THOMAS COURTNEY KEANE In Person v WOOLWORTHS GROUP LTD [2024] SASCA 113

On Appeal from SUPREME COURT OF SOUTH AUSTRALIA (THE HONOURABLE JUSTICE MCDONALD) CIV-23-004820 Applicant: THOMAS COURTNEY KEANE In Person Respondent: WOOLWORTHS GROUP LTD Counsel: MR M DOUGLAS WITH MS L VIANT - Solicitor: MINTER ELLISON Hearing Date/s: 12/09/2024 File No/s: CIV-24-001255 A SUPREME COURT OF SOUTH AUSTRALIA (Court of Appeal: Civil) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. KEANE v WOOLWORTHS GROUP LTD (No 4) [2024] SASCA 113 Judgment of the Court of Appeal (The Honourable President Livesey, the Honourable Justice Stanley and the Honourable Auxiliary Justice Hall) 20 September 2024 PROCEDURE STATE AND TERRITORY COURTS: JURISDICTION, POWERS AND GENERALLY VEXATIOUS LITIGANTS, PROCEEDINGS AND RELATED MATTERS VEXATIOUS LITIGANT This is an appeal by Mr Keane against a “vexatious litigant declaration” and associated orders made on the application of Woolworths pursuant to s 39 of the Supreme Court Act 1935 (SA). The evidence before the primary judge showed that Mr Keane had become obsessed with the circumstances in which his employment with Woolworths was terminated nearly four years ago. His unfair dismissal claim was soon followed by a negotiated settlement, which resulted in the payment by Woolworths of a sum of money to him. Mr Keane then instituted over 30 unsuccessful applications in the Fair Work Commission, an unsuccessful application for judicial review in the Federal Court (together with attempts to appeal the unsuccessful outcome), six proceedings in the Magistrates Court, and around seven unsuccessful or attempted applications in the Supreme Court. Generally, these were dismissed but, in some instances, they were rejected or abandoned. Mr Keane is not legally represented. The first stage for the primary judge, and this Court, was to determine whether Woolworths had demonstrated that Mr Keane had “persistently instituted vexatious proceedings” within s 39 of the Supreme Court Act 1935 (SA) where only proceedings instituted in a South Australian court or -- 1 of 69 -- tribunal were within the statutory definition. The second stage was to consider whether in all of the circumstances it was proper for the court’s discretion to be exercised in favour of making the declaration and orders sought. HELD (by the Court), allowing the appeal for the limited purpose of amending the terms of one of the orders made by the primary judge, but otherwise dismissing the appeal with costs: 1. Mr Keane’s appeal grounds and written and oral submissions did not attack the findings made, nor the declaration and orders made, by the primary judge. 2. The obligation in this Court to conduct a rehearing, and the fact that Mr Keane is not legally represented, combine to require that consideration be given to whether the declaration and orders made in this case were properly made. 3. It has been necessary to review each of the proceedings and applications, and the evidence surrounding them. 4. Whilst there is some scope to question the reliance placed by the primary judge on some of the material before her Honour, the proper conclusion on the whole of the material is that the requirements of s 39(1) of the Supreme Court Act 1935 (SA) were clearly satisfied, and the exercise of discretion to make a declaration and orders in the terms they were made was open. 5. Observations made about the elements of s 39 of the Supreme Court Act 1935 (SA), the inherent powers of the court, and an order restricting the way in which Mr Keane may correspond with the Supreme Court. Observations also made about proceedings commenced in the Court of Appeal, had it been necessary to re-exercise discretion afresh. 6. Order 3 of the primary judge to be amended to read: I order that Thomas Courtney Keane be prohibited from instituting further proceedings in any Court or Tribunal 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). Defamation Act 2005 (SA) s 28; District Court Act 1991 (SA) s 43; Fair Work Act 2009 (Cth) ss 345, 365, 394, 587(1), 589, 773, 739; Federal Court of Australia Act 1976 (Cth) s 37AO(2); Legislation Interpretation Act 2021 (SA) s 4; Supreme Court Act 1935 (SA) ss 39, 39(1), 39(1)(a), 39(4), 39(5), 39(5)(a), 39(5)(b), 39(6), 50; Supreme Court Civil Rules 2006 (SA) r 28; Surveillance Devices Act 2016 (SA); Uniform Civil Rules 2020 (SA) rr 32.3(1)(c), 51.1, 85(1), 212.5(1), 218.17, referred to. Attorney-General (SA) v Kowalski [2014] SASC 1; Garrett v Mildara Blass Ltd [2009] SASC 19; Georganas v Barkla [2021] SASC 47; House v The King (1936) 55 CLR 499; Mitsubishi Motors Australia Ltd v Kowalski [2005] SASC 154; Woolworths Group Ltd v Keane [2024] SASC 12; WorkCover Corporation of South Australia v Moore-McQuillan [2016] SASC 191, discussed. Abalos v Australian Postal Commission (1990) 171 CLR 167; Adelaide Brighton Cement Ltd v Hallett Concrete Pty Ltd & Ors (2020) 137 SASR 117; Andrew Garrett Wines Resorts Pty Ltd & Anor v National Australia Bank Ltd and Other Actions (2007) 248 LSJS 349; Atkins v Hughes [2019] SASCFC 49; Attorney-General (SA) v Burke (1997) 190 LSJS 28; Attorney-General (SA) v Piepkorn [2005] SASC 425; Attorney-General (Vic) v Horvath, Senior [2001] VSC 269; Attorney-General for the State of Victoria v Weston [2004] VSC 314; Attorney-General v Wentworth (1988) 14 NSWLR 481; Bahonko v Nurses Board of Victoria [2008] FCAFC 29; Barkla v Allianz Australia Insurance Limited [2018] FCA 2070; Braeside Bearings Pty Ltd v HJ Brignall and Associates (Boronia) [1996] 1 VR 17; Brogdon v Attorney-General [2001] NZAR 809; Charisteas v Charisteas (2021) 273 CLR 289; Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; Commonwealth Bank of Australia v Heinrich [2003] SASC 322; Cook v Flaherty [2021] SASC 73; Coulton v Holcombe (1986) 162 CLR 1; D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; Davies v The Queen [2021] SASCA 26; Devries v Australian National Railways Commission (1993) 177 CLR 472; Doerr v Gardiner [2023] QCA 160; Ebert v Venvil [2000] Ch 484; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; Flowers v Finlayson (No 2) [2023] SASCA 12; Fox v Percy (2003) 214 CLR 118; Fuller v Toms [2013] FCA 1422; Garrett v Mildara Blass Ltd [2009] SASC 19; Gassy v The King [2023] SASCA 90; GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 97 ALJR 857; GM v Department of Human Services [2024] SASCA 93; Groom v Police (2015) 252 A Crim R 332; Hallett Concrete Pty Ltd v -- 2 of 69 -- Adelaide Brighton Cement Ltd & Ors [2024] SASCA 80; Hamod v New South Wales [2011] NSWCA 375; Hunters Hill Municipal Council v Pedlar [1976] 1 NSWLR 478; In re Becker [1975] 1 WLR 842; In re Boaler [1915] 1 KB 21; Jones v Skyring (1992) 66 ALJR 810; K v The Employer [2022] FWC 1148; K v The Employer [2022] FWC 1592; K v The Employer [2022] FWC 3003; Keane v Woolworths Group Ltd (No 2) [2024] SASCA 39; Keane v Woolworths Group Ltd (No 3) [2024] SASCA 87; Keane v Woolworths Group Ltd [2024] SASCA 15; Keane v Woolworths Ltd [2023] FCA 379; Martincic & Anor v Ethnic Broadcasters Inc [2024] SASCA 33; McLennan v McCallum [2010] WASCA 45; Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; Minogue v Human Rights and Equal Opportunity Commission (1999) 84 FCR 438; Mr K v The Employer [2021] FWC 2132; Mr K v The Employer [2021] FWCFB 3162; Mr K v The Employer [2023] FWC 1341; Mr K v The Employer [2023] FWC 152; Mr K v The Employer [2023] FWC 456; Nanosecond Corporation Pty Ltd v Glen Carron Pty Ltd (2018) 132 SASR 63; Norbis v Norbis (1986) 161 CLR 513; Pavitt v The Queen (2007) 169 A Crim R 452; Pitt v Commissioner for Consumer Affairs [2021] SASCA 24; Police (SA) v Mahon (2022) 141 SASR 374; QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 97 ALJR 419; R v Geoffrey (A Pseudonym) [2024] SASCA 40; Ramsey v Skyring (1999) 164 ALR 378; Re Attorney-General (Cth); Ex parte Skyring (1996) 70 ALJR 321; Re F (2001) 161 FLR 189; Reid v Kerr (1974) 9 SASR 367; Roberts v Bass (2002) 212 CLR 1; SJ Berry Pty Ltd v McEntee (2022) 142 SASR 31; Soden v Croker (No 2) (2016) 334 ALR 540; State Rail Authority of New South Wales v Earthline Constructions Pty Limited (In Liq) (1999) 73 ALJR 306; Steven Moore (a pseudonym) v The King [2024] HCA 30; Testel Australia Pty Ltd v Goulding [2023] SASCA 116; Thomas v Nash (2010) 107 SASR 309; Thomson v Tremco Pty Limited [2019] QCA 18; Trezise v South Australian Civil and Administrative Tribunal [2024] SASCA 100; UBS AG v Tyne (2018) 265 CLR 77; University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481; Vakauta v Kelly (1989) 167 CLR 568; Warren v Coombes (1979) 142 CLR 531; Wentworth v Graham (2003) 57 NSWLR 741; Williams v Spautz (1992) 174 CLR 509; Woolworths Group Ltd v Keane (No 2) [2024] SASC 13; Woolworths Group Ltd v Keane [2024] SASC 12; Woolworths v Keane (No 2) [2024] SASC 13; WorkCover Corporation of South Australia v Moore-McQuillan [2016] SASC 191; Young v The King [2024] SASCA 47, considered. -- 3 of 69 -- -- 4 of 69 -- KEANE v WOOLWORTHS GROUP LTD (No 4) [2024] SASCA 113 Court of Appeal – Civil: Livesey P, Stanley and Hall AJJA THE COURT: Introduction 1 This is an appeal by the appellant, Mr Keane, against what may be described as a “vexatious litigant declaration” and associated orders made on 2 February 2024 on the application of the respondent, Woolworths. These were made pursuant to s 39 of the Supreme Court Act 1935 (SA) (the Supreme Court Act), in the following terms: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). 2 The primary judge also directed that, should Mr Keane wish to commence proceedings or make an application in a South Australian court or a tribunal, he must first correspond with the Registrar of the Supreme Court who will then determine whether and how to deal with what Mr Keane proposes.2 3 The evidence before the primary judge showed that Mr Keane had become pre-occupied, to the point of obsession, with the circumstances in which his employment with Woolworths was terminated nearly four years ago. His unfair dismissal claim was soon followed by a negotiated settlement, which resulted in the payment by Woolworths of a sum of money to Mr Keane. 4 Mr Keane has since sought to re-open and re-litigate issues relating to the termination of his employment, together with claims he conducted an intimate relationship with a fellow employee. Mr Keane has repeatedly raised his concerns about what he said were unfounded claims that he had been involved in sexual harassment, about the investigation by Woolworths into allegations of his misconduct at work, and about the involvement of various Woolworths employees, Woolworths’ solicitors, one or more unions, South Australia Police (SAPOL), and 1 Woolworths Group Ltd v Keane [2024] SASC 12 (Reasons), see Georganas v Barkla [2021] SASC 47 [23]-[24] (Livesey J) (as he was). 2 Reasons, [156]-[157]. -- 5 of 69 -- [2024] SASCA 113 The Court 2 others. By and large, almost all of the proceedings commenced by Mr Keane have been dismissed or abandoned.3 5 For the reasons that follow, the vexatious litigant declaration and orders were appropriately made, but the appeal should be allowed for the limited purpose of varying the terms of one of the orders. These reasons are set out as follows: Introduction .................................................................................................................................... 1 The Notice of Appeal ..................................................................................................................... 2 The approach of the Court of Appeal............................................................................................. 3 Section 39 of the Supreme Court Act ............................................................................................. 5 Standing to apply ................................................................................................................. 8 Persistently instituted........................................................................................................... 9 Proceedings ....................................................................................................................... 11 Vexatious............................................................................................................................ 13 The exercise of discretion .................................................................................................. 15 The inherent powers of the court ................................................................................................. 16 Findings made regarding the vexatious litigant application in this case...................................... 17 Overview of the various proceedings commenced by Mr Keane ....................................... 17 The proceedings in greater detail ...................................................................................... 19 Subsequent applications made by Mr Keane ..................................................................... 27 The reasons of the primary judge................................................................................................. 28 Determination of the appeal ......................................................................................................... 32 Other issues relating to the declaration and orders? .................................................................... 36 Conclusions .................................................................................................................................. 40 Annexure A: Table of Proceedings .............................................................................................. 41 Annexure B: Thomas Courtney Keane v Woolworths Group Limited (CIV-24-001255) .......... 53 The Notice of Appeal 6 Mr Keane is not legally represented. By Notice of Appeal dated 12 February 2024, he advances the following grounds: 1. The Justice allowed the “vexatious litigant” application to continue despite Woolworths Group Limited lying to the previous judicial officer, Magistrate Vosso [sic, Vozzo] of the Magistrates Court of South Australia, about material particulates [sic] and events. 2. Woolworths Group Limited was allowed to continue misrepresenting issues, and the Justice made no effort to hold them accountable for their comments in relation to the evidence at hand. 3 Annexure A comprises a listing of all proceedings, applications and processes commenced by Mr Keane. -- 6 of 69 -- [2024] SASCA 113 The Court 3 3. The originating application against Mr. Keane was a vexatious abuse of the Courts process after that Magistrate had refused to throw Mr. Keane’s application out and Woolworths Group Limited and their representation had been caught dishonestly representing Woolworths Group Limited’s actions during that time. 4. The Justice’s decision included errors of fact that were provided in the evidence submitted to the Justice, including the grounds for the defamation claim. 5. The Justice ignored and or stuck-out [sic, struck-out] evidence supporting the fact that Woolworths Group Limited had fraudulently misrepresented issues, and defamed Mr. Keane before the Fair Work Commission to secure the “settlement agreement” they are relying on. 6. The Justice was an employee of South Australia Police, at the time that South Australia Police was unlawfully interfering with the Fair Work Commission proceedings and aiding Woolworths Group Limited who were committing offences against Mr Keane, and abusing Mr. Keane’s rights to a Fair and impartial hearings before the Fair Work Commission. 7. The justice made comments indicating and underpinning the appellants entire lawsuit, then proceeded to undermine all of those comments in her decision. 7 As may be seen, the complaints made by Mr Keane are expressed in very general terms, and not by reference to particular findings or particular evidence. 8 Whilst it was necessary for the Court to assist Mr Keane to understand the issues and endeavour to avoid misunderstanding or confusion it was, at the same time, necessary to refrain from advising him or acting in a way that might undermine this Court’s impartiality.4 The approach of the Court of Appeal 9 On an appeal by way of rehearing under s 50 of the Supreme Court Act, or s 43 of the District Court Act 1991 (SA), and r 218.17 of the Uniform Civil Rules 2020 (SA) (Uniform Civil Rules), Mr Keane must demonstrate error of a kind which warrants the intervention of this Court so as to disturb the judgment of the primary judge.5 10 This Court may not intervene to substitute its own view as if it were hearing the matter afresh.6 It is necessary to determine whether the findings made by the 4 Martincic & Anor v Ethnic Broadcasters Inc [2024] SASCA 33, [21]-[24] (Livesey P) citing Gassy v The King [2023] SASCA 90, [33]-[37] (Livesey P, David JA and Stein AJA). 5 Norbis v Norbis (1986) 161 CLR 513 at 518-519 (Mason and Deane JJ); Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194, 203-204 (Gleeson CJ, Gaudron and Hayne JJ). 6 Coulton v Holcombe (1986) 162 CLR 1, 7 (Gibbs CJ, Wilson, Brennan and Dawson JJ): ‘It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish’. -- 7 of 69 -- [2024] SASCA 113 The Court 4 primary judge were affected by material error.7 In many cases the identification of error will be affected by the way the parties chose to conduct their litigation, for they are generally bound by their conduct of the earlier hearing and confined to the issues they litigated in it.8 11 The obligation in this Court to conduct a real review of the trial record and evaluate the primary judge’s reasons may warrant this Court drawing its own inferences and conclusions.9 Where, as in a case like the present, the primary judge relied on a volume of documentary evidence, it may be open to the appeal court to draw inferences or conclusions from documents and primary findings of fact which are not disputed or which are not affected by error.10 12 Nonetheless it is necessary to recognise the “natural limitations” in an appellate review which proceeds “wholly or substantially on the record”.11 The appeal court must proceed without the advantages available to the primary judge to evaluate the credibility of any witness and to experience the “feeling” of the conduct of the trial, which cannot always be “fully shared” from a reading of the evidence on the page.12 13 In “some, quite rare, cases” even where the facts fall short of being “incontrovertible” the appeal court may decide that the conclusion of the primary judge was “glaringly improbable” or “contrary to compelling inferences”.13 In that kind of case should the appeal court find on its own review, making all due allowance for the advantages available to the primary judge, that material error is disclosed, the appeal court cannot “shrink from giving effect” to its own conclusion.14 7 Norbis v Norbis (1986) 161 CLR 513, 518-519 (Mason and Deane JJ): ‘According to our conception of the appellate process, the existence of an error, whether of law or fact, on the part of the court at first instance is an indispensable condition of a successful appeal’. 8 Coulton v Holcombe (1986) 162 CLR 1; University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481, 483 (Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ): ‘It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so’. 9 Fox v Percy (2003) 214 CLR 118, [25] (Gleeson CJ, Gummow and Kirby JJ). See also Abalos v Australian Postal Commission (1990) 171 CLR 167; Devries v Australian National Railways Commission (1993) 177 CLR 472. 10 Warren v Coombes (1979) 142 CLR 531; State Rail Authority of New South Wales v Earthline Constructions Pty Limited (In Liq) (1999) 73 ALJR 306. 11 Fox v Percy (2003) 214 CLR 118, [23] (Gleeson CJ, Gummow and Kirby JJ). 12 Fox v Percy (2003) 214 CLR 118, [23] (Gleeson CJ, Gummow and Kirby JJ). 13 Fox v Percy (2003) 214 CLR 118, [28]-[29] (Gleeson CJ, Gummow and Kirby JJ). 14 Fox v Percy (2003) 214 CLR 118, [28]-[29] (Gleeson CJ, Gummow and Kirby JJ). -- 8 of 69 -- [2024] SASCA 113 The Court 5 14 It is always necessary for the appeal court and the parties on appeal to recognise that the identification of error by an appellant is “not merely important, it is essential”.15 15 Consistently with recent authority in the High Court,16 whether what may be described as the qualifying criteria in s 39(1) of the Supreme Court Act have been satisfied must be determined according to the “correctness standard”,17 whereas whether there was an error made in the exercise of the discretion conferred once the qualifying criteria are made out must be determined according to the principles described in House v The King.18 Section 39 of the Supreme Court Act 16 Before addressing the evidence in this case, and the findings made, it is appropriate to address the nature of the jurisdiction available to the court. Section 39 of the Supreme Court Act is in the following terms: 39 – Vexatious proceedings (1) If, on the application of the Attorney-General or any other interested person, the court is satisfied that a person has persistently instituted vexatious proceedings, the court may make either or both of the following orders: (a) an order prohibiting the person by whom the vexatious proceedings were instituted from instituting further proceedings, or further proceedings of a particular class, without permission of the court; (b) an order staying proceedings already instituted by that person. (2) Where it appears to a prescribed court that there are proper grounds for an application under this section, it may refer the matter to the Attorney-General for consideration. (3) An order under this section remains in force (subject to variation by the court) – 15 SJ Berry Pty Ltd v McEntee (2022) 142 SASR 31, [36] (Livesey P). See generally, Pitt v Commissioner for Consumer Affairs [2021] SASCA 24, [114]-[118]; Doerr v Gardiner [2023] QCA 160, [65]-[70]; Testel Australia Pty Ltd v Goulding [2023] SASCA 116, [26]-[31]. 16 Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541, 563 [49] (Gageler J); GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 97 ALJR 857, [15] (Kiefel CJ, Gageler and Jagot JJ), [95]-[96] (Steward J) and [161]-[162] (Gleeson J); Steven Moore (a pseudonym) v The King [2024] HCA 30, [3], [26]-[27] Gageler CJ, Edelman, Steward, Gleeson and Beech- Jones JJ) (regarding an interlocutory appeal against a ruling about the exclusion of evidence under s 137 of the Evidence Act 2008 (Vic)). See also: R v Geoffrey (A Pseudonym) [2024] SASCA 40, [65] (Livesey P, Bleby and David JJA) (regarding an interlocutory appeal concerning whether the evaluative judgment involved in determining whether evidence has “strong probative value” having “regard to the particular issue or issues arising at trial” within s 34P(2)(b) of the Evidence Act 1929 (SA)); Young v The King [2024] SASCA 47, [119]-[142] (Doyle JA with whom Kourakis CJ agreed), [157] (David JA) (regarding the ‘discretion’ in Bunning v Cross (1978) 141 CLR 54); Hallett Concrete Pty Ltd v Adelaide Brighton Cement Ltd & Ors [2024] SASCA 80, [47]-[48] (Livesey P, Doyle and Bleby JJA) (regarding whether a plea is tenable and whether leave to amend should be granted); GM v Department of Human Services [2024] SASCA 93, [3]-[4] (regarding the meaning of a statutory phrase). 17 Warren v Coombes (1979) 142 CLR 531, 551-552. 18 House v The King (1936) 55 CLR 499, 504-505 (Dixon, Evatt and McTiernan JJ). -- 9 of 69 -- [2024] SASCA 113 The Court 6 (a) if a period for the operation of the order is fixed – until the expiration of that period or the revocation of the order (whichever first occurs). (b) if no such period is fixed – until revocation of the order. (4) Where an order is made under this section, a copy of the order must be published in the Gazette. (5) For the purposes of this section, proceedings are vexatious – (a) if instituted to harass or annoy, to cause delay, or for any other ulterior purpose; or (b) if instituted without reasonable ground. (6) In this section – “prescribed court” means – (a) the Supreme Court; or (b) any other Court of the State; or (c) the South Australian Employment Tribunal; and (d) any other tribunal of the State prescribed by the regulations; “proceedings” means civil or criminal proceedings instituted in a prescribed court. 17 The history behind the present iteration of the South Australian vexatious litigant provision has been reviewed elsewhere.19 Broadly, a two-stage process is involved in the application of s 39(1) of the Supreme Court Act:20 … At the first stage, an applicant must demonstrate that the respondent has persistently instituted “proceedings” within the meaning of s 39(6) and the proceedings are “vexatious” within the meaning of s 39(5). The concept of “proceedings” is defined by s 39(6) to mean proceedings instituted in a “prescribed court”, being one of the specified courts or tribunals of this State. When addressing this first stage, the Court cannot take into account proceedings in any other Australian court or tribunal when determining whether the requirements of the Act are satisfied. The existence or outcome of other Australian court or tribunal proceedings may, however, assist the conclusion that the local proceedings are vexatious because the point in issue has been repeatedly instituted or conclusively determined elsewhere.21 At the second stage, having determined that the respondent has persistently instituted vexatious proceedings, the applicant must then persuade the Court that, in all the 19 Georganas v Barkla [2021] SASC 47, [50]-[63]. 20 Georganas v Barkla [2021] SASC 47, [47]-[49]. 21 Attorney-General (SA) v Burke (1997) 190 LSJS 28, 35 (Perry J). -- 10 of 69 -- [2024] SASCA 113 The Court 7 circumstances, it is proper for the Court to exercise its discretion in favour of making an order which is within the scope of s 39(1).22 18 The analysis of the first stage under s 39(1) may be addressed by reference to the following elements:23 The discretion under s 39 is only enlivened where: 1. an application is made by the Attorney-General or any other interested person; and 2. the Court is satisfied that a person has: 2.1 “persistently instituted”; 2.2 “proceedings” in South Australian courts or tribunals; 2.3 that are “vexatious” in that; 2.3.1. they were instituted to harass or annoy, to cause delay, or for any other ulterior purpose; or 2.3.2. they were instituted without reasonable grounds. The phrase “persistently instituted vexatious proceedings” requires a finding to be made about each of three matters: (1) persistently instituted; (2) vexatious; and (3) proceedings. 19 The meaning of the terms in s 39(1), particularly the meaning of the composite phrase “persistently instituted vexatious proceedings”, must commence with the ordinary meaning of the words used, when read as a whole. That meaning will be informed by their statutory context having regard to the evident statutory purpose. In particular:24 Whilst s 39 represents a clear legislative intention to restrict, and potentially to abrogate, what is otherwise a fundamental right of access to the courts and tribunals of this State, that right of access is not absolute.25 Section 39 represents the striking of a balance between that right of access and the need to protect other litigants, the courts and the community from the time, trouble and cost associated with being unduly vexed by proceedings which are, for example, “without reasonable grounds”. … the evident legislative policy is that it is only where the “stringent requirements” of the section are clearly satisfied that the Court is then empowered to consider exercising its discretion to make a declaration and order which represents a serious incursion on a person’s right of access to the courts.26 22 Attorney-General (SA) v Burke (1997) 190 LSJS 28, 33 (Perry J); Commonwealth Bank of Australia v Heinrich [2003] SASC 322, [58] (Debelle J). 23 Georganis v Barkla [2021] SASC 47, [64]-[65]. 24 Georganas v Barkla [2021] SASC 47, [57]-[58]. 25 Soden v Croker (No 2) (2016) 334 ALR 540, [7] (Perry J). 26 Ramsey v Skyring (1999) 164 ALR 378, [52] (Sackville J). -- 11 of 69 -- [2024] SASCA 113 The Court 8 20 The cases on s 39(1) of the Supreme Court Act demonstrate that the putative vexatious litigant is, almost invariably, not legally represented:27 … courts have usually paid careful regard to the fact that the respondents have, almost invariably, been unrepresented litigants. This entails a number of considerations. They include that greater latitude has, on occasion, been given to respondents notwithstanding what might be regarded as inappropriate or offensive language and behaviour because of the assumption that they are stressed by an unfamiliar environment.28 Allowance has also been made for unfamiliarity with the relevant practice and procedures applicable to court proceedings. This may mean that some allowance is made for the manner in which, and mode by which, respondents articulate their cases. Courts have therefore usually been “careful to ensure that, buried within the papers, there is not some arguable point” in proceedings commenced without the benefit of legal advice and which ostensibly appear to be without merit.29 21 It has been necessary to proceed with these considerations in mind, making due allowance for the difficulties Mr Keane appeared to encounter, particularly with understanding and navigating the legal processes applicable to this case. 22 As will be seen, Mr Keane was anxious to ‘right the wrongs’ that he perceived have been done to him rather than address whether the decision made by the primary judge contained any appealable error. Indeed, it was precisely because the primary judge refused to consider the merits of the termination of his employment with Woolworths, and refused to address his allegation that he was falsely accused of sexual wrongdoing and then subjected to harassment by SAPOL, that Mr Keane says the decision under appeal is wrong. 23 Because Mr Keane did not address the elements of the case made against him, it will be necessary to address these in order to be satisfied on an appeal by way of rehearing that the vexatious litigant declaration and orders were appropriately made. Standing to apply 24 No issue was or could be raised about the standing of Woolworths as an “interested person” to apply for an order under s 39 of the Supreme Court Act.30 Woolworths and its employees, or former employees, have repeatedly been the targets of proceedings instituted by Mr Keane, though other parties have also been targeted. 27 Georganas v Barkla [2021] SASC 47, [57]-[58]. 28 Andrew Garrett Wines Resorts Pty Ltd & Anor v National Australia Bank Ltd and Other Actions (2007) 248 LSJS 349, [240] (Anderson J); Wentworth v Graham (2003) 57 NSWLR 741, [24] (Ipp JA and Brownie AJA); Bahonko v Nurses Board of Victoria [2008] FCAFC 29, [10] (Gyles, Stone and Buchanan JJ); Barkla v Allianz Australia Insurance Limited [2018] FCA 2070, [84]-[85] (Charlesworth J). 29 See for example Atkins v Hughes [2019] SASCFC 49, [39] (Kourakis CJ, Kelly and Parker JJ). 30 By s 4 of the Legislation Interpretation Act 2021 (SA), “person” is defined to include “a body corporate as well as an individual”. See also WorkCover Corporation of South Australia v Moore-McQuillan [2016] SASC 191, [328]-[335] (Blue J); Georganas v Barkla [2021] SASC 47, [59]. -- 12 of 69 -- [2024] SASCA 113 The Court 9 Persistently instituted 25 Whether vexatious proceedings have been “persistently instituted” turns on matters of evaluation, circumstance and degree.31 The term “persistently” has been considered on a number of occasions.32 In Mitsubishi Motors Australia Ltd v Kowalski, Bleby J held that the requirement of persistence was not merely satisfied by the number of proceedings instituted:33 What constitutes institution of such proceedings ‘persistently’ will not depend merely on the number of them but, just as importantly, on their character, their lack of any reasonable ground and the way in which they have been conducted. A litigant may be said to be persisting in litigating though the number of separate proceedings he or she brings is quite small if those proceedings clearly represent an attempt to re-litigate an issue already conclusively determined against that person, particularly if this is accompanied by extravagant or scandalous allegations which the litigant has no prospect of substantiating or justifying. The Court may also take into account the development of a pattern of behaviour involving a failure to accept an inability in law to further challenge decisions in respect of which the appeal process has been exhausted, or attacking a range of defendants drawn into the widening circle of litigation solely because of an association with a defendant against whom a prior proceeding has failed. 26 Similarly, in Attorney-General (SA) v Kowalski, Blue J explained the features relevant to the assessment of persistence:34 Factors to be taken into account in assessing persistence include the number of proceedings, their character, the way in which they were conducted, the extent to which they represent attempts to re-litigate issues already conclusively determined and the extent of extravagant allegations which are not substantiated. (Citations omitted.) 27 Whilst the use of the word “persistence” suggests repetition it may, additionally, suggest “determination” and a “degree of stubbornness”.35 28 The requisite persistence may be shown even though the number of proceedings is “quite small”, particularly where they seek to relitigate that which has already been decided adversely.36 In many cases, the issue of persistence will 31 Attorney-General (SA) v Burke (1997) 190 LSJS 28, 35 (Perry J). 32 Mitsubishi Motors Australia Ltd v Kowalski [2005] SASC 154, [276]-[278] (Bleby J). See also Attorney-General (SA) v Piepkorn [2005] SASC 425, [8], [283] (Layton J); Andrew Garrett Wines Resorts Pty Ltd & Anor v National Australia Bank Ltd and Other Actions (2007) 248 LSJS 349, [83]-[84] (Anderson J); Garrett v Mildara Blass Ltd [2009] SASC 19 (Layton J); Georganas v Barkla [2021] SASC 47, [67]-[79]. 33 Mitsubishi Motors Australia Ltd v Kowalski [2005] SASC 154, [277] (Bleby J). 34 Attorney-General (SA) v Kowalski [2014] SASC 1, [1979] (Blue J). 35 Attorney-General v Wentworth (1988) 14 NSWLR 481, 492 (Roden J), cited in Mitsubishi Motors Australia Ltd v Kowalski [2005] SASC 154, [276] (Bleby J); WorkCover Corporation of South Australia v Moore-McQuillan [2016] SASC 191, [990]-[991] (Blue J); Georganas v Barkla [2021] SASC 47, [79]. 36 Brogdon v Attorney-General [2001] NZAR 809, [21] (Thomas, Keith and Blanchard JJ); Mitsubishi Motors Australia Ltd v Kowalski [2005] SASC 154 (Bleby J); Fuller v Toms [2013] FCA 1422, [77] (Barker J); Soden v Croker (No 2) (2016) 334 ALR 540, [25] (Perry J). -- 13 of 69 -- [2024] SASCA 113 The Court 10 be determined by reference to at least a handful of proceedings commenced in South Australian courts or tribunals, if not many more.37 29 In Attorney-General (SA) v Kowalski, Blue J considered 63 vexatious proceedings instituted over the course of 12 years, and in Workcover Corporation of South Australia v Moore-McQuillan, his Honour again considered 63 vexatious proceedings, this time instituted over a 16-year period.38 By contrast, in Georganas v Barkla, Livesey J rejected the proposition that the institution of one proceeding, or possibly two sets of proceedings, could be described as having “persistently instituted vexatious proceedings” in courts or tribunals of this State.39 30 On the meaning of “instituted”, it is now clear that though the term is apt to be ambiguous, it should be construed broadly and will “encompass the full gamut of the prosecution of a proceeding from beginning to end”, even if “it never reaches final hearing and determination and even if the Court ultimately holds that it does not have jurisdiction to grant the relief sought”.40 So, it has usually been held that it is sufficient if a proceeding has been filed seeking substantive relief,41 whether or not the proceeding takes the form of a claim or originating application, or even an interlocutory application,42 because these may represent “a vehicle by which the jurisdiction of the Court is invoked”.43 31 Short of filing, however, there is a question whether an attempt to file a proceeding is sufficient, including where it is rejected by the Registry or the court because it comprises an abuse of process.44 Whilst a broad approach has been taken to attempts to file documents, at least where the litigant has done all that was required to be done in order to file a document,45 there is scope to question whether that view is correct.46 32 It is not necessary to come to a concluded view on that issue in this case. 37 Garrett v Mildara Blass Ltd [2009] SASC 19, [355] (Layton J), in that case the Court was asked to consider perhaps three proceedings, albeit attempting to resurrect issues which had been determined adversely by the Federal Court. 38 WorkCover Corporation of South Australia v Moore-McQuillan [2016] SASC 191, [992] (Blue J). 39 Georganas v Barkla [2021] SASC 47, [10], [67]-[68]. 40 WorkCover Corporation of South Australia v Moore-McQuillan [2016] SASC 191, [365]-[366] (Blue J). 41 Garrett v Mildara Blass Ltd [2009] SASC 19, [123] (Layton J) 42 Uniform Civil Rules 2020 (SA), r 51.1. 43 Mitsubishi Motors Australia Ltd v Kowalski [2004] SASC 302, [36] (Duggan J) citing Braeside Bearings Pty Ltd v HJ Brignall and Associates (Boronia) [1996] 1 VR 17, 20. 44 See, for example, Trezise v South Australian Civil and Administrative Tribunal [2024] SASCA 100, [4]-[6]. 45 Garrett v Mildara Blass Ltd [2009] SASC 19, [128]-[134] (Layton J). Cf Jones v Skyring (1992) 66 ALJR 810, 811-814 (Toohey J); Attorney-General (Vic) v Horvath, Senior [2001] VSC 269, [129]-[130] (Ashley J, as he then was). 46 Georganas v Barkla [2021] SASC 47, [100]-[106], “… it is difficult to see how the jurisdiction of the Court has been invoked where a document has been rejected before it is filed”. -- 14 of 69 -- [2024] SASCA 113 The Court 11 Proceedings 33 A broad view has also been taken as to what comprises a “proceeding”, even where the process takes the form of an interlocutory application. In Garrett v Mildara Blass Ltd, Layton J addressed the issue in the following way, helpfully offering a number of examples where substantive issues were raised for determination or where substantive relief was sought:47 A number of authorities have discussed whether the taking of interlocutory proceedings in the course of an action would amount to “instituting proceedings”.48 In summary, those authorities indicate that a person will be regarded as having “instituted proceedings” for the purposes of the Act if the person invokes the jurisdiction of the Court by: • filing an originating process; • making a counterclaim in a proceeding; • appealing from a final determination in a proceeding; • seeking to set aside a determination in a matter which is in substance an attempt to appeal or re-litigate a matter otherwise finally determined; • filing an interlocutory application or an appeal which is in substance an attempt to appeal or re-litigate a matter otherwise finally determined; • filing an interlocutory proceeding which seeks substantive relief, such as seeking to bring in an additional party into proceedings. The Attorney-General, in his written submissions, has outlined a number of examples of interlocutory applications which have been held to be proceedings for the purposes of the Act by other courts.49 The examples given of interlocutory applications which have in the particular circumstances said to constitute the institution of a proceeding have included: • an application to bring an additional party into the proceedings;50 • an application to be joined as a party and to be substituted as the plaintiff.51 34 In WorkCover Corporation of South Australia v Moore-McQuillan, Blue J emphasised the need to address substance over form, together with whether the 47 Garrett v Mildara Blass Ltd [2009] SASC 19, [122]-[124] (Layton J). 48 Hunters Hill Municipal Council v Pedlar [1976] 1 NSWLR 478, [4] (Yeldham J); Attorney-General for the State of Victoria v Weston [2004] VSC 314, [13]; Attorney-General v Wentworth (1988) 14 NSWLR 481, [492] (Roden J); Mitsubishi Motors Australia Ltd v Kowalski [2005] SASC 154, [44]-[57] and, more recently, Andrew Garrett Wines Resorts Pty Ltd & Anor v National Australia Bank Ltd and Other Actions (2007) 248 LSJS 349, 361. 49 Attorney-General’s Submissions, [23] (Garrett v Mildara Blass Ltd [2009] SASC 19). 50 Attorney-General v Wentworth (1988) 14 NSWLR 481, 492; Andrew Garrett Wines Resorts Pty Ltd & Anor v National Australia Bank and Other Actions (2007) 248 LSJS 349, 361-2, 364. 51 Andrew Garrett Wines Resorts Pty Ltd & Anor v National Australia Bank Ltd and Other Actions (2007) 248 LSJS 349, 369, 377. -- 15 of 69 -- [2024] SASCA 113 The Court 12 application is concerned with substantive rights or issues, as opposed to whether it addressed matters merely incidental to an action:52 In determining whether a particular type of application falls within the concept of a proceeding within the meaning of section 39, given the use of that term in the section, the question ought to be assessed as a matter of substance rather than form or the name applied to the particular type of application.53 The following general principles can be derived from the wording, context and evident purpose of section 39: 1. An action in which a party seeks a final determination of a justiciable issue or the exercise of any like power vested in the court (whether by way of action, cross action or third party action) is a “proceeding”.54 2. An appeal from a judgment or order is a separate “proceeding” to the original application in respect of which the judgment or order was made (whether the appeal is to a different court or to the same court in which the original judgment or order was made).55 3. An application to set aside a judgment or order which is substantively similar to an appeal should be treated in the same way as an appeal against the judgment or order would be treated.56 4. An application which is interlocutory in nature relating to a matter incidental to the action as opposed to substantive rights is generally not a “proceeding”.57 5. Even though an interlocutory application of the type referred to in 4 is not a “proceeding”, nevertheless an appeal from (or application to set aside) an order on such an interlocutory application is a “proceeding”. Application of the fourth and fifth general principles suggests that typically (subject to any unusual features in a particular case): 1. An application to a judicial officer to disqualify himself or herself on the ground of apprehended bias is not a proceeding. 2. An application for an adjournment or stay of proceedings or execution is not a proceeding. 3. An appeal against an order made on a disqualification, adjournment or stay application is a proceeding. 52 WorkCover Corporation of South Australia v Moore-McQuillan [2016] SASC 191, [358]-[360] (Blue J). 53 Hunters Hill Municipal Council v Pedler [1976] 1 NSWLR 478, 488 (Yeldham J); Attorney-General v Wentworth (1988) 14 NSWLR 481, 491-492 (Roden J). 54 This is essentially the concept embodied in the definition of “action” in r 28 of the Supreme Court Civil Rules 2006 (SA). 55 See In re Becker [1975] 1 WLR 842, 845 (Eveleigh J, with whom Bridge and Wien JJ agreed); Hunters Hill Municipal Council v Pedler [1976] 1 NSWLR 478, 488 (Yeldham J). 56 See Hunters Hill Municipal Council v Pedler [1976] 1 NSWLR 478, 488 (Yeldham J). 57 See Hunters Hill Municipal Council v Pedler [1976] 1 NSWLR 478, 488 (Yeldham J). -- 16 of 69 -- [2024] SASCA 113 The Court 13 4. An application for leave or permission or an extension of time to appeal is the initiating step in an appellate proceeding and is a proceeding. 35 In Georganas v Barkla, the need to address the substance rather than the form of the process was again emphasised, together with the evident desire of litigants to avoid the filing fee associated with a new action by relying on interlocutory applications made in existing actions:58 The definition of “proceedings” expressly incorporates both civil and criminal proceedings, where instituted in a “prescribed court”. It has been held that this term should be construed broadly and so as to embrace not merely new actions, but also applications within actions and appeals, particularly where relief akin to substantive relief is sought, such as joining an additional party,59 or where they seek to reverse, qualify or re-litigate rulings or determinations previously made.60 In some cases it is evident that a respondent has been reluctant to incur the cost of a filing fee and so has adopted the expedient of simply making what is, at least in form if not in substance, an interlocutory application in an existing proceeding. 36 The South Australian vexatious litigant provision is narrower than provisions operating in some other jurisdictions because s 39(1) of the Supreme Court Act depends on the identification of “proceedings” commenced in South Australian courts or tribunals, rather than proceedings commenced in any Australian jurisdiction. 37 It is a matter for the Parliament whether the reach of s 39 of the Supreme Court Act should be broadened by permitting the court to take into account, as a matter of fact, the persistent institution of proceedings commenced in any Australian jurisdiction.61 Vexatious 38 Whether proceedings are “vexatious” must be addressed by reference to the two limbs of definitions contained in s 39(5) of the Supreme Court Act. There must be evidence which enables the finding that proceedings were instituted for the purpose of harassing, annoying, causing delay or for “any other ulterior purpose”. Alternatively, it will be sufficient if the Court can conclude that the proceedings were instituted “without reasonable grounds”. 39 The first limb (s 39(5)(a)) will usually be addressed by reference to circumstantial evidence rather than admissions made by the litigant. Few vexatious litigants would admit, or perhaps recognise, that their litigation is intended to harass or annoy. Indeed, the proscribed purpose will usually be discerned by inference from what was done together with what was said by the litigant about 58 Georganas v Barkla [2021] SASC 47, [84]-[85]. 59 Attorney-General v Wentworth (1988) 14 NSWLR 481, 492 (Roden J); Attorney-General (SA) v Piepkorn [2005] SASC 425 (Layton J); Garrett v Mildara Blass Ltd [2009] SASC 19 (Layton J). 60 Mitsubishi Motors Australia Ltd v Kowalski [2005] SASC 154, [56] (Bleby J). 61 As, for example, applies under s 37AO(2) of the Federal Court of Australia Act 1976 (Cth); Reasons, [120]; Georganas v Barkla [2021] SASC 47, [10], [225]. -- 17 of 69 -- [2024] SASCA 113 The Court 14 what was done and why it was done. From these circumstances the court can then determine the litigant’s purpose. The requisite approach is similar to that undertaken by the Court in connection with determining an abuse of process, especially when concerned with an attempt by a litigant to obtain an outcome foreign to the purpose for which a legal right or remedy is conferred.62 40 In the case of the second limb (s 39(5)(b)), it will usually be a relatively straight forward exercise to determine whether proceedings were instituted “without reasonable grounds”. That must usually be addressed objectively, and by reference to the outcome or likely outcome of the litigation, including whether it is seeking to disturb a settled ruling. In some cases, the fact that there is a long list of unsuccessful proceedings will speak for itself. The approach required of the Court is similar to that which is applied when determining whether strike-out, dismissal or summary judgment should be ordered under the Uniform Civil Rules, on the ground that there is no reasonable basis for the claim or defence.63 41 Even if a proceeding has been abandoned or withdrawn by a litigant, that may not necessarily prevent a finding that it was instituted without reasonable grounds. Again, an objective assessment of what was instituted may reveal that it was foredoomed to fail and likely to have been dismissed because it was commenced without reasonable grounds. 42 The most common case is probably where the vexatious litigant appears to be using the proceedings to challenge an outcome which has been finally determined adversely to the litigant, even if the ruling was not made in a South Australian court or tribunal. Whether the proceeding was, or was likely to be, dismissed will usually be clear from the terms of what was sought. Often, the litigant will simply keep asking for a different outcome, without regard to the need to demonstrate material error or any principled reason for the intervention of the court or tribunal. Rarely will the vexatious litigant be too concerned with the principle of finality.64 43 Where there is a large number of proceedings, it will be necessary for the court to carefully consider each proceeding so as to make findings under either or both limbs of the definition. 44 Sometimes the manner in which the proceedings have been litigated, as well as the language used in connection with their litigation, will assist the court when making the requisite finding of vexation. The persistent pursuit of extravagant, unfounded or scandalous claims may be associated with language that reveals a determination to be vindicated, regardless of any adverse ruling and the terms in which that may have earlier been made. There are examples of cases where 62 Williams v Spautz (1992) 174 CLR 509. 63 Adelaide Brighton Cement Ltd v Hallett Concrete Pty Ltd & Ors (2020) 137 SASR 117, [26]-[28] (Doyle J). 64 D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; McLennan v McCallum [2010] WASCA 45, [80]-[88] (Buss JA, with whom McClure P and Newnes JA agreed). -- 18 of 69 -- [2024] SASCA 113 The Court 15 litigants have made it clear that they intend to persist with their vexatious litigation notwithstanding a large number of adverse outcomes.65 45 Having said that, it is necessary to guard against finding vexation simply because the litigant, particularly an unrepresented litigant, has been unnecessarily rude or belligerent when dealing with others, particularly the court or tribunal in which proceedings have been commenced. 46 In most cases, the serious outcome and consequences of a declaration that a person is a vexatious litigant will mandate that it is only where the requirements of s 39(1) of the Supreme Court Act are clearly satisfied that the court will be empowered to consider exercising its discretion to make a declaration and associated orders.66 The exercise of discretion 47 Finally, should the requirements of s 39(1) of the Supreme Court Act be satisfied, it is necessary to consider the exercise of discretion. It is an extreme remedy, not granted lightly.67 When contemplating the exercise of discretion, consideration must usually be given to the need for an order to be made, as well as the breadth of the order that should be made:68 … where the exercise of discretion has been enlivened, it has usually been exercised with the benefit of a finding that, absent an order, the respondent will continue to persistently initiate vexatious proceedings which will continue to put other parties to costs which are usually irrecoverable.69 A familiar feature is that the vexatious litigant lacks the means with which to meet adverse costs orders. In addition, though this is not invariable, the Court has tended to confine discretionary relief to particular parties, reserving the broadest relief for cases where the Attorney-General has applied for an order under the Act. 48 Once any declaration and orders are made, they must be published in the Gazette.70 49 The first order which was made in this case was of the broadest kind. It prevents the commencement of any litigation against anyone in any State courts or tribunals without the permission of the Supreme Court. It is not limited to the party seeking the vexatious litigant declaration and orders, nor to parties associated with that party. It is not limited in subject matter to the issues the subject of the various proceedings and rulings which have been made over the years since Mr Keane’s 65 Georganas v Barkla [2021] SASC 47, [17]; Polites Investments Pty Ltd v Russell [2022] SASC 9, [75]-[76] (David J, as she then was). 66 Georganas v Barkla [2021] SASC 47, [58], set out earlier. 67 In re Boaler [1915] 1 KB 21, 34 (Kennedy LJ); Attorney-General v Wentworth (1988) 14 NSWLR 481, 484 (Roden J); Kowalski v Mitsubishi Motors Australia Ltd Staff Superannuation Fund Pty Ltd (2007) 242 ALR 370, 380 [44] (Finn J). “[I]t is … a serious thing in this country to keep a person out of the courts”: Re Attorney-General (Cth); Ex parte Skyring (1996) 70 ALJR 321, 323 (Kirby J). 68 Georganas v Barkla [2021] SASC 47, [63]. 69 Attorney-General (SA) v Burke (1997) 190 LSJS 28, 35 (Perry J); Commonwealth Bank of Australia v Heinrich [2003] SASC 322, [60] (Debelle J). 70 Section 39(4), Supreme Court Act 1935 (SA). -- 19 of 69 -- [2024] SASCA 113 The Court 16 litigation first commenced in early 2021. The second order concerns the permanent stay of defamation proceedings which are the subject of the appellant’s re-instatement application, which was part-heard by Magistrate Vozzo in the Magistrates Court at the time a stay was first ordered by the primary judge. 50 It will be necessary to consider the exercise of discretion and the reasons given for it by the primary judge. The inherent powers of the court 51 The breadth of the court’s inherent powers was considered in Georganas v Barkla, where the order by way of injunction which was made was narrower in scope than an order under s 39(1) of the Supreme Court Act.71 In that case it was observed that there had recently been a greater willingness to exercise power so as to address and respond to proceedings and applications which are without any legal merit or purpose:72 The Court and its resources must be preserved and protected against the time, trouble and cost associated with addressing and responding to proceedings and applications which are without any legal merit or purpose. There has, in recent times, been a greater willingness to look to the Court’s inherent powers to protect against vexatious behaviours by a select minority of surprisingly energetic litigants. They are usually unrepresented.73 Some are best described as querulous.74 These powers ought only be exercised in clear cases, mindful of the fundamental right of access to the courts and tribunals of this State. There is however no recognised right to engage in vexatious litigation, to engage in unnecessary and threatening correspondence, or to otherwise embark on an abuse of the processes of the courts and tribunals of this State.75 That is not to deny the right of litigants to protection where they have become the targets of vexatious litigants. What it emphasises is that provisions such as s 39 of the Act and this Court’s inherent power incorporate an important public element, which looks beyond the interests of the particular parties in particular litigation. The “normative judgment” involved in the exercise of the Court’s inherent power must take into account the “public interest in the timely and efficient administration of civil justice”.76 Accordingly, and in appropriate cases, orders can be fashioned to restrain litigants from commencing litigation or applications which attack or concern specified issues or parties. To do otherwise risks an unnecessary waste of the scarce judicial and public resources available to manage and adjudicate meritorious disputes. 52 The order made in that case prohibited the respondent from instituting new proceedings against the applicant, or any other entity or person, in a court or tribunal of this State, challenging or concerning the issue which had been 71 Georganas v Barkla [2021] SASC 47, [16]-[22]; [209]-[214]. 72 Georganas v Barkla [2021] SASC 47, [18]-[19]. 73 Raising a series of complexities and pressures that require careful management, as has been recognised in many cases, see, for example, Minogue v Human Rights and Equal Opportunity Commission (1999) 84 FCR 438 and Hamod v New South Wales [2011] NSWCA 375. See Re F (2001) 161 FLR 189 regarding guidelines suggested by the Family Court. 74 See, for example, Thomson v Tremco Pty Limited [2019] QCA 18, [35]-[46] (Morrison JA, with whom Sofronoff P and Gotterson JA agreed). 75 Ebert v Venvil [2000] Ch 484. 76 UBS AG v Tyne (2018) 265 CLR 77, [70] (Gageler J). -- 20 of 69 -- [2024] SASCA 113 The Court 17 vexatiously agitated, whether directly or indirectly, unless the respondent first obtained the leave of a Judge of the Supreme Court. 53 An order was also made restricting the way in which the respondent could correspond with the Supreme Court:77 So as to ensure that the resources of this Court and other courts and tribunals of this State are not wasted by having to address the respondent’s ongoing proceedings and applications, I will direct that should he wish to commence proceedings or make an application in a South Australian court or tribunal, challenging or concerning the Form 3B issue, whether directly or indirectly, 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. It will be a matter for the Registrar to manage the correspondence as well as to determine whether new proceedings or applications or other documents are managed under r 53 of the Supreme Court Civil Rules 2006 (now r 32.3 of the Uniform Civil Rules 2020 (SA)) or are otherwise referred to a Judge to consider the question of leave. 54 The primary judge did not find it necessary to exercise the inherent powers of the court in this case but indicated that, if it had been necessary, she would have had no hesitation in making an order by way of injunction.78 The primary judge nonetheless made an order restricting the way in which the respondent could correspond with the Supreme Court.79 Findings made regarding the vexatious litigant application in this case 55 It is common ground that Mr Keane commenced employment with Woolworths in May 2011. Between August and December 2020, complaints were made about Mr Keane’s conduct at work, which apparently included complaints of sexual harassment by him. There was an investigation into these workplace allegations. 56 Mr Keane’s employment with Woolworths was terminated for misconduct on 22 December 2020. 57 Whilst the evidence is far from clear, it would appear that SAPOL became involved. Mr Keane has always maintained that he was unfairly treated and that there was no substance in any of the complaints made. Overview of the various proceedings commenced by Mr Keane 58 Briefly, on 8 January 2021 Mr Keane’s first unfair dismissal application was filed with the Fair Work Commission pursuant s 394 of the Fair Work Act 2009 (Cth) (the Fair Work Act). Mr Keane sought the re-instatement of his employment and compensation for lost wages. There followed a conciliation conference and a settlement agreement. 77 Georganas v Barkla [2021] SASC 47, [23]-[24]. 78 Reasons, [145]. 79 Reasons, [157]. -- 21 of 69 -- [2024] SASCA 113 The Court 18 59 The existence of that settlement and its continued operation is essential to understanding why Mr Keane’s subsequent litigation has been regarded as both vexatious and an abuse of process. 60 Because there was some dispute about the settlement, there was then a “determinative conference” after which the Commissioner who presided issued a decision dismissing the unfair dismissal application because a binding settlement had been reached. The settlement and subsequent dismissal of that application prevented Mr Keane pursing another unfair dismissal application. Mr Keane appealed that decision to the Full Bench of the Fair Work Commission. The Full Bench refused permission to appeal. 61 After permission to appeal was refused, Mr Keane commenced numerous proceedings in the Fair Work Commission, the Federal Court, the Magistrates Court, and the Supreme Court, generally directed to challenging the dismissal of his unfair dismissal application. 62 This was reflected in over 30 unsuccessful applications in the Fair Work Commission,80 an unsuccessful application for judicial review in the Federal Court (together with attempts to appeal the unsuccessful outcome),81 six proceedings in the Magistrates Court,82 and around seven unsuccessful or attempted applications in the Supreme Court.83 Generally, they were dismissed but, in some instances, they were rejected or abandoned.84 63 These various processes are tabled in Annexure A to these reasons. As the primary judge recorded:85 It is this conduct that is the basis of the application currently before this Court. Woolworths contends that the [vexatious litigant] order should be made on the basis that, given Mr Keane’s pattern of behaviour. The order was necessary to prevent the continued abuse of the Court’s processes. It is further contended that in the absence of such an order, the irresistible inference is that Mr Keane will continue in his pattern of conduct at the considerable expense of both Woolworths and the Courts. 64 There is an issue about whether and to what extent these processes may be described as “proceedings” within the meaning of s 39 of the Supreme Court Act. 65 As will be seen, since commencing his appeal, Mr Keane made four unsuccessful applications in the Court of Appeal. 80 Annexure A, “proceedings” 1 to 32. 81 Annexure A, “proceedings” 33 to 35. 82 Annexure A, “proceedings” 36 to 41. 83 Annexure A, “proceedings” 42 to 49. 84 Reasons, [4]. 85 Reasons, [5]. -- 22 of 69 -- [2024] SASCA 113 The Court 19 66 More detail about this litigation follows, drawn largely from the reasons of the primary judge and the reasons given for dismissing the applications made in the Court of Appeal. The proceedings in greater detail 67 On 8 January 2021, the Shop, Distributive and Allied Employees’ Association (the SDA) filed an application on behalf of Mr Keane with the Fair Work Commission, alleging unfair dismissal. 68 On 18 March 2021, the parties participated in a member assisted conciliation conducted by a Commissioner. Ultimately, there was an agreement to resolve the unfair dismissal application. The Commissioner put the parties into a joint session and recorded what was being said, after which the terms and conditions of the agreement were outlined. The primary judge found that Mr Keane was aware of the terms of settlement and agreed to them.86 69 On 19 March 2021, the solicitor for Woolworths sent Mr Keane an email attaching the settlement agreement which reflected the agreed terms. 70 However, on 29 March 2021, Mr Keane sent an email to Woolworths and to the Commissioners with an “amended and more equitable contract that has been signed.” Mr Keane purported to make numerous changes, as well as increasing the settlement payment from just under $23,000 to just under $23 million.87 71 The unfair dismissal application was then listed for a further conference on 9 April 2021. Before the conference, Woolworths filed an application seeking to dismiss it pursuant to s 587(1) of the Fair Work Act on the basis of the binding settlement reached on 18 March 2021. On 9 April 2021, another Commissioner conducted a conference, described as a “determination conference”, at which evidence was called. On 19 April 2021, the Commissioner issued a decision dismissing the unfair dismissal application on the basis that there was a binding settlement:88 In my view, the terms of the binding settlement are clearly contained in the transcript and no further document need be prepared and as such, the parties should then implement the agreed terms without delay. 72 On 4 March 2021, Mr Keane lodged an appeal. On 6 July 2021, he lodged a further appeal. These were heard by the Full Bench of the Fair Work Commission on 5 August 2021. On 12 August 2021, the Full Bench refused permission to appeal,89 and explained:90 86 Reasons, [16]. 87 Reasons, [18]. 88 Mr K v The Employer [2021] FWC 2132, [27] (Commissioner Platt). 89 Reasons, [21]-[22]; Mr K v The Employer [2021] FWCFB 3162, [5] 90 Reasons, [24]; Mr K v The Employer [2021’ FWCFB 3162, [14], [16]-[17]. -- 23 of 69 -- [2024] SASCA 113 The Court 20 We have had full regard to the appellant’s submissions and appeal grounds. In those submissions, the appellant makes a number of complaints about the conduct of the respondent and others including the alleged unfairness of his termination. However, this is not a rehearing of the alleged unfairness of the appellant’s termination. The present matter concerns an appeal against a decision that the appellant had entered into binding settlement of the matter. Little or no attempt was made to challenge the actual decision under appeal and to demonstrate that there was a public interest that should persuade us to grant permission to appeal, having regard to issues of fact or law. The notices of appeal and submissions, written and oral, do not identify any matter which satisfies the public interest test. Voluminous material was provided by Mr Keane which the Full Bench has considered. Regrettably, the material filed by Mr Keane has not addressed the issue at the heart of this appeal. 73 The primary judge recorded that Woolworths submitted to her that, from this point, Mr Keane “must have known or become very rapidly aware that” he had reached the end of the legitimate processes available to him.91 The primary judge went on to record that, “regrettably” Mr Keane thereafter constantly and consistently failed to appreciate the legal issues under consideration and the limitations in the remedies available to him.92 74 It is probably not strictly necessary to address all of Mr Keane’s applications that followed in the Fair Work Commission, which are described in detail by the primary judge.93 As the primary judge recognised, none were “proceedings” in a State court or tribunal within the scope of s 39 of the Supreme Court Act. 75 Soon, Mr Keane turned his attention to the State courts. 76 On 1 October 2021, Mr Keane filed his first proceeding in the Magistrates Court. This was a negligence claim, brought against an employee of Woolworths who had been Mr Keane’s supervisor. The basis of the negligence claim was that she had been involved in the process that led to Mr Keane’s dismissal.94 On 22 October 2021, Woolworths wrote to Mr Keane threatening an application for security for costs. Mr Keane then discontinued it.95 77 On 7 October 2021, Mr Keane filed a second proceeding in the Magistrates Court, this time pressing a claim for defamation against another employee of Woolworths. After Woolworths filed an interlocutory application to have the matter struck-out, on 29 November 2021 Mr Keane discontinued it. 78 During October 2021, Mr Keane engaged in correspondence with Woolworths and a Commissioner in the Fair Work Commission, demanding to be 91 Reasons, [23]. 92 Reasons, [25]. 93 Reasons, [26]-[51]. 94 Reasons, [52]. 95 Reasons, [54]. -- 24 of 69 -- [2024] SASCA 113 The Court 21 able to have a hearing or go back to work.96 Mr Keane was told by the Commissioner that no order would be made to reinstate employment, and this was soon followed by a third unfair dismissal application in the Fair Work Commission.97 79 On 15 December 2021, Mr Keane commenced a third proceeding in the Magistrates Court, this time against Woolworths and naming the Fair Work Commission as an interested party.98 Mr Keane sought to have his contractual obligations honoured and his job “returned”. On 21 January 2022, Woolworths successfully applied for dismissal pursuant r 85(1) of the Uniform Civil Rules.99 80 Between January and April 2022, Mr Keane filed a fourth unfair dismissal application in the Fair Work Commission and a notice of appeal in the Fair Work Commission. In May 2022, Mr Keane filed a fifth unfair dismissal application. The appeal did not proceed, and the fifth unfair dismissal application was dismissed.100 In the course of her reasons for that decision, the Commissioner explained:101 The Applicant must accept that the Commission can no longer deal with his dismissal. Further application for a remedy for unfair dismissal will, to the extent that the Commissioner has power to do so and to the extent they go to same dismissal, will [sic] be dismissed. 81 On 7 June 2022, Mr Keane filed a fourth Magistrates Court proceeding, this time seeking damages for negligence against another employee of Woolworths, together with re-instatement of his employment. This employee had played a role in the investigation which culminated in Mr Keane’s dismissal. That proceeding was dismissed on 18 August 2022 on the ground that it was an abuse of process and there was no reasonable basis for prosecuting the action.102 82 During June 2022, Mr Keane filed two further applications in the Fair Work Commission, and both were dismissed on 22 June 2022, with the Commissioner explaining:103 Mr Keane’s conduct in relation to multiple applications to the Commission is now taking on all the characteristics of being vexatious. He is aware that his application in relation to his dismissal has been dealt with to finality. This has been pointed out to him in various decisions made by the Commission. Mr Keane’s constant applications do no more than use the valuable resources of the Commission, taking those resources from legitimate applications and calls on the Commission’s time. 96 Reasons, [59]-[61]. 97 Reasons, [62]. 98 Reasons, [63]. 99 Reasons, [63]. 100 Reasons, [65]-[66]. 101 Reasons, [66]; K v The Employer [2022] FWC 1148, [10]. 102 Reasons, [67]. 103 Reasons, [68]; K v The Employer [2022] FWC 1592, [17]-[18] (Commissioner Bissett). -- 25 of 69 -- [2024] SASCA 113 The Court 22 Mr Keane’s application has been dealt with by the Commission. The Commission will not have him reinstated into his employment. There is no more for the Commission to do. 83 On 13 July 2022, Mr Keane filed an originating application seeking judicial review in the Federal Court concerning the Fair Work Commission proceedings. Mr Keane sought orders for compensation and re-instatement.104 The first return of the judicial review application was heard by O’Sullivan J on 8 November 2022. 84 On 2 May 2023, O’Sullivan J dismissed the application for judicial review, observing that Mr Keane had focussed on the merits of his unfair dismissal even though he had been told that this was not the proper purpose of his judicial review application. O’Sullivan J recorded that Mr Keane’s submissions were directed to what he described as “a conspiracy against him” by Woolworths, SAPOL, the Australian Defence Force and Adelaide University.105 85 Before that, on 28 October 2022, Mr Keane had filed a sixth unfair dismissal application which was dismissed on 14 November 2022 by Commissioner Bissett who explained, with some exasperation:106 The circumstances have not changed with the effluxion of time. The applicant needs to accept that the Commission cannot and will not consider any application in which he seeks a remedy for unfair dismissal in relation to the termination of his employment from the Respondent in December 2020. His application was settled by agreement between the parties in early 2021. The settlement agreement was recorded, and transcript laid out in the subsequent decisions. The Commission does not have the power to hear his application or to order his re-instatement with the Respondent absent any order from a court of competent jurisdiction that we should do so. … The matter is closed. The continued attempts by the Applicant to have matters related to his dismissal heard will not change that fact or result in the Commission further hearing from him on this matter. 86 On 14 November 2022, Mr Keane filed an application for the Commission to deal with a lawful termination dispute pursuant to s 773 of the Fair Work Act which, whilst in a different form, was in substance the same as previous applications.107 After the parties were given an opportunity to make written submissions, on 25 November 2022 this application was dismissed.108 87 On 25 November 2022, Mr Keane filed two further applications in the Fair Work Commission, being a seventh unfair dismissal application and an application for the Commission to deal with a dispute in accordance with a dispute resolution procedure pursuant s 739 of the Fair Work Act.109 This was essentially another application to deal with a dispute resolution procedure seeking re-instatement pursuant to s 345 of the Fair Work Act, albeit seeking a stay of the first unfair 104 Reasons, [69]. 105 Reasons, [84]; Keane v Woolworths Ltd [2023] FCA 379, [28], [40] (O’Sullivan J). 106 Reasons, [72]; K v The Employer [2022] FWC 3003, [20] (Commissioner Bissett). 107 Reasons, [73]. The primary judge described this as the sixth application concerning unfair dismissal. 108 Reasons, [75]. 109 Reasons, [76]. -- 26 of 69 -- [2024] SASCA 113 The Court 23 dismissal decision, re-instatement of employment and, again, compensation. On 21 December 2022, these applications were both dismissed.110 88 On 11 January 2023, Mr Keane filed an eighth unfair dismissal application, which was dismissed on 23 January 2023.111 89 On 27 January 2023, Mr Keane commenced a fifth Magistrates Court proceeding, seeking damages for defamation from another employee of Woolworths, together with re-instatement of his employment. This employee was the person central to the issues that resulted in the workplace investigation into Mr Keane’s conduct. On 23 June 2023 the primary judge stayed that claim, pending the outcome of the vexatious litigant application made by Woolworths pursuant s 39 of the Supreme Court Act. 90 The submission of Woolworths about this fifth Magistrates Court proceeding was that, regardless of the outcome of the vexatious litigant application, these defamation proceedings were foredoomed to fail because they did not disclose a legitimate cause of action and because seeking the remedy of re-instatement represented an abuse of process.112 No specific finding was made by the primary judge about this submission. 91 On 5 February 2023, Mr Keane filed two further applications in the Fair Work Commission, being a general protections application involving dismissal, pursuant to s 365 of the Fair Work Act, and an application seeking interim orders requiring re-instatement, pursuant to s 589 of the Fair Work Act. The primary judge regarded the first of these as effectively a ninth unfair dismissal application. These were both dismissed.113 92 On 20 April 2023, Mr Keane filed an application seeking re-instatement of employment pursuant to s 345 of the Fair Work Act being, effectively, a tenth application for unfair dismissal.114 Again, this application was dismissed.115 The Commissioner found that the application was not properly made and had no reasonable prospect of success. 93 On 9 May 2023, Mr Keane filed a sixth Magistrates Court proceeding, seeking orders against the SDA requiring, amongst other matters, that he be provided with legal assistance in connection with his unfair dismissal applications. On 16 November 2022, that proceeding was struck out as vexatious, frivolous or an abuse of process.116 110 Reasons, [76]. 111 Reasons, [77]; Mr K v The Employer [2023] FWC 152. 112 Reasons, [78]. 113 Reasons, [79]-[80]; Mr K v The Employer [2023] FWC 456. 114 Reasons, [81]. 115 Reasons, [82]-[83]; Mr K v The Employer [2023] FWC 1341. 116 Reasons, [88]-[89]. -- 27 of 69 -- [2024] SASCA 113 The Court 24 94 Between March 2022 and January 2023, Mr Keane made six attempts to file documents in the Supreme Court Registry. On each occasion, the documents were rejected by the Deputy Registrar or rejected following a direction given by a Master of the Supreme Court or a Master of the District Court. 95 Mr Keane filed a notice of appeal or review in relation to a decision by the Deputy Registrar to reject an originating application on 5 April 2022, which had sought orders for discovery before action. After hearing from Mr Keane, the District Court Master dismissed the application for review on the basis that Mr Keane was seeking to re-litigate issues determined by the Fair Work Commission which comprised an abuse of process.117 96 After Woolworths filed its vexatious litigant application under s 39 of the Supreme Court Act, Mr Keane attempted to file further applications. The application filed on 26 May 2023, which sought re-instatement of employment with Woolworths, was dismissed on 23 June 2023.118 On 28 June 2023, Mr Keane filed an application to join the SDA to the vexatious litigant application, which was dismissed.119 97 On 19 July 2023, Mr Keane attempted to file a proceeding in the Supreme Court, alleging fraudulent misrepresentation against Woolworths and the SDA, and claiming damages in an amount exceeding $650,000. Mr Keane was told by the primary judge that this and other applications had not been accepted for filing and were not formally before the Court. The primary judge warned that, were the documents to be filed in their current form, they would be struck out.120 98 On 1 September 2023, Mr Keane filed a further interlocutory application in the vexatious litigant application proceeding, seeking an interim order for re-instatement and directing Woolworths to confirm that it had presented false and misleading evidence to the Commission, inducing a fraudulent contract.121 The primary judge dismissed that application on the basis that it, like the earlier interlocutory application, comprised an abuse of process because it represented another attempt to obtain relief that Mr Keane had previously, unsuccessfully attempted to obtain from the Fair Work Commission.122 99 On 14 September 2023, the primary judge refused to grant leave to issue a number of draft subpoenas because no legitimate forensic purpose had been identified.123 117 Reasons, [90]-[91]. 118 Reasons, [92]. 119 Reasons, [93]. 120 Reasons, [95]. 121 Reasons, [96]. 122 Reasons, [100]. 123 Reasons, [101]-[102]. -- 28 of 69 -- [2024] SASCA 113 The Court 25 100 On 19 September 2023, Mr Keane filed a third interlocutory application, again seeking re-instatement and damages.124 On 5 October 2023, the primary judge struck it out on the basis that it was vexatious and an abuse.125 101 On 15 December 2023, after the primary judge had reserved her decision on the vexatious litigant application, Mr Keane attempted to file a statement of claim alleging fraudulent misrepresentation against Woolworths, associated with the loss of his employment. In his covering letter addressed to the Registrar, Mr Keane said:126 This claim attached is in part to force the respondents to address the issues they have caused in my life, but also to force them to actually address issues in any further court proceedings without blatantly lying about issues. Being forced into undisclosed background clauses have [sic] been extremely damaging to myself, detrimental to those around me, and has caused years of anguish due to the misconduct of these parties and their self-involvement in my life having falsified rape allegations against me. I also view the continuation of my unemployment to be the continuation of the criminal offence that was committed against me (fraudulent rape allegations) and for this to be an issue that can and should be remedied at the soonest possible date. I am genuinely seeking a pre-trial hearing within the year of 2023 to address my employment status and resolve, in-part, the criminal aspect of false rape allegations I have been forced to suffer for a protracted period of time. I do not wish to be a victim of these false rape allegations any longer, I wish to return to my lawful and gainful employment in my community. I strongly urge the Courts to address this matter at the soonest possible date, as I have suffered for years while the respondents blatantly lie about their conduct, and the respondents still will not conceded or even admit that they had made my fair work hearings about a sexual assault they themselves had fictionalised, they in-fact refuse to even address this concern, despite it being extremely relevant to the damage caused by these respondents. 102 The Registrar rejected the statement of claim for filing on the basis that it was frivolous, vexatious, scandalous or an abuse of the processes of the Court within r 32.3(1)(c) of the Uniform Civil Rules.127 103 During the hearing before the primary judge, Woolworths relied on other conduct by Mr Keane, which included various interactions between Mr Keane and staff of Woolworths. The evidence was that on at least 64 occasions Mr Keane had called the Woolworths People Advisory Line, demanding that his employment be reinstated.128 124 Reasons, [103]. 125 Reasons, [110]. 126 Reasons, [111]. 127 Reasons, [111], [113]. 128 Reasons, [115]. -- 29 of 69 -- [2024] SASCA 113 The Court 26 104 In addition, Mr Keane attended the Woolworths store at Mount Barker on a number of occasions, attempting to talk to staff about his employment and dismissal. Mr Keane repeatedly asked for his job back. At times, Mr Keane went to the homes of current and former staff of Woolworths, attempting to discuss his employment and dismissal. He sent numerous social media messages and text messages to current and former Woolworths staff regarding his employment and dismissal.129 105 Woolworths also relied on the interaction between Mr Keane and its solicitors, Minter Ellison. Around 10 attempts had been made by Mr Keane to discuss his employment and dismissal with Minter Ellison. 106 Over 200 emails were sent to Minter Ellison, staff of Woolworths and the Fair Work Commission regarding Mr Keane’s employment and dismissal.130 Her Honour gave the following example of an email sent on 6 August 2021 to the chambers of Vice President Catanzariti in the Fair Work Commission, Minter Ellison, the Secretary of the SDA, and others:131 I want to know why, I was investigated for rape that didn’t happen. Who was it broadcast too [sic]. Why AN was rewarded for making false complaints in bad faith. Why I don’t have my job. And when is something going to be done about it. Again, I will be contacting you all today, and asking these questions. I do not appreciate being falsely accused and fired for no reason. You have caused me significant harm. The protracted nature of this process is causing more issues for me. I demand my job back and appropriate action taken against those involved in making false allegations towards me. I want my job back today. I want answers today. Stop treating me like an idiot to justify not treating me with respect. This is illegal…false allegations are a serious problem and you have rewarded that behaviour. AN gets her employment terminated and I go back to work. You don’t just get to decide I raped someone so you can steal my life’s work from me, “as a joke”. So again, my employment back today. Her employment ends today. I don’t appreciate having issues made up about me to encourage me to go to court. That is a waste of taxpayer money. They broke to [sic] law blatantly and repeatedly, accused me of forcing myself onto another person for sexual gratification, lied about it, and terminated me. 129 Reasons, [116]. 130 Reasons, [118]-[119]. 131 Reasons, [119]. -- 30 of 69 -- [2024] SASCA 113 The Court 27 I want my job back. I want my justice. She needs hers. She lied about rape. That isn’t funny. That isn’t okay. And treating me like this isn’t acceptable. Please contact me with my hours, and the nature of the broadcast that was committed against me. 107 The primary judge found that correspondence such as this highlighted Mr Keane’s intention to pursue all options available to seek redress for the loss of his employment.132 Subsequent applications made by Mr Keane 108 After the vexatious litigant declaration and orders were made, Mr Keane applied for further orders, which included the dismissal of the vexatious litigant proceedings, the joinder of further parties and the re-instatement of his former employment with Woolworths. These various applications were dismissed by the primary judge on the basis that they were without merit.133 It will be necessary to return to these. 109 After commencing his appeal, Mr Keane sought interlocutory orders from the Court of Appeal that his defamation proceeding in the Magistrates Court before Magistrate Vozzo “recommence … as soon as possible”, and that his appeal be listed for hearing urgently. Those applications were dismissed, primarily on the basis that whether the defamation proceedings should recommence was bound up with whether the vexatious litigant declaration should have been made, and that the determination of that issue must await the outcome of this appeal. Otherwise, Mr Keane had not demonstrated any genuine case for urgency.134 110 Mr Keane then made another interlocutory application seeking various orders, including for interrogatories to be answered and subpoenas to be issued on the basis that these would be relevant to the management of the appeal which by then had been listed for hearing on 12 September 2024. That application was considered on the basis that there was a difference between the hearing and determination of an appellate proceeding, and the hearing and determination of primary proceedings, including those against which the appeal had been taken.135 111 As with the applications dismissed by the primary judge, the material sought by Mr Keane was only concerned with re-litigating the case against Woolworths in connection with the termination of his employment. It was not concerned with whether a vexatious litigant declaration and associated orders should have been made pursuant to s 39 of the Supreme Court Act. As the application and the various orders sought were not “ancillary to the hearing and determination of the appellate 132 Reasons, [112], regarding the letter dated 15 December 2023. 133 Woolworths Group Ltd v Keane (No 2) [2024] SASC 13. 134 Keane v Woolworths Group Ltd [2024] SASCA 15 (Livesey P). 135 Keane v Woolworths Group Ltd (No 2) [2024] SASCA 39 (Livesey P). -- 31 of 69 -- [2024] SASCA 113 The Court 28 proceeding” within r 212.5(1) of the Uniform Civil Rules, the application was dismissed.136 112 Subsequently, yet another interlocutory application was made to this Court, again seeking a raft of orders that were not ancillary to the hearing and determination of this appeal. That application was also dismissed.137 113 In the meantime, Mr Keane inundated chambers with correspondence.138 That correspondence is relevant to the possible re-exercise of discretion by this Court, at least in so far as it demonstrates Mr Keane’s determination to proceed with his litigation. The reasons of the primary judge 114 The primary judge explained that though s 39 was limited in its scope to proceedings in South Australian courts and tribunals, proceedings in other jurisdictions may demonstrate whether what was litigated in South Australian courts and tribunals was vexatious:139 … [T]he initiation of proceedings in other jurisdictions and the outcomes of those proceedings, can assist in reaching a determination about whether the proceedings in South Australian Courts and Tribunals are vexatious. It may be highly relevant if the point in issue has been repeatedly executed or conclusively determined elsewhere. This is an important consideration in circumstances such as those before this Court in which the vast majority of the actions relied upon have been instituted in Federal Court and Tribunals. [Citation omitted.] 115 As the primary judge went on to explain:140 Section 39 of the Act cannot be invoked unless it can established that Mr Keane has “persistently instituted vexatious proceedings in a court or tribunal of this State.” There are three issues that may arise in the application of this test. These are what is meant by to “initiating proceedings’’, can the person’s conduct be described as “persistent” and does the conduct warrant the epithet of “vexatious”? Once the jurisdictional requirements are satisfied, consideration must be given to whether it is proper and appropriate in all of the circumstances the Court to exercise its discretion in favour of making the order. [Citations omitted.] 116 The primary judge held, correctly, that it was for Woolworths to establish that the six proceedings commenced in the Magistrates Court, and the applications 136 Keane v Woolworths Group Ltd (No 2) [2024] SASCA 39 (Livesey P). 137 Keane v Woolworths Group Ltd (No 3) [2024] SASCA 87 (Doyle JA). 138 Annexure B lists all of the correspondence Mr Keane sent to the Court since the vexatious litigant declaration and orders were made. 139 Reasons, [9]. 140 Reasons, [120]. -- 32 of 69 -- [2024] SASCA 113 The Court 29 made in the Supreme Court, amounted to the persistent institution of vexatious proceedings.141 117 The primary judge also held that these needed to be considered “against the backdrop of Mr Keane’s litigious behaviour” in the Fair Work Commission and the Federal Court. The primary judge was satisfied that Mr Keane had persistently instituted vexatious proceedings:142 In my view Woolworths has established that Mr Keane has persistently instituted proceedings. Although under different guises his various applications all attempt to revisit the same issues of Mr Keane’s employment and the payment of compensation. Given the history to these actions, the complete lack of success in any of the previous actions or applications and the numerous comments made by judicial officers about the prospects of Mr Keane succeeding in regaining his employment, his conduct in instituting these proceedings is persistent. This is a situation in which whilst the number of proceedings relied upon is relatively small, these proceedings “clearly represent an attempt to re-litigate an issue already conclusively determined” against Mr Keane and it “is accompanied by extravagant and scandalous allegations which the litigant has no prospect of substantiating or justifying.”143 It is also a significant factor that the various proceedings have been instituted over such a short period of time, with Mr Keane barely pausing to draw breath between filing applications. 118 These findings by the primary judge were expressed in broad terms, without differentiating between what had been filed or not filed, and without addressing whether, for example, an application for leave to issue subpoenas could properly be described as a “proceeding” within the meaning of s 39 of the Supreme Court Act. 119 On the question of vexation, the primary judge addressed the statutory definitions in s 39(5) and considered in a broad and general way what had been “determined elsewhere”, on the basis that it was necessary to take into account “the extensive history of unsuccessful litigation”, presumably in the Fair Work Commission and Federal Court.144 Her Honour’s conclusion rested on the second limb of s 39(5), namely that the proceedings were instituted without reasonable grounds:145 It seems to me that Mr Keane’s conduct falls into the category of vexatious on the basis that the proceedings were instituted without reasonable grounds. By the time that Mr Keane came to commence proceedings in the Magistrates Court, and in this Court he must have known, and any reasonable person would have known that he had no prospects of success. So much was demonstrated on the occasions on which he immediately abandoned proceedings upon Minter Ellison writing to him inviting him to discontinue. 141 Reasons, [131]. 142 Reasons, [133]. 143 Brogden v Attorney-General [2001] NZCA 208 at [21]; Mitsubishi Motors Australia Ltd v Kowalski [2005] SASC 154 at [277]. 144 Reasons, [136]-[137], citing The-Attorney General for the State of South Australia v Burke (1997) 190 LSJS 28, 36 (Perry J). 145 Reasons, [138]. -- 33 of 69 -- [2024] SASCA 113 The Court 30 120 Again, these conclusions were expressed broadly and without reference to particular processes or applications, and without differentiating between what had been ruled on, and what had been rejected for filing or abandoned after filing. 121 Having found that the requirements of s 39(1) were satisfied, the primary judge addressed the exercise of discretion. Her Honour gave consideration to the purpose of s 39,146 and reminded herself that Mr Keane was not legally represented.147 The primary judge concluded that an order should be made, because absent an order “Mr Keane will not desist”.148 Her Honour explained:149 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. ... 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. Despite numerous efforts to bring him back to the relevant issues, Mr Keane concluded his submissions with the following: Now I don't come to court to waste people's time, I think that is a gross misuse of public trust and power, and I'm not trying to waste anyone's time but I've had years of my life wasted and it needs to come to an end. These parties should not have done the things that they did to me. They have no explanation and no justification for what they did and they should pay for it. But I just want to go back to work. I said at the very start of this I don't want money, I don't. My greatest aspiration in life was to be a dad, I don't want all of these material benefits or, you know, compensation for whatever, I may be entitled to it but I don't do what I do for money, right? I loved my community, I love women, I love men, I don't go around hurting people. There has clearly been an effort to hurt me and I'm entitled and want to know why. Thank you your Honour. It is apparent to me that for whatever reason, Mr Keane is now so fixated with the injustice that he perceives that he has experienced that he refuses or is incapable of letting go of his litigious pursuit for re-instatement of his employment. 122 The primary judge then separately addressed the terms of the order, particularly whether it should be made in broad or narrower terms. Her Honour considered whether a narrower order would be sufficient to limit Mr Keane relitigating the issue of his employment with Woolworths.150 The primary judge concluded that an order should be made in broad terms, because it might otherwise 146 Reasons, [140]. 147 Reasons, [141]. 148 Reasons, [143]. 149 Reasons, [142]-[144]. 150 Reasons, [146]. -- 34 of 69 -- [2024] SASCA 113 The Court 31 be difficult for the Court Registry to determine whether new litigation in fact concerned the re-litigation of Mr Keane’s cases concerning the loss of his Woolworths employment, and associated issues:151 I have arrived at the view that the order should be made in broad terms. Mr Keane has proven to be creative in utilising various legislative provisions and causes of actions in his efforts to relitigate the same issue. Mr Keane has a history of attempting to mask claims that relate to the termination of his employment, by giving them different characterisations. As said by Mr Douglas in submissions “it may not be readily apparent to those working for the Court that have not been engaged with Mr Keane’s history that a claim framed by Mr Keane, in substance deals with the same subject matter.”152 It is not appropriate to make an order that will leave the courts registry staff with the invidious task of deciphering any application or documentation lodged by Mr Keane in order to determine whether it is captured by the order. I am fortified in this view on the basis that the order will not prohibit Mr Keane from instituting further proceedings but rather requires him to obtain the permission of the Court before doing so. The Court will be best positioned to determine whether any future litigation is legitimate or further vexatious conduct. 123 As a post-script, on 18 January 2024, shortly before the primary judge delivered her decision on the vexatious litigant application, Mr Keane filed another application seeking an urgent hearing to “immediately dismiss” the vexatious litigant application.153 The supporting affidavit addressed Mr Keane’s concern about what he described as the false allegations of sexual assault made against him in 2020.154 124 The primary judge dismissed that application.155 Her Honour said that the application “highlights the necessity in making the order sought by Woolworths”.156 125 Earlier, the primary judge explained the approach of Woolworths to whether it claimed that Mr Keane had engaged in any sexual assault, as well as Mr Keane’s response:157 During his submissions Mr Douglas could not have made it plainer that Woolworths does not claim that Mr Keane was involved in any sexual assault. For whatever reason Mr Keane cannot or will not hear that. In his affidavit he maintained that he is the ongoing victim of fraud and false allegations and seeks an order to dismiss Woolworth’s application on the basis that their conduct towards him has been vexatious. He also seeks an order that “a sum of money” be awarded to him on the basis that it would dissuade Woolworths from taking further “vexatious steps” towards him. 151 Reasons, [147]-[149]. 152 Transcript, 14 August 2023, 47. 153 Reasons, [151]. 154 Reasons, [154]. 155 Reasons, [156]. 156 Reasons, [156], Order 1. 157 Reasons, [155]. -- 35 of 69 -- [2024] SASCA 113 The Court 32 126 Mr Keane took issue with this statement by the primary judge. 127 The primary judge then made the orders earlier outlined. Although these included an order permanently staying the (fifth) Magistrates Court proceedings commenced on 27 January 2023, no separate consideration was given to those proceedings beyond recording the submissions made about them by Woolworths,158 and the broad findings earlier outlined.159 128 The primary judge delivered separate reasons for dismissing Mr Keane’s “late” applications made in the Supreme Court.160 There is no appeal against those orders. Determination of the appeal 129 The grounds of appeal and submissions offered by Mr Keane are very difficult to follow and understand. 130 Part of the difficulty is that Mr Keane appears to be operating on the basis of a factual narrative that is not clearly addressed in the materials made available to this Court. For example, Mr Keane’s submissions move between events during his period of employment with Woolworths, and events after that employment, including events involving the SDA and SAPOL, without ever clearly identifying where that narrative can be found or, indeed, whether it was ever led and proved before the primary judge. 131 Some of these events were touched on in affidavits tendered by Mr Keane for the purposes of seeking interlocutory orders in the Court of Appeal:161 … the appellant has consistently maintained that in August 2020, [Mr C] 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 C] 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, 158 Reasons, [78]. 159 Reasons, [133], [138]. 160 Woolworths v Keane (No 2) [2024] SASC 13. 161 Keane v Woolworths Group Ltd [2024] SASCA 15, [9]-[13] (Livesey P). -- 36 of 69 -- [2024] SASCA 113 The Court 33 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. 132 Now, it may be readily appreciated that, even with the benefit of this detail – assuming that it forms part of the narrative on which Mr Keane wishes to rely – it does not address the elements of s 39(1) of the Supreme Court Act, nor whether the primary judge should have exercised her discretion as she did. 133 The first and third grounds of Mr Keane’s appeal are concerned with the fifth Magistrates Court proceeding and, at least indirectly, with what Mr Keane says was a ruling made by Magistrate Vozzo. That proceeding is the subject of the last order made by the primary judge in this case. As was explained at the time Mr Keane’s application to have that proceeding “re-commence as soon as possible” was dismissed:162 … Those proceedings raise defamation allegations which are out of time and require an extension of time. The appellant seeks re-instatement as well as compensation in the sum of $11,000.163 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. 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 C] 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 C] can rely on a defence of qualified privilege, whether at common law or under statute, need not now be addressed.164 134 The Magistrate’s preparedness to hear an application for the re-instatement of those proceedings seems to be what Mr Keane describes as “refusing to throw 162 Keane v Woolworths Group Ltd [2024] SASCA 15, [17]-[19] (Livesey P). 163 Woolworths Group Ltd v Keane [2024] SASC 12, [78]. 164 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]. -- 37 of 69 -- [2024] SASCA 113 The Court 34 out” his claim. There does not appear to have been any positive ruling made by the Magistrate about the claim or its merit. 135 The first three grounds of appeal make broad allegations against Woolworths, without addressing what the evidentiary basis for these might be (if any), still less how these affect the declaration and orders which were made. Mr Keane’s submissions (whether written or oral) do not assist in determining whether what is alleged has a proper basis or, if it does, how it undermines the declaration and orders made. 136 The fourth ground of appeal comprises a broad allegation that there were errors of fact made by the primary judge, without identifying what they were or how they affected the decision under appeal. Again, Mr Keane’s submissions (whether written or oral) do not assist. 137 The fifth ground of appeal appears to be a complaint that the primary judge refused to permit the tender, or otherwise ignored, evidence about the conduct of Woolworths before the Fair Work Commission. This may be a reference to an audio recording which Mr Keane wished to tender and which the primary judge refused to receive. The recording concerned part of the conciliation proceedings conducted in the Fair Work Commission, and it was made without the consent of the other parties, including the Fair Work Commissioner. As the primary judge explained at the time she refused the tender of the audio recording:165 Putting aside the fact that I fail to see how in any way they are relevant to the application currently before me, not only was it made during a conciliation conference which is deliberately conducted in private, it was also made contrary to an express direction of a member of the commission. There is nothing in any of the material provided by Mr Keane this morning that advances his position in relation to the admissibility of the recording. In particular, the document that was described by Mr Keane as an exemption by the commission to permit him to use the recording was nothing of the sort. It was in fact a response from the commission to Mr Keane in relation to a freedom of information application that he made for access to the records held by the commission. It had nothing to do with the recording made by him. 138 Even if it is accepted that Mr Keane could demonstrate some basis to permit the tender of this material,166 he did not attempt to demonstrate that it was relevant to whether or in what terms orders should have been made under s 39(1) of the Supreme Court Act. 139 The sixth and seventh grounds of appeal are concerned with the status and conduct of the primary judge, including comments she made which were apparently supportive of Mr Keane. 165 Transcript, 2 February 2024, pages 12-13. 166 Which is prima facie inadmissible by virtue of the Surveillance Devices Act 2016 (SA), see Thomas v Nash (2010) 107 SASR 309 (Doyle CJ); Groom v Police (2015) 252 A Crim R 332 (Nicholson J); Nanosecond Corporation Pty Ltd v Glen Carron Pty Ltd (2018) 132 SASR 63 (Doyle J); Pavitt v The Queen (2007) 169 A Crim R 452; Davies v The Queen [2021] SASCA 26. -- 38 of 69 -- [2024] SASCA 113 The Court 35 140 The seventh appeal ground is wrong as a matter of fact. The primary judge was never an employee of SAPOL. Before appointment to the Supreme Court, her Honour was a prosecutor in the office of the Director of Public Prosecutions (SA). Whilst her Honour no doubt worked closely with SAPOL, it was never suggested that this had any bearing on the issues her Honour was called upon to decide in this case. 141 The comments made by the primary judge which underpin the seventh appeal ground are not identified. Mr Keane’s submissions (whether written or oral) do not assist. No application was made to the primary judge that she should be disqualified from hearing this case,167 and it would seem that any potential objection was waived.168 No objection was taken before this Court. 142 The written submissions offered by Mr Keane addressed 15 or 16 points that did not correspond directly with the seven grounds of appeal. By and large they were concerned with the injustice affecting Mr Keane as the result of his loss of employment, and associated issues, rather than the vexatious litigant declaration and orders made by the primary judge. For example, point numbered 13 concerned what Mr Keane described as a “Clearly legitimate basis”, presumably relating to the basis he has to question the conduct of Woolworths. The written submissions included the assertion that Mr Keane “had $22,000.00 forced” into his bank account and the settlement agreement “verbally binded” onto him. He claimed that none of this had been “disclosed, negotiated or even addressed” in the Fair Work Commission.169 143 In brief oral submissions before the Court of Appeal, Mr Keane did not really attack the findings made, nor the declaration and orders made, by the primary judge. Mr Keane said that he could not properly proceed to obtain justice without the discovery of documents concerning the conduct of Woolworths and its employees associated with the loss of his employment and the unfounded allegations of sexual misconduct made against him. 144 This submission really goes to the heart of Mr Keane’s complaint, as well as his difficulty on this appeal. For Mr Keane it is obvious that any litigation and ruling that does not address his underlying complaints are both ill-directed and unjust. Anything else is, well, beside the point. Accordingly, the issues addressed by the primary judge addressed the wrong points and the decision she made must be wrong because it did not address Mr Keane’s complaints. 145 On this approach, it is not necessary for Mr Keane to engage with the findings, declaration and orders made by the primary judge concerning s 39 of the 167 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, [6]-[7]; Charisteas v Charisteas (2021) 273 CLR 289, [11]; QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 97 ALJR 419, [37] (Kiefel CJ and Gageler J), [67] (Gordon J), [119] (Edelman J), [193] (Steward J), [219] and [221] (Gleeson J), [274] (Jagot J). 168 Vakauta v Kelly (1989) 167 CLR 568, 572 (Brennan, Deane and Gaudron JJ), 577 (Dawson J); see also Police (SA) v Mahon (2022) 141 SASR 374, [42]-[45] (Livesey P, Lovell and Doyle JJA). 169 Mr Keane’s Outline, page 13. -- 39 of 69 -- [2024] SASCA 113 The Court 36 Supreme Court Act because they miss the point. Unsurprisingly then, the case advanced by Mr Keane, and the case that he must address if he is to succeed with an appeal against the declaration and orders made under s 39 of the Supreme Court Act, are truly like trains (or ships) passing in the night.170 146 What Mr Keane cannot understand, and without legal representation has little hope of addressing, is that the rules relating to the setting aside of perfected orders are technical and difficult.171 Rather than mount one carefully prepared campaign, presumably in the Fair Work Commission, demonstrating why the orders made in that jurisdiction should be set aside (assuming for the moment that there is some basis to argue that they can be set aside), Mr Keane continues to use whatever legal avenues he believes are open to him in State courts and tribunals to achieve his objectives. 147 Mr Keane’s energetic activity over the last three or so years simply demonstrates his “persistence” within the meaning of s 39 of the Supreme Court Act. And, rather than strike at the root of his difficulties, he persistently targets various branches. Those branches are not the natural fora for his complaints against his former employer (and others). Pleading causes of action in negligence or defamation will not assist Mr Keane for so long as he persists in adding claims for re-instatement and compensation for the loss of his employment with Woolworths. The more Mr Keane tries, the more he demonstrates that he is attempting to use the processes of the courts “without reasonable grounds” within the meaning of s 39(5)(b) of the Supreme Court Act. 148 None of the appeal grounds raised by Mr Keane have any merit. They must be dismissed. Other issues relating to the declaration and orders? 149 The obligation in this Court to conduct a rehearing, and the fact that Mr Keane is not represented, combine to require that consideration be given to whether the declaration and orders made in this case were properly made. 150 Mr Keane has instituted (or attempted to institute) over 30 applications in the Fair Work Commission,172 an application for judicial review in the Federal Court of Australia (and made attempts to appeal the dismissal of that application),173 six proceedings in the Magistrates Court174 and then, before the primary judge, around seven applications in the Supreme Court of South Australia.175 170 Cf, Reid v Kerr (1974) 9 SASR 367, 373-374 (Wells J), though there is little that is serene about this forensic contest. 171 Cf, Flowers v Finlayson (No 2) [2023] SASCA 12 provides an example of an unsuccessful attempt to “start again”. 172 Annexure A, “proceedings” 1 to 32. 173 Annexure A, “proceedings” 33 to 35. 174 Annexure A, “proceedings” 36 to 41. 175 Annexure A, “proceedings” 42 to 49. -- 40 of 69 -- [2024] SASCA 113 The Court 37 151 The matters in the Fair Work Commission and the Federal Court were not “proceedings” as defined, but they were nonetheless relevant to an evaluation of Mr Keane’s persistence, as well as to an assessment of the merit (or otherwise) of the proceedings and applications he brought in the Magistrates and Supreme Courts. 152 Against that background, the first two Magistrates Court proceedings (1 and 7 October 2021) were claims in negligence and defamation against Woolworths employees, respectively, and were discontinued by Mr Keane.176 153 The third and fourth Magistrates Court proceedings (15 December 2021 and 7 June 2022) sought re-instatement of employment and were dismissed as comprising abuses of process.177 154 The fifth Magistrates Court proceeding (27 January 2023),178 already mentioned, was the defamation action in which re-instatement of employment and compensation was sought but which was dismissed when Mr Keane failed to appear. It was the subject of Mr Keane’s application for re-instatement when it was stayed by order of the primary judge. 155 The sixth Magistrates Court proceeding (9 May 2023) sought assistance from the SDA regarding unfair dismissal and was struck out as an abuse.179 156 In the Supreme Court, the first application dated 26 May 2023 sought re-instatement of employment and was dismissed.180 The second application dated 28 June 2023 sought to join the SDA and mount a cross-claim against Woolworths and the SDA alleging, amongst other matters, fraud and corruption. It was dismissed as it sought the same remedies of re-instatement and compensation.181 157 The third Supreme Court application dated 7 August 2023 concerned a claim and a cross-claim against Woolworths and the SDA which was received but never filed.182 The primary judge warned Mr Keane that he sought the same relief as the second application and, if it was filed, it would be struck out as vexatious and an abuse. 158 The fourth Supreme Court application dated 23 August 2023 sought leave to issue a number of subpoenas and was refused on 14 September 2023 as no legitimate forensic purpose was identified.183 176 Annexure A, “proceedings” 36, 37. 177 Annexure A, “proceedings” 38 and 39. 178 Annexure A, “proceeding” 40. 179 Annexure A, “proceeding” 41. 180 Woolworths v Keane (No 2) [2024] SASC 13, [4]-[6]. Annexure A, “proceeding” 42. 181 Woolworths v Keane (No 2) [2024] SASC 13, [7], [16]-[17]. Annexure A, “proceeding” 43. 182 Woolworths v Keane (No 2) [2024] SASC 13, [18]. Annexure A, “proceeding” 45. 183 Woolworths v Keane (No 2) [2024] SASC 13, [24]-[26]. Annexure A, “proceeding” 46. -- 41 of 69 -- [2024] SASCA 113 The Court 38 159 The fifth Supreme Court application dated 1 September 2023 sought an interim order for the re-instatement of employment with Woolworths and was dismissed on 7 September 2023.184 160 The sixth Supreme Court application dated 19 September 2023 sought an urgent hearing and re-instatement and damages and was struck out as vexatious and an abuse.185 The seventh application dated 18 January 2024 sought an urgent hearing to dismiss the Woolworths vexatious litigant application. It was dismissed on the basis it disclosed no reasonable basis for the order sought.186 161 It has been necessary to review each of these proceedings and applications and the evidence surrounding them. 162 Respectfully, it is difficult to conclude that the broad findings made by the primary judge can be applied without further findings being made concerning the first two Magistrates Court proceedings.187 They concerned claims in damages against Woolworths employees. The fact that they were discontinued does not, of itself, demonstrate that they were brought without reasonable ground. The fact of discontinuance in the face of threats by Woolworths to seek security or apply to strike-out might support, but could not alone sustain, findings that they were brought without reasonable ground. 163 Similarly, it is a little difficult to confidently conclude on the broad findings made by the primary judge that the unresolved fifth Magistrates Court proceeding was brought without reasonable ground.188 Indeed, if it had been confined to a claim for defamation in which damages were claimed it might have been very difficult to say that it was brought without reasonable ground. Naturally, because it must be re-instated, and because it is time-barred, the proceeding faces very considerable hurdles. That is not really the issue. The issue is whether it was brought without reasonable ground and foredoomed to fail. 164 Having carefully reviewed the proceeding, and recognising that a defamation action cannot support the claims made for re-instatement and compensation, the proper conclusion is that, as presently constituted, it is both vexatious and an abuse of process. It was proper to order that it be stayed. 165 Respectfully, it is also difficult to conclude that the broad findings made by the primary judge can properly be applied to the third and fourth Supreme Court applications.189 It is far from clear that an application which has been received but not filed can be said to comprise a “proceeding” which has been “instituted”, and there is real scope for doubt about whether an application for leave to issue 184 Woolworths v Keane (No 2) [2024] SASC 13, [19]-[23]. Annexure A, “proceeding” 47. 185 Woolworths v Keane (No 2) [2024] SASC 13, [27]-[34]. Annexure A, “proceeding” 48. 186 Reasons, [156], Order 1. Annexure A, “proceeding” 49. 187 Annexure A, “proceedings” 36 and 37. 188 Annexure A, “proceeding” 40. 189 Annexure A, “proceedings” 44 and 46. The “Final Notice” dated 7 August 2023, Annexure A, “proceeding” 45, is not a proceeding within s 39 of the Supreme Court Act. -- 42 of 69 -- [2024] SASCA 113 The Court 39 subpoenas can be said to comprise a “proceeding” within s 39 of the Supreme Court Act. When questioned about that application before this Court, Woolworths did not seek to support the view that it was a “proceeding” within the meaning of s 39 of the Supreme Court Act. 166 Nonetheless, these reservations do not apply to the third, fourth and sixth Magistrates Court proceedings,190 nor to the first, second, fifth, sixth and seventh Supreme Court applications.191 The distinguishing features are that each was filed, and each was the subject of an unchallenged ruling by a court of competent jurisdiction demonstrating that each should be struck out or dismissed as being vexatious and an abuse of the court’s processes. 167 In these circumstances it is not necessary to reach any concluded view about those proceedings about which there is some room for doubt. The conclusions reached by the primary judge can be supported by those proceedings about which there is no room for doubt. Accordingly, any room for doubt about whether the small number of Magistrates Court proceedings instituted at the time the application was commenced for a vexatious litigant declaration and orders was sufficient to enliven the s 39 discretion (three proceedings – or four proceedings if one includes the fifth which was stayed), is dispelled by the five further applications made in the Supreme Court before the declaration and orders were made. 168 That is, those eight or nine “proceedings” demonstrate that by 2 February 2024 Mr Keane had persistently instituted vexatious proceedings in State courts or tribunals within the meaning of s 39 of the Supreme Court Act. 169 As for the exercise of discretion, the reasons given by the primary judge for making a declaration and orders in broad terms demonstrated that it was open to her to proceed as she did. Whilst an order preventing a person from instituting further proceedings of any kind should not be made as a matter of course, that kind of order is expressly contemplated by s 39(1)(a) of the Supreme Court Act. Whether an order should be made in broad or narrower terms will depend on the circumstances of the case, recognising that a vexatious litigant may yet obtain the permission of the court to commence proceedings which are meritorious and not vexatious. As Mr Keane has not confined himself to instituting proceedings against Woolworths, and given his evident determination to persist with the institution of further vexatious proceedings, it was appropriate that any order not be expressed in narrower terms. The declaration and orders which were made are not relevantly unreasonable or unjust. 170 Indeed, were it necessary for this Court to exercise the s 39(1) discretion afresh, it would be relevant and appropriate to take into account that three of the four unsuccessful applications made in the Court of Appeal during 2024 sought 190 Annexure A, “proceedings” 38, 39 and 41. 191 Annexure A, “proceedings” 42, 43, 47, 48 and 49. -- 43 of 69 -- [2024] SASCA 113 The Court 40 substantive relief in connection with Mr Keane’s underlying disputes. They could also be described as the institution of vexatious proceedings within the meaning of s 39 of the Supreme Court Act.192 They support the appropriateness of making a declaration and orders in the terms in which they were made by the primary judge. Conclusions 171 The challenges made by Mr Keane to the vexatious litigant declaration and orders must be dismissed. 172 Whilst there is some scope to question the reliance placed by the primary judge on some of the material before her Honour, the proper conclusion on the whole of the material is that the requirements of s 39(1) of the Supreme Court Act were clearly satisfied, and the exercise of discretion to make a declaration and orders in the terms in which they were made was open. 173 There is a final issue regarding the terms of one of the orders. The first of the final orders made by the primary judge was in the following terms: 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). 174 The material adduced by Mr Keane in connection with his applications made to the Court of Appeal shows that he has in mind making an application for leave to institute proceedings in the South Australian Employment Tribunal, so as to commence a prosecution against Woolworths for false and misleading evidence given in the Fair Work Commission.193 175 In these circumstances it is desirable that the terms of the order be amended so that they accord with the terms of ss 39(1)(a) and 39(6) of the Supreme Court Act, as follows (emphasis added): I order that Thomas Courtney Keane be prohibited from instituting further proceedings in any Court or Tribunal 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). 176 The appeal should be allowed for the limited purpose of amending the terms of that order. 177 Subject to hearing from the parties, Mr Keane must pay Woolworths’ costs of this appeal and any reserved costs in the Court of Appeal. 192 Annexure A, “proceedings” 51, 52 and 53. This appeal and the application for an urgent hearing of this appeal were not each a “proceeding” within s 39 of the Supreme Court Act. 193 Woolworths v Keane (No 2) [2024] SASCA 39, [1], [17] (Livesey P). -- 44 of 69 -- [2024] SASCA 113 The Court 41 Annexure A: Table of Proceedings No. Date Filed Case Name and Citation Description of Proceedings Outcome Fair Work Commission 1 8 January 2021 Mr K v The Employer [2021] FWC 2132 (First Decision) Unfair Dismissal Application filed by the SDA on behalf of Mr Keane pursuant to s 394 of the Fair Work Act 2009 (Cth) (the Act) seeking reinstatement of employment and compensation for lost wages. (Respondent’s Appeal Book p 16-17 [5]-[16]) Application dismissed by Commissioner Platt on 19 April 2021 following an application made by Woolworths pursuant to s 587 of the Act to have the matter dismissed on the basis that a binding settlement agreement had been reached between the parties. 2 4 May 2021 Mr K v The Employer [2021] FWCFB 3162 (Appeal Decision) Notice of Appeal of the First Decision pursuant to s 604 of the Act seeking reinstatement of employment and full compensation. (Under the Act, permission to appeal is required in relation to appeals filed which relate to an unfair dismissal application). (Respondent’s Appeal Book p 16 [17]-[18]) This application and the one below were heard together by the Full Bench of the Fair Work Commission. Permission to appeal was refused by the Full Bench on 12 August 2021. 3 6 June 2021 As above. Second Appeal of First Decision. (Respondent’s Appeal Book p 16 [17]-[18]) As above. 4 19 August 2021 The Applicant [2021] FWC 5489 Application for the Commission to deal with a bargaining dispute for a proposed enterprise agreement pursuant to s 240 of the Act. (Respondent’s Appeal Book p 16 and 18, [19] and [21]) This application was dismissed by Deputy President Clancy on 2 September 2021 pursuant to the general discretion permitted under s 587 of the Act. -- 45 of 69 -- [2024] SASCA 113 The Court 42 No. Date Filed Case Name and Citation Description of Proceedings Outcome 5 19 August 2021 As above. Application for a serious breach declaration in relation to a proposed enterprise agreement pursuant to s 234 of the Act. (Respondent’s Appeal Book p 16 and 18, [19] and [21]) This application was dismissed by Deputy President Clancy on 2 September 2021 pursuant to s 587(1)(c) of the Act on the basis that it had no reasonable prospects of success 6 23 August 2021 As above. Application seeking immediate reinstatement (which the Commission determined to treat as an application pursuant to s 603 of the Act to vary or revoke the First Decision). (Respondent’s Appeal Book p 18, [20]-[21]) On 2 September 2021, Deputy President Clancy declined to exercise his discretionary power under s 603 of the Act to consider this application. 7 23 August 2021 As above. Application for revocation of a protected action ballot order pursuant to s 448 of the Act. (A protected action ballot order is an order that can be sought by a bargaining representative during enterprise bargaining which enables lawful industrial action to be taken). (Respondent’s Appeal Book p 18, [20]-[21]) This application was dismissed by Deputy President Clancy on 2 September 2021 pursuant to s 587(1)(c) of the Act on the basis that it had no reasonable prospects of success. 8 6 September 2021 Mr K v The Employer [2021] FWC 5610 Application for the Commission to deal with a dispute in accordance with a dispute settlement procedure pursuant to s 739 of the Act. (Respondent’s Appeal Book p 18, [22] and [25]) Dismissed by Deputy President Clancy on 8 September 2021 on the basis that Mr Keane did not have standing to apply to the Commission to deal with a dispute (as he was no longer an employee). -- 46 of 69 -- [2024] SASCA 113 The Court 43 No. Date Filed Case Name and Citation Description of Proceedings Outcome 9 6 September 2021 Mr K v The Employer [2021] FWC 5611 Application for a bargaining order in relation to a proposed enterprise agreement pursuant to s 229 of the Act. (Respondent’s Appeal Book p 18, [22] and [25]) Dismissed by Deputy President Clancy on 8 September 2021 pursuant to s 587(1)(c) of the Act on the basis that it had no reasonable prospects of success. 10 6 September 2021 K v The Employer [2021] FWC 6097 Second Unfair Dismissal Application pursuant to s 394 of the FW Act seeking reinstatement (As this application was filed more than 21 days after dismissal, the Act required the Commission to determine whether to grant an extension of time before considering the merits of the application). (Respondent’s Appeal Book p 18, [22], [29] and [30]) On 20 October 2021 Commissioner Bissett dismissed the application on the basis that the extension of time was not granted. 11 6 September 2021 Mr K [2021] FWC 5943 Application for orders to stop bullying filed against the Fair Work Commission pursuant to s 789FC of the Act. (Respondent’s Appeal Book p 18, [23] and [27]) Dismissed by Commissioner McKinnon on 17 September 2021 pursuant to s 587(1) of the Act on the basis that Mr Keane was not entitled to apply for the orders (as he was not an employee of the Commission) and it therefore had no reasonable prospects of success. 12 7 September 2021 As above. Application filed against Minter Ellison seeking that the Commission compel Minter Ellison to provide the bank details of Woolworths and also seeking reinstatement. (Respondent’s Appeal Book p 18, [24] and [27]) Dismissed by Commissioner McKinnon on 17 September 2021 on the basis that none of the sections of the Act relied upon by Mr Keane permitted any such application to be made. -- 47 of 69 -- [2024] SASCA 113 The Court 44 No. Date Filed Case Name and Citation Description of Proceedings Outcome 13 7 September 2021 As above. Application for orders for persons to attend before Commission pursuant to s 590(2)(a) of the Act. (Respondent’s Appeal Book p 18, [24] and [27]) Dismissed by Commissioner McKinnon on 17 September 2021 on the basis that as the bullying application (row 11 above) had been dismissed there was no need for any such orders. 14 7 September 2021 As above. Application for a waiver of filing fees pursuant to s 789FC(4) of the Act. (Respondent’s Appeal Book p 18, [24] and [27]) Granted by Commissioner McKinnon on 17 September 2021. 15 17 September 2021 K v The Employer [2021] FWC 6097 Application for orders for persons to attend before the Commission pursuant to s 590(2)(a) of the Act. (Respondent’s Appeal Book p 18, [26] and [30]) Linked with Application 10 which was dismissed by Commissioner Bissett on 20 October 2021. 16 17 September 2021 As above. Application for orders requiring production of documents to the Commission pursuant to s 590(2)(c) of the Act. (Respondent’s Appeal Book p 18, [26] and [30]) As above. 17 17 September 2021 Application for a serious breach declaration in relation to a proposed enterprise agreement pursuant to s 234 of the FW Act. (Respondent’s Appeal Book p 18, [26] and [28]) On 27 September 2021 Commissioner Bissett advised the parties by email that this matter had been closed as the Commission had not received any indication from Mr Keane that he wished to continue it by the specified date. -- 48 of 69 -- [2024] SASCA 113 The Court 45 No. Date Filed Case Name and Citation Description of Proceedings Outcome 18 17 September 2021 Application for the Commission to deal with an unlawful termination dispute pursuant to s 773 of the Act seeking reinstatement and a stay of the First Decision. (Respondent’s Appeal Book p 18, [26] and [28]) Discontinued by Mr Keane on 22 September 2021 during a hearing before the Commission. 19 9 November 2021 Mr K v The Employer [2021] FWC 6380 Third Unfair Dismissal Application pursuant to s 394 of the Act seeking reinstatement. (Respondent’s Appeal Book p 19m [34] and [35]) Dismissed by Commissioner Bissett (on her own motion) on 22 November 2021 pursuant to s 587(1)(c) of the Act on the basis that the application had no reasonable prospects of success. 20 19 January 2022 K v the Employer [2022] FWC 167 Fourth Unfair Dismissal Application pursuant to s 394 of the Act seeking reinstatement. (Respondent’s Appeal Book p 19, [34] and [35]) Dismissed by Commissioner Bissett (on her own motion) on 7 February 2022 pursuant to s 587(1)(c) of the Act on the basis that the application had no reasonable prospects of success. 21 4 April 2022 Notice of Appeal, seeking to appeal the First Decision or one of the other Unfair Dismissal Application decisions set out above. (Respondent’s Appeal Book p 19, [36]) On 5 April 2022 the Commission wrote to Mr Keane asking him what decision he was appealing. No record of any response by Mr Keane or of this application proceeding any further. 22 11 May 2022 K v The Employer [2022] FWC 1148 Fifth Unfair Dismissal Application pursuant to s 394 of the Act seeking reinstatement. (Respondent’s Appeal Book p 19, [37]) Dismissed by Commissioner Bissett (on her own motion) on 17 May 2022 pursuant to s 587(1)(c) of the Act on the basis that the application had no reasonable prospects of success. -- 49 of 69 -- [2024] SASCA 113 The Court 46 No. Date Filed Case Name and Citation Description of Proceedings Outcome 23 9 June 2022 K v The Employer [2022] FWC 1592 Application seeking an order for immediate reinstatement and compensation. (Respondent’s Appeal Book p 19, [38]) Dismissed by Commissioner Bissett (on her own motion) on 22 June 2022 pursuant to s 587(1)(c) of the Act on the basis that the application had no reasonable prospects of success. 24 9 June 2022 As above. Application for the Commission to deal with a dispute in accordance with a dispute resolution procedure seeking reinstatement. (Respondent’s Appeal Book p 19, [38]) As above. 25 28 October 2022 K v The Employer [2022] FWC 3003 Sixth Unfair Dismissal Application pursuant to s 394 of the Act seeking reinstatement. (Respondent’s Appeal Book p 19, [39]) Dismissed by Commissioner Bissett (on her own motion) on 14 November 2022 pursuant to s 587(1)(c) of the Act on the basis that the application had no reasonable prospects of success. 26 16 November 2022 Mr K v The Employer [2022] FWC 3085 Sixth Application for the Commission to deal with an unlawful termination dispute pursuant to s 773 of the Act seeking reinstatement. (Respondent’s Appeal Book p 19, [40]) Dismissed by Commissioner Bissett (on her own motion) on 25 November 2022 on the basis that it was contrary to limitations imposed in the Act. 27 25 November 2022 Mr K v The Employer [2022] FWC 3351 Seventh Unfair Dismissal Application pursuant to s 394 of the Act seeking reinstatement. (Respondent’s Appeal Book p 19, [41]) Dismissed by Commissioner Bissett (on her own motion) on 21 December 2022 pursuant to s 587(1)(c) of the Act on the basis that the application had no reasonable prospects of success. -- 50 of 69 -- [2024] SASCA 113 The Court 47 No. Date Filed Case Name and Citation Description of Proceedings Outcome 28 25 November 2022 As above. Application for the Commission to deal with a dispute in accordance with a dispute resolution procedure pursuant to s 739 of the Act seeking reinstatement, a stay of the First Decision and compensation. (Respondent’s Appeal Book p 19, [41]) As above. 29 11 January 2023 Mr K v The Employer [2023] FWC 152 Eighth Unfair Dismissal Application pursuant to s 394 of the Act seeking reinstatement. (Respondent’s Appeal Book p 20, [42]) Dismissed by Commissioner Bissett (on her own motion) on 23 January 2023 pursuant to s 587(1)(c) of the Act on the basis that the application had no reasonable prospects of success. 30 5 February 2023 Mr K v The Employer [2023] FWC 456 Ninth General Protections Application involving dismissal seeking reinstatement. (Respondent’s Appeal Book p 20, [43]) Dismissed by Commissioner Bissett (on her own motion) on 27 February 2023 pursuant to s 587(1)(c) of the Act on the basis that the application had no reasonable prospects of success. 31 5 February 2023 As above. Application seeking interim orders pursuant to s 589 if the Act requesting immediate reinstatement. (Respondent’s Appeal Book p 20, [43]) Dismissed by Commissioner Bissett (on her own motion) on 27 February 2023 as it was tied to Application 30. 32 20 April 2023 Mr K v The Employer [2023] FWC 1341 Tenth Application seeking reinstatement of employment pursuant to s 345 of the Act (which is a section dealing with misrepresentations made to people in the workplace). (Respondent’s Appeal Book p 26, [92], p 496-497, [7], [8], [10], [11], [13] and [14]) Dismissed by Commissioner Bissett on 19 June 2023 pursuant to s 587(1)(c) of the Act on the basis that the application had no reasonable prospects of success. -- 51 of 69 -- [2024] SASCA 113 The Court 48 No. Date Filed Case Name and Citation Description of Proceedings Outcome Federal Court of Australia 33 13 July 2022 Keane v Woolworths Group Ltd [2023] FCA 379 Originating Application for judicial review under s 39B of the Judiciary Act 1903 seeking reinstatement, compensation and various other orders. (Respondent’s Appeal Book p 20, [44]-[46]) Application was dismissed by Justice O’Sullivan on 2 May 2023. 34 9 October 2023 Keane v Woolworths Group Limited [2023] FCA 1634 Originating Application seeking extension of time to appeal the decision referred to in the row above. Application was dismissed by Justice Rofe on 19 December 2023. 35 30 December 2023 Notice of objection to application being considered without oral hearing. Federal Court Registry advised Mr Keane on 2 January 2024 that the Form 119 could not be accepted for filing as the above matter had already been determined. Magistrates Court of South Australia 36 1 October 2021 CIV-21-011263 Thomas Courtney Keane v Julie Ann Davey Negligence claim brought against Julie Davey (an employee of Woolworths) seeking $20,346. (Respondent’s Appeal Book p 20, [49]-[50]) Discontinued by Mr Keane on 22 October 2021 after Minter Ellison wrote to him in relation to the merits of this application earlier that day. 37 7 October 2021 CIV-21-011385 Thomas Courtney Keane v Amy Rose Nancarrow Defamation claim against Amy Nancarrow (a former employee of Woolworths) seeking $259 and ‘full disclosure of events’. (Respondent’s Appeal Book p 20-21, [52]-[57]) Discontinued by Mr Keane on 29 November 2021 after Minter Ellison wrote to him in relation to the merits of this application on 11 November 2021 and filed an interlocutory application to have the application struck out on 24 November 2021. -- 52 of 69 -- [2024] SASCA 113 The Court 49 No. Date Filed Case Name and Citation Description of Proceedings Outcome 38 15 December 2021 CIV-21-013849 Thomas Courtney Keane v Woolworths Group Limited Breach of contract claim against Woolworths (listing the Fair Work Commission as an interested party) seeking $159 and his employment reinstated. (Respondent’s Appeal Book p 21, [58]-[60]) Dismissed by Magistrate Fotheringham on 21 January 2022 pursuant to Rule 85.1(b) of the Uniform Civil Rules on the basis of an abuse of process. 39 7 June 2022 CIV-22-006317 Thomas Courtney Keane v Shane Carter Negligence claim against Shane Carter (an employee of Woolworths) seeking $10,159 and reinstatement of employment. (Respondent’s Appeal Book p 21-22, [61]-[65]) Dismissed by Magistrate Fotheringham on 18 August 2022 pursuant to Rules 143.2 and/or 144.2(2) of the Uniform Civil Rules on the basis of an abuse of process and/or no reasonable basis for prosecuting the cause of action. 40 27 January 2023 CIV-23-000689 Thomas Courtney Keane v Shane Carter Defamation claim against Shane Carter seeking $11,000 and reinstatement of employment. (Respondent’s Appeal Book p 22-23, [66]-[78] and p 496, [4]) Claim stayed by Justice McDonald on 23 June 2023 pending the outcome of CIV-23- 004820. 41 9 May 2023 Magistrates Court proceeding seeking orders against the Shop Distributive and Allied Employee Association requiring, amongst other matters, that he be provided with legal assistance in connection with his unfair dismissal applications Struck out on 16 November 2022 as vexatious, frivolous or an abuse of process. Supreme Court of South Australia 42 26 May 2023 Woolworths Group Limited v Keane (No 2) [2024] SASC 13 Interlocutory application filed in matter CIV-23- 004820 seeking injunction for reinstatement of employment. Application dismissed by Justice McDonald on 23 June 2023. -- 53 of 69 -- [2024] SASCA 113 The Court 50 No. Date Filed Case Name and Citation Description of Proceedings Outcome 43 28 June 2023 As above. Interlocutory application filed in matter CIV-23- 004820 seeking to join the SDA Union. (Respondent’s Supplementary Appeal Book p 22, lines 11-18) Application refused by Justice McDonald on 9 August 2023. 44 19 July 2023 *Note: These claims were received but not filed by the Registry on 19 July 2023 As above. Fraudulent Misrepresentation Claim and Cross Claim against Woolworths and SDA Union for $655,551.23 and reinstatement of employment. (Respondent’s Appeal book p 553, [5] and Respondent’s Supplementary Appeal Book p 22, lines 11-18) Justice McDonald stated that if the document were to be filed it would have been struck out. 45 7 August 2023 Final Notice served on Minter Ellison seeking reinstatement of employment and an apology. (Rule 62.1 of the Uniform Civil Rules provides that a final notice can be served as a pre-action step in relation to an intended claim which the person reasonably believes will be uncontested or is not genuinely contestable). (Respondent’s Appeal Book p 553, [4]) It is not clear whether this was ever filed in any South Australian Court. -- 54 of 69 -- [2024] SASCA 113 The Court 51 No. Date Filed Case Name and Citation Description of Proceedings Outcome 46 23 August 2024 *Note: The subpoenas were not filed in the Registry but were sent directly to Chambers and Woolworths’ legal representatives. As above. Application for 11 subpoenas filed in matter CIV23-004820. (Respondent’s Supplementary Appeal Book p 92, lines 11-13) Permission for subpoenas to be granted was declined by Justice McDonald on 14 September 2023. 47 1 September 2023 Woolworths Group Limited v Keane (No 2) [2024] SASC 13 Interlocutory application filed in matter CIV-23- 004820 seeking interim injunction against Woolworths for reinstatement. (Respondent’s Supplementary Appeal Book p 92, line 18 – p 93, line 11) Application declined by Justice McDonald in Chambers on 7 September 2024. 48 19 September 2023 As above. Interlocutory application filed in matter CIV-23- 004820 seeking to bring a cross claim against Woolworths seeking reinstatement and damages. (Respondent’s Supplementary Appeal Book p 97, lines 34-38) Application struck out by Justice McDonald on 5 October 2023 pursuant to Rule 34.1 of the UCR on the basis that it was vexatious and an abuse of process. 49 18 January 2024 Woolworths Group Limited v Keane [2024] SASC 12 Interlocutory application filed in matter CIV-23- 004820 seeking to have the vexatious litigant application dismissed and damages awarded. (Respondent’s Appeal Book p 611-612, [150]-[156]) Application dismissed by Justice McDonald on 2 February 2024. -- 55 of 69 -- [2024] SASCA 113 The Court 52 No. Date Filed Case Name and Citation Description of Proceedings Outcome Court of Appeal 50 12 February 2024 Notice of Appeal regarding McDonald J’s judgment in CIV-23-4820. 51 12 February 2024 Keane v Woolworths Group Ltd [2024] SASCA 15 Two interlocutory applications filed by Mr Keane seeking an order that his defamation proceedings re- commence as soon as possible and seeking an order that there be an urgent hearing his appeal to the Court of Appeal. Both applications dismissed by Livesey P. Livesey P held that whether defamation proceedings should re-commence is in large measure bound up in the outcome of the appeal and that Mr Keane did not demonstrate ant genuine case for urgency. 52 22 March 2024 Keane v Woolworths Group Ltd (No 2) [2024] SASCA 39 Interlocutory application seeking various orders, including for interrogatories to be answered and subpoenas to be issued. Application dismissed by Livesey P. Livesey P held that the material the subject of the application is concerned with re litigating the case against Woolworths in connection with the termination of Mr Keane’s employment, and its aftermath. 53 15 July 2024 Keane v Woolworths Group Ltd (No 3) [2024] SASCA 87 Interlocutory application seeking a number of orders, largely relating to Mr Keane’s underlying and ongoing disputes with Woolworths Group Ltd. Application dismissed by Doyle JA. Doyle JA held that there was no proper basis for the various allegations and complaints made and that the allegations and complaints made by the applicant are not legitimately ancillary to the hearing and determination of the appeal. -- 56 of 69 -- [2024] SASCA 113 The Court 53 Annexure B: Thomas Courtney Keane v Woolworths Group Limited (CIV-24-001255) Correspondence from Mr Keane Date Method From To Brief Summary of Content 2 February 2024 Judgment McDonald J Published. 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 19 February 2024 at 7.24 am Email Thomas Keane Livesey P Chambers and L Viant Communicating that there was an error when initially uploading documents to the CourtSA portal. Attaching relevant documents. 22 February 2024 Decision Livesey P Published. Application 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. -- 57 of 69 -- [2024] SASCA 113 The Court 54 Date Method From To Brief Summary of Content 2 23 February 2024 at 3.17 pm Email Thomas Keane Livesey P Chambers and L Viant Requesting the appeal book be submitted electronically and that the Court bring forward the appeal hearing date from September 2024. Advising reasons for requesting to the hearing date be brought forward. 3 26 February 2024 at 2.15 pm Email Livesey P Chambers Thomas Keane and L Viant Advising that the Court heard from the parties before setting the appeal date and that the Court is not able to accommodate an earlier date for the Court of Appeal hearing. Advising that Mr Keane rejected the respondent’s offer to assist him and if he has reconsidered his position, to advise whether he is asking the Court to invite the respondent to take the carriage of the filing and service of the appeal books in this matter. 4 8 March 2024 at 3.30 am Email Thomas Keane Livesey P Chambers Lengthy email detailing Mr Keane’s concerns regarding alleged behaviour by SAPOL and his current Court proceedings. Requesting that the Court direct Registry to accept an application he had filed. 5 8 March 2024 at 11.46 am Email Livesey P Chambers Thomas Keane Advising that the Court cannot provide legal advice. Advising that the terms of McDonald J’s orders must be followed. Providing contact details for Legal Services Commission. 6 26 March 2024 at 1.04 am Email Thomas Keane Livesey P Chambers and L Viant Advising that the application filed on 22 March 2024 is pseudo urgent due to SAPOL’s repeated prosecutions against him. Requesting that a hearing of the applications proceed with some urgency. 7 26 March 2024 at 1.40 am Email Thomas Keane McDonald J Chambers and L Viant Requesting McDonald J withdraw her judgment. Indicating that he will be conducting the Judicial Conduct Commissioner and seeking default judgment against the respondent. 8 26 March 2024 at 3.56 pm Email Livesey P Chambers Thomas Keane and L Viant Listing the interlocutory application filed on 22 March 2024. -- 58 of 69 -- [2024] SASCA 113 The Court 55 Date Method From To Brief Summary of Content 9 26 March 2024 at 4.12 pm Email Thomas Keane Livesey P Chambers Enquiring whether the Court has listened to audio evidence submitted by Mr Keane. 10 26 March 2024 at 5.30 pm Email Livesey P Chambers Thomas Keane Confirming Chambers have not received any audio and confirming hearing date. 11 26 March 2024 at 6.23 pm Email Thomas Keane Livesey P Chambers Explaining delivery of audio to Registry. 12 28 March 2024 at 8.52 am Email McDonald J Chambers Thomas Keane Noting the matter is now before the Court of Appeal and that is the appropriate forum in which to raise his concerns. 28 March 2024 Decision Livesey P Published. Application 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). -- 59 of 69 -- [2024] SASCA 113 The Court 56 Date Method From To Brief Summary of Content 13 30 March 2024 at 10.24 pm Email Thomas Keane McDonald J Chambers Informing chambers that it is “unconscionable” that McDonald J has not withdrawn her judgment, that her actions were grossly negligent and requesting McDonald J address him on why she felt “entitled to legitimately pretend [his] issues were not genuine, and made a judgment in clear contradiction to the evidence she had before her”. 14 30 March 2024 at 4.17 pm Email Thomas Keane Livesey P Chambers, L Viant and Attorney- General’s Department Requesting explanations as to why he is “forced to continue with an entire appeal, considering how clearly wrong in fact, Justice McDonalds decision was, and considering that [he] was correct in [his] application before the courts”. 15 2 April 2024 at 9.22 am Email McDonald J Chambers Thomas Keane and L Viant Confirming receipt. Noting as per email on 28 March 2024, the matter is now before the Court of Appeal and as such that is the appropriate forum in which to raise his concerns. 16 5 April 2024 at 5.01 pm Email Livesey P Chambers Thomas Keane, L Viant and Attorney- General’s Department Confirming receipt of Mr Keane’s email and requesting that he remembers McDonald J’s direction. Confirming that should he 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 he proposes. 17 24 June 2024 at 4.54 pm Email Thomas Keane Livesey P Chambers and L Viant Requesting Livesey P explain why the Court is allowing the respondent to “viciously attack [him] with rape allegations, force [him] out of employment, make false police reports, and then be allowed to pretend that didn’t happen?”. Requesting that the Court overturn McDonald J’s judgment. -- 60 of 69 -- [2024] SASCA 113 The Court 57 Date Method From To Brief Summary of Content 18 25 June 2024 at 10.29 am Email Livesey P Chambers Thomas Keane Confirming the date of the appeal hearing and attaching the Record of Outcome dated 22 February 2024 which outlines the relevant timetabling orders for this matter. 19 28 June 2024 at 11.20 am Email Thomas Keane Livesey P Chambers Requesting an urgent hearing regarding an injunction against the respondent “immediately seeking re- in statement of employment”. Requesting the Court acknowledge “the evidence before it? And allow [him] some relief after multiple years of allowing the respondent to commit fraud against [him] for absolutely no reason”. 20 28 June 2024 at 11.29 am Phone Thomas Keane Livesey P Chambers Mr Keane said he recently sent an email but forgot to include respondent. He has re-sent email to include respondent. He is requesting an urgent injunction against Woolworths based on abuse of process and fraud. Mentioned interests of justice. Requested we please acknowledge receipt of email. 21 28 June 2024 at 2.28 pm Phone Thomas Keane Livesey P Chambers Requested confirmation Chambers had received his email. Chambers confirmed they would send confirmation of receipt upon the email being viewed by Acting Chief Justice Livesey. Mr Keane said that he is fully aware that the Court is assisting the respondent, and he is “not having it”. 22 28 June 2024 at 4.21 pm Email Livesey P Chambers Thomas Keane Confirming receipt of email. 23 28 June 2024 at 4.00 pm Email Thomas Keane Livesey P Chambers Requesting the Court “please inform parties if it is going to continue allowing Woolworths group to blatantly continue abusing the judicial process?” and seeking “immediate re-instatement”. -- 61 of 69 -- [2024] SASCA 113 The Court 58 Date Method From To Brief Summary of Content 24 3 July 2024 at 3.20 pm Email Thomas Keane Livesey P Chambers Requesting an order for “re-instatement and full disclosure, at the soonest possible date”. 25 3 July 2024 at 3.20 pm Phone Thomas Keane Livesey P Chambers Called regarding the contents of the email sent and requested “immediate orders made on the day and he would like to be notified of any further concerns as to why the President has not made the orders”. 26 4 July 2024 at 12.53 pm Email Livesey P Chambers Thomas Keane and L Viant Confirming the date of appeal hearing. Communicating that “absent new affidavit evidence addressing any new issue, the Court of Appeal is not prepared to make any further orders concerning the existing orders made by McDonald J before the hearing” and that “any application you seek to make before this date should be made in the General Division of the Supreme Court. Please ensure the orders made by McDonald J on 2 February 2024 are complied with”. Enclosed JusticeNet contact information. 25 July 2024 Judgment Doyle JA Published. Application dismissed. No proper basis for the various allegations and complaints made has been identified. But further, and in any event, the allegations and complaints made by the applicant are not legitimately ancillary to the hearing and determination of the applicant’s appeal. 27 25 July 2024 Email Thomas Keane Livesey P Chambers Advising that an objection will be listed and that he would like to proceed with his defamation claim and return to work. Further claims against the Court. 28 30 July 2024 at 10.14 am Email Thomas Keane Livesey P Chambers and L Viant Querying why the Court is not acknowledging retaliation by SAPOL, or evidence against the respondent etc. -- 62 of 69 -- [2024] SASCA 113 The Court 59 Date Method From To Brief Summary of Content 29 30 July 2024 at 10.29 am Email Thomas Keane Livesey P Chambers and L Viant Asserting the matter was not litigated and that the respondent made false rape allegations. Querying why the court is not acknowledging “basic evidence”. 30 3 September 2024 at approx. 10.30 am Phone Thomas Keane Livesey P Chambers Mr Keane advised that he is very concerned regarding the Court’s email to the respondent dated 2 September 2024 re the provision of a short supplementary appeal book with relevant transcript. He advises that he has provided evidence that the respondent has attempted to mislead the court and has previously provided fraudulent transcript and as such is very concerned with this direction from the Court. Chambers advised that it would be more appropriate to put his concerns in an email. -- 63 of 69 -- [2024] SASCA 113 The Court 60 Date Method From To Brief Summary of Content 31 10 September 2024 at 3.40 pm Phone Thomas Keane Livesey P Chambers Advising he has a pressing issue in which Police are involved and the District Court has accepted. He advised that the Supreme Court is suggesting both lower courts have made no finding whatsoever. He further advised that there is no evidence produced which reflects the interaction with police including two years of prosecution stemming from discovery application with Woolworths and SAPOL. He advised that he is in the process of putting something in writing which is very urgent and relevant. He further claims that Doyle JA did not understand and that this raises a conflict as Livesey P already accepted evidence showing police involvement in this matter. He said it is clear from correspondence that the Court and Woolworths are “chummy”. Chambers advised Mr Keane to put his concerns in writing and email chambers and the respondent as it is not appropriate for the Court to discuss a matter with one party without the other present. 32 11 September 2024 Email Thomas Keane Livesey P Chambers and L Viant Lengthy, four-page letter complaining of behaviour by SAPOL and the Courts.* -- 64 of 69 -- [2024] SASCA 113 The Court 61 * Letter from Mr Keane dated 11 September 2024 Dear President Livesey, and the Court Administration Authority of South Australia Complaints Team. From, Mr. Thomas Courtney Keane. Dear President Livesey, and the CAA. I have repeatedly attempted to bring to the courts attention the years with of harassment that has occurred both inside and outside of court, by South Australia Police. The court has allowed Woolworths Group Limited to repeatedly involve law enforcement against me, during my attempts at litigation, and has evidence of this occurring. It has not been addressed. The court has evidence that this behaviour from South Australia Police to such a historical extent, that is originated and commenced during the fair work hearings the respondent is claiming to have settled. Employment hearings, in which I was charged for stalking, for continuing with a Fair Work Commission hearing that I did not even commence. the SDA SA/NT did, inappropriately, incorrectly and void of mention to any of issues I have proven they knew to have existed. - Another issue the court is refusing to address but for the purpose of this correspondence, I digress. South Australia Police has repeatedly made and acted or otherwise been involved in very serious allegations accusing me of extremely serious criminal offence against women. I made a discovery application on April 1st 2022, naming South Australia Police and Woolworths Group Limited, seeking Letisha L Bell give evidence regarding her involvement, either willing or otherwise, in what was happening to our life. This was not a prejudicial application in nature. Without disclosing this to me, a hearing occurred with South Australia Police and a warrant was made for my arrest, on the basis that I was domestically abusing the person I was attempting to bring to court to give evidence against, in part, South Australia Police. It appears this filing occurred the same day as mine. This prosecution became multiple prosecutions, lasting two years and spanning over 40 hearings. -- 65 of 69 -- [2024] SASCA 113 The Court 62 Not once did the court make a genuine effort to protect any of the rights I am entitled to. All of my attempts to just address the allegations, and how outrageous South Australia Police’s behaviour towards me has been, were met with further allegations and prejudice. I saw the inside of a jail cell, I was arrested repeatedly, I was detained to the state for multiple years. The only evidence South Australia Police had, exonerated me of the crime I was accused of. Not a single enquiry against any party has been allowed to proceed, and when a proper application was made in the correct court, it was railroaded for multiple years, without explanation and obviously commenced with no genuine prospects of a successful prosecution. No reason has been given for these parties repeatedly making outrageously injurious, public allegations of offences against women. I have provided the court statements from these women, and despite any anger or involvement in a crime either may have, neither made a single criminal allegation against me, or accused me of one, proving just how baseless and intentionally damaging these attacks have been. I have also provided the court evidence of multiple judicial officers falsifying the court records. Despite how outrageous this statement is, it remains both true, uncontested and unresolved. I legitimately have to live the life you are presiding over, and a supermarket has been allowed to fictionalise, report, act on, and now deny making very serious rape allegations that I have very genuinely suffered. I do not know why this man took these actions against me, I am attempting to address that. In nearly all of my attempts to address the fact that I have been very publicly and falsely accused of raping a women I could not have raped, I have been harassed by South Australia Police with repeated false allegations, or legitimately been charged with offences, for attempting to participate in hearings. This has reached a point of brazenness where my criminal record reflected a conviction, despite the court records reflecting those same charges as dropped. I am writing this letter out of great concern for these hearings as, President Livesey has already accepted evidence that South Australia Police -- 66 of 69 -- [2024] SASCA 113 The Court 63 started charging me, during my Fair Work Hearings, an issue obviously not addressed at those hearings, nor a party appropriately disclosed to me. I have also provided the court evidence that Commissioner, now deputy president Hampton, blatantly lied to me on repeated occasion, during those hearings. I understand this evidence is inflammatory. It still needs to be addressed. As does South Australia Police’s repeated baseless actions claiming I am attacking women, where no evidence or even claim exists. Is there a reason the court has refused to address any of these concerns, during all of my attempts to prevent these parties from tearing apart my life? Everything I have earned, worked for, loved and cherished has been forced from me on a make-believe premise that I suddenly went from no criminal record, a normal person, to suddenly hating women and raping them ect … This legitimately happened, and was even occurring a second time during the commencement of these very hearings. None of the evidence the respondent is submitting, discloses their involvement with South Australia Police, something that the court already has record of occurring, and has made findings on. I write all of this, to express a deep and obvious objection with the respond’s submissions, on the basis that I have addressed the repeated, baseless prosecutions and charges by South Australia Police with the respondent multiple times, they have acknowledged this, or had it acknowledged for them, multiple times, and yet it remains unaddressed for the purpose of “if Mr. Keane’s “vexatious litigant” status should be removed.” submissions they are being allowed to digitally make, after I made it clear to the court that I could not afford to print the several-thousand pages I need too, and was disallowed to make digitally myself. What is going on… My entire life has been torn apart for no reason, I am owed compensation, I want to go back to work. My life could be irreparably damaged if these allegations are not rightfully deemed impossible and therefore fraudulent, an easily accomplished objective that would rectify years of damages, and prevent years more. -- 67 of 69 -- [2024] SASCA 113 The Court 64 The court has refused to conduct a single enquiry into a single issue I have presented at this point in time. What is going on… I am being made to repeatedly suffer very public, very sexual humiliation, and the court is pretending that isn’t happening, while making me appear before the lessor court, repeatedly address those concerns, only for the superior court to then claimed they didn’t happen, then claimed it did again… and has now made me wait the better part of a year… for evidence that serves absolutely no purpose but show just how serious this issue is, and just how much the court has gone out of it’s way, refusing to acknowledge it. All the court has done is inflict needless harm onto my life, attempted to lie to me about my rights to litigate this matter. I was trying to recover and reclaim what was taken from me, not be damaged further. I am clearly pointing out that none of these issues have been addressed, and very much exist and remain problematic. I very much get the feeling I am being treated like an idiot, for standing up for myself and protecting my life, By the very people employed and supposedly motivated to do so. Could the court please respond to any of my very serious, very legitimate complaints, and could the court please deal with these very serious issues. I have to live this life. I didn’t do anything to harm anyone. I want to go back to work. How is attempting to pretend this didn’t happen, such as Justice McDonald has done, anything but obviously damaging to myself and the courts integrity. Please allow me to address these issues in good faith, immediately. I clearly am very serious about addressing these issues, and repairing the damage that has been inflicted onto my life. The courts time-frame of responding to complaints has long since elapsed, and there are genuine issues that are unaddressed, some as serious as convictions being wrongfully recorded against me… Please cease any notion that what is happening is acceptable or appropriate or that I am a willing participant in, my life has been destroyed and that was clearly the objective of the respondent. I am genuinely seeking justice. I am genuinely trying to recover my employment, something nobody had the right to take from me under a fraudulent basis. It is no exaggeration that restoring my rights to these things is easily accomplished, and absolutely justified at this point in time. -- 68 of 69 -- [2024] SASCA 113 The Court 65 The repeated attacks I have suffered, were clearly not professionally justified or appropriately motivated. I make no comment about Justice Doyle’s actions or comments other then to say, I would suggest that holding a hearing without my participation and pretending not to understand a document the Master of the District court both understands and refused to throw out, is clearly an extremely clear example of the conduct I am seeking cease. Kind regards, Thomas Courtney Keane. -- 69 of 69 --