Saffari v Amazon.com Inc

[2019] FCCA 2876

FEDERAL CIRCUIT COURT OF AUSTRALIA

SAFFARI v AMAZON.COM INC & ORS [2019] FCCA 2876

Catchwords:
ADMINISTRATIVE LAW – Application by the Australian Broadcasting Commission for non-party access to documents filed by the applicant contained in the Court file – applicant initially requests that there not be disclosure of filed documents to the public or the media – applicant then requests at first return date that filed documents be disclosed to the media – application for non-party access to certain documents on the Court file granted to the Australian Broadcasting Commission.

Legislation:

Privacy Act 1988 (Cth), s.80U

Applicant: SHAHRIAR SAFFARI

First Respondent: AMAZON.COM INC

Second Respondent: JEFF BEZOS

Third Respondent: BOYD THIBODEAUX

Fourth Respondent: ROCCO BRAEUNIGER

File Number: SYG 1934 of 2019

Judgment of: Judge Dowdy

Hearing date: 27 September 2019

Delivered at: Sydney

Delivered on: 9 October 2019

REPRESENTATION

The Applicant appeared in person.

Counsel for the Fourth Respondent: Mr A. Byrne of Counsel

Solicitors for the Fourth Respondent: Dentons

There was no appearance for the First Respondent, Second Respondent or Third Respondent.

THE ORDERS OF THE COURT ARE AS FOLLOWS:

1. Access be granted to the Australian Broadcasting Corporation to view the:

   (a)Originating Application filed on 31 July 2019;

   (b)Supporting Affidavit of Shahriar Saffari filed on 31 July 2019; and

   (c)Affidavit of Service of Mark Wood filed on 29 August 2019.

2. The Applicant is to file and serve a Draft Statement of Claim setting out the matters, facts and circumstances said to ground his claim against each of the Respondents by 18 October 2019.

3. The matter is listed for directions on 8 November 2019 at 9:30am in Court 9.2, Terrace Tower Group Building, 80 William Street, Sydney, before Judge Dowdy.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1934 of 2019

SHAHRIAR SAFFARI

Applicant

And

AMAZON.COM INC

First Respondent

JEFF BEZOS

Second Respondent

BOYD THIBODEAUX

Third Respondent

ROCCO BRAEUNIGER

Fourth Respondent

REASONS FOR JUDGMENT

1. This proceeding commenced by the filing on 31 July 2019 of an Application (Originating Application) and accompanying Affidavit affirmed by the Applicant on 26 July 2019 (Supporting Affidavit). The Applicant then on 28 August 2019 filed an Affidavit of Service of a Mr Mark Wood made on 27 August 2019 (Affidavit of Service). The Originating Application seeks relief under s.80U of the Privacy Act 1988 (Cth).

2. The first return date of the Application before the Court was appointed for 27 September 2019. On 17 September 2019 the Applicant forwarded an email to the Registry of the Court which requested that the contents of the Originating Application and Supporting Affidavit not be provided to the public or the media.

3. Then on 18 September 2019 the Australian Broadcasting Commission (ABC) made a request for non-party access to the Originating Application, Supporting Affidavit and Affidavit of Service pursuant to r.2.32 of the Federal Court Rules 2011 (Cth) which are applicable to this Court by virtue of r.1.05(2) of the Federal Circuit Court Rules 2001 (Cth).

4. The Registry referred the request of the ABC to me in Chambers by email of 20 September 2019, but I deferred making any ruling until the first return date of 27 September 2019 when the Applicant appeared in person and Mr Byrne of Counsel appeared on behalf of the Fourth Respondent. There was no appearance by any other Respondent to the Application.

5. The transcript of what occurred at the first return date will speak for itself. However in short, early in the hearing the Applicant withdrew his request that the Originating Application and Affidavit of Service not be provided to the public or the media and stated that the public and the media could access those documents.

6. At that point Mr Byrne assumed the role of a friend of the Court in putting to me matters that the Applicant as a self-represented litigant might have put to the Court in favour of an order refusing access to the ABC, notwithstanding the Applicant’s own statement that he was happy for the public and the media to see the two documents. When Mr Byrne had finished addressing the Court the following exchange took place:

   HIS HONOUR:  Thank you, Mr Byrne.  Mr Applicant, notwithstanding that you withdrew your opposition, you’ve now heard what Mr Byrne has had to say, and in the highest traditions of the bar he has assisted the court and put to me things that he thinks you might have said in favour of non-disclosure.  What have you got to say about what he has had to say?  Are you asking for disclosure or are you opposing – do you want to change your mind and oppose disclosure, having listened to what he has said, or are you happy for there to be disclosure to the ABC?

   MR SAFFARI: I will be happy [for] disclosure to ABC or any other organisation.  It seems to me that they’re admitting guilt.  That, as the counsel mentioned, that the cat is out of the bag;  everybody knows who I am.  I receive phone calls.  They know my name, they know my home and they even have my phone number; I receive phone calls. That’s how ABC found me; my phone rang and it was ABC. So there is no reason to oppose when it’s too late.

7. Notwithstanding the above fairly unequivocal statement of position by the Applicant, Mr Byrne continued to put to me that it would not be in the Applicant’s best interests for disclosure to be made, and it transpired that he had understood that his client and the Applicant had initially held a shared position in relation to non-disclosure, from which the Applicant had “changed” when he had withdrawn his request of non-disclosure as recorded in [5] above.

8. In the result I ended further submissions from Mr Byrne on behalf of the Applicant in the following terms:

   HIS HONOUR: I want to shut down discussion on your [part on] behalf of the self-represented litigant. I’ve heard you at some length.  He has told me that, notwithstanding that he has listened to what you say, he is entirely content for the ABC to know about the case and have the application.  All right.  Now, if you want to put to me that there should be – there should be confidentiality on behalf of your own client – do you want a moment to get instructions? 

9. After a short adjournment Mr Byrne returned to Court and advised me that his own client did not oppose disclosure of the Originating Application and Affidavit of Service.

10. I then indicated to the parties that I proposed to grant access to the ABC to the Originating Application and Affidavit of Service, but not to the Supporting Affidavit, at which point the Applicant indicated that he would prefer that the Supporting Affidavit also be shown to the ABC, and in these circumstances I made the orders appearing above.     

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Judge Dowdy

Associate: 

Date:  9 October 2019