Saffari v Amazon.com Inc (No 2)
[2021] FCCA 341
•24 February 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Saffari v Amazon.com Inc (No 2) [2021] FCCA 341
File number(s): SYG 1934 of 2019 Judgment of: JUDGE STREET Date of judgment: 24 February 2021 Catchwords: PRACTICE AND PROCEDURE – where the statement of claim fails to identify any arguable cause of action – where the proceedings have no reasonable prospect of success – application summarily dismissed. Legislation: Federal Circuit Court of Australia Act 1999 (Cth), s 17A
Federal Circuit Court Rules 2001 (Cth), rr 1.05, 13.10, 6.17
Cases cited: Spencer v Commonwealth (2010) 241 CLR 118 Number of paragraphs: 13 Date of hearing: 24 February 2021 Place: Sydney Counsel for the Applicant: In person Counsel for the Fourth Respondent: Mr A Byrne Solicitor for the Fourth Respondent: Dentons ORDERS
SYG 1934 of 2019 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:
24 FEBRUARY 2021
THE COURT ORDERS THAT:
1.The oral application for leave to amend the proposed amended statement of claim is refused.
2.The application in a case filed on 18 February 2021 is dismissed.
3.The proceedings against the fourth respondent are summarily dismissed pursuant to s 17A of the Federal Circuit Court of Australia Act 1999 (Cth) and r 13.10 of the Federal Circuit Court Rules 2001 (Cth).
4.The applicant pay the fourth respondent’s costs of the proceedings as agreed or assessed.
5.Liberty to apply within seven days to seek a fixed costs order as identified by the Court.
REASONS FOR JUDGMENT
JUDGE STREET:
These proceedings were commenced on 31 July 2019 purporting to bring proceedings against four parties. The first, second and third respondents have not been properly served in accordance with the requirements of the Federal Court Rules 2011 (Cth) as picked by up r 1.05 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”). Accordingly, the Court made an order this morning dismissing the proceedings against the first three respondents, who are outside the jurisdiction and in respect of whom no application was made to extend the time of validity of the application that expired after six months, pursuant to r 6.17 of the Rules. The purported effort of service by the applicant, albeit the applicant is unrepresented, does not identify a proper basis to extend the time for service of the application. The Court is satisfied that it is appropriate to dismiss the proceedings against the first to the third respondents as the application is stale.
These proceedings are fixed today for the hearing of the applicant’s application for summary judgment against the fourth respondent that was filed on 18 February 2021 as well as the hearing of the application for a summary dismissal by the fourth respondent that was filed on 31 October 2019.
The Court has treated as having before it the evidence that has been filed, subject to relevance. It is most unfortunate that the application filed on 31 October 2019 was not dealt with more promptly. The Court did give the applicant an opportunity to file an amended statement of claim against the fourth respondent.
Paragraph 15 of the amended statement of claim, as filed on 20 January 2020, identifies the fourth respondent as being the ‘Australian Country Manager’ of the first respondent, and makes a series of broad allegations in respect of legal propositions, none of which identifies any cause of action against the fourth respondent.
The pleading then makes assertions in relation to contractual arrangements, none of which provide any basis to identify a cause of action in contract against the fourth respondent.
There is then an allegation in relation to an alleged contravention of the Competition and Consumer Act 2010 (Cth), again, in relation to which there is no identifiable cause of action against the fourth respondent.
There is then an assertion of breach of particular provisions of the Privacy Act 1988 (Cth), the pleading of which does not identify any conduct by the fourth respondent capable of giving rise to any alleged cause of action under that legislation.
There are then bold prayers for damages and other relief, none of which reflect any identified cause of action against the fourth respondent.
The original statement of claim that was filed by the applicant made allegations referring to the fourth respondent as Amazon’s ‘Australian Local Agent’ and made allegations in respect of provisions of the Corporations Act 2001 (Cth) that do not identify any cause of action.
The broad reference to the respondents in the pleading of the contractual arrangements do not identify any proper particulars supporting a contract with the fourth respondent nor do the other alleged causes of action in the original statement of claim identify any reasonably arguable cause of action against the fourth respondent.
The applicant requested that the Court provide an opportunity to further amend the pleadings. The proceedings were commenced on 31 July 2019. An order was made by a Judge of the Court on 27 September 2019 giving the applicant an opportunity to file a draft statement of claim. The application to strike out the statement of claim has been on foot since 31 October 2019. The applicant has had the benefit of the submissions of the fourth respondent identifying that the case against the fourth respondent is fundamentally deficient and has no reasonable prospects of success. The applicant has had ample opportunity, if the applicant was able to do so, to prepare a further draft statement of claim if there was any reasonably arguable cause of action against the fourth respondent. The submissions of the fourth respondent carefully identify the obvious deficiencies in relation to the contractual claim, the Privacy Act 1988 (Cth) and under the Corporations Act 2001 (Cth) in respect of the alleged pleading and no step has been taken by the fourth respondent to rectify the pleading.
The Court is satisfied that giving the applicant a further opportunity to amend the proceedings would be futile and is satisfied that there is no reasonably arguable cause of action that the applicant has against the fourth respondent.
The Court has taken into account the principles in Spencer v Commonwealth (2010) 241 CLR 118. The Court is satisfied that these proceedings have no reasonable prospect of success within the meaning of s 17A of the Federal Circuit Court of Australia Act 1999 (Cth). The Court is satisfied that this is an appropriate matter in which to exercise the Court’s powers for summary dismissal because the statement of claim and proposed statement of claim fail to identify any arguable cause of action against the fourth respondent and, notwithstanding the affidavit and submissions of the fourth respondent, nothing advanced identifies a reasonably arguable cause of action against the fourth respondent.
I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 24 February 2021 and the parties were sent a sealed copy of the Court’s orders. Associate:
Dated: 7 May 2021
SCHEDULE OF PARTIES
SYG 1934 of 2019 Respondents
Fourth Respondent:
ROCCO BRAEUNIGER
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