Saffari v Amazon.com Inc
[2023] FedCFamC2G 146
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Saffari v Amazon.com Inc [2023] FedCFamC2G 146
File number(s): SYG 1934 of 2019 Judgment of: JUDGE STREET Date of judgment: 17 February 2023 Catchwords: FAIR WORK - enforcement of costs order – extending liberty to apply Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth): s 190, s 191
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth): r 1.04
Division: Division 2 General Federal Law Number of paragraphs: 12 Date of hearing: 17 February 2023 Place: Sydney Applicant In person First Respondent No appearance Second Respondent No appearance Third Respondent No appearance Counsel for the Fourth Respondent Mr A Byrne of Counsel Solicitor for the Fourth Respondent Dentons ORDERS
SYG 1934 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SHAHRIAR SAFFARI
Applicant
AND: AMAZON.COM INC
First Respondent
JEFF BEZOS
Second Respondent
BOYD THIBODEAUX (and another named in the Schedule)
Third Respondent
order made by:
JUDGE STREET
DATE OF ORDER:
17 FEBRUARY 2023
THE COURT ORDERS THAT:
1.Order 6, made on 24 February 2021, is varied to permit the bringing of the application for fixed costs as filed on 3 November 2022.
2.Order 5, made on 24 February 2021 is varied so as to read “the applicant pay the fourth respondent the cost of the proceedings as assessed at $9,900.00 within twenty-eight (28) days.”
3.The application in a case filed by the applicant on 9 December 2022 is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE STREET
On 31 July 2019 these proceedings were commenced and this Court made orders, on 24 February 2021, which relevantly included the following as outlined below:
5. The applicant pay the fourth respondent’s costs of the proceedings as agreed and assessed.
Order six provided liberty to apply within seven days to seek a fixed costs order as identified by the Court below:
6. Liberty to apply within seven days to seek a fixed costs order as identified by the Court.
The Court had a notation in which it identified that it was satisfied that there were costs substantially in excess of the amount sought, but it was reasonable to fix costs in the amount of $9,900 as outlined below:
These are proceedings that were not conducted in a way that was within the control of the applicant and that the Court has permitted steps that have unnecessarily increased the costs of the parties. It is for these reasons that the Court was willing to fix costs in an amount of $9,900 as a reasonable estimate of costs on a party-party basis up until the filing of the respondent’s submissions and that the further steps that have been taken thereafter, this Court would not have been inclined to impose on the applicant in an assessment of costs. These are observations made for the benefit of the costs assessor.
Following this Court’s decision delivered on 24 February 2021, there have been steps taken by the applicant seeking to challenge the orders that were made.
It is not necessary to set out the whole of the history of the matter, beyond identifying that the applicant made an application for leave to appeal on 10 March 2021, and on 23 September 2022, the application for leave was dismissed by a Justice of the Federal Court of Australia. The applicant did not apply within the seven-day period for a fixed order for costs.
In circumstances explained by the solicitor for the fourth respondent, where there is an appeal being pursued by the applicant, it was not unreasonable for the fourth respondent to await the outcome of the appeal before deciding what course to take.
The solicitor’s affidavit for the fourth respondent, dated 16 February 2023, identified significant legal costs well in excess of the $9,900 being incurred as well as filing, on 23 November 2023, an application in a proceeding effectively seeking costs in a fixed sum.
On 9 December 2022, a competing application in the case was filed by the applicant in the substantive proceedings, seeking the dismissal of the fourth respondent’s application in a proceeding dated 23 November 2022 and identified that there should be no extension of the time in which liberty was granted to apply or any extension under the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (“the Rules”). The applicant in the substantive proceedings, beyond identifying his opposition, did not identify any ground as to why it was unreasonable for the fourth respondent to await the outcome of the appellate process before deciding whether to engage in the extensive task of assessment, assuming agreement could not be reached. It is apparent that no payment for costs as ordered by this Court has been made by the applicant in the substantive proceedings to the fourth respondent.
The applicant’s proposition in the substantive proceeding that there has been an expiry of time under the Rules and under the liberty to apply, does not preclude this Court from exercising its power to make appropriate orders dispensing with any requirement under the Rules in respect of the timing of the interlocutory application by the fourth respondent, in circumstances where there is an order of this court, being order five of 24 February 2021, that remains unsatisfied.
Further, in circumstances where it was clear that the Court intended the costs to be paid, an application of the principles was applied by the Court under; s 190 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the Act”), the principles that bind the parties under s 191 of the Act, as well as the purpose in r 1.04 of the Rules. With the apparent above history of the matter, the Court concludes that this is a matter in respect of which it is appropriate to extend the time in respect of the liberty to apply and to dispense with any requirement under the rules in respect of the bringing of the interlocutory application by the fourth respondent and to make an appropriate costs order in the sum of $9,900. The delay in the bringing of the application for costs in the fixed amount has caused no detriment to the applicant and there is no injustice in now enforcing the costs order, or in fixing the amount of the same, and extending or dispensing with any necessary requirement. It would be unjust to the party entitled to costs not to permit an extension and dispensation, so far as necessary to permit enforcement, and there is no utility in requiring a taxation given the amount proposed as fixed costs.
The competing application in a proceeding filed by the applicant in the substantive proceedings on 9 December 2022 and supported by an affidavit filed on the same day, effectively sought the dismissal of the fourth respondent’s application in a proceeding that was filed on 23 November 2022. There was no relevant content in that affidavit that explained why it was not appropriate for the Court to facilitate the fixing of the costs order in the circumstances of this case.
The Court is satisfied that, in the interests of the administration of justice, it is appropriate to extend the liberty period identified in order six of the orders pronounced and delivered by this Court on 24 February 2021 for the purpose of seeking a fixed costs order, which was the subject of the notation dated 24 February 2021. The Court is satisfied that costs in excess of the reasonable estimate of costs identified in that notation have been incurred by the fourth respondent and that the fourth respondent has a reasonable explanation for the absence of earlier steps to have the costs agreed or assessed.
I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Street. Associate:
Dated: 31 March 2023
SCHEDULE OF PARTIES
SYG 1934 of 2019 Respondents
Fourth Respondent:
ROCCO BRAEUNIGER
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