Federal Court of Australia
Saffari v Amazon.com, Inc (No 4)  FCA 1132
BOYD THIBODEAUX (and another named in the Schedule)
DATE OF ORDER:
23 SEPTEMBER 2022
THE COURT ORDERS THAT:
1. The application for leave to appeal be dismissed.
2. The applicant pay the costs of the fourth respondent.
1 Shahriar Saffari, the applicant, seeks leave to appeal from two interlocutory decisions of the Federal Circuit Court of Australia (now the Federal Circuit and Family Court of Australia): Saffari v Amazon.com Inc  FCCA 340 (PJ) and Saffari v Amazon.com Inc (No 2)  FCCA 341 (PJ2). Mr Saffari requires leave to appeal under s 24(1A) of the Federal Court of Australia Act 1976 (Cth) (FCA Act).
2 Before the leave application was heard, Mr Saffari brought an application seeking to stay the proceedings pending determination of his application for special leave to appeal to the High Court from the dismissal of an interlocutory application in these proceedings. In that interlocutory application, he sought declaratory relief to confirm that he has, or should be deemed to have, effected service on Amazon.com, Inc and Jeff Bezos, the first and second respondents respectively: Saffari v Amazon.com Inc  FCA 535. On 19 July 2022, I refused the stay application. My reasons for doing so are included in these reasons. The special leave application has since been dismissed.
The parties and the proceedings below
3 Mr Saffari is a litigant in person. He was the applicant in the Circuit Court proceedings. During the course of these proceedings, the Registry made enquiries in an attempt to secure pro-bono legal assistance for Mr Saffari. Those enquires were not fruitful.
4 Mr Saffari’s underlying complaint arises from the removal of a book that he self-published, anonymously, using a service offered by Kindle, from the Amazon Kindle website, following a third party complaint that the book contained defamatory content. A central concern of Mr Saffari’s is that Amazon provided his name and contact details to the third party complainant. Mr Saffari commenced proceedings against four respondents in the Circuit Court on 31 July 2019. They are each named as respondents in these proceedings. Mr Saffari’s claims against the respondents were variously expressed as claims for breaches of contract, competition law, privacy law and tortious duty.
5 The first three respondents are located outside the jurisdiction. Mr Saffari did not apply in the Circuit Court or in these proceedings for leave to serve those respondents. Those respondents did not appear in the Circuit Court or in this Court.
6 Amazon is a foreign corporation for the purposes of the Corporations Act 2001 (Cth). Amazon is registered in the United States of America (USA) as a foreign profit corporation. It was incorporated in Delaware, USA and has its principal office in Seattle, Washington, USA. It has a registered agent, with an address in Tumwater, Washington, USA.
7 Mr Bezos is the founder of Amazon and one of the 17 governors of the company.
8 The third respondent, Boyd Thibodeaux, is described as a “CreateSpace” customer relations executive. During the hearing, Mr Saffari abandoned his application for leave to appeal from the judgment insofar as it concerned Mr Thibodeaux. Therefore, the application for leave to appeal from the part of the Circuit Court judgment that relates to Mr Thibodeaux will be dismissed.
9 The fourth respondent, Rocco Braeuniger, is a former director of Amazon Commercial Services Pty Ltd (ACS). ACS is not a party to these proceedings and was not a party to the Circuit Court proceedings. He was a director of ACS between September 2017 and October 2019. Mr Braeuniger is the only respondent who appeared in these proceedings and was the only respondent who appeared in the Circuit Court proceedings. ACS was registered in Victoria and is a wholly owned subsidiary of Amazon.com Sales, Inc., a company based in Delaware, USA. Amazon is recorded as ACS’s ultimate holding company in the relevant ASIC search. There is no evidence before the Court of the structure of the shareholdings between Amazon.com Sales, Inc. and Amazon, or as to any interrelationships between the directors and officeholders or management of ACS, Amazon.com Sales, Inc. and Amazon.
The interlocutory decisions the subject of the leave application
10 The Circuit Court proceedings were originally allocated to his Honour Judge Dowdy. Pursuant to an order of Judge Dowdy on 27 September 2019, Mr Saffari filed a document styled as “Draft Statement of Claim” (DSOC). Then, on 20 January 2020, without leave, Mr Saffari filed a document styled as “Statement of Claim” (ASOC). This document annexed various material including primary documents, such as emails and printed copies of webpages. At some point, the proceedings came to be listed before his Honour Judge Street, the primary judge. On 24 February 2021, the Circuit Court proceedings were fixed for hearing of Mr Braeuniger’s application for summary dismissal (which had been filed on 31 October 2019) and for Mr Saffari’s application for summary judgment against Mr Braeuniger (which had been filed on 18 February 2021).
11 The hearing on 24 February 2021 before the primary judge culminated in two sets of orders being made, with two separate reasons for judgment being delivered, with the result that the proceedings were dismissed against all respondents.
12 The proceedings against Amazon, Mr Bezos and Mr Thibodeaux were dismissed on the basis that the proceedings had not been served within 12 months as required by r 6.17 of the Federal Circuit Court Rules 2001 (Cth), and, accordingly, the proceedings were stale as against Amazon, Mr Bezos and Mr Thibodeaux: PJ at . The primary judge noted that Mr Saffari believed that he had taken steps to effect service but found that the steps taken by Mr Saffari were not in accordance with the relevant rules: PJ at . The primary judge declined to extend the time for the validity of the “application”: PJ at .
13 Later on the same day, the primary judge made further orders which included an order refusing an oral application by Mr Saffari for leave to amend what was described as the proposed amended statement of claim. These orders also included an order summarily dismissing the proceedings against Mr Braeuniger on the basis that the pleading did not reveal a prima facie cause of action, and, accordingly, Mr Saffari did not have a reasonable prospect of success within the meaning of s 17A of the Federal Circuit Court of Australia Act 1999 (Cth) and r 13.10 of the Circuit Court Rules: PJ2. Mr Braeuniger was represented by counsel at the hearing on 24 February 2021.
Interlocutory application in relation to service
14 The first judgment in these proceedings, Saffari v Amazon.com Inc  FCA 535, concerned an interlocutory application brought by Mr Saffari in relation to three broad issues. Those issues are namely: (1) whether he has effected service of the application for leave to appeal on Amazon and Mr Bezos; (2) whether he should be deemed to have effected said service; and (3) whether evidence obtained from the Office of the Australian Information Commissioner should be “allowed” to determine whether Amazon and Mr Bezos were aware of the leave proceedings and/or the Circuit Court proceedings and, if so, whether they have elected not to participate in either proceeding. In relation to these issues, Mr Saffari submitted that: (1) the Court should make an order that deemed Amazon and Mr Bezos to have been served with the leave documents; (2) the Court enter default judgment against Amazon and Mr Bezos in respect of the relief sought in the statement of claim filed in the proceedings below; or (3) in the event that service was not deemed to have been effected, that the Court should order that Amazon and Mr Bezos “be served again as per Rule 10.42” of the Federal Court Rules 2011 (Cth) by one of the three nominated “methods of service” or that the “method of service be in the form of the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters 1965 as per Division 10.4 of the [Rules]”.
15 Regarding the relief sought in relation to deemed service, I was satisfied that it was not appropriate to make an order under r 10.48(b) of the Rules that Amazon and Mr Bezos be taken to have been served with the leave documents. First, the service mechanisms relied upon by Mr Saffari under r 10.02 of the Rules and s 109X of the Corporations Act were not applicable as they do not apply in relation to individuals, with Mr Bezos being such an individual, nor was there any evidence establishing that Amazon is a company incorporated in Australia, or registered under the Corporations Act, or that Mr Saffari had served Amazon at its registered office in Seattle, Washington, USA. Secondly, there was no basis upon which to conclude that, in filing an address for service, Dentons was acting on behalf of anyone other than Mr Braeuniger, nor that Dentons were authorised to accept service for Amazon and Mr Bezos. Thirdly, Mr Saffari’s contention that ACS and Amazon are one and the same entity was misconceived. Mr Saffari failed to establish that it was not practicable to serve Amazon and Mr Bezos in the manner required.
16 Regarding the relief sought in relation to default judgment, I was satisfied that it was not appropriate to make an order giving judgment against Amazon and Mr Bezos in default. Mr Saffari had not established that he had effected service, or should be deemed to have effected service, on Amazon and Mr Bezos, and, accordingly, he had not established that either Amazon or Mr Bezos were in default in the leave proceedings. Finally, the evidence led by Mr Saffari did not substantiate the inference that Amazon and Mr Bezos were aware of the proceedings and had elected not to participate in the proceedings.
17 Regarding the application for substituted service or service under the Hague Convention, I was satisfied that it was not appropriate that an order for substituted service and/or for service under the Hague Convention be made. Contrary to r 10.43(2) of the Rules, Mr Saffari did not seek leave to serve outside of Australia. It was not appropriate to order substituted service on parties outside Australia when the conditions in rr 10.43(4)(a) to (c) on the grant of leave to serve out had not been addressed. Furthermore, Mr Saffari did not adduce evidence from which it could be inferred that service was not practicable in one of the ways otherwise required, or of attempts by him to serve or contact Amazon or Mr Bezos or as to the state of his knowledge in respect of their whereabouts.
18 Accordingly, the interlocutory application was dismissed with costs.
Special leave application
19 On 9 June 2022, Mr Saffari lodged an application for special leave to appeal to the High Court. In that application, Mr Saffari identified the following proposed grounds of appeal (as written):
Proposed Grounds of Appeal
1 Her Honour erred by misinterpreting the Corporations Act 2001 (Cth) (Corporations Act) and that it is the corporate structure of the parent company that distinguishes the Parent Company as Shadow Directors.
2 Her Honour erred by finding that Shadow Directors and Parent Company cannot be properly served by delivering Court documents to their wholly owned Subsidiary and Resident Director as per the Federal Court Rules 2011 (Cth) (FCR) – Rule 10.02 citing Sect 109X(1)(a) and (b) of the Corporations Act.
3 Her Honour erred by interpreting that Sect 37M of the Federal Court of Australia Act 1976 (Cth) (FCA Act) can be used to allow a law firm to submit legal pleadings on behalf of respondents that are not their client.
20 On 19 September 2022, Mr Saffari’s special leave was dismissed on the papers: Saffari v Amazon.com Inc & Ors (S88/2022)  HCASL 149.
21 By interlocutory application filed on 24 June 2022, Mr Saffari applied to stay these proceedings pending the determination of his application for special leave to appeal to the High Court on the following basis (as written in the affidavit filed in support of that application):
4. [It] will effectively finally determine the proceedings against the first three Respondents on the grounds of failure to appear.
5. If the Interlocutory Appeal is successful, the hearing set by this Court to held on 28 July 2022 would be rendered otiose as the cause of action against the Fourth Respondent is common to all of the parties in this case and inseparable.
6. [It] would avoid the duplication of proceedings and is consistent with the overarching purpose set out in section 37M(1) of the Federal Court of Australia Act 1976 (Cth) in that it will best facilitate the resolution of the dispute as quickly, inexpensively and efficiently as possible.
22 I heard the application on 19 July 2022 and, on that day, made orders dismissing the stay application with costs. I informed the parties that I would deliver my reasons for doing so at the time of delivering reasons on the leave to appeal application. My reasons are included below.
Stay pending appeal
23 The principles applicable to when the Court should exercise its discretion to stay an order pending an application for special leave to the High Court trace from the judgment of Brennan J in Jennings Construction Limited v Burgundy Royale Investments Proprietary Limited (1986) 161 CLR 681;  HCA 84 (at 683–685):
The jurisdiction to grant a stay in the present case depends on whether a stay is necessary to preserve the subject-matter of the litigation. If an application for special leave to appeal would be futile unless a stay is granted, the jurisdiction arises …
A stay to preserve the subject-matter of litigation pending an application for special leave to appeal is an extraordinary jurisdiction and exceptional circumstances must be shown before its exercise is warranted. If an order for a stay is made, the respondent is kept out of the benefit of the order of the court in which the matter is pending until the hearing of the application for special leave to appeal …
When an application for special leave to appeal is made to this Court, a jurisdiction to stay may be exercised by the court below and it is to that court — the court which the matter is pending and which is familiar with the matter — that an application to stay should first be made …
In exercising the extraordinary jurisdiction to stay, the following factors are material to the exercise of this Court’s discretion. In each case when the Court is satisfied a stay is required to preserve the subject-matter of the litigation, it is relevant to consider: first, whether there is a substantial prospect that special leave to appeal will be granted; secondly, whether the applicant has failed to take whatever steps are necessary to seek a stay from the court in which the matter is pending; thirdly, whether the grant of a stay will cause loss to the respondent; and fourthly, where the balance of convenience lies.
24 These principles have been considered or applied on numerous occasions, including in Obeid v The Queen (2016) 90 ALJR 447 at ;  HCA 9 at ; Burnett v Browne (No 2)  FCA 1597 at , , and National Road Transport Association Ltd v Road Safety Remuneration Tribunal (No 2)  FCAFC 58 at  to .
25 In Shaw v Official Trustee in Bankruptcy of the Australian Financial Security Authority  FCA 775 at  to , I summarised the principles applicable to the exercise of the discretion to temporarily stay proceedings in the interests of justice under s 23 of the FCA Act and to r 1.32 of the Rules:
24 In exercising the available discretion, each case turns on its own facts. As Bennet J observed in Apotex (at ), little direct assistance is gained from analysing other cases, save than to observe that some general principles apply when two proceedings form the basis for an application for a stay of one of them, including the right of an applicant to have its proceedings determined. The burden is on the applicant contending for the stay to show that it is just and convenient to interfere with the other party’s ordinary rights. The Court will look to the factors that, generally, balance the advantages and disadvantages to each party and to the Court. A stay will be appropriate where there are two separate proceedings between the same parties with related subject matter and where the hearing of one of the proceedings may dispose of the need for the second. Another factor which is relevant for the Court to consider in exercising the discretion to temporarily stay one proceeding until another is determined is the risk of inconsistent findings in the two proceedings in respect of related or overlapping subject matter. The Court may exercise its discretion where the interest of justice would be served by a stay of the proceedings: Clorox Australia Pty Ltd v International Consolidated Business Pty Ltd  FCA 1135; 66 IPR 506, 507 to 508 at  (Sunberg J).
25 The overarching purpose of the civil practice and procedure provisions in s 37M of the FCA Act must also be borne in mind. While the authorities concerning the exercise of the Court’s discretion to stay proceedings have generally focussed on s 23 of the FCA Act, s 37M is also relevant. In exercising its discretion, the Court will consider the efficiency and costs implications involved in the duplication of proceedings, including with respect to the efficient use of the administrative resources available to the Court: Porter at ; Apotex at  to .
Leave to appeal
26 The principles applicable to an application for leave to appeal from an interlocutory decision are well established and were recently summarised in the following terms by the Full Court in Deputy Commissioner of Taxation v Miraki  FCAFC 96 at :
In general, the tests to be applied are: (a) whether, in all the circumstances, the decision is attended with sufficient doubt to warrant its being reconsidered by the Full Court; and (b) whether substantial injustice would result if leave were refused, supposing the decision to be wrong: Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-400 per Sheppard, Burchett and Heerey JJ. The discretion to grant leave is not constrained by rigid rules. Leave to appeal has been granted where, for example, the questions posed for resolution on appeal “have general importance beyond the concerns of the parties”: Australian Securities and Investments Commission v P Dawson Nominees Pty Ltd (2008) 169 FCR 227 at  per Heerey, Moore and Tracey JJ. See also ACE Insurance Ltd v Trifunovski (2012) 291 ALR 46 at - per Flick J.
The proposed grounds of appeal
27 In his proposed notice of appeal, Mr Saffari seeks to raise the following grounds of appeal if leave is granted (as written):
Failed to properly try the case
1. The primary judge erred by:
(a) not familiarizing himself with all submissions by the Appellant; and
(b) finding that service was not effected on the first, second and third Respondents; and
(c) finding that the [Originating] Application was stale; and
(c) summarily dismissing the Application as against the first, second and third Respondents; and
(d) failing to find that:
(i) the first and second Respondents are Shadow Directors of Amazon's wholly owned subsidiary in Australia; and
Denied procedural fairness
2. The primary judge erred by:
(e) dismissing the Application as against the first, second and third Respondents without prior notice; and
(f) denying the Appellant reasonable opportunity to be properly heard; and
(g) denying the Appellant any opportunity to present evidence at the Hearing; and
(h) by holding the Hearing by video, making it not possible to hand in documents relevant to the service.
Made facts of the important issue of Service which is not supported by the evidence
Applied the incorrect principle of law
3. The primary judge erred by:
(i) failing to draw inferences which should have been drawn; and
(j) failing to familiarize himself with documents that identified the fourth Respondent as the Resident Manager; and
(k) taking into account irrelevant consideration of [Amazon Local] Agent; and
(k) summarily dismissing the application against the fourth Respondent.
Refusal of Stay
28 As mentioned above, I heard and refused Mr Saffari’s application for a stay on 19 July 2022. My reasons for doing so are as follows.
29 Mr Saffari relied on r 36.08(2) of the Rules. The application more naturally fell to be considered under s 23 of the FCA Act and r 1.32 of the Rules. Mr Saffari bore the burden of the application. Mr Braeuniger opposed the application and pressed to maintain the hearing date of the leave application.
30 Mr Saffari put his argument on the stay application in the following terms:
[I]t is my case that all respondents are one corporate entity. They cannot be separated. The gravemen of my argument is that Amazon and all its subsidiaries including Amazon Australia are one corporate entity and they cannot be separated. Therefore I’m asking for the proceedings to be stayed until the High Court makes a decision.
31 Applying the principles identified at  to  to the facts and circumstances of the present application, I was not satisfied that it was appropriate to accede to Mr Saffari’s application to stay the proceedings. I was not satisfied that the prospect that special leave would be granted was such as to warranted a stay, particularly having regard to the substance of Mr Saffari’s argument, and in circumstances where the proposed appeal concerned an issue of practice and procedure. I was further satisfied that the balance of convenience favoured the stay being refused having regard to the procedural history in this Court; the impact of any postponement of the leave application on the parties; the fact that the judgments in the Circuit Court are not final determinations of the claims Mr Saffari contends he has against the respondents; and that there are more direct avenues for Mr Saffari to pursue the claims he ultimately seeks to press against Amazon and potentially others.
32 I was satisfied that in the present case, the interests of justice would best be served by refusing to stay the leave application.
Leave to appeal from dismissal of proceedings against Amazon and Mr Bezos
33 I will first consider the application for leave to appeal in respect of the interlocutory order dismissing the proceedings against Amazon and Mr Bezos, noting that Mr Saffari did not press the leave application insofar as it concerned Mr Thibodeaux. In my view, it would not be appropriate to grant leave to appeal in respect of the orders made dismissing the Circuit Court proceedings.
34 First, the decision to dismiss the proceedings against Amazon and Mr Bezos on the basis that the writ was stale is not attended by sufficient doubt to warrant the grant of leave. At the relevant time, r 6.17 of the Circuit Court Rules provided that:
Unless the Court otherwise orders, a document may not be served more than 12 months after it is filed.
35 At the time the orders were made, the proceedings had been on foot for some 19 months. The primary judge noted that (at PJ  to ):
2 No proper step has been taken to effect service on the first, second and third respondents in accordance with the Federal Court Rules 2011 (Cth), as picked up by r 1.05 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”). Under r 6.17 of the Rules, the application must be served within 12 months of the commencement of the proceedings. The proceedings were commenced on 31 July 2019.
3 The applicant believes that he has taken steps to effect service; however, they are not in accordance with the Federal Court Rules and the Rules.
36 The primary judge was correct in his analysis. The primary judge’s reference to Mr Saffari “believing” that he had taken steps to effect service is a reference to Mr Saffari’s contention below, which was repeated in these proceedings, that service on Mr Braeuniger in his personal capacity constituted service on the other respondents, and in this way, or so the argument went, the need to obtain leave to serve out of the jurisdiction was obviated. In Mr Saffari’s interlocutory application in these proceedings, Mr Saffari persisted in that contention, and subsequently sought special leave to agitate the point in the High Court. For the reasons given for refusing the stay application, and noting that Mr Saffari has not at any time applied for leave to serve out, I am not satisfied that there is sufficient doubt about the correctness of the primary judge’s decision in respect of service on Amazon and Mr Bezos to warrant the grant of leave.
37 Secondly, Mr Saffari’s contention that he was denied procedural fairness in relation to the dismissal of his claim against Amazon and Mr Bezos is not made out in the circumstances of this case for the following reasons. That the primary judge was required to observe the requirements of procedural fairness in this matter is not in dispute. The evidence before me demonstrates that the primary judge did afford Mr Saffari procedural fairness. The primary judge gave Mr Saffari an opportunity to be heard on the issue of service to the respondents. Further, the primary judge’s comments at PJ  demonstrate that he was aware of the basis that Mr Saffari claimed to have served Amazon and Mr Bezos, but did not accept that by those acts service had been effected. That conclusion was both open to the primary judge, and correct on the material that Mr Saffari pointed to on this application. For what it is worth, I note that Mr Saffari did not ask for an adjournment. The transcript reflects that he was both articulate and assertive before the primary judge. That said, I do not overlook that he was self-represented and it may not have occurred to him to press for an adjournment. In any event, an adjournment, even if granted, was unlikely to have been of any practical utility to Mr Saffari given his committed position that leave to serve out was not required. Similarly, even if the validity of the application had been extended, it is unlikely to have been of practical utility because of Mr Saffari’s stance on service. The conduct relied on before the primary judge, and on which Mr Saffari continues to rely on in this Court, was not effective as a means of serving Amazon and Mr Bezos in accordance with the Rules.
38 It is relevant to note that ss 32 and 57 of the Circuit Court Act require the Circuit Court to proceed without undue formality, to endeavour to ensure that the proceedings are not protracted, and that proceedings in the Circuit Court are not invalidated by reason of a ‘formal defect or irregularity’ unless it is productive of substantial injustice that cannot be remedied by an order of the Circuit Court. The decision to dismiss the proceedings against the respondents outside the jurisdiction was not a determination on the merits and did not preclude Mr Saffari from instigating fresh proceedings, which could then have been served in accordance with the Rules. As has been observed, “judges and magistrates are encouraged, where it is possible and appropriate to do so, to decide cases promptly and to give their judgments immediately”: see Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v AAM17 (2021) ALJR 292;  HCA 6 at  and  (referring to extra-curial observations made by Gleeson CJ, as his Honour then was).
39 Before leaving the issue that Mr Saffari raises in relation to procedural fairness, it is appropriate to acknowledge that by his own description, Mr Saffari’s experience of appearing before the primary judge was intimidating and stressful. Mr Saffari’s amended application for leave to appeal describes his interactions with the primary judge as involving a “hurried, continually interrupted, intimidating, inquisitorial exchange [regarding the ASOC]”, that the primary judge was “standing up throughout shuffling impatiently with an unusual demeanour”, and that the primary judge “impatiently [cut] off [Mr Saffari] within 2 minutes of asking his question”. During the hearing on 28 July 2022, Mr Saffari echoed these observations, and submitted that the transcript did not convey “the true picture [of what occurred during the relevant proceedings]”. It is trite to observe that transcripts will often not capture the atmospherics of a hearing. The transcript of the hearing before the primary judge does reveal that there were what appear to have been some heated exchanges. Those exchanges do not appear to have been one way. The transcript records exchanges between Mr Saffari and the primary judge in which Mr Saffari made comments that were plainly offensive and the primary judge demonstrated some forbearance in the face of those comments. Even so, and recognising that the Circuit Court is a busy court and that the judges of that Court operate under considerable pressure, it is regrettable if Mr Saffari’s experience was as he described. However, I am not satisfied that the issue raised by Mr Saffari in relation to procedural fairness either of itself or in combination with his other submissions are such that leave to appeal should be granted.
40 Finally, it is significant that the decision to dismiss the application as stale is not a decision on the merits. The orders do not have the effect, practically or otherwise, of finally determining the rights of the parties. There does not appear, on the materials before the Court, to be any barrier to Mr Saffari commencing fresh proceedings against Amazon and Mr Bezos, and seeking leave to serve those proceedings out of the jurisdiction. In bringing any such application, Mr Saffari would carry the burden of establishing that he has a claim recognised at law for any relief claimed in any such future proceedings. Accordingly, I am satisfied that no substantial injustice would result from a refusal of leave to appeal the decision of the primary judge in respect of Amazon and Mr Bezos.
Leave to appeal from dismissal of proceedings against Mr Braeuniger
41 I move now to consider the application for leave to appeal in respect of the order dismissing the Circuit Court proceedings against Mr Braeuniger. In my view, it would not be appropriate to grant leave to appeal in respect of the orders made dismissing the proceedings against Mr Braeuniger.
42 In his proposed grounds of appeal, Mr Saffari contends that the primary judge erred in ordering that the hearing be conducted by way of audiovisual link, rather than in person. Mr Saffari suggests that this was unfair to him because it inhibited his ability to hand up material to the Court, and, in this way, he lost the opportunity to dispel what he submitted was confusion on the part of the primary judge in respect of his submissions. Mr Saffari submits that the primary judge misunderstood a document Mr Saffari was seeking to rely upon. Mr Saffari contends that the primary judge confused the two separate iterations of his statement of claim, the DSOC and ASOC described at paragraph  above.
43 Secondly, Mr Saffari repeats his contentions in relation to procedural fairness by reason of the general conduct of the hearing and, related to this, the demeanor and approach of the primary judge in the way in which he interacted with the parties, used technology in the courtroom and exerted his physicality.
44 Thirdly, Mr Saffari contends that the primary judge erred by only considering the DSOC and not the ASOC.
45 Fourthly, Mr Saffari complains that the primary judge did not afford him another opportunity to amend his pleading.
46 The final ground raised by Mr Saffari was that the primary judge demonstrated bias and prejudgment in his conduct of the hearing.
47 Mr Saffari made submissions orally and in writing. In his submissions in respect of his claim against Mr Braeuniger, Mr Saffari contended that Mr Braeuniger was vicariously liable as “the Resident Director and as the senior corporate officer in control of Amazon AU at the relevant time” for alleged torts and privacy breaches committed by the Amazon, Mr Bezos or Mr Thibodeaux. Mr Saffari relied on “the Competition and Consumer Act 2010 Schedule 2 s18, Civil Liability Act 2002 Part 1A, The Privacy Act 1988 s 36(1) and The Corporations Act 2001”.
48 At the hearing of the leave application, Mr Saffari repeated much of what was in his written submissions and made further oral submissions. He contended that Mr Braeuniger was vicariously liable not only for Amazon’s alleged torts and privacy breaches, but also alleged breaches of competition and consumer law. Mr Saffari also used his oral submissions to repeat his contentions in relation to service on Mr Braeuniger being effective as a means of service on Amazon and Mr Bezos. Mr Saffari contended the primary judge made an error of law in failing to characterise all of the respondents as a single legal entity for the purposes of the Corporations Act and that the primary judge “violated” the hearing rule in not providing him with an opportunity to make submissions to that effect. Mr Saffari complained that the primary judge mismanaged the case. Mr Saffari contended that there would be substantial injustice if leave was not granted, because he believed that if leave refused he would be precluded from pursuing his claims against the respondents. Mr Saffari also contended that the submissions advanced on behalf of Mr Braeuniger regarding the proceedings before the primary judge were selective and/or misleading.
49 I now turn to the major considerations relevant to the determination of the grant of leave. In doing so, I am conscious that I must be satisfied in respect of both considerations. In this case, I am satisfied of neither. As mentioned above, in the context of Mr Saffari’s claim against Amazon and Mr Bezos, it is similarly the fact that in respect of Mr Saffari’s claim against Mr Braeuniger there has been no determination on the merits. If Mr Saffari has a valid claim against Mr Braeuniger, the decision of the primary judge does not finally determine any such claim.
Whether decision of primary judge attended by sufficient doubt to warrant grant of leave
50 Mr Saffari has not demonstrated that the decision of the primary judge is attended by sufficient doubt to justify leave being granted.
51 As identified in the submissions made on behalf of Mr Braeuniger, neither iteration of the statement of claim disclosed any proper basis for Mr Saffari’s claim against Mr Braeuniger. Notably in this respect:
(a) the DSOC and ASOC contain allegations concerning breach of unidentified provisions of the Privacy Act 1988 (Cth) in respect of which the Circuit Court did not have jurisdiction; and which, in any event, had been the subject of a decision of the Privacy Commissioner, which did not suggest any involvement by Mr Braeuniger or of ACS, the company at which he was a director;
(b) the DSOC and ASOC include unparticularised allegations of breach of the Corporations Act, without identifying the provisions alleged to have been breached or the conduct said to constitute the breach;
(c) Mr Saffari appears to make allegations against Mr Braeuniger on the basis that he has a particular status as a local agent or, alternatively, resident director, of certain entities related to Amazon, but does not plead or particularise the facts, matters and circumstances or the statutory provisions on which he relies to establish the relationships alleged to give rise to liability on the part of Mr Braeuniger; and
(d) the DSOC and ASOC include references to principles associated with tort, contract and misleading conduct, but do not identify the necessary integers of any cogent cause of action that lies against Mr Braeuniger.
52 Mr Saffari did not demonstrate how these fundamental deficiencies in the framing of his claim against Mr Braeuniger could be overcome by any further amendments to his pleading. He did not articulate how the relevant facts and matters that he alleges give rise to a cause of action against a director of a company that is not a party to the proceedings, on the basis that the company is associated in some way with Amazon.
53 Mr Saffari’s contention that the primary judge misunderstood and did not appreciate the submissions that he advanced in respect of the different iterations of the statement of claim is not borne out by a review of the transcript and the material before the primary judge. The primary judge expressly referred to and addressed the ASOC and acknowledging that it contained amendments to the DSOC. The primary judge also referred to the written submissions and other materials of the parties, and, by the questions he asked, demonstrated that he had reviewed and considered the materials.
Whether substantial injustice would result from a refusal of leave
54 I am not satisfied that Mr Saffari has established that substantial injustice would result from leave being refused. Far from it. Mr Saffari has not exposed any proper basis for his claim against Mr Braeuniger. If Mr Saffari has a claim which he is able to articulate that is recognised by the law, then refusal of leave to appeal will not of itself preclude Mr Saffari from pursuing any such claim.
55 For these reasons, leave to appeal must be refused, with costs.
NSD 195 of 2021