Keane v Woolworths Group Limited

BACKGROUND 8 The background to this matter is usefully set out by O'Sullivan J at [1]-[5]: [1] 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. [2] 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. [3] Subsequently, there was a dispute between the parties as to whether in fact a binding settlement had been reached. [4] 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. [5] 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). 9 The history of the litigation between the applicant and Woolworths is extensive. This history is largely set in the affidavit of Ms O'Keeffe dated 2 November 2022. 10 Woolworths submitted that since 2 November 2022, the applicant has brought further proceedings against Woolworths or its employees in both the FWC and the Magistrates' Court of South Australia. None of the applicant's claims have been successful. 11 Woolworths commenced vexatious litigant proceedings against the applicant in the Supreme Court of South Australia on 3 May 2023. Woolworths noted that McDonald J reserved her judgment in that matter on 11 October 2023.

LEGAL PRINCIPLES 12 Rule 35.13(a) of the Federal Court Rules 2011 (Cth) provides that an application to seek leave to appeal must be made within 14 days after the date on which the judgment was pronounced. O'Sullivan J pronounced judgment on 2 May 2023 and therefore the applicant's application for leave to appeal had to be filed by 16 May 2023. 13 Rule 35.14 of the Rules permits a party to apply for an extension of time to seek leave to appeal and subrule (3) sets out several documents that must accompany the application, including the judgment from which leave to appeal is sought, an affidavit and a draft notice. The applicant's Extension Application did not comply with r 35.14 as it did not include O'Sullivan J's decision or a draft notice. Putting those procedural failings to one side for a moment, has the applicant demonstrated any reason why the Court should exercise its discretion to allow the extension of time in which to seek leave to appeal? 14 The applicant bears the onus of establishing that an extension should be granted: Khondoker v Minister for Immigration and Citizenship [2012] FCA 654 at [56] (per Foster J). 15 The Court may consider any relevant matter. The discretion is unconfined and turns on its own facts. However, the general principles governing this discretion are well settled: see Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 403 ALR 604 at [12]-[18] (per Kiefel CJ, Gageler, Keane and Gleeson JJ); Sang v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1572 at [33] (per Colvin J); Mehmood v Attorney-General of the Commonwealth (2013) 141 ALD 339 at [3]-[6] (per Foster J). 16 Relevant considerations include: the length of the delay; the applicant's explanation for delay; whether there is any prejudice to the respondent; and the merits of the proposed application for leave to appeal: Pfizer Ireland Pharmaceuticals v Samsung Bioepis Au Pty Ltd [2017] FCA 573 at [4] (per Nicholas J). See also Hunter Vally Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 3 FCR 344 at 348-9 (per Wilcox J). 17 Finally, it is important that the applicant understands the distinction between merits review and judicial review. Although the applicant sought judicial review of Commissioner Platt's decision before O'Sullivan J, and now seeks to file an application for leave to appeal O'Sullivan J's decision, his submissions and evidence were, as noted above, almost entirely directed to the merits of the various FWC decisions. 18 Judicial review concerns the lawfulness of administrative action and merits review concerns the appropriateness of administrative action. Judicial review cannot consider the factual merits of a particular case. 19 The fundamental statement of principle was made in the oft cited passage by Brennan J in Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-6: The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone. 20 More recently, and in the context of judicial review of FWC decisions, Anderson J said in Pal v Commonwealth of Australia [2020] FCA 1483 at [55]-[56]: [55] When conducting judicial review, the Court does not engage in "merits review": Menzies v Fair Work Commission [2020] FCA 36; 293 IR 301 (Menzies) at [27] (per Katzmann J). As Katzmann J stated there: A person who is aggrieved by a decision of the [Fair Work] Commission has no right of appeal to this Court. Nor is it a merits review. Rather, it is a judicial review. In such a review, no matter what the Court may think of the decision under review, it cannot inquire into the merits. The jurisdiction of the Court is a limited one, conferred by s 562, read with s 563, of the [Fair Work Act] and also by s 39B of the Judiciary Act 1903 (Cth). In the absence of error of law on the face of the record, the Court may only grant relief for jurisdictional error, and the onus is on the applicant to establish that the decision under challenge is affected by jurisdictional error [56] The distinction between judicial review and merits review should be briefly noted. By way of brief overview, this Court's role was reviewing the Full Bench's decision, not in an effort to remake it according to this Court's own view of the merits of the matter, but to ensure that the Full Bench stayed within the legal limits imposed on the Full Bench's decision: Attorney-General (NSW) v Quin (1990) 170 CLR 1 (Quin) at 35-36 (per Brennan J).

Length of delay 21 The applicant's delay in filing the Extension Application is significant. The Extension Application was filed some four months after the time to appeal had expired.

Explanation for the delay 22 In his supporting affidavit dated 6 October 2023, the applicant submitted the delay was because he was "perusing (sic) [pursuing] the matter in the Supreme Court of South Australia". 23 Woolworths submitted that it is only aware of one matter between it and the applicant in the Supreme Court of South Australia which is a vexatious litigant application commenced by the Woolworths against the applicant. The applicant did not provide any evidence of any other proceedings on foot against Woolworths in the Supreme Court of South Australia. Therefore, I am not satisfied that the applicant has, in fact, pursued this (or any related) matter in the Supreme Court of South Australia. In any event, pursuing the same or a related matter in a different jurisdiction is not of itself an adequate reason for the significant delay. 24 The applicant has also cited testicular damage, distrust of the judiciary, psychological trauma, mental health, chronic fatigue and grossly inadequate legal assistance as reasons for the delay. 25 The applicant has not provided any supporting evidence for these claims. For example, he has not provided any medical evidence, stated what steps he took to obtain legal advice and from whom, or ascribe a date to any of the events on which he relies. Further, the applicant has not deposed that he was unaware of the limited time in which to seek leave to appeal under the Rules. 26 In these circumstances, none of the reasons put forward by the applicant provide a satisfactory explanation for the delay.

Prejudice to the respondent 27 Woolworths submitted that the prejudice against it can be assumed as Woolworths has a "vested right to retain the judgment": Tomko v Palasty (No 2) (2007) 71 NSWLR 61 at [55] (per Basten JA, Hodgson JA and Ipp JA agreeing). Woolworth says this is particularly so in circumstances where the applicant has sought to agitate his grievance against Woolworths multiple times in a number of other courts and tribunals. 28 I agree that, given the applicant's repeated and unsuccessful attempts to reagitate the facts underlying this matter, Woolworths would suffer a prejudice if the applicant was permitted to seek leave to appeal despite a four-month delay and other examples of non-compliance with the Rules.

Merits of the proposed application for leave to appeal 29 The applicant has not filed a separate application for leave to appeal or draft notice of appeal. However, it is evident from the applicant's affidavits and submissions that he is seeking to re-litigate his original unfair dismissal application in order to be reinstated by Woolworths to work at its Mount Barker store. 30 As O'Sullivan J observed at [42], the applicant raised in the JR Application "a litany of complaints comprising Fraud; Negotiating in bad faith; Incompetence; Extortion; Concealing evidence; Coercion; Criminal gross misconduct; Averting the course of justice; Corruption; Apprehended bias; Surveillance; and Wiretapping". 31 Similar complaints were raised by the applicant in the Extension Application, including that Woolworths committed fraud, engaged in bad faith negotiations, falsified documents and fabricated rape allegations against the applicant; the FWC engaged in deceit, failed to observe natural justice and allowed Woolworth's alleged wrongdoing; and the South Australian Police falsified crimes against the applicant. 32 In response to such submissions, O'Sullivan J held at [43]: These are very serious allegations. The second respondent submits that the appropriate course would be for the Court to not entertain the allegation of fraud. Putting aside the issue of apprehended bias with which I have dealt above, there is no material of whatever type capable of supporting any allegation of fraud. So too, there is no material of whatever type capable of supporting any of the remaining allegations in ground seven. 33 I respectfully agree with his Honour. The applicant has not raised any new material in the Extension Application that supports any of the very serious allegations that he has made. In fact, the applicant's submissions and affidavit evidence almost entirely addressed these unrelated issues and did not provide any adequate or relevant explanations for the delay in seeking leave to appeal O'Sullivan J's decision. 34 Ultimately, the applicant's materials filed in this matter do not demonstrate any error of law in O'Sullivan J's decision. The applicant's assertion that O'Sullivan J stated during the hearing of the JR Application that "they [Woolworths] absolutely knew what they were doing was unlawful" (or something to that effect) is not reflected in the transcript. 35 In correspondence to Chambers, the applicant also alleged that O'Sullivan J failed to address any of the issues in FWC proceeding U2021/252 before Commissioner Hampton. That contention cannot be sustained. The decision under review before O'Sullivan J was that of Commissioner Platt, not Commissioner Hampton. In any event, O'Sullivan J carefully considered the background of the matter, which included the conciliation conducted by Commissioner Hampton: at [2], [20]-[22], [38]-[39]. 36 An extension of time to seek leave to appeal will not be granted "where there are no reasonable prospects of success on the appeal": BQQ15 v Minister for Home Affairs [2019] FCAFC 218 at 33 (per Yates, Wheelahan and O'Bryan JJ) citing Kalanje v Minister for Immigration and Multicultural Affairs [2006] FCA 1618 at [5] (per Finn J). 37 The applicant has not raised any arguable ground on which to appeal O'Sullivan J's decision and therefore I do not consider that the proposed application for leave to appeal has any reasonable prospects of success.

CONCLUSION 38 Accordingly, the application for an extension of time be dismissed. I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rofe.