it is not in the jurisdiction of this Court to grant.  The issue of the termination of Mr Keane’s employment falls within the Federal jurisdiction and as will become apparent when I come to deal with the basis of the application to have Mr Keane declared vexatious, that issue has been well and truly determined by the Fair Work Commission and the Federal Court.

   28 June 2023 – Interlocutory Application (FDN 9)

7. On 28 June 2023 Mr Keane filed a further Interlocutory Application (FDN 9).  In that application, Mr Keane sought orders to join the Shop Distributors Allied Union SA/NT (‘SDA’) as a party to the proceedings, to “cross-claim against Woolworths and the SDA” and “orders to examine witnesses.”  This application was supported by an affidavit sworn by Mr Keane on 27 June 2023.  In this affidavit Mr Keane makes various allegations against the SDA including fraud, dishonesty, gross negligence, the concealment of criminal conduct and corruption.  He claims that if permitted to join the SDA to the proceedings “it would undoubtedly discover corruption and a blatant abuse of trust and power on behalf of the SDA Union SA/NT.”  Later in the affidavit Mr Keane further elaborated:

   Based on the statement made by Mr Douglas, it would seem that Woolworths Group is attempting another round of “appeasement” hearings, to “get things of (sic) my chest”, I am not interested in that, I am seeking my employment returned to me.  The SDA will need to be apart (sic) of that process as they have already participated in falsifying a narrative that would favour Woolworths Group and discredit me by doing so, they had Freudianly (sic) mispresented issues and presented that as evidence before the Fair Work Commission, which is fraud, contempt and misleading the Court.

   (Emphasis Added)

8. It is clear that Mr Keane feels aggrieved at the role that he perceives that the SDA played in the termination of his employment and seeks to redress this injustice by having the SDA joined in these proceedings.  Such an approach reveals a complete misunderstanding of the nature of these proceedings and demonstrates the level of Mr Keane’s fixation which was in turn central to Woolworth’s application.

9. As to the application for witnesses to be called to give evidence, Mr Keane’s affidavit included a list of people who were Woolworths employees, a former legal representative of Woolworths, and police.  He deposed that the basis upon which he wished to call them was:

   I am still seeking the examination of the following witnesses.  I am seeking an order for these witnesses to be examined to prevent the Applicant from claims that I am “stalking people” and making further reports to police to prevent me from getting evidence, which is my right.

10. It is apparent that Mr Keane has a distorted view of what his rights are.  As is apparent from these passages in his affidavit, Mr Keane was endeavouring to hijack the legitimate application that had been made by Woolworths in furtherance of his quest to challenge the original decision that was made in the Fair Work Tribunal whilst simultaneously conducting a broad ranging enquiry into the conduct of those individuals who he perceives have wronged him.

11. In Court, during his submissions in support of the Interlocutory Application, Mr Keane explained that the purpose in filing the application was to join the SDA to the proceedings and make a cross-claim against Woolworths and the SDA for “fraudulent misrepresentation”.  He went on to elaborate:

    I am being accused by the application of being a vexatious litigant.  I believe that both parties have obviously collaborated in some sort of fraudulent misrepresentation.  I wish for them to appear before the Court and I wish to seek some form of damages and some form of admission for the records so I can put this behind me.  When I saw the rules of Court we’re entitled to bring a cross-claim, that is what I did.

12. He continued:

    As you can see the evidence I’ve submitted, I’ve made (sic) no hesitation to articulate that I believe that the SDA Union and Woolworths Group had collaborated in committing fraud.  Their purposes I do not know.  It would seem that they are attempting to conceal the fraudulent rape allegations that both had participated in.

    I believe that, as there was a clear combined effort to mislead the Fair Work Commission or myself in one way or another, it would be extremely relevant to have them as a member of these proceedings.[2]

    [2]    Transcript 9 August 2023 p 5.

13. Mr Keane appeared to hold the view that by cross-claiming, representatives from Woolworths and the SDA, could somehow be compelled to give evidence.  He said:[3]

    Well, perhaps if compelled to testify, they may admit or have to disclose that I may have considerable grounds for my application.  I believe I do in my affidavit and my evidence.

    [3]    Transcript 9 August 2023 p 8.

14. Mr Keane summarised the basis for his application in the following terms:

    To put it simply, I’ve had a crime committed against me and they were a party in that crime.  I could not put it more simply.  I don’t think there is anything vexatious about addressing the fraud that’s been committed against me.  They were a party to that fraud, they were claiming to represent me during those issues; they clearly were not putting my interests forward.

    That directly led to this situation, as well as a few other issues, and so I think it’s extremely valid to have that as part of this proceeding because it would, in turn, very clearly articulate that I am not a vexatious litigant, I’m trying to address a crime that has been committed against me.[4]

    [4]    Ibid.

15. These submissions further illustrate that the approach that Mr Keane has continued to adopt is to use any legal mechanism that he can find to attempt to redress historical events.

16. The remedies sought by Mr Keane were effectively those that were sought under the previous Interlocutory Application (FDN 3) – namely reinstatement and back pay.  Given the narrow nature of the relief sought on Woolworth’s application in these proceedings, it is apparent that this is another attempt by Mr Keane agitating for a remedy that has been dealt with in the federal jurisdiction.

17. I dismissed the Interlocutory Application.  I also advised Mr Keane that if he wished to pursue the option of calling witnesses to give evidence the appropriate approach would be to draft subpoenas and make an application for them to be issued. 

    9 August 2023 – Claim and Cross-Claim (not filed)

18. On 9 August 2023 I also received two further applications that Mr Keane had attempted to file in the Registry. These were described as a “Claim” and a “Cross‑Claim”.  Both had been stamped “received but not filed” on 19 July 2023.  The “Claim” was an attempt to file an action against Woolworths and the SDA in the amount of $655,551.26. The “Cross-claim” appeared to be a further iteration of Mr Keane’s earlier attempt to join the SDA to the action.  I advised Mr Keane that whilst these applications had not been accepted for filing and consequently were not formally before me, in the event the documents were to be filed in their current form I would order that they be struck out on the basis that the issue they attempted to address had already been dealt with and consequently they were vexatious and an abuse of the process of the Court.

    1 September 2023 – Interlocutory Application (FDN 23)

19. On 1 September 2023 Mr Keane filed a further Interlocutory Application (FDN 23).  The application was for “an interim order for re-instatement”.  The orders sought were “an interim injunction against the Applicant, seeking the re‑instatement of employment (so that time cannot be used as a factor against the respondent)” and “directing the Applicant to confirm and submit that it had passed along false and misleading evidence before the Commission in the matter of U2021/252, inducing a fraudulent contract due to misrepresenting facts and findings.”

20. In the application Mr Keane purported to rely on an affidavit dated 25 August 2023.  No affidavit sworn on that date had been filed.

21. On 7 September 2023, Mr Keane forwarded a copy of the Interlocutory Application to my chambers.  The accompanying email said the following:

    Parties were wondering considering there is no objection in any regard to the interlocking (sic) application, if her honour would make an order in chambers so that the respondent could return to work.

22. It was clearly incorrect to claim that there was no objection to the making of the order.

23. I advised Mr Keane that I declined to make the order and I dismissed the application from chambers.  I did so on the basis that it was an abuse of process as it was yet a further attempt by Mr Keane to obtain the relief that he had attempted to obtain in the Fair Work Commission.

    14 September 2023 - Subpoenas

24. The matter next came before the Court on 14 September 2023.  In advance of the hearing Mr Keane provided a number of draft subpoenas and a dot point summary about why he said that he should be permitted to issue those subpoenas.  The following table sets out the submissions that Mr Keane advanced.

A.N.

Woolworths employee central to the issues that resulted in the workplace investigation into Mr Keane’s conduct.

Mr Keane claimed that AN received the benefit of “additional shifts, training and career furtherment” as a consequence of her participation in the allegations against Mr Keane.

There was a matter that Mr Keane wished to raise with AN that would undermine her credibility.

S.C.

Woolworths employee central to the issues that resulted in the workplace investigation into Mr Keane’s conduct.

Mr Keane alleged that SC “repeatedly falsified documentation, lied, abused his position.  Reasons unknown.”

The Honourable Justice Patrick O’Sullivan

Mr Keane complained about the hearing that he had received before O’Sullivan J.

Mr Keane claimed that O’Sullivan J would be of particular assistance to him because apparently, O’Sullivan J had expressed the view that a crime had been committed and that Woolworth’s conduct towards Mr Keane was unlawful.

Senior Constable Adam Barney

Senior Constable Barney was involved in a police investigation into Mr Keane.

Mr Keane claimed that it was no coincidence that the police investigation took place at the same time as the Woolworths investigation.

Mr Keane said that S/C Barney repeatedly harassed him and put false and misleading information on his police record that would cause other police to distrust him and believe that he had issues with women.

Blythe Ormesher

An employee at the SDA.

Mr Keane suggested that Ms Ormesher had been dishonest in her dealings with Mr Keane and collaborated with the police and Woolworths.

Mr Keane alleged that she had put pressure on him to “take the deal” and did not genuinely act in his best interests.

Commissioner Hampton

Mr Keane complained about the hearing that he had received from Commissioner Hampton in the Fair Work Tribunal.

Mr Keane claimed that Commissioner Hampton was not fair in his dealings with him and allowed Woolworths to present false and misleading evidence.

Commissioner Platt

Mr Keane alleged that Commissioner Platt allowed Woolworths to force him into a settlement agreement and subsequently behaved unreasonably towards him.

Andrew Short

Previous legal representative of Woolworths.

Mr Keane alleged that Mr Short knew that he was participating in fraud and improperly acted on behalf of A.N. and S.C.

Liz O’Keefe

Current legal representative of Woolworths.

Mr Keane alleged that she lied and mislead the Court.

LB

Mr Keane’s former partner.

Mr Keane believes that Ms B was encouraged and forced to lie about her involvement in the rape allegations.

Detective Sergeant Michael Newberry

Mr Keane had multiple conversations with Detective Newberry as he was put in contact with him through a mutual friend.

Mr Keane claimed that Detective Newberry has repeatedly said to him that he will “never work for Woolworths again” suggesting that “he knows more about [Mr Keane’s] situation than he lets on.”

Mr Keane alleged that Detective Newberry has repeatedly attempted to get him to drop the matter.

1. The basis upon which Mr Keane sought to subpoena the various witnesses again highlights his fundamental misunderstanding of these proceedings and the nature of the enquiry to be embarked upon by the Court.  Despite being repeatedly advised to the contrary, Mr Keane remains steadfast in his belief that he can use these proceedings to embark on a wholesale enquiry into his perceived injustices.  The reason for calling each of these witnesses was so that he could conduct an interrogation aimed at undermining them and to elicit information that would support the existence of some form of conspiracy operating against him.

2. No legitimate forensic purpose was identified.  I refused to issue the subpoenas.

   19 September 2023 – Interlocutory Application (FDN 26)

3. On 19 September 2023 Mr Keane filed another Interlocutory Application (FDN 26).  In this application he sought an urgent hearing “regarding allowing the Respondent to cross claim against the Applicant seeking re-instatement and damages.”  The order sought was:

   “leave to have the cross claim, and it’s justification to be accepted, the foundation and it’s content is already within prior affidavits, and have already been well established”.

4. The terms of the order sought demonstrate that Mr Keane was well aware that the issue had previously been determined.  He was unhappy with the outcome and was yet again attempting to reagitate the same issue.

5. Mr Keane relied upon a further affidavit dated 18 September 2023.  In that affidavit he complained about the proceedings in the Fair Work Commission.  He deposed:

   The “Fair Work Commission of Australia” to (sic) refused to give me a fair hearing, in the form of a (sic) refusing to disclose any information about the hearings, participants, or even allow me to participate on any acceptable terms under common law principles, that was not appropriate behaviour and took place between the months of August of twenty-twenty to May of twenty-twenty-one, at least, and to the best of my knowledge, is still continuing, in these hearings.

6. In the affidavit Mr Keane also complained of being the subject of a police investigation which he suggested in some way intersected with the Fair Work proceedings.  Mr Keane concluded the affidavit with the following:

   Why was I targeted for this criminal offence, I do not know, as I was not attempting to commit any form of criminal offence of my own, against any other person or organisation, and never have.

   The Rules of the Fair Work Act 2009 Cth, makes it clear that under section 228 of the fair work act, parties are obligated to negotiate in good faith, the forced settlement agreement does not comply with the rules, and is an attempt to conceal a criminal offence.

   Section 349 makes clear that misrepresentations are a criminal offence, and there is no doubt that a misrepresentation of my employment, its conditions and it is a fact that my workplace rights were wrongfully abused.

1. Attached to that affidavit was a further document described as a “cross‑claim”.  The orders sought in that “cross-claim” were:

   1.Alternative Mandamus (a command from the Courts) having Woolworths Group Limited disclose the complaints that were used against me, and the findings of their investigations.

   2.Peremptory Mandamus (a command) ordering Woolworths Group to disclose to the Fair Work Commission that they ‘Woolworths Group Limited’ had passed on false and misleading information to police.”

   3.An injunction imposed by the Supreme Court of South Australia against Woolworths Group Limited Supermarket, seeking my employment at a supermarket be returned to me, without delay, hinderance or nuisance, due to the fraud that they had committed on the respondent.

   4.     Damages as seen fit by the Court.

2. Mr Keane provided details of his employment at Woolworths, details about the proceedings in the Fair Work Commission and concluded:

   I was wrongly terminated from my employment, due to South Australia Police being involved under fraudulent pretence, and Woolworths Group Limited’s representation lying to the Fair Work Commission during those proceedings.

3. The order that Mr Keane sought was:

   leave to have the cross-claim, and its justification to be accepted, the foundation and its contents is already within prior affidavits, and have already been well established.

   (Emphasis Added).

4. On 5 October 2023 having given Mr Keane the opportunity to be further heard, I made an order to strike out the Interlocutory Application (and as a consequence the cross-claim) pursuant to the UCR r 34.1 on the basis that it was vexatious and an abuse of process.  I did so on the basis that it was yet again a further attempt to reagitate the same issues that had been exhaustively dealt with in the Fair Work Commission.

   r 102.1(5) of the UCR

5. As I have observed in the preceding paragraphs the various applications that Mr Keane has filed or relied upon in this Court are under varying guises the same applications.

6. Rule 102.1(5) reads:

   If a party seeks (whether by written or oral interlocutory application) the same or substantially the same orders as were sought in a previous interlocutory application (whether written or oral), the party must seek leave to bring the application and the question of leave will be considered first when the application is to be heard or listed for hearing.

7. Given my findings that these Interlocutory Applications are in substance the same, Mr Keane required leave to bring the Interlocutory Applications filed subsequent to FDN 3.  As Mr Keane is unrepresented, I determined to dispense with this step and consider each application on its merits.  I found each application to be entirely unmeritorious.