Saffari v Amazon Commercial Services Pty Ltd

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FEDERAL COURT OF AUSTRALIA

Saffari v Amazon Commercial Services Pty Ltd [2024] FCA 436  

File number(s): NSD 129 of 2023
Judgment of: GOODMAN J
Date of judgment: 1 May 2024
Catchwords:

PRACTICE AND PROCEDURE – application for disqualification on the basis of actual and apprehended bias – no evidence adduced capable of establishing actual bias – no matters raised capable of providing a logical connection to an apprehension that the proceeding will be determined otherwise than on its merits – application dismissed

PRACTICE AND PROCEDURE – application for orders recognising service – service under s 601CX of the Corporations Act 2001 (Cth) upon a registered body – absence of proof as to registered office and as to appointment of local agent – service on foreign corporations – proof of service not established – application dismissed

PRACTICE AND PROCEDURE – application for order under r 20.31 of the Federal Court Rules 2011 (Cth) – no identification of a document mentioned in a pleading or affidavit – a document mentioned in an exhibit is not a document mentioned in an affidavit – procedural fairness rationale of r 20.31 – application dismissed

PRACTICE AND PROCEDURE – application to stay the proceeding until costs of an earlier proceeding have been paid – no final determination of the merits – no vexation or abuse of process – application dismissed

PRACTICE AND PROCEDURE – security for costs – natural person – substantial risk of non-payment of adverse costs order – no claim of stultification if order made – application granted

PRACTICE AND PROCEDURE – application to strike out statement of claim – self-represented litigant – case propounded in statement of claim sufficiently clear – further clarification to be provided by way of particulars – application dismissed

Legislation:

Acts Interpretation Act 1901 (Cth), s 29

Corporations Act 2001 (Cth), ss 9, 109X, 601CG, 601CX, 1274, 1274A, 1274B

Federal Court of Australia Act 1976 (Cth), s 23

Federal Court Rules 1979 (Cth) O 35, r 6(2)

Federal Court Rules 2011 (Cth), rr 8.06, 10.24, 10.42, 10.46, 10.47, 16.21, 19.01, 20.31, 26.01, 39.03

Privacy Act 1988 (Cth), ss, 25, 25A, 42, 52

Corporations Regulations 2001 (Cth), regs 9.1.01, 9.1.02

Cases cited:

ACN 007 528 207 Pty Ltd (in liq) v Bird Cameron [2002] SASC 144

All Class Insurance Brokers Pty Ltd (in liquidation) v Chubb Insurance Australia Limited [2020] FCA 840

AZC20 v Secretary, Department of Home Affairs [2023] FCA 1252

Beneficial Finance Corporation Ltd v Price Waterhouse (1996) ANZ Ins Cas 76,642

Beneficial Finance Corp Ltd v Price Waterhouse (1996) 68 SASR 19

Cameron’s Unit Services Pty Ltd v Kevin R Whelpton & Associates (Australia) Pty Ltd [1986] FCA 419; (1986) 13 FCR 46

Century Drilling Ltd v Gerling Australia Insurance Co Pty Ltd [2004] QSC 120; [2004] 2 Qd R 481

Charisteas v Charisteas [2021] HCA 29; (2021) 273 CLR 289

Dove v Everforex Financial Pty Ltd [2023] FCA 1171

Drummond v Canberra Institute of Technology (No 3) [2022] FCAFC 169; (2022) 294…

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Details
Case
[2024] FCA 436
Decision Date

CaseChat Overview and Summary

In the case of Saffari v Amazon Commercial Services Pty Ltd, the applicant, Saffari, sought various orders from the court, including disqualification of the judge, recognition of service, an order under r 20.31 of the Federal Court Rules 2011 (Cth), a stay of the proceeding until costs of an earlier proceeding were paid, security for costs, and an order to strike out the statement of claim. The respondents included Amazon Commercial Services Pty Ltd, Amazon.com Inc, and two individuals. The Federal Court of Australia was tasked with deciding these applications.

The court considered several legal issues, including whether there was evidence of actual or apprehended bias on the part of the judge, whether service had been properly effected under the Corporations Act 2001 (Cth), whether the procedural fairness rationale of r 20.31 applied, whether there were grounds to stay the proceeding, whether there was a substantial risk of non-payment of adverse costs, and whether the statement of claim was sufficiently clear. The court also needed to determine if the applicant's applications for default judgment and notice to produce were valid.

The court found that there was no evidence of actual bias against the judge, nor were there any matters raised that could logically lead to an apprehension of bias. Regarding service, the court held that the applicant had not provided sufficient proof of service on the foreign corporations. The court further determined that the notice to produce did not identify any documents mentioned in a pleading or affidavit, as required by r 20.31. The application for a stay was dismissed as there was no final determination of the merits and no evidence of vexation or abuse of process. The court granted the application for security for costs due to the substantial risk of non-payment. Lastly, the application to strike out the statement of claim was dismissed, as the case was sufficiently clear and further clarification would be provided by particulars.

The court dismissed all the interlocutory applications brought by the applicant, including those for disqualification, recognition of service, an order under r 20.31, a stay, and striking out the statement of claim. The court granted the application for security for costs. Costs of the applications were reserved.

Orders

Orders of the court

Bias application

1. The applicant’s interlocutory application filed on 15 March 2024 be dismissed.

Service application

2. The applicant’s interlocutory application filed on 17 May 2023 be dismissed.

Notice to produce application

3. The applicant’s interlocutory application filed on 26 March 2024 be dismissed.

First and fourth respondents’ application

4. The first and fourth respondents’ interlocutory application filed on 19 October 2023 be dismissed.

Costs

5. Costs of each of the abovementioned applications and the applicant’s interlocutory application filed on 11 October 2023 be reserved.

THE COURT NOTES THAT:

1. The applicant’s interlocutory application filed on 11 October 2023 was withdrawn on 8 February 2024.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

A. INTRODUCTION

[1]

B. BACKGROUND

[6]

C. THE BIAS APPLICATION

[52]

C.1 Overview

[52]

C.2 Legal framework

[55]

C.2.1. Actual bias

[56]

C.2.2 Apprehended bias

[59]

C.3 The applicant’s grounds

[64]

D. THE SERVICE APPLICATION

[94]

D.1 Evidence

[95]

D.2 Consideration

[97]

D.2.1 Service on AAS

[98]

D.2.3 Service on Amazon.com Inc

[110]

E. THE DEFAULT JUDGMENT APPLICATION

[120]

F. THE NOTICE TO PRODUCE APPLICATION

[121]

G. THE APPLICATION OF ACS AND MR BRAEUNIGER

[140]

G.1 Stay

[141]

G.2 Security for costs

[150]

G.3 Strike out

[159]

H. CONCLUSION

[166]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

It follows that none of the orders sought in the service application should be made, and that application should be dismissed.E. THE DEFAULT JUDGMENT APPLICATION As noted at [40] above, the applicant’s default judgment application was withdrawn at the hearing on 8 February 2024. It need not be considered further.F. THE NOTICE TO PRODUCE APPLICATION I turn now to the applicant’s notice to produce application. The notice to produce is addressed to ACS and Mr Braeuniger and is in the following form:The Applicant requires you to produce the following documents, information and access to information or things. 1.Your client ACS is on the record that on or about 15 December 2017 ACS received a notice from a “person” complaining about the Applicant’s Book.(a)Provide access to the original complaint letter, documents, things or email.2.The Applicant’s private information was divulged to the “person” who complained. The staff member who divulged the information worked out of the ACS Sydney office under the management of your client Mr Braeuniger.(a)Provide access to all information regarding the staff who divulged the Applicant’s personal information and communication with management regarding the matter. In this document references to “Information” and “Documents” and “Things” and “Access” [for inspection and copying] relate only to those of the Applicant. Rule 20.31 of the Rules provides:20.31 Notice to produce document in pleading or affidavit(1) A party (the first party) may serve on another party (the second party) a notice to produce, in accordance with Form 39, for the inspection of any document mentioned in a pleading or affidavit filed by the second party.(2) The second party must, within 4 days after being served with the notice to produce, serve the first party with a notice:(a) stating:(i) a time, within 7 days after service of the notice, when the document may be inspected; and(ii) a place where the document may be inspected; or(b) stating:(i) that the document is not in the second party’s control; and(ii) to the best of the second party’s knowledge—where the document is and in whose control it is; or(c) claiming that the document is privileged and stating the grounds of the privilege.(3) If the second party does not comply with paragraph (2)(a) or (b) or claims that the document is privileged, the first party may apply to the Court for an order for production for inspection of the document.(emphasis in original) As is apparent on the face of the notice to produce, it does not seek the production of a document “mentioned in a pleading or affidavit filed by” ACS or Mr Braeuniger within the meaning of r 20.31. No pleading or affidavit is identified in the notice to produce. This is sufficient to dismiss the application. The applicant, in his written submissions, contended that the notice to produce called for documents referred to in Exhibit JD-1 at pages 48, 233, 255 (sic – 265), 266, 271 and “65 other places”. This does not overcome the failure of the notice to produce to identify, on its face, the document(s) “mentioned in a pleading or affidavit filed by” ACS or Mr Braeuniger.

Ratio Decidendi

Legal Principle Established

Her Honour then referred to Beneficial Finance (both at first instance and on appeal), and Bird, before stating at 484 ([10] to [13]):[10]A rule in similar terms, entitling any party to inspect documents referred to in pleadings or affidavits, was first introduced in England in the Supreme Court Rules made under the Judicature Act 1875. In Quilter v. Heatly, the issue arose as to whether an applicant was entitled to an order under that rule for inspection of documents immediately, as opposed to after delivery of the defence. Chitty J. decided in the negative, and his judgment was successfully appealed; but, interestingly, in his judgment he attributed to Jessel M.R. a remark that the object of the new practice embodied in the rule was to prevent the invention of “fictitious deeds or documents” in the statement of claim. In his judgment on the appeal, Jessel M.R. did not disavow the comment, but was less expansive, saying only:It is reason enough why the Defendant should be allowed to see them that the Plaintiff has made them part of his statement of claim.Lindley L.J. observed:These rules were evidently intended to give the opposite party the same advantage as if the documents referred to had been fully set out in the pleadings.[11]In this Court, and to similar effect, Williams J. in Mantaray Pty Ltd v. Brookfield Breeding Co. Pty Ltd referred to O. 35 r. 14, the predecessor of r. 222, as“designed to put the opposite party in the same position or advantage as if the documents in question had been fully set out in the pleadings.”[12]It is, I think, tolerably clear that the rationale of the rule is this: access to documents referred to in pleadings, particulars and affidavits should be given because it can be assumed, such reference having been made, that those documents are relied on by the party referring to them; or at least are regarded by it as material to its case. Clearly enough, if a party is foolish enough to refer in its pleadings or affidavits to a document which is not material, it may still be required to produce it for inspection; but the point of the rule, as it seems to me, is to give the other party an opportunity to verify the existence and content of the document which the other party, by including it in pleadings or affidavits, has identified as material.[13]But those considerations do not apply to a document merely referred to in an exhibit. An exhibit will, in the ordinary course, be provided in its entirety; but it does not follow that its entire content will be relevant or relied upon. That a particular document is referred to in an exhibit may be a matter of pure happenstance, rather than any indication that the party relying on the exhibit relies also on the document. The affidavit’s deponent has sworn to the existence of the exhibit, and probably its context and relevance; but in the case of a document referred to in the exhibit itself, he has sworn nothing. It is, as Lander J. observed, similar to the position with respect to pleadings: reference to a document in pleadings denotes reliance on it for some purpose; but reference within that document to a further document does not necessarily indicate anything as to the latter’s significance. For those reasons, I think that there is a very great difference between reference to a document in an affidavit and reference to a document in an exhibit, and that there is every reason to apply the rule to the first, but not the second.(emphasis added)