Keane v Registrar of the Federal Court of Australia

1. INTRODUCTION 1 On 23 January 2024, the applicant, Mr Keane, filed an originating application for judicial review of a decision by the respondent, the Registrar of the Federal Court of Australia, to reject documents for filing on 10 January 2024. 2 The details of claim were set out in the application as follows: The Applicant is aggrieved by the decision because:
   1. The documents filed were within the rules of the federal court.
   2. The documents provided an evidentiary basis to challenge the statements made by Justice's [sic] Rofe and O'Sullivan when dismissing Mr Keane's application, proving it is not vexatious.
   3. The documents have not previously been submitted to the court, due to the inadequacy of the Commonwealth Courts Portal and lack of directions to the Applicant.
   4. The documents provide a clear basis for Mr Keane's allegations that Justice O'Sullivan made an intentional error at law when determining SAD113 of 2022, and were submitted to rectify an abuse of the courts by the respondents of the matters. 3 On 1 February 2024, the applicant filed an interlocutory application seeking "[a]n immediate hearing regarding the evidence Mr Keane is submitting to the court". 4 On 2 May 2024, the respondent filed a submitting notice, submitting to any order the Court may make save as to costs. 5 The applicant is a self-represented litigant and I am conscious of the difficulties he faces when navigating the rules and procedures of this Court. I am also conscious that the initial dispute between the applicant and his former employer has caused him.

2. BACKGROUND 6 This matter arises in the context of extensive litigation between the applicant and a third party, Woolworths Group Limited. The initial processes before the Fair Work Commission following Mr Keane's dismissal from his employment were conveniently summarised by O'Sullivan J in Keane v Woolworths Group Ltd [2023] FCA 379 at [1]-[5] (first FCA decision) as follows: Until 21 December 2020, the applicant was employed by the first respondent, Woolworths Group Limited at which time his employment was terminated. He filed an unfair dismissal application with the Fair Work Commission seeking reinstatement of his employment and compensation for lost wages. On 18 March 2021, the parties participated in a Conciliation conducted by Commissioner Hampton of the Commission. Woolworths contend that at that Conciliation, the parties reached a binding settlement. Subsequently, there was a dispute between the parties as to whether in fact a binding settlement had been reached. Woolworths issued an application pursuant to s 587 of the Fair Work Act 2009 (Cth) seeking dismissal of the application on the basis that the parties had reached a binding settlement. Commissioner Platt heard that application on 9 April 2021 and delivered a decision on 19 April 2021. The Commissioner found the parties had reached a binding settlement. Accordingly, the Commissioner dismissed the applicant's unfair dismissal application (Decision). (Emphasis in original.) 7 In the first FCA judgment, the applicant sought judicial review of the Commissioner's decision on 9 April 2021. Justice O'Sullivan found that there was nothing in the material before the Court to support the applicant's allegations of actual or apprehended bias on the part of the Fair Work Commissioners. Nor did his Honour consider that there was any material of any kind which was capable of supporting the applicant's allegations of fraud and other serious allegations. Accordingly, O'Sullivan J held that the Commission's decision was not affected by jurisdictional error and dismissed the application. 8 Subsequently, unsuccessful proceedings were apparently also instituted by the applicant against Woolworths or its employees in the Fair Work Commission and Magistrates Court of South Australia: Keane v Woolworths Group Limited [2023] FCA 1634 at [10] (second FCA decision). 9 On 9 October 2023, the applicant lodged an application for an extension of time in which to seek leave to appeal the first FCA decision. On 19 December 2023, Rofe J dismissed this application on the basis the applicant had not given any satisfactory explanation for the substantial delay in filing the application for an extension of time and his application did not raise any arguable grounds on which to appeal the first FCA decision: second FCA decision at [26] and [37]. 10 The applicant sought to file an interlocutory application on 4 January 2024 seeking leave either to file new submissions in the extension of time proceedings, or to be granted the extension of time. The interlocutory application and accompanying affidavit, also dated 4 January 2024, (together, the Documents) were rejected for filing by the Registrar on 17 January 2024 for reasons I shortly explain. 11 The interlocutory application sought:
   1. Permission to allow the applicant to re-submit "extension of time" submissions or Dispense with application for extension of time, and proceed with the facts of the matter.
   2. Grant injunction setting aside decision of Commissioner Platt & Justice O'Sullivan.
   3. Hear and grant an injunction against the first respondent re-instating the employment of the Applicant. 12 The affidavit contained various allegations against the applicant's former employer and the FCA, and sought to re-litigate the dispute that O'Sullivan J dismissed in the first FCA decision. The effect of the applicant's written and oral submissions was that his dismissal from Woolworths was unlawful and the findings of the Fair Work Commission and FCA were obtained through fraud. 13 On 23 January 2024, the applicant filed an originating application with this Court for judicial review of the Registrar's decision not to accept the documents for filing. 14 Following a hearing on 17 July 2024, I made orders granting the applicant a further two weeks to file and serve any further materials on which he sought to rely. On 29 July, the Registry advised the applicant that documents which the applicant sought to file on 10 January 2024 - an interlocutory application and affidavit - were not in evidence and needed to be filed for me to properly consider the application. On 31 July, the applicant filed further evidence and submissions. However, these submissions and evidence only addressed Mr Keane's grievance against his former employer. 15 On 2 August 2024, I requested that the respondent assist the Court by providing the interlocutory application and affidavit which had been rejected for filing on 10 January 2024. The respondent filed the requested documents on 6 August 2024.

3. THE REGISTRAR'S DECISION NOT TO ACCEPT THE DOCUMENTS FOR FILING 16 On 17 January 2024, the Registrar wrote to the applicant to advise him that the Registrar had determined that the Documents should not be accepted for filing pursuant to r 2.26 of the Federal Court Rules 2011 (Cth). The Registrar set out the following reasons for refusing the documents for filing: Rule 2.26 of the Federal Court Rules 2011 (Cth) states that a Registrar may refuse to accept a document (including a document that would, if accepted, become an originating application) if the Registrar is satisfied that the document is an abuse of the process of the Court, or is frivolous or vexatious on the face of the document, or by reference to any documents already filed or submitted for filing with the document. … In relation to matter, SAD 132/2023, Justice Rofe delivered a judgment on 19 December 2023 and made final orders. For this reason the Documents are, on their face, an abuse of the process of the Court, and frivolous and vexatious. 17 Rule 2.26 of the Rules relevantly provides that: Refusal to accept document for filing - abuse of process or frivolous or vexatious documents A Registrar may refuse to accept a document (including a document that would, if accepted, become an originating application) if the Registrar is satisfied that the document is an abuse of the process of the Court or is frivolous or vexatious: (a) on the face of the document; or (b) by reference to any documents already filed or submitted for filing with the document. 18 The purpose of this rule, in common with O 46 r 7A of the Rules as previously in force, is to ensure that the Registrar may refuse to accept or issue a document without first obtaining authority from judge and thereby "to assist the Registrar to maintain efficient operation of a registry and, thereby, the Court": Bizuneh v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 128 FCR 353 at [15] (Lee, Whitlam and Jacobson JJ); see also Nyoni v Murphy (2018) 261 FCR 164; [2018] FCAFC 75 at [33] (Barket, Banks-Smith and Colvin JJ) and Ferdinands v Registrar Cridland [2022] FCAFC 80 (Ferdinands (FCAFC)) at [6] and [29] (Charlesworth, Burley and Cheeseman JJ). 19 While there is no definition of the words "vexatious" and "frivolous" in the Rules, White J in Ferdinands v Registrar Cridland [2021] FCA 592 (Ferdinands (FCA)) explained at [27]-[28] and [30] that: … However, the term "vexatious proceeding" is defined in s 37AM(1) of the Federal Court of Australia [Act] 1976 (Cth) (the FCA Act) for the purposes of Pt VAAA of the Act. That section provides: vexatious proceeding includes: (a) a proceeding that is an abuse of the process of a court or tribunal; and (b) a proceeding instituted in a court or tribunal to harass or annoy, to cause delay or detriment, or for another wrongful purpose; and (c) a proceeding instituted or pursued in a court or tribunal without reasonable ground; and (d) a proceeding conducted in a court or tribunal in a way so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose. As is apparent, that definition is not an exhaustive definition. It indicates, however, that a proceeding will be vexatious if, amongst other things, it is instituted or pursued without reasonable cause. … As is apparent, a proceeding will be frivolous and vexatious if, amongst other things, it is based on a cause of action which no reasonable person could properly treat as bona fide or if it is without substance, groundless, or fanciful. … (Approved by the Full Court in Ferdinands (FCAFC) at [8].)

4.1 Jurisdiction to review the Registrar's decision 20 An application for judicial review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) is the appropriate means by which to seek review of a decision of a Registrar under r 2.26, given the Registrar's discretion is administrative and there is no exercise of judicial power: Ferninands (FCAFC) at [7] (quoting with approval Nyoni at [38]). 21 Justice Needham helpfully set out the relevant principles in AZO24 v Registrar, Registry of New South Wales, Federal Court of Australia (No 2) [2024] FCA 1004 at [21]-[25]: This Court has jurisdiction to review the Registrar's decision under the [Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act)], and in exercise of its original jurisdiction conferred by s 39B(1) of the Judiciary Act 1903 (Cth). Amongst other things, the ADJR Act applies to a decision of an administrative character, proposed to be made, or required to be made (whether in the exercise of a discretion or not), under an Act of the Commonwealth. In Nyoni v Murphy (2018) 261 FCR 164; [2018] FCAFC 75 at [41], (per Barker, Banks-Smith and Colvin JJ) the Court noted that a Registrar's decision in refusing to accept documents for filing was a decision of an administrative character and may be susceptible to judicial review under the ADJR Act. Section 5(1) of the ADJR Act provides that in order for a person to have standing to seek a review of a decision pursuant to that section, the person must be "aggrieved" by the decision to which the ADJR Act applies. Relief under the ADJR Act is discretionary: s 16 of the ADJR Act. 22 Accordingly, I am satisfied I have jurisdiction to review the Registrar's decision.

4.2 The application constitutes an abuse of process 23 The Registrar was correct to conclude that the documents should not be accepted for filing pursuant to r 2.26 of the Rules. The documents filed by the applicant sought to disregard the appeal process of the Court. 24 The effect of the Second FCA Decision is that the applicant has no appeal rights from the First FCA Decision, due to the applicant's failure to file an appeal in time and the Court's decision not to exercise its discretion to allow his application for an extension of time within which to appeal. The present application seeks nonetheless to relitigate the First FCA Decision by using the judicial review process. However, a decision of the Court can only be corrected on appeal, and not by any collateral process. 25 Furthermore, the accompanying affidavits filed by the applicant made multiple sweeping allegations of fraud which did not rise above bare assertion, notwithstanding the applicant's apparent personal belief in the allegations. 26 In these circumstances, I find the application plainly constitutes a vexatious proceeding and an abuse of process. The originating application must therefore be dismissed on this basis. In circumstances where the Registrar submitted save as to costs, there will be no order as to costs. I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Perry.