WOOLWORTHS GROUP LTD [2024] SASC 12

Applicant: WOOLWORTHS GROUP LTD Counsel: MR M DOUGLAS - Solicitor: MINTER ELLISON Respondent: THOMAS COURTNEY KEANE In Person Hearing Date/s: 23/06/2023, 09/08/2023, 14/08/2023, 14/09/2023, 05/10/2023, 11/10/2023, 02/02/2024 File No/s: CIV-23-004820 B SUPREME COURT OF SOUTH AUSTRALIA (Civil: Application) 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. WOOLWORTHS GROUP LTD v KEANE [2024] SASC 12 Judgment of The Honourable Justice McDonald 2 February 2024 PROCEDURE - STATE AND TERRITORY COURTS: JURISDICTION, POWERS AND GENERALLY - VEXATIOUS LITIGANTS, PROCEEDINGS AND RELATED MATTERS - VEXATIOUS LITIGANT The applicant – the respondent’s former employer – seeks orders prohibiting the respondent from instituting any proceeding in any Court or Tribunal of this State without leave pursuant to s 39 of the Supreme Court Act 1935 (SA) (the Act) and in the inherent power or jurisdiction of this Court. The applicant also seeks a permanent stay of proceedings instituted by the respondent against the applicant in the Adelaide Magistrates Court on 27 January 2023. Following the termination of his employment with the applicant on 22 December 2020 and the conclusion of a binding settlement agreement between the parties in the Fair Work Commission, the respondent has lodged 29 applications in the Fair Work Commission, an application for judicial review in the Federal Court of Australia, 6 applications in the Magistrates Court and 7 applications in this Court. These applications have primarily sought to re-agitate the circumstances of the respondent’s dismissal and, with a single exception, have been variously dismissed, struck out, discontinued or abandoned. It is against that background that the applicant applies for the relief sought, contending that such orders are necessary to prevent the continued abuse of the Court’s processes. Further, the applicant submits that, in the absence of such an order, the respondent’s conduct is likely to persist at considerable expense to the applicant, the respondent, and the Courts. Held, granting the application under s 39 of the Supreme Court Act 1935 (SA): The respondent has “persistently instituted vexatious proceedings” within the meaning of the Act, enlivening the jurisdiction of the Court to make the orders sought. The respondent has persistently instituted proceedings across the State’s courts, with the vexatiousness of his conduct further illustrated by his institution of proceedings agitating the same subject matter in the Federal jurisdiction. In circumstances where the respondent has expressed an intention to persist in this conduct, the orders sought are necessary to protect the Court’s processes from further abuse. Given that an order has been made under s 39 of the Supreme Court Act, it is unnecessary for the Court to make orders in the exercise of its inherent jurisdiction. -- 1 of 38 -- Supreme Court Act 1935 (SA) s 39; Fair Work Act 2009 (Cth) s, 178, s 179A, s 229, s 234, s 240, s 343, s 345, s 365, s 394, s 448, s 536D, s 587, s 589, s 590, s 739, s 773, s 789FC, referred to. Andrew Garrett Wines Resorts Pty Ltd v National Australia Bank [2007] SASC 173; Attorney- General (SA) v Kowalski [2014] SASC 1 ; Attorney-General v Wentworth (1988) 14 NSWLR 481; Brogden v Attorney-General [2001] NZCA 208; Garrett & Anor v Mildara Blass Ltd & Ors; Attorney General for the State of South Australia v Garrett [2009] SASC 19; Georganas v Barkla [2021] SASC 47; K v Employer [2022] FWC 1148; K v Employer [2022] FWC 167; K v The Employer [2021] FWC 6097 ; Keane v The Registrar of the District Court of South Australia Action No 3715 of 2022 ; Keane v Woolworths Group Ltd [2023] FCA 379; Mitsubishi Motors Australia Ltd v Kowalski [2005] SASC 154 ; Mitsubishi Motors v Kowalski [2004] SASC 302; Mr K v The Employer [2021] FWC 2132; Mr K v The Employer [2021] FWC 6380; Mr K v The Employer [2022] FWC 3085; The Attorney-General for the State of South Australia v Burke (1997) 190 LSJS 28 ; Workcover Corporation of South Australia v Moore, McQuillan [2016] SASC 19, considered. -- 2 of 38 -- WOOLWORTHS GROUP LTD v KEANE [2024] SASC 12 Civil: Application McDONALD J. 1 This is an action by Woolworths Group Limited (‘Woolworths’) seeking an order that Thomas Courtney Keane be prohibited from instituting proceedings in a prescribed court,1 without the permission of the Supreme Court. The application is made under s 39 of the Supreme Court Act 1935 (SA) and in the Courts inherent jurisdiction. 2 On 22 December 2020 Mr Keane was dismissed from his employment at Woolworths for misconduct. On 8 January 2021 Mr Keane filed an unfair dismissal application in the Fair Work Commission pursuant to s 394 of the Fair Work Act 2009 (Cth) seeking reinstatement of his employment and compensation for lost wages. That application resulted in a conciliation conference and a settlement agreement between the parties. There was some dispute surrounding the settlement which resulted in a determinative conference. Following that the commissioner who had presided over the conference issued a decision dismissing the unfair dismissal application on the basis that a binding settlement had been reached which prevented Mr Keane’s further pursuit of the unfair dismissal application. 3 Mr Keane subsequently appealed that decision to the Full Bench of the Fair Work Commission. The Full Bench refused permission to appeal. 4 Since that decision the Fair Work Commission and to a lesser extent the Federal Court, the Magistrates Court and most recently this Court have been inundated by various applications made by Mr Keane under many guises to challenge the determination of the unfair dismissal application. These efforts have resulted in 29 applications in the Fair Work Commission, an application for judicial review in the Federal Court, 6 applications in the Magistrates Court and 7 applications that Mr Keane has filed or attempted to file in this Court. With one exception,2 every application has been unsuccessful either being dismissed, struck out, discontinued, or abandoned. 5 It is this conduct that is the basis of the application currently before this Court. Woolworths contends that the order should be made on the basis that, given the respondent’s pattern of behaviour the order is 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 1 Pursuant to s 39(6) a ‘prescribed court’ is defined as the Supreme Court, any other Court of the State, the South Australian Employment Tribunal or any other Tribunal of the State prescribed by regulations. 2 The exception was an application made on 7 September 2021 for a waiver of filing fees pursuant to s 789FC(4) of the Fair Work Act. -- 3 of 38 -- [2024] SASC 12 McDonald J 2 in his pattern of conduct at the considerable expense for both Woolworths and the Courts. The power of the Court to make the Order Section 39 of the Supreme Court Act 6 Woolworths relies upon section 39 of the Supreme Court Act as the primary basis upon which to make the order. This section empowers the Court to make orders prohibiting a person from instituting further proceedings or further proceedings of a particular class, without the permission of the Court if satisfied that the person has persistently instituted vexatious proceedings in a South Australian Court or Tribunal. Section 39 reads: 39 – Vexatious proceedings (1) If, on the application of the Attorney-General or any other interest 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) – (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 -- 4 of 38 -- [2024] SASC 12 McDonald J 3 (d) any other tribunal of the State prescribed by the regulations; “proceedings” means civil or criminal proceedings instituted in a prescribed court. 7 In order to determine whether such an order should be made the Court must first consider whether the jurisdictional requirements have been met namely that the person has ‘persistently’ instituted ‘vexatious’ proceedings. It is for the Court to then consider whether in all of the circumstances it is proper to exercise it’s discretion to make orders restraining the institution of further proceedings or proceedings of a certain type. 8 The rationale behind section 39 is to regulate the commencement and prosecution of future proceedings by a person who is found to have instituted vexatious proceedings in the past. The method of regulation is not to prohibit the institution of proceedings, but to require the permission of the Court, thereby imposing an obligation on the litigant to demonstrate that the proposed proceeding has merit and is an appropriate use of the Court’s time and resources. 9 Whilst a determination under s 39 is limited to a review of proceedings in South Australia Courts and Tribunals, the 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 instituted or conclusively determined elsewhere.3 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 Courts and Tribunals. The inherent power of the Court 10 Woolworths also relies upon the inherent jurisdiction of this Court as a basis for making the order. This power is relied upon in addition to or in the alternative to s 39 of the Supreme Court Act. It is well established that this Court is ‘invested with a power to maintain its authority and prevent is processes being obstructed or abused as a consequence of its status as the superior court of record in South Australia.’4 11 In Georganas v Barkla,5 Livesey J (as he then was) comprehensively considered the early English and Australian authorities that have dealt with the Courts inherent jurisdiction to restrain the institution of fresh proceedings. His Honour expressed the view that these decisions supported three propositions of relevance to the determination of the application that was before him which are also relevant to the application currently before me. 3 Georganas v Barkla [2021] SASC 47 at [48]. 4 Ibid. 5 [2021] SASC 47 at [200] – [205]. -- 5 of 38 -- [2024] SASC 12 McDonald J 4 [210] The first proposition is that the exercise of this Court’s inherent power extends beyond the power to restrain the commencement of new applications in existing proceedings and permits an order to be made restraining the initiation of new proceedings, at least where they represent an attempt to re-litigate, or are otherwise concerned with, an issue or proceeding which has been finally determined. [211] Secondly, the exercise of this Court’s inherent power also permits an order restraining new proceedings which comprise an abuse of process in other courts and tribunals of this State, at least where this Court exercises supervisory jurisdiction over those other courts and tribunals. [212] Thirdly and finally, save where an Act or rules of court address these issues in a manner inconsistent with the continued recognition of the inherent power, the breadth of the inherent power is not limited or circumscribed. In my opinion, no South Australian Act or rules of Court relevantly limit or circumscribe these inherent powers. They do not do so directly or by necessary implication. It follows that the breath of the inherent power available to this Court concerning these propositions is not limited or circumscribed by any Act or the applicable rules of Court, whether they be the Supreme Court Civil Rules 2006 (SA) or the Uniform Civil Rules 2020 (SA). As Master Jacob persuasively explained, the rules of Court may generally be regarded as additional to, rather than in substitution of, the “powers arising out of the inherent jurisdiction of the Court.” (Citation omitted) 12 Livesey J however went on to issue a word of caution emphasising that the exercise of the Courts inherent powers in accordance with these propositions is exceptional. It is reserved for those cases clearly presenting as an abuse of the Courts processes. The circumstances that resulted in unfair dismissal proceedings 13 Mr Keane commenced employment with Woolworths in about May 2011. Between August and December 2020 complaints and concerns were raised about Mr Keane’s conduct. Mr Keane’s employment was terminated on 22 December 2020. The termination of Mr Keane’s employment followed an investigation into workplace complaints including complaints of sexual harassment made about him to Woolworths by co-workers. 14 On about 8 January 2021, the Shop Distributers Allied Union (the SDA) filed an application with the Fair Work Commission on behalf of Mr Keane alleging that he had been unfairly dismissed from his employment. 15 On 18 March 2021 the parties participated in a Member Assisted Conciliation conducted by Commissioner Hampton (as he then was). During the conference, Woolworths put forward several offers and ultimately reached an agreement to resolve the unfair dismissal application. 16 Towards the end of the conference, Commissioner Hampton put the parties into a joint session and advised that he was going to record what was being said following which he outlined the terms and conditions which had been agreed -- 6 of 38 -- [2024] SASC 12 McDonald J 5 between them. The proceedings were recorded, and a transcript of the recording was produced.6 It is apparent from the transcript that Mr Keane was aware of the terms of the resolution and agreed to those terms. 17 On 19 March 2021 the solicitor for Woolworths sent Mr Keane an email annexing the settlement agreement which reflected the terms agreed upon by the parties at the conference. 18 On 29 March 2021 Mr Keane sent an email to the solicitor for Woolworths, Commissioner Platt, and Commissioner Hampton, with an attached document which he described as “an amended and more equitable contract that has been signed”. In that document Mr Keane made numerous changes to the settlement agreement, including increasing the settlement payment from $22,824.24 to $22,824,244.00. 19 The unfair dismissal application was listed for a further conference on 9 April 2021. In advance of that conference Woolworths filed an application and affidavit seeking to have the unfair dismissal application dismissed pursuant to s 587(1) of the Fair Work Act on the basis that a binding settlement agreement had been reached by the parties. On 9 April 2021 the conference took place before Commissioner Platt who advised the parties that the hearing would be conducted by way of a determination conference. Evidence was called. 20 On 19 April 20221, Commissioner Platt issued a decision dismissing the unfair dismissal application on the basis that a binding agreement had been reached. Having reviewed the transcript of the conference before Commissioner Hampton, Commissioner Platt made the following observation:7 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 implement the agreed terms without delay. 21 On 4 March 2021, Mr Keane lodged an appeal application against Commissioner Platt’s decision. He subsequently lodged a further appeal application on 6 July 2021. The two applications were heard together by the Full Bench of the Fair Work Commission on 5 August 2021. 22 On 12 August 2021, the Full Bench of the Fair Work Commission issued a decision refusing permission to appeal. The Litigious Conduct relied upon The Fair Work Commission8 23 It is conceded by Woolworths that no issue can be taken with the initial unfair dismissal proceedings filed in the Fair Work Commission on the 8 January 2021 6 Affidavit, Elizabeth Anne O’Keefe, 3 May 2023 Annexure EAK 2. 7 Mr K v The Employer (2021) FWC 2132, [27]. 8 See also Appendix A – List of prior proceedings. -- 7 of 38 -- [2024] SASC 12 McDonald J 6 (Fair Work Commission application 1) or the notices of appeal filed on 4 May 2021 and 6 July 2021 (Fair Work Commission applications 2 and 3). It is Woolworths’ contention that the decision of the Full Bench of the Fair Work Commission to refuse Mr Keane permission to appeal the determination of the unfair dismissal application brought to an end the legitimate avenues open to him to pursue the possibility of reinstatement to his former employment and for compensation for damages arising out of the termination of that employment. He had exhausted all legitimate avenues. It was submitted that from this point Mr Keane must have known or became very rapidly aware that this was the end of the Court’s processes available to him. 24 In the reasons for the decision to refuse permission to appeal, the Full Bench made the position clear: [14] 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 a binding settlement of the matter. [16] 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. [17] Voluminous material was provided by the Appellant which the Full Bench has considered. Regrettably, the material filed by the Appellant does not address the issue at the heart of this appeal. 25 Equally, regrettably since that time Mr Keane has constantly and consistently failed to appreciate the legal issues under consideration and the limitations to the remedies that the court processes can provide him. 26 On 19 August 2021, seven days after he was refused permission to appeal, Mr Keane filed two applications in the Fair Work Commission. The first was an application to deal with a bargaining dispute pursuant to s 240 of the Fair Work Act9 (Fair Work Commission application 4) and the second was an application for a serious breach determination pursuant to s 234 of the Fair Work Act,10 (Fair Work 9 Section 240 – Application for the Fair Work Commission to deal with a bargaining dispute. This section falls under Part 2-4 Enterprise Agreements, Division 8 – Fair Work Commission’s general role in facilitating bargaining. This section deals with enterprise agreements and the option of applying to the Fair Work Commission for the Commission to arbitrate in a dispute. It therefore necessarily follows that there must be an ongoing employer/employee relationship. 10 Section 234 – Applications for intractable bargaining declarations. This section falls under Part 2-4 Enterprise Agreements, Division 8 – Fair Work Commission’s general role in facilitating bargaining. This section is part of a suite of sections aimed at facilitating negotiations about enterprise agreements. It therefore necessarily follows that there must be an ongoing employee/employer relationship. -- 8 of 38 -- [2024] SASC 12 McDonald J 7 Commission application 5). Both applications raised issues about the manner in which the initial unfair dismissal application was dealt with. 27 On 23 August 2021 Deputy President Clancy sent an email to the parties about FWC application 4 and FWC application 5. In that email he set out the purpose of those two sections. He went on to say: Having reviewed the application form, the Deputy President queries whether it is open to [the Applicant] to make the applications of this nature. He is therefore considering whether he should of his own motion, dismiss [the Applicant’s] two applications under s 587 of the Act because they have no reasonable prospects of success. 28 Deputy President Clancy directed the parties to file and serve submissions on why the applications should not be dismissed. 29 Later that same day Mr Keane filed a further two applications in the Fair Work Commission. The first was an application seeking immediate reinstatement (Fair Work Commission application 6),11 and the second was an application for revocation of a protected action ballot order pursuant to s 448 of the Act,12 (Fair Work Commission application 7). 30 It was submitted by Woolworths that although under different guises the applications filed on 19 August 2021 and 23 August 2021 were both creative attempts to reagitate the issue of the termination of Mr Keane’s employment and his entitlement to compensation. 31 As a consequence the Deputy President sent a further email to the parties the following day on 24 August 2021 advising them that they should also address FWC application 6 and FWC 7 in accordance with the directions that he had previously made. 32 This prompted the following response from Mr Keane: In the interest of saving time, large volumes of submissions where all parties have opted for re-instatement (sic) have already been submitted. I would be requesting the commission make a summary decision as per the powers of the commission. Today. I would again submit, all parties have already made repeated, voluminous submissions requesting re-instatement, and has very clearly been the commissions failings that have protected this matter. These are repeated requests from all parties that were ignored by the commission. Please make a ruling for re-instatement as of today. 11 The Commission determined to treat this as an application pursuant to s 603 of the FW Act to vary or revoke the initial unfair dismissal application and observed that the Act does not provide for an appeal of a decision of a Full Bench of the Commission to a single member of the Commission. 12 Section 448 – Revocation of a protected action ballot order. This section falls under Part 3-3 Industrial Act, Division 8 – Protected Action Ballots. This Division establishes the process that allows employees to choose, by means of a ballot to authorise protected industrial action for a proposed enterprise agreement. -- 9 of 38 -- [2024] SASC 12 McDonald J 8 33 Mr Keane then telephoned the Deputy President’s chambers and communicated that he had no interest in submitting any further material. 34 Mr Keane subsequently forwarded a further two emails to the Deputy President’s chambers in similar terms. These emails included inter alia following passages: This commission needs to let me get back to work without delay I sent this hoping this commission finally makes a ruling in my favour, as it has hindered me greatly, ignoring valid responses, and treated my employment like a joke to be laughed about for 5 minutes while I have suffered for months on end, needlessly. That was my job you took from me. I loved my job. I did nothing wrong. I deserve it back. Again, I just want to go back to work tomorrow. 35 On 1 September 2021 Mr Keane again telephoned the Deputy President’s chambers raising complaints about the termination of his employment. 36 On 2 September 2021 Deputy President Clancy dismissed FWC applications 4, 5 and 7. In relation to FWC application 6 President Clancy declined to exercise his discretion to vary or revoke the initial decision. 37 On 6 September 2021 Mr Keane filed a further 4 applications in the Fair Work Commission. The first was an application for the Commission to deal with a dispute in accordance with a dispute settlement procedure pursuant to s 739 of the Fair Work Act,13 (Fair Work Commission application 8). The application raised concerns about the manner in which the initial unfair dismissal application had been dealt with and applied for the same remedy as previously sought. The second was an application for a bargaining order pursuant to s 229 of the Fair Work Act,14 (Fair Work Commission application 9). This application sought the same remedy as FWC application 8. 38 Mr Keane also filed a further unfair dismissal application (Fair Work Commission application 10). It was submitted by Woolworths that having exhausted all creative avenues to attempt to relitigate the same issue Mr Keane adopted the approach of making the same application as the initial application in the hope of a more favourable outcome. 13 Section 739 – Disputes dealt with by the Fair Work Commission. This section falls under Part 6-2 – Dealing with Disputes. Division 2 – Dealing with Disputes. This Part is about dealing with disputes between national system employees and their employers. Although this section relates to disputes dealt with in the Fair Work Commission it relates to disputes occurring within an employee/employer relationship. 14 Section 229 – Applications for bargaining orders. This section falls under Part 2-4 Enterprise Agreements. Division 8 – Fair Work Commission’s general role in facilitating bargaining. As is apparent from the part in which it falls this section relates to bargain orders made in the context of negotiating enterprise agreements. -- 10 of 38 -- [2024] SASC 12 McDonald J 9 39 The fourth application filed by Mr Keane on 6 September 2021 was an application for orders to stop bullying filed against the Fair Work Commission pursuant to s 789 FC of the Fair Work Act,15 (Fair Work Commission application 11). 40 On 8 September 2021 Deputy President Clancy dismissed both FWC 8 and FWC 9. FWC 8 was dismissed on the basis that Mr Keane did not have standing to apply to the Commission to deal with a dispute in accordance with the dispute resolution procedure as he was no longer an employee. 41 The Deputy President dismissed FWC 9 on the basis that s 229 of the Fair Work Act deals with enterprise bargaining and as neither Mr Keane nor Woolworths were bargaining representatives, neither party had standing to apply to the Fair Work Commission for a bargaining order. That being the case the Deputy President determined that the applicant had no prospect of success. 42 FWC 10 was dismissed by Commissioner Bissett on 20 October 2021. In the context of considering whether to grant Mr Keane an extension of time for the application Commissioner Bissett made the following observation:16 Having regard to the submissions I find that the reason[s] for the delay in making the application are that the Applicant is seeking to re-agitate an application (U2021/252) which has already been determined and dismissed by the Commission and where permission to appeal that decision was refused (noting that the first application was dismissed because there was a binding settlement agreement reached by the Applicant and Respondent). Further, the Applicant does not believe he was given an opportunity to make submissions or cross examine witnesses in relation to matters he considers are associated with his dismissal. The first application was dismissed by Commissioner Platt on 19 April 2021 and the appeals dismissed on 12 August 2021, and this is now his opportunity to have the perceived unjustness of those matters resolved by further hearing. 43 On 7 September 2021 Mr Keane made a further three applications. The first was an application filed against Minter Ellison seeking that the Commission order reinstatement of his employment and an order compelling Minter Ellison to provide the bank details of Woolworths (Fair Work Commission application 12). He sought the latter so that he could repay the settlement monies “forced into [his] account under false pretence and defamatory allegations.” Mr Keane relied on ss 178, 179A, 536D(1) and 536D(2) of the Fair Work Act. 44 He also made an application for orders for persons to attend before the Commission pursuant to s 590(2)(a) of the Fair Work Act,17 (Fair Work 15 Section 789 FC – Application for a Fair Work Commission order to stop bullying. This section falls under Part 6 – 4B – Workers bullied at work, Division 2 – stopping workers being bullied at work. This Part allows a worker who has been bullied at work to apply to the Fair Work Commission for an order to stop the bullying. It is a “worker” who may avail themselves of a remedy under this Part which presupposes an ongoing employee/employer relationship. 16 K v The Employer [2021] FWC 6097 at [33]. 17 Section 590(2)(a) falls under the Powers of the Fair Work Commission to inform itself. This section falls under Part 5-1. The Fair Work Commission, Division 3 – Conduct of Matters before the Fair Work Commission. This subsection creates the power in the Fair Work Commission to “inform itself in -- 11 of 38 -- [2024] SASC 12 McDonald J 10 Commission application 13). The purpose of the application was to question witnesses about his employment at Woolworths. The final application made on that date was for the waiver of filing fees (Fair Work Commission application 14). 45 On 17 September 2022 FWC applications 11, 12 and 13 were dismissed by Commissioner McKinnon without holding a hearing. 46 The FWC 11 bullying application made allegations of bullying against the Commission. Commissioner McKinnon provided two reasons for dismissing this application. These were: 1. Mr K is neither a ‘worker’ nor ‘at work’ in the Commission. He is a former employee of a large employer in South Australia. Mr K is unhappy with how the Commission has dealt with numerous applications to the Commission in connection with his former employment. However, Mr K cannot reasonably believe that he has been bullied at work in the Commission because he has never carried out any work or engaged in any other authorised or permitted work-related activity for the Commission. He is not entitled to apply under s 789FC(1) of the Act for orders to stop bullying at work in the Commission. 2. Secondly, and because Mr K is not a ‘worker’ or ‘at work’ in the Commission, there is no foreseeable risk that he will continue to be bullied at work in the Commission. The application has no reasonable prospects of success. 47 In relation to FWC 12 Commissioner McKinnon determined that there were two fundamental flaws to this application. These were that none of the sections relied upon permit an application to be to be made to the Commission and secondly that the sections have no apparent operation in relation to Mr Keane. 48 FWC 13 was linked to FWC 11 in that it was said that the witnesses required related to the bullying allegation. The Commissioner provided the following summary for the decision to dismiss this application: Mr K seeks orders for six individuals to attend before the Commission so that he can question them about the scope and legitimacy of a complaint made about him in relation to his former employment. These individuals are not members or staff of the Commission. They may have information about the events leading to the termination of Mr K’s former employment, but those matters are not relevant as to whether Mr K has been bullied by the Commission. As the bullying application is to be dismissed, there is also no need for orders for any person to attend before the Commission in relation to the matter. It is not appropriate in those circumstances to grant the attendance orders application. 49 Application 14, the application for a waiver of filing fees was granted. This is the only success that Mr Keane has experienced across the numerous applications that he has filed in any court or tribunal. 50 On 17 September 2021 the very same day that the Commissioner dismissed these applications, Mr Keane filed a further four applications in the Fair work relation to any matter before it in such manner as it considers appropriate by requiring a person to attend before it. -- 12 of 38 -- [2024] SASC 12 McDonald J 11 Commission. Two were linked to application 10, the second unfair dismissal application filed on 6 September 2021 which by this stage had not yet been determined. These were an application for orders for persons to attend before the Commission pursuant to s 590(2)(a) of the Fair Work Act,18 (Fair Work Commission application 15) and an application for orders requiring the production of documents to the Commission pursuant to s 590(2)(c) of the Fair Work Act,19 (Fair Work Commission application 16). 51 Also filed on 17 September 2021 was an application for a serious breach declaration in relation to a proposed enterprise agreement pursuant to s 234 of the Fair Work Act,20 (Fair Work Commission application 17) and an application for the Commission to deal with an unlawful termination dispute pursuant to s 773 of the Fair Work Act,21 (Fair Work Commission application 18). Both of these applications related to the circumstances of the termination of Mr Keane’s employment by Woolworths and the latter sought reinstatement and a stay of the first unfair dismissal application. FWC application 17 was closed on the basis that Mr Keane failed to respond to correspondence from the Court and application 18 was discontinued by Mr Keane on 22 September 2021 during a hearing before the Commission. Magistrates Court proceedings 52 On 1 October 2021 Mr Keane filed his first application in the Magistrates Court (Magistrates Court application 1). This was a negligence claim brought against JD seeking an award of $20,346. Ms D was a Woolworths employee who had been Mr Keane’s supervisor. The basis of the claim was that she had been involved in the process that led to Mr Keane’s dismissal. 18 Section 590(2)(a) falls under the Powers of the Fair Work Commission to inform itself. This section falls under Part 5-1. The Fair Work Commission, Division 3 – Conduct of Matters before the Fair Work Commission. This subsection creates the power in the Fair Work Commission to “inform itself in relation to any matter before it in such manner as it considers appropriate by requiring a person to attend before it. 19 Section 590(2)(c) falls under the heading – Powers of the Fair Work Commission to inform itself. This section falls under Part 5-1. The Fair Work Commission, Division 3- Conduct of Matters before the Fair Work Commission. This subsection creates a power in the Fair Work Commission to “inform itself in relation to any matter before it in such a manner as it considers appropriate by requiring a person to provide copies of documents or records, or to provide any other information to the Fair Work Commission.” 20 Section 234 – Applications for intractable bargaining declarations. This section falls under Part 2-4 Enterprise Agreements under Division 8 – Fair Work Commission’s general role in facilitating bargaining. This section is part of a suite of sections aimed at facilitating negotiations about enterprise agreements. It therefore necessarily follows that there must be an ongoing employee/employer relationship. 21 Section 773 Application for the Fair Work Commission to deal with a dispute. This section falls under Part 6-4 – Additional provisions relating to termination of employment, Division 2 – Termination of Employment. This section creates an entitlement for an employee whose employment has been terminated to apply to the Fair Work Commission to deal with the dispute if the employment was terminated in contravention of s 772(1). Section 772(1) creates a prohibition against termination on enumerated grounds to give effect to certain international agreements relating to discrimination and termination of employment. -- 13 of 38 -- [2024] SASC 12 McDonald J 12 53 On 22 October Woolworths wrote to Mr Keane about this claim. In that letter they warned Mr Keane that if he did not discontinue the claim, they would make an application for security for costs. They said: With respect, your Claim is hopeless and bound to fail. As currently presented, it is so poorly pleaded it is liable to be struck out. It fails to demonstrate any of the facts required to establish a claim of negligence against our client. It is our client’s position that your claim is frivolous, vexatious and an abuse of process. It appears to be an attempt by you to put further pressure on, or take further action in relation to, our clients employer Woolworths. You have state as such during a recent call to the Woolworths people Advisory Line. As you are well aware, your repeated applications against Woolworths in the Fair Work Commission to date have all been unsuccessful. Woolworths has made it very clear to you that you will not be reinstated under any circumstances. We encourage you to give the contents of this letter serious consideration and seek legal advice. 54 On that same date Mr Keane discontinued the application. 55 On 7 October 2021 Mr Keane filed a defamation claim against AN seeking $259 and “full disclosure of events” (Magistrates Court application 2). Ms N was former Woolworths employee who had also had some involvement in the circumstances leading up to Mr Keane’s dismissal. As a result of Woolworth’s solicitors writing to him and filing an interlocutory application to have the matter struck out Mr Keane discontinued this application on 29 November 2021. Back to the Fair Work Commission 56 As previously mentioned on 20 October 2021 Commissioner Bissett dismissed Mr Keane’s second unfair dismissal application. As this application was brought out of time Mr Keane required an extension of time for FWC 10. Commissioner Bissett adopted the approach of determining the application for an extension of time first, acknowledging that even if he determined to grant the extension of time Mr Keane had 2 remaining significant hurdles namely the issue of the finality of the proceedings of the first appeal and the existence of a binding settlement agreement. 57 Having considered all relevant matters Commissioner Bissett refused the application for an extension of time. The determination of that question necessarily involved consideration of the history and merits of the application. The Commissioner concluded: Given the circumstances I have outlined in the history and in relation to the first application I am satisfied that there would be no utility in granting an extension of time. The unfair dismissal application cannot succeed as it has been settled through a binding agreement as found by Commissioner Platt and confirmed by the Full Bench. An application before me could not overturn either of those decisions. -- 14 of 38 -- [2024] SASC 12 McDonald J 13 58 As a result of that decision FW 15 and FW 16 fell away. 59 Two days later on 22 October 2021 Mr Keane sent an email to the solicitor for Woolworths and the chambers of Commissioner Bissett. In that email he requested an order for the reinstatement of his employment at Woolworths. Included in that email was the following: …Let me either have my hearing or go back to work. I find this commission using my sex life to make me unemployed, while knowing the person making the complaints was being paid to do so, is absolutely unacceptable. Please make an order for re-instatement. 60 On 22 October 2021 Mr Keane sent a further email to the chambers of Commissioner Bissett. After setting out a list of complaints Mr Keane concluded his email with the following: ‘Could the Commissioner please make an order for REINSTATEMENT AT WOOLWORTHS MOUNT BARKER TODAY. 61 On 25 October 2021 a response was sent to Mr Keane by Commissioner Bissett’s Associate. In that response the Associate advised Mr Keane that the unfair dismissal application had been dismissed, the Commissioner’s involvement with the application had come to an end and that the Commissioner could not and would not make an order immediately reinstating his employment. 62 On 9 November 2021 Mr Keane filed a third unfair dismissal application pursuant to s 394 Fair Work Act seeking reinstatement (Fair Work Commission application 19). Commissioner Bissett dismissed the application of her own motion on 22 November 2021. In the reasons for her decision Commissioner Bissett made some observations about Mr Keane’s approach to litigation in that Court. It is apparent that the Applicant is not prepared to accept that he settled his (first) unfair dismissal application in conciliation. No amount of patient explanation with him appears to bring him to acceptance of what he has agreed to do. Further the Applicant is not prepared to accept that, having settled matters associated with this dismissal, the Commission cannot order that he be reinstated to his previous job with the respondent.22 A period of overlap between proceedings in the Fair Work Commission and the Magistrates Court 63 On 15 December 2021 Mr Keane commenced further proceedings in the Magistrates Court against Woolworths seeking “to have my contractual obligations honoured, and my job returned to me” (Magistrates Court application 3). The proceedings named the Fair Work Commission as an interested party. On 22 Mr K v The Employer [2021] FWC 6380 [29]-[30]. -- 15 of 38 -- [2024] SASC 12 McDonald J 14 21 January 2022 Woolworths made an application that MC 3 be dismissed pursuant to r 85(1) of the Uniform Civil Rules 2020 (SA) (‘UCR’). That application was successful and a Magistrate dismissed MC 3. 64 On 19 January 2022 Mr Keane filed a fourth unfair dismissal application pursuant to s 394 of the Fair Work Act seeking reinstatement (Fair Work Commission application 20). Commissioner Bissett dismissed this application on 7 February 2022 expressing a degree of frustration in Mr Keane’s failure to accept the outcome of earlier proceedings. [17] In relation to this fourth application the Applicant has been given every opportunity to put submissions to the Commissioner which respond to my concern that the applicant has no reasonable prosect of success. He has not done so. He has already been heard on a number of occasions but patently refuses to accept the outcome. [20] In circumstances where issues associated with the termination of the Applicant’s employment are well settled on the first application, where two further applications for remedy for unfair dismissal have been dismissed and where the Commissioner does not have the power to do so as the Applicant seeks (order he be given his job back), I am satisfied that this fourth application has no reasonable prospects of success and should be dismissed. The Applicant needs to accept the decision of the Commission and should cease and desist from any further application to the Commission about his dismissal.23 65 It would appear that subsequent to this there was a hiatus of about 2 months during which Mr Keane engaged in no further dealings with the Courts. However, on 4 April 2022 Mr Keane filed a Notice of Appeal in the Fair Work Commission (Fair Work Commission application 21). On 5 April 2022 the Commission wrote to Mr Keane enquiring as to which decision he was purporting to appeal. Mr Keane did not respond and on that basis the matter did not proceed any further. 66 On 11 May 2022 Mr Keane filed a fifth unfair dismissal application pursuant to s 394 of the Fair Work Act (Fair Work Commission application 22). On 17 May 2022 Commissioner Bissett dismissed that application of her own motion. In her reasons for that decision, the Commissioner concluded: The Applicant must accept that the Commission can no longer deal with his dismissal. Further applications 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 the same dismissal, will be dismissed.24 67 On 7 June 2022 Mr Keane filed a negligence claim against SC in the Magistrates Court seeking damages in the sum of $10,159 and reinstatement of his employment. Mr C was an employee of Woolworths who had played a role in the investigation into Mr Keane which had resulted in his dismissal. The application was dismissed on 18 August 2022 on the basis that it was an abuse of process and/or that there was no reasonable basis for prosecuting the cause of action. 23 K v Employer [2022] FWC 167 [17], [20]. 24 K v Employer [2022] FWC 1148 [10]. -- 16 of 38 -- [2024] SASC 12 McDonald J 15 68 On 9 June 2022 Mr Keane filed two further applications in the Fair Work Commission. These were an application for an order for immediate reinstatement and compensation pursuant to s 343 Fair Work Act,25 (Fair Work Commission application 23) and an application for the Commission to deal with a dispute resolution procedure seeking reinstatement pursuant to s 345 of the Fair Work Act,26 (Fair Work Commission application 24). Both of these applications were dismissed by Commissioner Bissett of her own motion on 22 June 2022. In her reasons for the decision the Commissioner stated: [17] Mr Keane’s conduct in relation to multiple applications to the Commission is now taking on all of 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. [18] 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. Federal Court Proceedings 69 Perhaps as a consequence of those remarks in June 2022 Mr Keane turned his sights from the Fair Work Commission to the Federal Court. On 13 July 2022 Mr Keane filed an Originating Application for judicial review and a supporting affidavit in the Federal Court in relation to the Fair Work Commission proceedings. Mr Keane sought an order for compensation and reinstatement. 70 The hearing of the Federal Court proceedings did not occur until 8 November 2022. In the interim on 28 October 2022 Mr Keane filed a fifth unfair dismissal application pursuant to s 394 of the Fair Work Act (Fair Work Commission application 25). 71 On 8 November 2022 the judicial review was heard by O’Sullivan J. On that occasion extensive submissions were made by both parties. 72 On 14 November 2022 Commissioner Bissett dismissed the fifth unfair dismissal application of her own motion. On this occasion the Commissioner again expressed some frustration at Mr Keane’s conduct. [10] 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 25 Section 343 - Coercion. This section falls under Part 3-1 General Protections, Division 3 - Workplace Rights. This Part protects workplace rights. The section prohibits action being taken against an employee for exercising a workplace right. It applies to an ongoing employee/employer relationship. 26 Section 345 – Misrepresentations. This section falls under Part 3-1 General Protections, Division 3 – Workplace Rights. This Part protects workplace rights. This section prohibits making a false or misleading representation about the workplace rights of another. -- 17 of 38 -- [2024] SASC 12 McDonald J 16 by agreement between the parties in early 2021. This settlement agreement was recorded and transcript laid out the subsequent decisions. The Commission does not have the power to hear this application or to order his reinstatement with the Respondent absent any order from a court of competent jurisdiction that we should do so. [11] To put it plainly, the Commissioner cannot hear the application. The matter is closed. The continued attempts by the application 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. 73 Undeterred by what fell from the Commissioner, on that same day Mr Keane filed an application for the Commission to deal with a lawful termination dispute pursuant to s 773 of the Fair Work Act,27 (Fair Work Commission application 26). Whilst different in form to the previous five unfair dismissal applications it was in substance the same. On that basis I will refer to it as the sixth application relating directly to Mr Keane’s dismissal. 74 Prior to determining FWC 26 Commissioner Bissett wrote to Mr Keane advising him that given his previous unfair dismissal applications he could not make the application that he purported to make pursuant to s 773 of the Fair Work Act. The Commissioner set out the position in the following terms:28 Prior to this application you have…made 5 applications (unfair dismissal applications) in relation to your dismissal along with at least 9 miscellaneous application and 3 appeals. You have previously made an unlawful termination application which you withdrew after it was explained to you that it was unable to proceed. Section 729 of FW Act prohibits you from making an application under the general protection provisions (and other provisions) where you have already made an application under the unfair dismissal provisions and that has not…failed for want of jurisdiction or been withdrawn. In your case your unfair dismissal application was dismissed because you were found to have made a binding agreement to settle your case. Further, section 723 of the…FW Act states that you must not make an unlawful termination application in relation to your dismissal if you are able to make a general protections application. The Respondent to your application is a national system employer. That means that you are able to make a general protections application (this should not be taken to mean such an application would necessarily be successful for the reasons given above in relation to section 729 of the FW Act). 27 Section 773 – Application for the Fair Work Commission to deal with a dispute. This section falls under Part 6-4 – Additional provisions relating to termination of employment, Division 2 – Termination of Employment. This section creates an entitlement for an employee whose employment has been terminated to apply to the Fair Work Commission to deal with the dispute if the employment was terminated in contravention of s 772(1). Section 772(1) creates a prohibition against termination on particular grounds to give effect to certain international agreements relating to discrimination and termination of employment. 28 Mr K v The Employer [2022] FWC 3085. -- 18 of 38 -- [2024] SASC 12 McDonald J 17 In the circumstances where you do not appear to be eligible to make an unlawful termination application (and noting that you are barred from making a general protections application because your unfair dismal application has been determined) it is Commissioner Bissett’s preliminary view that you application should be dismissed as it is not within the power (jurisdiction) of the Commission to deal with the application. 75 After providing the parties with an opportunity to make written submissions on 25 November 2022 the Commissioner dismissed the application on the basis that as a consequence of having made an application pursuant to s 394, by virtue of s 725 Mr Keane was barred from making an application pursuant to s 773. 76 That same day Mr Keane filed two further applications. These were a seventh unfair dismissal application pursuant to s 394 of the FW Act (Fair Work Commission application 27) and an application for the Commission to deal with a dispute in accordance with a dispute resolution procedure pursuant to s 739 of the Fair Work Act,29 (Fair Work Commission application 28). The latter of these applications was essentially a repeat of application 24 and sought a stay of the first unfair dismissal decision, reinstatement of employment and compensation. On 21 December 2022 Commissioner Bissett dismissed both of these applications of her own motion. 77 On 11 January 2023 Mr Keane filed yet another unfair dismissal application (Fair Work Commission application 29). This was the eighth application of its type. The application was dismissed by Commissioner Bissett on 23 January 2023. In her reasons the Commissioner summarised the situation: The history and circumstances leading up to this application. [5] For the reasons given in the 6 previous decisions issued by Members of the Commission and in the decision in which the Applicant’s appeals were dismissed, this most recent application for unfair dismissal is dismissed pursuant to s 587(1) of the FW Act on the grounds that it has no reasonable prosect of success. [6] The Applicant has made a number of previous applications for the Commission to deal with a dispute in relation to his employment with the Respondent. For the reasons given in Mr K v The Employer the Applicant does not have standing to make the application and it is therefore dismissed on my own motion pursuant to s 587(1) of the FW Act on the grounds that it has no reasonable prospect of success. [7] The Applicant has now made 24 applications to the Commission in the space of 2 years in relation to his employment. He also has proceedings in the Federal Court. The Applicant’s persistence will not, without some material change in his circumstances, result in any change in the result of his applications. His dismissal has been subject to proceedings in the Commission and it has been finalised. There 29 Section 739 – Disputes dealt with by the Fair Work Commission. This section falls under Part 6-2 – Dealing with Disputes. Division 2 – Dealing with Disputes. This Part is about dealing with disputes between national system employees and their employers. Although this section relates to disputes dealt with in the Fair Work Commission it relates to disputes occurring within an employee/employer relationship. -- 19 of 38 -- [2024] SASC 12 McDonald J 18 will not be any further hearings, as circumstances currently stand, in relation to his dismissal. Further proceedings in the Fair Work Commission and Magistrates Court 78 On 27 January 2023 Mr Keane brought a defamation claim against SC seeking damages in the sum of $11,000 and reinstatement of his employment (Magistrates Court application 5). SC was a Woolworths employee central to the issues that resulted in the workplace investigation into Mr Keane’s conduct. I temporarily stayed that claim on 23 June 2023 pending the outcome of the application currently before me. In submissions it was put to me by counsel for Woolworths that regardless of the outcome of this application the defamation proceedings in the Magistrate Court are foredoomed to fail on the basis that it does not disclose a legitimate cause of action and further given the nature of the remedy sought (reinstatement) it is likely to be dismissed as an abuse of process. 79 On 5 February 2023 Mr Keane filed a further two applications in the Fair Work Commission. These were a general protections application involving dismissal pursuant to s 365 of the Fair Work Act,30 (Fair Work Commission application 30) and an application seeking interim orders requiring that he be re- instated to his previous employment pending the outcome of FWC 30 pursuant to s 589 of the Fair Work Act,31 (Fair Work Commission application 31). Whilst FWC 30 was different in form to the previous 8 unfair dismissal applications in substance it was the same and amounted to a ninth application of that nature. 80 Commissioner Bissett dismissed these applications on the same basis that she had dismissed FWC 26. 81 On 20 April 2023 Mr Keane filed his most recent application in the Fair Work Commission. That was an application seeking reinstatement of employment pursuant to s 345 of the Fair Work Act (Fair Work Commission application 32). This was effectively the tenth application for unfair dismissal. 82 Given that the application was made under s 345 – Misrepresentations, Commissioner Bissett wrote to Mr Keane in an attempt to obtain some clarity around the basis of the application. Although the Commissioner directed Mr Keane’s attention to the relevant issues that needed clarification, Mr Keane’s response was a rehash of his various complaints about how he had been treated by Woolworths. Mr Keane concluded by saying that he hoped the Commission would ‘take [his] application seriously and allow his application to proceed: He hoped for orders for reinstatement.’ 30 Section 365 – Application for the Fair Work Commission to deal with a dismissal dispute. This section falls under Part 31 General Protections, Division 8 Compliance, Subdivision A Contraventions involving dismissal. This section creates an entitlement for a person claiming to have been unfairly dismissed to apply to the Fair Work Commission to deal with the dispute. 31 Section 589 – Procedural and interim decisions. This section falls under Part 5-1 The Fair Work Commission, Division 3 – Conduct of matters before the Fair Work Commission. This section sets out the Fair Work Commissioner’s powers to make decisions and the forms that those decisions may take. -- 20 of 38 -- [2024] SASC 12 McDonald J 19 83 The Commissioner dismissed the application. In her reasons she made some pertinent observations about the history of the proceedings initiated by Mr Keane: [12] …the Applicant has a history (in a number of the previous 26 applications) of finding a section of the FW Act and using the words of the section without regard to the context of that section within the FW Act. He had previously made applications in relation to agreement making, bullying, bargaining, industrial action and pursuant to other sections of the FW Act. The majority of these applications have raised issues in relation to the process by which he entered into a binding settlement agreement in relation to his initial unfair dismissal claim from January 2021. None of the applications have been successful because he settled his unfair dismissal application. Even if this current application was properly made pursuant to a readily identifiable section of the FW Act, it is not complete and would not allow the Respondent to reply in any meaningful (sic). [13] The Applicant has been given every opportunity to clarify the basis of his application. While I appreciate he has responded to correspondence from the Commission, that correspondence failed to address the many difficulties raised by his application including the inability of the Commission, under any circumstances, to order his reinstatement. Further his submissions do no more than traverse issues that the Commission cannot deal with or that have been dealt with in past decisions or in his Federal Court proceedings. [14] There is no doubt that the Applicant’s continued approaches to the Commission do no more than waste the time and resources of Commission staff. Despite all of the applications made where he has been advised on many occasions that the Commission cannot and will not order his reinstatement, he continues to make multiple applications in the Commission, the Magistrates Court, and one application in the Federal Court. [15] As has been said in earlier decisions the time has come for the Applicant to accept that his unfair dismissal application has ended and the Commission will not re-open it or revisit it in any way. His needless applications to the Commission will not change this. [16] The application is therefore dismissed pursuant to s 587 of the FW Act on the grounds that it is not properly made and therefore has no reasonable prospect of success. Decision in the Federal Court 84 On 2 May 2023 O’Sullivan J dismissed Mr Keane’s application for judicial review. In His Honour’s reasons for the decision, he set out the manner in which the matter had progressed in the Federal Court. In that context O’Sullivan J observed:32 The applicant made oral submissions in addition to the material contained in his affidavit and annexures. Although explained to him that this hearing was not a review of the merits of his unfair dismissal application nonetheless his submissions focused on the merits of that application. In particular, much of the applicant’s submissions were directed to what he 32 Keane v Woolworths Group Ltd [2023] FCA 379 [28]. -- 21 of 38 -- [2024] SASC 12 McDonald J 20 considered was a conspiracy against him by amongst others, Woolworths, the South Australian Police Force, the Australian Defence Force and Adelaide University. 85 Although the Originating Application contained seven grounds, the only matters which had the potential to amount to jurisdictional error were grounds 1 and 7. As a consequence O’Sullivan J only dealt with those grounds. 86 Ground 1 alleged that Commissioners Platt and Hampton were “prejudicial (sic), biased and partial”. O’Sullivan J found that there was nothing in the materials or submissions put before the Court that supported the position that the Commissioners displayed actual or apprehended bias.33 87 O’Sullivan J described ground 7 as containing “a litany of complaints comprising Fraud; Negotiations in bad faith; Incompetence; Extortion, Concealing evidence; Coercion; Criminal gross misconduct; Averting the course of justice; Corruption; Apprehended bias; Surveillance; and Wiretapping.”34 In relation to these allegations O’Sullivan J found “there is no material of whatever type capable of supporting any of the remaining allegations in ground seven.”35 Accordingly he dismissed the application for judicial review. Proceedings in the Magistrates Court against the Shop Distributive and Allied Employee Association 88 On 9 May 2023 Mr Keane filed an originating statement of claim against the SDA (Magistrates Court application 6). The relief that Mr Keane sought in that claim was threefold namely: 1. That the court order the Union step in and help Mr Keane return to his employment and defend his workplace rights and entitlement; 2. Provide legal assistance at the cost to the Union, as stated with the long- standing contract Mr Keane alleges, he had with the Union, and for which Mr Keane has paid fees for over the years. 3. Specific performance, being for the Union to undertake work to protect Mr Keane’s workplace rights and let him go back to work without delay or hinderance from the issues created by the Union on Mr Keane’s behalf and without his informed consent. 89 On 16 November 2022 the claim was struck out as vexatious, frivolous and/or an abuse of the courts process. Proceedings in the Supreme Court of South Australia 90 In more recent times Mr Keane has taken to attending at the Higher Courts registry (‘the Registry’). On 17 March 2022, 5 April 2022, 12 May 2022, 24 June 33 Keane v Woolworths Group Ltd [2023] FCA 379 at [40]. 34 Ibid [42]. 35 Ibid. . -- 22 of 38 -- [2024] SASC 12 McDonald J 21 2022 and 13 January 2023 he attempted to file documents at the registry. These attendances were all prior to Woolworths initiating this action. On each occasion the documents were rejected by the Deputy Registrar or by a direction of a Master of the Supreme or District Court. Mr Keane lodged a Notice of Appeal pursuant to UCR r 13.4 in relation to the decision of the Deputy Registrar to reject an Originating Application on 5 April 2022. The application was for orders for discovery before an action against LB pursuant to rule 32.3(1)(c) of the UCR. The application had been rejected on the basis that it was an abuse of process. The review was conducted by Master Olsson who afforded Mr Keane the opportunity to be heard and give evidence from the bar table. 91 Master Olsson dismissed Mr Keane’s application for review of the Deputy Registrar’s decision to reject the application. In her reasons Master Olsson stated that Mr Keane’s submissions “clearly suggest an improper or collateral purpose in seeking to bring the application. Mr Keane is seeking to relitigate issues that are either before or have been determined by the Fair Work Commission. That too is an abuse of process.”36 92 As a consequence of Woolworths’ application for Mr Keane to be declared a vexatious litigant he has made efforts to file further applications. The first was an interlocutory application in the vexatious litigant proceedings filed on 26 May 2023(Supreme Court application 1) seeking an injunction “for reinstatement of employment.” I dismissed that application on 23 June 2023. 93 On 28 June 2023 Mr Keane filed a further interlocutory application (Supreme Court application 2). On this occasion it was an application to join the Shop Distributors Allied Union (the ‘SDA’) to the proceedings. I dismissed that application on the ground that there was no proper basis to join the SDA to the proceedings. 94 On 19 July 2023 Mr Keane attempted to file a Fraudulent Misrepresentation Claim (Supreme Court application 3) and a Cross claim against Woolworths and the SDA for $655,551.23 (Supreme Court application 4) in the Registry which was followed by an attempt to file a Form P1 “Final Notice” on Minter Ellison seeking reinstatement of employment and an apology pursuant to Rule 62.1 of the UCR. That rule provides that a final notice can be served as a pre-action step in relation to an intended claim which the applicant reasonably believes will be uncontested or is not genuinely contestable. Given the history of this matter it would be fanciful to suggest that Mr Keane could reasonably believe that Woolworths would not contest the action. 95 I advised Mr Keane that whilst these applications had not been accepted for filing and consequently were not formally before me, in the event that the documents were to be filed in their current form I would order that they be struck 36 Keane v The Registrar of the District Court of South Australia Action No.3715 of 2022 -- 23 of 38 -- [2024] SASC 12 McDonald J 22 out on the basis that the issue they attempted to address had already been dealt with and consequently they were vexatious and an abuse of the Courts processes. 96 On 1 September 2023 Mr Keane filed a further Interlocutory Application (FDN 23). The application was for “an interim order for re-instatement”. The orders sought were “an interim injunction against the Applicant, seeking the re-instatement of employment (so that time cannot be used as a factor against the respondent)” and “directing the Applicant to confirm and submit that it had passed along false and misleading evidence before the Commission in the matter of U2021/252, inducing a fraudulent contract due to misrepresenting facts and findings.” 97 In the application Mr Keane purported to rely on an affidavit dated 25 August 2023. No affidavit sworn on that date had been filed. 98 On 7 September 2023, Mr Keane forwarded a copy of the Interlocutory Application to my chambers. The accompanying email said the following: Parties were wondering considering there is no objection in any regard to the interlocking (sic) application, if her honour would make an order in chambers so that the respondent could return to work. 99 It was clearly incorrect to claim that there was no objection to the making of the order. 100 I advised Mr Keane that I declined to make the order and I dismissed the application from chambers. I did so on the basis that it was an abuse of process as it was yet a further attempt by Mr Keane to obtain the relief that he had attempted to obtain in the Fair Work Commission. 14 September 2023 - Subpoenas 101 The matter next came before the Court on 14 September 2023. In advance of the hearing Mr Keane provided a number of draft subpoenas and a dot point summary about why he said that he should be permitted to issue those subpoenas. 102 No legitimate forensic purpose was identified. I refused to issue the subpoenas. 19 September 2023 – Interlocutory Application (FDN 26) 103 On 19 September 2023 Mr Keane filed another Interlocutory Application (FDN 26). In this application he sought an urgent hearing “regarding allowing the respondent to cross claim against the Applicant seeking re-instatement and damages.” The order sought was: “leave to have the cross claim, and it’s justification to be accepted, the foundation and it’s content is already within prior affidavits, and have already been well established”. -- 24 of 38 -- [2024] SASC 12 McDonald J 23 104 The terms of the order sought demonstrate that Mr Keane was well aware that the issue had previously been determined. He was unhappy with the outcome and was yet again attempting to reagitate the same issue. 105 Mr Keane relied upon a further affidavit dated 18 September 2023. In that affidavit he complained about the proceedings in the Fair Work Commission. He deposed: The “Fair Work Commission of Australia” to (sic) refused to give me a fair hearing, in the form of a (sic) refusing to disclose any information about the hearings, participants, or even allow me to participate on any acceptable terms under common law principles, that was not appropriate behaviour and took place between the months of August of twenty-twenty to May of twenty-twenty-one, at least, and to the best of my knowledge, is still continuing, in these hearings. 106 In the affidavit Mr Keane also complained of being the subject of a police investigation which he suggested in some way intersected with the Fair Work proceedings. Mr Keane concluded the affidavit with the following: Why was I targeted for this criminal offence, I do not know, as I was not attempting to commit any form of criminal offence of my own, against any other person or organisation, and never have. The Rules of the Fair Work Act 2009 Cth, makes it clear that under section 228 of the fair work act, parties are obligated to negotiate in good faith, the forced settlement agreement does not comply with the rules, and is an attempt to conceal a criminal offence. Section 349 makes clear that misrepresentations are a criminal offence, and there is no doubt that a misrepresentation of my employment, its conditions and it is a fact that my workplace rights were wrongfully abused. 107 Attached to that Affidavit was a further document described as a “cross-claim”.37 The orders sought in that “cross-claim” were: 1. Alternative Mandamus (a command from the Courts) having Woolworths Group Limited disclose the complaints that were used against me, and the findings of their investigations. 2. Peremptory Mandamus (a command) ordering Woolworths Group to disclose to the Fair Work Commission that they ‘Woolworths Group Limited’ had passed on false and misleading information to police.” 3. An injunction imposed by the Supreme Court of South Australia against Woolworths Group Limited Supermarket, seeking my employment at a supermarket be returned to me, without delay, hinderance or nuisance, due to the fraud that they had committed on the respondent. 4. Damages as seen fit by the Court. 37 This “cross-claim” had not been filed. -- 25 of 38 -- [2024] SASC 12 McDonald J 24 108 Mr Keane provided details of his employment at Woolworths, details about the proceedings in the Fair Work Commission and concluded: I was wrongly terminated from my employment, due to South Australia Police being involved under fraudulent pretence, and Woolworths Group Limited’s representation lying to the Fair Work Commission during those proceedings. 109 The order that Mr Keane sought was: leave to have the cross-claim, and its justification to be accepted, the foundation and its contents is already within prior affidavits, and have already been well established. (Emphasis Added). 110 On 5 October 2023 having giving Mr Keane the opportunity to be further heard, I made an order to strike out the Interlocutory Application (and as a consequence the cross-claim) pursuant to the UCR r 34.1 on the basis that it was vexatious and an abuse of process. I did so on the basis that it was yet again a further attempt to reagitate the same issues that had exhaustively been dealt with in the Fair Work Commission. 111 On 15 December 2023, after I had reserved my decision on the application to have Mr Keane declared a vexatious litigant, Mr Keane attempted to file a further Statement of Claim alleging Fraudulent Misrepresentation against Woolworths. In a covering letter addressed to the Registrar, Mr Keane said the following: 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 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. -- 26 of 38 -- [2024] SASC 12 McDonald J 25 112 This letter further highlights Mr Keane’s intent to continue to pursue all options that he perceives are available to him to seek redress for the loss of his employment. 113 The Registrar rejected the Statement of Claim for filing pursuant to UCR 32.3(1)(c) on the basis that it was “frivolous, vexatious, scandalous or an abuse of the processes of the Court.” Other conduct relied upon by Woolworths 114 In assessing those matters that fall for consideration under s 39 the Court is not required to consider the institution of proceedings in a vacuum. Other conduct engaged in by a litigant may provide appropriate context against which to assess the litigious conduct. Contact with Woolworths and/or its staff 115 Mr Keane has repeatedly telephoned the Woolworths People Advisory Line. On at least 64 occasions he has called and demanded that his employment be reinstated. By way of example the following is a summary of a telephone call that Mr Keane made to the People Advisory Line on 23 February 2022. Thomas called and requested to activate his accounts. Thomas advised his manager had wrongly accused him of raping someone. Thomas advised due to his manager’s negligence he is suffering consequences. Thomas advised he is now suffering mental health issues and homelessness due to being accused of raping someone when it was not true. I advised Thomas I could not help him, who can then? Thomas said it is not that hard, you just have to push a fucking button. I advised Thomas I could not help and ended the call.38 116 Mr Keane has attended at the Woolworths Mount Barker store on multiple occasions and tried to talk to staff working in the store about his employment and dismissal as well as repeatedly asking for his job back.39 He has also attended at the homes of current and former Woolworths staff uninvited and has attempted to discuss his employment and dismissal.40 In addition to this Mr Keane has sent numerous messages to current and former employees of Woolworths via Facebook Messenger or text messages regarding his employment and dismissal. The following are examples of the nature of the messages sent by Mr Keane:41 1 July 2021 19:18 38 Affidavit of O’Keefe 3 May 2023 [80], EOK 53. 39 Affidavit of O’Keefe 3 May 2023 [82]. 40 Ibid [84]. 41 Ibid EOK 80 and EOK 81. -- 27 of 38 -- [2024] SASC 12 McDonald J 26 Hey Ash, I don’t know what Woolworths is thinking but I got falsely accused of raping someone and terminated for complaining that Woolworths has no right to investigate people’s personal lives. You’ve got people in high places at your fingertips, please help, this is disgraceful behaviour. 13 October 2021 05:18 Hey Maria, if you’ve started a business after helping Amy accuse me of rape, you quite possibility could go to jail for fraud and theft. I strongly suggest you tell me everything otherwise I’ll be paying a visit to your dean to talk about how appropriate it is for you to be in your courses, as well as a report to the AFP, as well as personal litigation. Contact with Minter Ellison 117 Minter Ellison has acted for Woolworths throughout all of the proceedings involving Mr Keane. 118 Mr Keane has contacted Minter Ellison approximately 10 times to try and discuss his employment and dismissal. This contact has included attending at Minter Ellison’s office (without invitation or notice) and telephone calls to the Minster Ellison switch board. 119 Mr Keane has sent over 200 emails to Minter Ellison, Woolworths staff and/or the Fair Work Commission regarding his employment and dismissal. By way of example on 6 August 2021 the following email was forwarded to the chambers of Vice President Catanzariti, Minter Ellison, the Secretary of the SDA SA branch and others. I want to know why, I was investigated for rape that didn’t happen. Who was it broadcast too. 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”. -- 28 of 38 -- [2024] SASC 12 McDonald J 27 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. 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. Has Mr Keane persistently instituted vexatious proceedings? 120 Section 39 of the Act cannot be invoked unless it can be established that Mr Keane has “persistently instituted vexatious proceedings in a court or tribunal of this State.”42 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 for the Court to exercise its discretion in favour of making the order.43 What amounts to Instituting Proceedings? 121 In Workcover Corporation of South Australia v Moore-McQuillan, 44Blue J gave consideration to the meaning of the word “institute” as it appears in s 39. His Honour made some observations about the generic nature of this term and observed: In general terms, the verb “institute” when used in relation to a proceeding is ambiguous. Sometimes it refers only to the commencement of a proceeding without encompassing its further prosecution. On other occasions, it encompasses the commencement and prosecution of proceedings. When the intention of the legislature is to refer only to a commencement of a proceeding, it tends to use words such as ‘begin’ or ‘commence’. A matter may be begun on reasonable grounds but as a result of subsequent developments become a proceeding without reasonable ground. Conversely, a matter may be begun without reasonable ground but as a result of subsequent developments becomes one for which there is a reasonable ground.45 122 Given that the evident purpose of 39 is to permit a form of control over litigation with the Court acting as a gatekeep in circumstances in which a litigant 42 This is in contrast to the broader scope of legislation in other jurisdictions which permit orders to be made where a person has persistently instituted vexatious proceedings in any Australian court or tribunal. 43 Georganas v Barkla [2021] SASC 47 at [47]-[49]. 44 [2016] SASC 191. 45 Ibid at [361] – [363]. -- 29 of 38 -- [2024] SASC 12 McDonald J 28 has previously persistently pursued proceedings which are vexatious, Blue J considered the word “institute” should be construed broadly. His Honour said: These considerations suggest that the word ‘institute’ in section 39 is used in its broadest sense to encompass the full gamut of the prosecution of a proceeding from beginning to end. On this construction, a proceeding has been instituted 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.46 123 In Garret and Anor v Mildara Blass Ltd and Ors; Attorney-General for the State of South Australia v Garrett, 47 Layton J considered the circumstances in which a person will be regarded as having “instituted proceedings” for the purposes of section 39. Her Honour summarised the combined effect of the authorities on this topic:48 In summary, those authorities indicate that a person will be regarded as having “instituted proceedings for the purpose of the Act if the person invokes the jurisdiction of the Court by: • filing an originating process; • making a counter claim 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 an additional party to the proceedings. 124 Her Honour went on to provide examples of interlocutory applications which have in the particular circumstances of the case been said to constitute the institution of proceedings. These included: an application to bring an additional party into the proceedings and an application to be joined as a party and to be substituted as the plaintiff.49 125 Section 39 defines “proceedings” as either civil or criminal proceedings. The Act does not define the term further. In Mitsubishi Motors v Kowalski,50 Duggan J observed that the term “proceedings” is used in the broad sense and refers to “a vehicle by which the jurisdiction of the Court is invoked and not to the subject 46 Ibid at [365] – [366]. 47 [2009] SASC 19. 48 Ibid at [123]. 49 Ibid at [124]. 50 [2004] SASC 302 at [36]. -- 30 of 38 -- [2024] SASC 12 McDonald J 29 matter of a justiciable dispute”.51 The mischief at which the legislation is aimed is the expense and inconvenience caused by repeated attempts to relitigate the same issue, not the taking of a novel point or the making of a specious argument. 126 In this matter Woolworths relies upon a number of different applications made by Mr Keane as amounting to “instituting proceedings”. These include, claims, interlocutory applications, cross-claims and applications for the issue of subpoenas.52 127 Whilst a number of the proceedings to which I have referred may be interlocutory in nature, in each case they seek to reverse, qualify or re-litigate a ruling or determination previously made, and therefore fall within the category of proceedings which s 39 addresses. 128 In my view the claims brought in the Magistrates Court were “proceedings instituted” by Mr Keane as were the 7 applications that Mr Keane filed in this Court. Has Mr Keane’s conduct been persistent? 129 The question that then arises for consideration is whether Mr Keane has ‘persistently’ instituted proceedings. The Courts have established a number of guiding principles in determining whether proceedings have been instituted ‘persistently’ namely: 1. The word ‘persistently’ is to be given its ordinary meaning; suggesting ‘determination and continuing in the face of difficulty or opposition with a degree of stubbornness’.53 2. In assessing ‘persistence’ the court should take into account: (a) the number of proceedings; (b) the character of those proceedings; (c) the manner in which the proceedings were conducted; (d) the extent to which the proceedings seek to relitigate that which has already been determined (including the extent to which they suggest a failure to accept an inability in law to further challenge decisions in respect of which the appeal process has been exhausted); and 51 Ibid. 52 The situation is further complicated as on occasions the nature of the application filed did not correlate with the orders actually sought. 53 Andrew Garett Wines Resorts Pty Ltd v National Australia Bank [2007] SASC 173 at [125]; Attorney- General v Kowalski [2014] SASC 1 at [1979]; Attorney General v Wentworth (1988) 14 NSWLR 481 at 492 per Roden J. -- 31 of 38 -- [2024] SASC 12 McDonald J 30 (e) the extent of ‘extravagant allegations which are not substantiated’54 3. It is possible to find ‘persistence’ despite a relatively small number of proceedings, particularly when those proceedings seek to relitigate a decided matter55 and 4. In considering the number of proceedings instituted regard should be had to new actions commenced as well as applications within actions and appeals, such as applications to join an additional party.56 130 In Brogden v Attorney General,57 the New Zealand Court of Appeal encapsulated the test in the following terms: 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 through 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. 131 As the proceedings to which s 39 applies are proceeding in South Australian Courts or Tribunals it is for Woolworths to establish that the 6 proceedings commenced in the Magistrates Court and the proceedings instituted in this Court amount to Mr Keane having persistently instituted proceedings. True it is that the number of proceedings directly relied upon is less than many other applications of this nature, those actions need to be considered against the backdrop of Mr Keane’s litigious behaviour in the FWC and the Federal Court. 132 In Georganas v Barkla Livesey J was confronted with circumstances bearing some similarity to the application currently before me. In that case however the application was made on the basis of one or possibly two sets of South Australian proceedings albeit against a history of over 30 proceedings instituted in Western Australia, the Federal Court and the High Court. In considering whether he could be satisfied that the proceedings had been persistently instituted, His Honour made the observation that it has been said many times that the requisite persistence may be established even though the number of proceedings is not particularly large, especially when those proceedings seek to relitigate an issue that has already been determined. Although Livesey J accepted that this requirement could conceivably be satisfied by the commencement of a small number of proceedings, he was not 54 Attorney-General (SA) v Kowalski [2014] SASC 1 at [1979]-[1980]. 55 Mitsubishi Motor v Kowalski [2005] SASC 154 at [277]-[278]. 56 Georganas v Barkla [2021] SASC 47 at [85]. 57 [2001] NZCA 208 at [21]. -- 32 of 38 -- [2024] SASC 12 McDonald J 31 satisfied the one or two sets of proceedings under his consideration met the requirements of the section. 133 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.”58 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. Is Mr Keane’s conduct vexatious? 134 Whether proceedings are ‘vexatious’ must be addressed by reference to the definition contained within section 39(5). It must be established that the proceedings were instituted to harass or annoy, to cause delay, for any other ulterior purpose or if instituted without reasonable grounds. The question of whether proceedings have been instituted vexatiously is to be determined objectively by examining the number, nature and grounds of the proceedings instituted by the litigant in a South Australian Court or Tribunal. 135 In Garrett Layton J considered the approach to be adopted in determining whether the conduct was vexatious. The proper approach for a Court in considering whether they were instituted without reasonable ground is to determine whether the proceedings instituted by the alleged vexatious litigant were ‘utterly hopeless or had no prospect of success.’ To assist in reaching this conclusion, the Court may have regard to the reasons given; orders made; other observations made by the Court in those proceedings; and whether there has been a successful strike out of the proceedings as disclosing no reasonable cause of action.59 136 In determining this question, the outcome of other Australian Court or Tribunal proceedings in other jurisdictions may assist in coming to the conclusion that the local proceedings are vexatious because they demonstrate that the point in 58 Brogden v Attorney-General [2001] NZCA 208 at [21]; Mitsubishi Motors Australia Ltd v Kowalski [2005] SASC 154 at [277]. 59 Garrett & Anor v Mildara Blass Ltd & Ors; Attorney-General for the State of South Australia v Garrett [2009] SASC 19 at [113]. -- 33 of 38 -- [2024] SASC 12 McDonald J 32 issue has been repeatedly instituted or conclusively determined elsewhere. As Perry J said in The-Attorney General for the State of South Australia v Burke: 60 …Reference to those other proceedings may legitimately be made if to do so helps to understand why certain proceedings were brought in this Court, or to explain, the case of appeals to the High Court, what further events have transpired with respect to proceedings in this Court which have otherwise terminated. 137 Put simply - to fail to take into account the extensive history of unsuccessful litigation that Mr Keane has engaged in would be to consider this application in an air of artificiality. 138 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. 139 I am satisfied that Mr Keane’s conduct in instituting proceedings in the South Australian Courts has been vexatious Should the section 39 order be made? 140 Having been satisfied of the jurisdictional requirements it is for the Court to consider whether it is appropriate to exercise the discretion to make an order in the terms sought. Section 39 represents a clear legislative intent to restrict and potentially abrogate what is otherwise a fundamental right of access to the Courts and Tribunals of this State. In Georganas v Barkla,61 Livesey J summarised the purpose of s 39. His Honour said: 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 costs associated with being unduly vexed by proceedings which are, for example, “without reasonable grounds”. In my view, 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. 141 It is also important to bear in mind at all times when determining whether to exercise the discretion to make the order, that throughout all of these proceedings Mr Keane has acted on his own behalf and without the benefit of legal advice or representation. In such circumstances it is important to ensure that there is not a worthwhile point buried somewhere within the multitude of applications made by 60 (1997) 190 LSJS 28 at 36. 61 [2021] SASC 47 [57]-[58]. -- 34 of 38 -- [2024] SASC 12 McDonald J 33 Mr Keane. It is important that the Court should guard against treating someone in the position of Mr Keane adversely because of an inability on his part to plead a cause of action in accepted legal language or style. 142 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. 143 In determining whether it is appropriate to make such an order I take into account the various Federal Court proceedings as well as Mr Keane’s overall conduct in persistently advocating for his cause in emails, telephone calls and in person. It is plain that absent an order of this Court Mr Keane will not desist. Mr Keane has repeatedly said as much during the various hearings in this Court. During submissions on the vexatious litigant application Mr Keane was unable to deviate from arguing his cause about the conspiracy that he believes is central to his inability to be reinstated to his previous employment. 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. 144 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 reinstatement of his employment. 145 Given my decision to make an order pursuant to s 39 it is not necessary for me to rely on this Courts inherent power to make an order to prospectively prevent new proceedings being continued or commenced in this Court and in inferior Courts or Tribunals of this State. In the event that s 39 was not available to me I would have no hesitancy in making an order by way of an injunction prohibiting Mr Keane from instituting such proceeding. -- 35 of 38 -- [2024] SASC 12 McDonald J 34 The terms of the order 146 As previously mentioned s 39 empowers the Court to make an order limiting a person from “instituting further proceedings or further proceedings of a particular class.” The final question that arises is whether an order cast in narrower terms than a general overarching order would be sufficient to achieve the purpose of limiting Mr Keane’s ability to attempt to continue to relitigate the issue of his employment at Woolworths. 147 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. 148 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.”62 149 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. Post Script 150 On 18 January 2024, shortly before I was due to hand down my decision on the application to have Mr Keane declared a vexatious litigant, Mr Keane filed an interlocutory application and a supporting affidavit.63 151 The interlocutory application was for “an urgent hearing to immediately dismiss Woolworths Group Limited’s vexatious litigant application.” In the supporting affidavit Mr Keane set out the same history of complaints that he has continued to ventilate since 2021. 152 In the affidavit Mr Keane raised the fact that throughout these proceedings he has been unrepresented, he said: [11] The respondent in the current matter, feels that the weight of the fraud and allegations committed against him, was, and continues to be under-consideration by the Courts, but does acknowledge that his prior submissions were not within the standards of a lawyer, of whom he has been constantly against. 62 Transcript 14 August 2023 at 47. 63 FDN 33 and 34. -- 36 of 38 -- [2024] SASC 12 McDonald J 35 153 He further elaborated: [12] The respondent is self-represented and believes that the action of filing a “vexatious litigant” application against the respondent, is/was the intent to cause as much disruption as possible to the respondent, who has limited resources and legal expertise. [13] Commencing legal proceedings in accordance with the rules of Court is an already daunting experience for most people, at the time, and still to this date, the respondent is dealing with several legal matters, all stemming from the issues caused by the misconduct Mr Keane has had to suffer. 154 Given that in his affidavit Mr Keane made repeated reference to having been unrepresented I was concerned that he may have been raising the issue of lack of procedural fairness, however consideration of the remainder of the affidavit reveals that there is nothing new in the complaints made by Mr Keane. In his affidavit he remains focused on his perception that a false allegation of sexual assault was made against him in 2020 and the injustice that he perceives consequently flows. 155 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. 156 This interlocutory application (FDN 33) yet again highlights the necessity in making the order sought by Woolworths. Orders 1. I dismiss the interlocutory application (FDN 33) in that it discloses no reasonable basis for the order to be made. 2. 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. 3. 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). 157 Should Mr Keane wish to commence proceedings or make an application in a South Australian Court or Tribunal, he must first correspond only with the Registrar of this Court, who will then determine whether and how to deal with what the respondent proposes. -- 37 of 38 -- [2024] SASC 12 McDonald J 36 4. 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). -- 38 of 38 --