FEDERAL COURT OF AUSTRALIA
Saffari v Amazon.com Inc [2022] FCA 535
File number: NSD 195 of 2021 Judgment of: CHEESEMAN J Date of judgment: 12 May 2022 Catchwords: PRACTICE AND PROCEDURE – service – where the application for leave to appeal in respect of two interlocutory decisions of the Federal Circuit Court of Australia (now the Federal Circuit and Family Court of Australia) - where applicant is self-represented – where the first respondent (Amazon) is a foreign company based in the United States of America – where the second respondent, Jeffrey Bezos, one of 17 governors of Amazon, is outside the jurisdiction – where the applicant contends that service on the legal representatives of the fourth respondent in Australia, Amazon Commercial Services Pty Ltd, an Australian subsidiary of Amazon, is effective service on Amazon and Mr Bezos – whether service may be deemed pursuant to
r 10.48(b) of the Federal Court Rules 2011 (Cth) – whether service has been effected – whether service may be deemed - Held: application dismissed.PRACTICE AND PROCEDURE – where applicant seeks an order for default judgment against Amazon and Mr Bezos for the relief in the statement of claim filed in the Circuit Court – where applicant contends that Amazon and
Mr Bezos are in default as they are aware of the proceedings by reason of having the relevant Court documents in their possession – whether orders entering default judgment should be made – Held: application dismissed.PRACTICE AND PROCEDURE – where applicant seeks alternative relief in the form of: first, substituted service orders and second, an order for service to be effected in accordance with the methods available under the Hague Convention pursuant to Division 10.4 of the Federal Court Rules 2011 (Cth) – whether relief as to the mode of service should be granted where the applicant has not sought leave to serve out of Australia under r 10.43(2) of the Federal Court Rules 2011 (Cth) - Held: application dismissed.
Legislation: Corporations Act 2001 (Cth), ss 9, 109X
Federal Circuit Court of Australia Act 1999 (Cth), s 17A
Federal Court of Australia Act 1976 (Cth), ss 24(c), 24(1A), 24(1D)(ca), 37M
Federal Circuit Court Rules 2011 (Cth), rr 6.17, 13.10
Federal Court Rules 2011 (Cth), rr 10.23, 10.24, 10.43, 10.48, 10.49, 35.11(a), 35.12, 35.15, 35.16
Cases cited: Australian Competition and Consumer Commission v Yazaki Corporation (No 2) [2015] FCA 1304; 332 ALR 396
Australian Competition and Consumer Commission v Yazaki Corporation [2018] FCAFC 73; 262 FCR 243
Dometic Australia Pty Ltd v Houghton Leisure Products [2018] FCA 1573; 135 IPR 403
Federal Commissioner of Taxation v Zeitouni [2013] FCA 1011; 306 ALR 603
Kosmos Capital Pty Ltd v Turiya Ventures LLC [2019] FCA 528
Pollis v Zombor [2019] FCA 856
Saffari v Amazon.com Inc [2021] FCCA 340
Saffari v Amazon.com Inc (No 2) [2021] FCCA 341
Sanum Investments Limited v ST Group Co Ltd (No 2) [2019] FCA 1047
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- AGLC
- Saffari v Amazon.com Inc [2022] FCA 535
- Case
- [2022] FCA 535
- Decision Date
CaseChat Overview and Summary
The court found that the service on Amazon and Bezos was not effective as it did not comply with the Federal Court Rules 2011. The court held that service on a foreign company based outside Australia requires strict adherence to the rules, and Saffari's attempts at service were insufficient. The court also found that default judgment could not be entered as Saffari had not demonstrated that Amazon and Bezos were aware of the proceedings and had chosen not to participate. Additionally, the court held that alternative relief in the form of substituted service was not appropriate as Saffari had not sought leave to serve out of Australia under the relevant rule. The court dismissed Saffari's application with costs.
The court dismissed Saffari's interlocutory application filed on 20 August 2021, with costs. The orders were entered in accordance with Rule 39.32 of the Federal Court Rules 2011.
Orders
Orders of the court
1. The applicant’s interlocutory application filed on 20 August 2021 is dismissed with costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
For substituted service, it is also necessary for an applicant to demonstrate that the method of service proposed is one which, in all reasonable probability, if not certainty, will be effective to bring knowledge of the process to the intended recipient: Pollis v Zombor [2019] FCA 856 at [13] (O’Bryan J). Service on companies under the Corporations Act Section 109X of the Corporations Act permits service of documents, including legal process, on companies by post to the registered offices of the company, and also by personal service on one director of the company. Section 109X applies in respect of service “on a company”. Company is relevantly defined as a company registered under the Corporations Act: s 9 “company”. The section is facilitative – it does not prevent service by any other mode of service: s 109X(6). MR SAFFARI’S SUBMISSIONS Mr Saffari’s affidavit includes material that is essentially by way of submission. I have read his material of that nature as a submission and treated it as supplementing his written submissions. Mr Saffari’s submissions are directed in part to voicing his opposition to Mr Braeuniger’s representatives being heard on this application and being permitted to file evidence. Mr Braeuniger sought to be heard on the present application. The principal argument on which his representatives relied was that their participation was desirable for the purpose of assisting the Court. Without any criticism of Mr Saffari, counsel for Mr Braeuniger submitted that it would be of assistance to the Court in the circumstances of this application because Mr Saffari is self-represented, the service issues are technical, the evidentiary materials were at risk of being incomplete in material respects unless supplemented (particularly in respect of corporate searches for relevant entities in Australia and overseas) and further that Mr Braeuniger should be afforded an opportunity to respond to Mr Saffari’s allegations in respect of the role of his legal representatives. Mr Braeuniger’s representatives further pointed to the overlap between the grounds of appeal in the draft notice of appeal directed to Mr Braeuniger and those directed to the remaining parties to demonstrate that they had an interest in being heard on the application. Over Mr Saffari’s objection, I granted leave for Mr Braeuniger’s representatives to file and serve evidence (including corporate searches in respect of the various entities referred to by Mr Saffari) and written submissions for the assistance of the Court. I concluded that to do so would facilitate the overarching purpose in s 37M of the FCA Act in respect of the interlocutory application. To the extent that the submissions filed by Mr Braeuniger traverse beyond the matters which arise in the interlocutory application (which is directed to obtaining relief against Amazon and Mr Bezos) I have disregarded them. Mr Saffari makes the following submissions in relation to the corporate relationships between Amazon and ACS (and their officers and representatives):(a)ACS, as a wholly-owned subsidiary, is an extension of its parent company, that is Amazon, and accordingly is not treated as an individual company;(b)Amazon is a shadow director of ACS and controls and dictates the policies of ACS;(c)Amazon is at law a director relying on ss 9 (definition “director”), 46 and 187 of the Corporations Act and s 4A of the Competition and Consumer Act 2010 (Cth) and Standard Chartered Bank of Australia Ltd v Antico (No 1) (1995) 38 NSWLR 290, Standard Chartered Bank of Australia Ltd v Antico (No 2) (1995) 38 NSWLR 328, Australian Securities Commission v AS Nominees Ltd [1995] FCA 1663; 62 FCR 504 , CSR Ltd v Wren (1997) 44 NSWLR 463 at 485; (d)Amazon, as the parent company of its wholly-owned subsidiary, has the same obligations as the director of the subsidiary including duty of care, liabilities and damages;(e)Amazon has a centralised control over all of its subsidiaries including in Australia;(f)ACS and Amazon are economically integrated and financially interdependent;(g)ACS and Amazon are administratively interdependent with an overlapping employment structure with a “Common Group Persona”;(h)Amazon appoints managers to their storefront subsidiaries in different countries and refers to them as Country Managers;(i)In Australia, a Country Manager is referred to as a Resident Director under the Corporations Act;(j)Amazon, in its capacity as a shadow director, appointed Mr Braeuniger as a Resident Director of ACS in August 2017; and (k)Amazon then removed Mr Braeuniger from his position as a Resident Director in October 2019 and transferred him to Europe.