FEDERAL COURT OF AUSTRALIA
Saffari v Amazon Commercial Services Pty Ltd [2024] FCA 436
Table of Corrections | |
ORDERS
Applicant | ||
AND: | AMAZON COMMERCIAL SERVICES PTY LTD First Respondent AMAZON AUSTRALIA SERVICES INC Second Respondent AMAZON.COM INC (and another named in the Schedule) Third Respondent | |
DATE OF ORDER: | 1 may 2024 |
THE COURT ORDERS THAT:
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 The applicant’s interlocutory application filed on 11 October 2023 was withdrawn on 8 February 2024.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.
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GOODMAN J
1 In this proceeding, the applicant complains of his treatment by Amazon Commercial Services Pty Ltd (ACS), Amazon Australia Services Inc (AAS), Amazon.com Inc and Mr Rocco Braeuniger.
2 In broad terms, the applicant contends, inter alia, that:
(1) he is the author of a self-published book which was published under a pseudonym so as to protect his identity;
(2) the applicant relied on the anonymity provided by protection under the Privacy Act 1988 (Cth);
(3) the book contained very sensitive information, including various views held by the applicant and that the applicant was under a protection visa;
(4) on 20 June 2017, the applicant entered into a contract with all of the respondents to sell the book through Kindle Direct Publishing, which was controlled by ACS under the management of Mr Braeuniger;
(5) on 8 March 2018:
(a) the respondents deliberately divulged the applicant’s identity and personal information to a third party allowing that third party to identify the applicant as the author of the book and where he lived;
(b) the respondents removed the book from sale;
(6) on 9 March 2018, the respondents informed the applicant that the book had been removed from sale and that they had opted to disclose the applicant’s identity and contact details to the third party;
(7) the disclosure of the applicant’s personal information endangered his life; and
(8) the respondents have not paid him moneys owing from the sale of the book and have taken steps to divert those searching on the internet from finding the book on platforms other than Kindle.
3 As a result of the above matters, the applicant contends that the respondents are liable to pay him damages, including exemplary and aggravated damages, for inter alia:
(1) breach of contract;
(2) breach of a duty of care owed by them to the applicant;
(3) contraventions of ss 25 and 25A of the Privacy Act; and
(4) misleading and deceptive conduct.
4 The applicant served his originating application on ACS and Mr Braeuniger; and they have appeared in the proceeding, represented by Dentons and by counsel. AAS and Amazon.com Inc have not appeared in the proceeding to date; and one of the issues for determination is whether the applicant has served the originating application on AAS and Amazon.com Inc.
5 These reasons for judgment deal with the following interlocutory applications:
(1) the applicant’s application that I recuse myself from this proceeding on the bases of actual and apprehended bias (bias application);
(2) the applicant’s application for orders confirming that service of the originating application on AAS and Amazon.com Inc has been effected (service application);
(3) the applicant’s application for the entry of default judgment against ACS and Mr Braeuniger (default judgment application);
(4) the applicant’s application for orders requiring ACS and Mr Braeuniger to comply with a notice to produce dated 19 March 2024 served by the applicant (notice to produce application); and
(5) an application by ACS and Mr Braeuniger for:
(a) a stay of the proceeding;
(b) further and alternatively, security for costs;
(c) further and alternatively, the striking out of the whole or part of the applicant’s statement of claim.
6 The number and scope of the applications before the Court for determination requires a detailed recitation of the procedural history of this and other proceedings, before those applications are considered.
7 On 25 May 2018, the applicant lodged a complaint with the Office of the Australian Information Commissioner, against AAS.
8 On 31 July 2019, the applicant commenced proceeding SYG1934/2019 in the (then) Federal Circuit Court of Australia against Amazon.com Inc, Mr Jeff Bezos, Mr Boyd Thibodeaux and Mr Braeuniger.
9 On 24 February 2021, in proceeding SYG1934/2019, Judge Street:
(1) dismissed the proceeding against Amazon.com Inc, Mr Bezos and Mr Thibodeaux;
(2) dismissed the applicant’s summary judgment application against Mr Braeuniger;
(3) refused an oral application by the applicant for leave to amend his pleading;
(4) summarily dismissed the proceeding as against Mr Braeuniger; and
(5) ordered the applicant pay Mr Braeuniger’s costs of the proceeding.
10 His Honour’s reasons for doing so are set out in Saffari v Amazon.com Inc [2021] FCCA 340 and Saffari v Amazon.com Inc (No 2) [2021] FCCA 341.
11 On 10 March 2021, the applicant commenced proceeding NSD195/2021 in this Court seeking leave to appeal from orders made by Judge Street on 24 February 2021.
12 In that proceeding, the applicant filed a series of interlocutory applications: see Saffari v Amazon.com Inc [2022] FCA 535 (Saffari (No 1)); Saffari v Amazon.com, Inc (No 2) [2022] FCA 674; and Saffari v Amazon.com, Inc (No 3) [2022] FCA 721 (Saffari (No 3)), which reasons for judgment were published on 12 May 2022, 8 June 2022 and 21 June 2022 respectively.
13 On 30 August 2021, the Commissioner made declarations pursuant to s 52(1)(b) of the Privacy Act that AAS:
(1) had engaged in conduct constituting an interference with the privacy of the applicant and must not repeat or continue that act; and
(2) must, within 60 days of the applicant notifying AAS of his banking details, pay the applicant $3,000 for non-economic loss.
14 The applicant unsuccessfully sought judicial review of the Commissioner’s decision: see Saffari v Australian Information Commissioner [2022] FCA 1016 (Bromwich J); Saffari v Australian Information Commissioner [2023] FCAFC 127 (Sarah C Derrington, Stewart and Abraham JJ); and Saffari v Australian Information Commissioner [2023] HCASL 190 (Edelman and Jagot JJ).
15 On 23 September 2022, Cheeseman J dismissed proceeding NSD195/2021 and ordered the applicant to pay Mr Braeuniger’s costs of that proceeding: Saffari v Amazon.com, Inc (No 4) [2022] FCA 1132 (Saffari (No 4)).
16 On 15 February 2023, the applicant commenced the present proceeding by filing an originating application and an affidavit affirmed by the applicant on 7 February 2023.
17 On 17 February 2023, the Federal Circuit and Family Court of Australia ordered that the applicant pay Mr Braeuniger’s costs in proceeding SYG1934/2019 in the amount of $9,900.
18 On 21 February 2023, the applicant sent a copy of the originating application and his supporting affidavit to Dentons. Dentons responded by indicating that they acted for ACS and Mr Braeuniger.
19 On 24 February 2023, the applicant filed an affidavit affirmed by him on the same day, in which he asserted that he had effected service of the originating application and supporting affidavit upon ACS by sending those documents by registered post to Level 37, 2 Park Street, Sydney (Park Street address).
20 On 1 March 2023, Dentons sought further particulars of the claims made in the originating application. On the same day, the applicant responded indicating, in clear and colourful terms, that he would not respond, save to correct a typographical error in his originating application.
21 On 28 March 2023, the applicant filed a further affidavit concerning service, affirmed on that day, in which he asserted that he had served the originating application and his supporting affidavit upon AAS by sending those documents by registered post to Level 19, 181 William Street, Melbourne (William Street address).
22 On 14 April 2023, the applicant filed an interlocutory application, and a supporting affidavit, in which he sought an order from the Court to the effect that AAS had been properly served.
23 On 19 April 2023, the applicant filed a statement of claim.
24 On 1 May 2023, Registrar Priestley conducted a case management hearing and made orders that the applicant file an amended interlocutory application and any supporting affidavits concerning outstanding issues of service by 15 May 2023; and listed the proceeding for further case management on 19 May 2023.
25 On 17 May 2023, the applicant filed the service application, and an affidavit affirmed by him on 15 May 2023.
26 On 19 May 2023, Registrar Priestley conducted a further case management hearing and, at the request of the applicant, made an order that the proceeding be referred to the National Operations Registrar for allocation to a docket judge.
27 In proceeding NSD195/2021:
(1) on 20 July 2023, Registrar Burns issued a Certificate of Taxation, certifying that Mr Braeuniger’s costs of that proceeding are $137,644.35; and
(2) on 27 July 2023, Dentons wrote to the applicant demanding payment of the amount of $137,644.35 within seven days.
28 On 28 August 2023, the present proceeding was allocated to my docket.
29 On 29 August 2023, the Office of the Sheriff of New South Wales wrote to Dentons concerning proceeding SYG1934/2019:
I have not made a levy under the above-mentioned Writ for the following reasons:
Execution attempted at [applicant’s address] on 29/08/2023.
We confirm an initial contact letter was sent to the judgment debtor’s address on 09/08/2023 advising of the pending enforcement action on the judgment.
Senior Sergeant Hogan attended [applicant’s address] at 8:25 AM.
A demand was made on the judgment debtor, who was unable to satisfy the debt. Officer was invited into the small house that the judgment debtor is renting with his daughter and found no goods of value on which to levy.
There was a vehicle in the driveway ... $80,000 Mercedes Finance with VW Finance Services.
...
This Writ will be filed pending further instructions.
(emphasis in original)
30 On 10 October 2023, the applicant filed the default judgment application.
31 At a case management hearing on 12 October 2023, I made orders for the filing and service of: (1) evidence and submissions concerning the applicant’s service application and default judgment application; and (2) any application of the kinds that had been foreshadowed by ACS and Mr Braeuniger for relief under rr 16.21 (strike out), 19.01 (security for costs), 26.01 (summary judgment) or 39.03 (stay) of the Federal Court Rules 2011 (Cth), and evidence and submissions relating to such applications. I set down all of those extant and foreshadowed applications for hearing on 8 February 2024; and granted the parties liberty to apply on three days’ notice.
32 On 19 October 2023, ACS and Mr Braeuniger filed their application, which sought:
(1) an order that the proceeding be stayed until the applicant has paid the costs orders made in favour of the Mr Braeuniger in proceedings SYG1934/2019 and NSD195/2021;
(2) further and alternatively, an order that the applicant pay security for ACS and Mr Braeuniger’s costs to the close of pleadings in this proceeding (and that this proceeding be stayed until that is done); and
(3) further and alternatively, an order that the originating process and statement of claim filed on 19 April 2023 be struck out, either wholly or in part.
33 That application was accompanied by an affidavit of Mr John Dalzell, the solicitor for ACS and Mr Braeuniger, affirmed the same day (Dalzell affidavit).
34 On 20 October 2023, the applicant exercised his liberty to apply and the proceeding was listed for a further case management hearing on 30 October 2023.
35 On 30 October 2023, at the case management hearing, the applicant raised concerns that the Dalzell affidavit, and the exhibit to that affidavit (Exhibit JD-1) which had not been filed but which was described as comprising 360 pages, were irrelevant and inadmissible. The applicant sought orders, inter alia, that the Dalzell affidavit and the (as yet unfiled) exhibit be removed from the Court file. After hearing submissions from the applicant and counsel for ACS and Mr Braeuniger concerning the orders sought by the applicant, I declined to make such orders. My reasons for doing so were expressed as follows:
HIS HONOUR: Okay. Let me say a few things. First, the time for dealing with questions of relevance and other issues as to whether evidence is admissible is the final hearing, which is scheduled for 8 February. On that occasion, the parties that are moving on their particular applications will seek to read the evidence that they rely upon. So let’s take, for example, Mr Byrne, I anticipate, will seek to read Mr Dalzell’s affidavit. At that stage, I will consider your objections as to whether that affidavit should go in and as to whether the exhibits should go in. It’s not appropriate to make a ruling at this stage as to whether evidence is admissible or not.
The second comment is, Mr Saffari, you mentioned that the evidence has to be relevant. I completely agree with that, and I don’t think Mr Bryne would disagree. But you need to understand that relevance is a broad concept, and includes relevance to the particular application. For example, relevance to the stay application, relevance to the securities (sic) for costs application and any other application that is made. It doesn’t need to necessarily be relevant to the ultimate issue in the proceeding. In other words, the main claim. So to take a more concrete example, if as I anticipate, an argument is going to be made that this proceeding is an abuse of process because you have already raised these issues before, and that’s as high as I put it, I don’t know, then evidence as to what has happened is relevant, or is likely to be relevant.
The next point I make is I have not seen Mr Dalzell’s exhibit. That’s because it hasn’t been filed and that’s not unusual. It’s usually just the affidavit that is filed. So to the extent that you are concerned that I will be influenced by what I might call jury evidence, you need not be worried about that, unless and until that exhibit is received into evidence. The next point is, it is open to Mr Byrne simply to tender as documents the documents that are attached to Mr Dalzell’s affidavit. What Mr Dalzell has done, in effect, is to give you some fairness by giving you notice of the documents they intend to rely upon. As I said, we will determine the question of relevance and any other admissibility issues when we get to the hearing.
You – Mr Saffari, you mentioned that the evidence needs to come from a person who has knowledge. There is an exception in the Evidence Act for interlocutory applications, as these are, and it’s section 75 of the Evidence Act which allows information to be given on – evidence to be given on information and belief. So it’s not a complete answer that it must be somebody from the first respondent or it has to be the fourth respondent who gives evidence. So I’m not inclined to deal with the question of admissibility at this stage for the reasons that I have given. You sought also to – sorry, you mentioned also that the interlocutory application goes beyond what is allowed because it deals with the second and third respondents.
As I read paragraphs 1 and 3, and I may be wrong, they relate only to – sorry, as I read paragraphs 1 and 2, they relate only to the first and fourth respondents. To the extent that this relief is sought by the first and fourth respondents, it would only be given to the benefit of the first and fourth respondents. If I were to make a decision that any of these applications succeeded, then the relief would be favourable to the first and fourth respondent, and the position of the second and third respondents would need to be separately considered. You also mentioned that you seek an injunction to prevent Mr Dalzell and his law firm from acting for anyone other than the first and fourth respondents. On my reading – well, there’s a couple of things. One is I have not seen any notice of such an application, so I don’t think it’s fair to deal with it.
But more importantly, there is, on my reading, no evidence that they are acting for the second and third respondents. If you wish to make a formal application along those lines, you are open to do it – open to do so, but you will need to have some supporting evidence. The final issue, then, is costs. I propose to reserve the costs of today. ...
36 On 8 February 2024, the various applications that had been filed before that date were heard. At the commencement of that hearing, I indicated that I proposed to hear the applicant’s applications (i.e. the service application and the default judgment application) first. The applicant indicated that he was content to proceed in that manner.
37 The applicant then moved on the service application, and the evidence and submissions upon which he relied in support of that application were identified.
38 After counsel for ACS and Mr Braeuniger indicated that he did not seek to adduce any evidence on the service application, I invited the applicant to address the Court on that application, and he did so.
39 Counsel for ACS and Mr Braeuniger then addressed the Court on the service application. During that address, the following exchange occurred concerning whether counsel for ACS and Mr Braeuniger ought to be heard on that application (which concerns service upon AAS and Amazon.com Inc, and not upon ACS and Mr Braeuniger):
MR BYRNE: Yes, your Honour. Just firstly to satisfy a point that Mr Saffari makes in his written submissions. Given the way the pleading is currently put, we say we should be able to make submissions, albeit short submissions, in relation to service because if these other parties are properly served, that affects our rights and obligations and how the progress of the proceedings might run.
HIS HONOUR: Yes.
MR BYRNE: I just raise that because I foreshadow that Mr Saffari would likely wish to say something about that when I’m finished. Just in relation to the points that have been made, firstly, Mr Saffari indicated in relation to the second respondent that he had served a local agent.
MR SAFFARI: I object, your Honour. Counsel has nothing to say about the second respondent, in my submission.
HIS HONOUR: No, I will - - -
MR SAFFARI: It’s an issue I serviced on respondents that are not counsel’s client. It has nothing to do with the counsel. They are not his clients; he cannot speak on their behalf.
HIS HONOUR: His clients are potentially affected. I will allow him to make submissions.
MR BYRNE: Mr Saffari indicated that he had – well, I should pull back and say it’s not clear exactly which provisions in the Corporations Act or otherwise Mr Saffari relies upon. He refers to 109X, which is a provision which is concerned with Australian registered companies. Now, there could be debate in respect of what is an Australian registered company, but our primary submission is that that wouldn’t include a foreign company which is registered for ASIC purposes in Australia. That said, given that Mr Saffari is a self represented litigant, I would direct the court’s attention to the fact that there is a similar provision, which is 601CX – I will just double check that I’ve got the provision right.
Yes, that’s right, 601CX. Which is in similar terms, but a different context – different part – of the Act. That’s not relied upon. Even if that were invoked as a basis for saying they had been serviced on the second respondent, firstly, Mr Saffari has said that he served on local agent. That provision is concerned with service on a foreign company which has been registered in Australia, not through a local agent, but directly on itself at a registered address.
MR SAFFARI: Your Honour, if I may interject - - -
HIS HONOUR: No. No, no.
MR SAFFARI: It is – it is, the CX that he mentioned, it is in that.
HIS HONOUR: Mr Saffari, the civilised way we will do this is Mr Byrne will have his chance to speak, and then you will have your chance to respond. So, please don’t interrupt.
MR BYRNE: And in any event, all of the affidavits Mr Saffari has put on, none of them have established what is the address for the purposes of 601CX of the second respondent. He seems to have just found an address which is on the internet and has assumed that that is a registered address. Now, I would tell the court if that was, in fact, by coincidence the registered address, because I’ve checked the register. It’s not my job to do Mr Saffari’s job, but it’s not.
HIS HONOUR: I understand.
MR BYRNE: And Mr Saffari would see that if he went into the proper part of the ASIC register. In terms of the service on Amazon.
HIS HONOUR: Yes.
MR BYRNE: Suffice for me to say that that issue has been dealt with comprehensively by Cheeseman J in a judgment of 12 May 2022, which is in Mr Dalzell – haven’t yet read or tendered this, but I will in due course, it’s also a public document – Mr Dalzell’s affidavit from page 230. That judgment also provides a very comprehensive overview of the background to the proceedings, but it deals with the issues of service, dealing with the Hague convention, the rules. Now, I should note that there has been some changes in the relevant rules – the Federal Court Rules.
HIS HONOUR: Yes.
MR BYRNE: That’s picked up on in our written submissions. And they’re significant changes, some of them. And for the reasons that I’ve indicated in the written submissions, Mr Saffari’s evidence does not – it falls woefully short – well, I withdraw that, significantly short of the standard of evidence the court would require before it would exercise the discretion to allow for service under any of those provisions. Please the court.
HIS HONOUR: Thank you, Mr Byrne. Now, Mr Saffari, it’s your turn to respond, should you wish to do so.
MR SAFFARI: Your Honour, I believe counsel mentioned I hadn’t relied on 601CX. I have.
HIS HONOUR: Okay.
MR BYRNE: Forgive me if that’s the case.
MR SAFFARI: That’s on the amended interlocutory application of 16 May or 17 May.
MR BYRNE: Forgive me for overlooking that, your Honour.
HIS HONOUR: That’s okay, thank you.
MR SAFFARI: And in regards on ..... corporations, the second respondent has a registered office and a local agent in Australia, because they must, per ASIC. They have been properly served. I have provided evidence that they are the registered office. I called the office as well – it’s a law firm, I believe – and register agents can be an individual or a company. And when I inquired about the second respondent, they said, “Yes, we are the local agent.” I have shown that they have properly set; I have shown they are local agents. Counsel says that – something – the search is just an internet search, but that’s how you find things these days, you do internet search.
And I did internet search and I found, and I confirmed they are the proper office by calling them, and they confirmed they are the registered agent of Amazon Australia Services Inc. And I strongly object counsel having anything to say about service. It doesn’t concern his clients; it doesn’t affect him in anyway. The only case against counsel’s client is privacy. And his entire submission to traverses on issues that are not against his clients.
HIS HONOUR: Okay. Your objection is noted.
MR SAFFARI: I have nothing further, your Honour.
(emphasis added)
40 During the course of the hearing of the service application, the following exchange occurred:
HIS HONOUR: ... Mr Saffari, you have a second interlocutory application of 11 October 2023. This concerns the filing of the defence by the first and fourth respondents. Do you also intend to move on that application?
MR SAFFARI: I understand if – when it comes to filing a defence, it – even if the interlocutory application is accepted, by filing a defence, it just becomes moot. So I ..... application.
HIS HONOUR: Sorry. You withdraw the application?
MR SAFFARI: Yes. It doesn’t serve any purpose.
HIS HONOUR: Okay. Thank you. So I will just note that your interlocutory application dated 10 October and accepted for filing on 11 October is withdrawn.
41 After I indicated that I would reserve my decision on the service application, counsel for ACS and Mr Braeuniger turned to their application and sought to read the Dalzell affidavit and to tender Exhibit JD-1. The following exchange then occurred:
MR BYRNE: Could I just in advance say that so far as Mr Saffari may have any objections, content for your Honour to read that affidavit subject to relevance. Your Honour’s determining that parts that I’ve taken your Honour to in submissions or may now refer to are relevant.
HIS HONOUR: Thank you. Mr Saffari, do you have some objections to Mr Dalzell’s affidavit?
MR SAFFARI: I do, your Honour. I completely object to that affidavit. It is absolutely - - -
HIS HONOUR: To the whole affidavit?
MR SAFFARI: The whole thing is irrelevant. It has issued – it has, what, 400 of – I forgot how many pages it was.
HIS HONOUR: Yes.
MR SAFFARI: It was the entire – this is a fresh proceeding, your Honour, it has nothing to do with what happened in the past.
HIS HONOUR: Well, we will come to that, as to whether it’s a fresh proceeding or the extent to which it overlaps previous proceedings. But to determine that question, I need to know what has happened in the previous proceedings.
MR SAFFARI: The previous proceeding, it was dismissed, but it was an issue ..... This is a fresh proceeding.
HIS HONOUR: We can come to those sort of arguments, but let’s just deal with the objection. So, you object to the whole of the affidavit on the grounds of relevance?
MR SAFFARI: Yes, your Honour. I think I have it in my submission, that I object to the whole affidavit. And I explain why.
HIS HONOUR: Yes.
MR SAFFARI: And anyway, your Honour, the – I can’t find it now – the affidavit of Mr Dalzell, whatever four – 500 page it is, is a list of matters that ought to be absolutely irrelevant. The only issue that Dalzell’s lawyers have to deal with is privacy. It is irrelevant that why my book was removed from the selection – the contents of the book are irrelevant. Any other matter, aside from the fact that OAIC found their client to be guilty of breaching my privacy. That, your Honour, is the only issue. It – 500 pages of history becomes irrelevant when the matter is privacy and Amazon did breach the privacy, and it was shown they have. The relevant organisation found Amazon to be guilty. Injecting 500 – 600 pages doesn’t serve any purpose of matters I the past and is injected only to influence your Honour’s opinion.
HIS HONOUR: Well, you can be assured that my opinion will not be swayed by anything that is truly irrelevant. You seem to be assessing relevance by reference to the proceeding – and I understand why you’re doing that. However, we have Mr Byrne’s clients’ application – their interlocutory application, which seeks a number of orders, for example, that the proceeding be stayed until you’ve paid the cost. They also seek security and they seek the striking out of the statement of claim.
It seems to me that the history is relevant to – at least to the question of stay as to whether the proceeding should be allowed to go ahead, particularly in circumstances where, as I understand part of the argument, is that an order was made that you pay costs and you haven’t paid and there’s a provision in the rules that says that I have a discretion to stay the proceeding until those costs are paid. So what I’m – I will let you respond in a moment but what I’m proposing to do is to admit the affidavit and the exhibit subject to relevance and each of you can address me on why things are relevant or not relevant in your submissions. Do you wish to be heard against that?
MR SAFFARI: No, your Honour. I accept wholly that the past may be relevant to the issue of a stay of proceedings. But 600 pages is – in my opinion, is irrelevant to the fact there was a costs order. That cannot be disputed. So what – the purpose of those – all those pages, affidavit and submissions that is wholly about issues that are not regarding their clients. In my opinion, it’s irrelevant to the fact that there was a costs order, yes, there was. And I understand ..... proceeding and I submit that Dentons Lawyers should limit the stay proceeding only to their clients.
HIS HONOUR: I understand that. I will allow Mr Dalzell’s affidavit to be read subject to relevance. The exhibit JD1 is admitted into evidence bearing its original marking. It also is admitted subject to relevance.
42 Counsel for ACS and Mr Braeuniger then identified some other documents, including written submissions, and handed up two folders of authorities upon which he relied. The applicant had no evidence on ACS’s and Mr Braeuniger’s application.
43 Counsel for ACS and Mr Braeuniger then made oral submissions on their application. During the course of those submissions, the following exchange occurred in connection with the documents commencing at page 350 of Exhibit JD-1:
MR BYRNE: ... That begins at 337, and then takes us through to 349.
HIS HONOUR: Yes.
MR BYRNE: Your Honour, could I just quickly say just in response to the point that your Honour has made before about relevant materials that follow, which is the website.
HIS HONOUR: Yes. Yes.
MR BYRNE: I would be content to withdraw them and not have read as part of this tender bundle the documents which begin 350 to the end.
HIS HONOUR: Okay. Thank you.
MR BYRNE: And as I understand it, whilst Mr Saffari makes more general complaints, that seems to be the most contentious material.
HIS HONOUR: Yes.
MR BYRNE: I don’t think your Honour needs to see that. And your Honour can then disregard the submissions so far as we referred to the doctors’ report.
HIS HONOUR: I will remove from my copy of exhibit JD1 pages 350 through to 357 on the basis that the first and fourth respondents do not rely upon those pages.
MR BYRNE: Yes, your Honour.
HIS HONOUR: And I will have no regard to them.
MR BYRNE: May it please the court.
HIS HONOUR: Thank you.
44 I invited the applicant to make his submissions concerning ACS’s and Mr Braeuniger’s application, and he did so.
45 I then indicated that I would reserve my decision on ACS’s and Mr Braeuniger’s application.
46 On 15 March 2024, while I was reserved on the service application and on the application brought by ACS and Mr Braeuniger, the applicant filed the bias application. That application was accompanied by an affidavit affirmed by the applicant on 14 March 2024.
47 On 19 March 2024, the applicant served on ACS and Mr Braeuniger a notice to produce, purportedly under r 20.31 of the Rules. On the same day, a solicitor in the employ of Dentons wrote to the applicant inviting him to withdraw the notice to produce on the basis that:
Based on our reading of the pleadings and affidavits served in these proceedings to date, none of the material sought under the Notice is mentioned and therefore cannot be called upon under rule 20.31(1). In light of this, it is our view that the Notice is invalid.
48 On 20 March 2024, I listed the proceeding for a further case management hearing on 4 April 2024.
49 On 22 March 2024, the applicant lodged the notice to produce application, supported by an affidavit affirmed by him on the same day (each of which was accepted for filing on 26 March 2024).
50 On 4 April 2024, I heard the bias application and the notice to produce application (in that order) and reserved judgment on those applications.
51 The two costs orders in favour of Mr Braeuniger (see [17] and [27] above) remain unpaid.
52 I consider the bias application first, because if that application succeeds, it would be inappropriate for me to determine the remaining applications.
53 As noted above, the bias application was supported by the applicant’s 14 March 2024 affidavit. It was also supported by a written outline of submissions filed on 3 April 2024 and oral submissions from the applicant.
54 The applicant asserts both actual and apprehended bias.
55 The principles concerning applications for the disqualification of a judge on the basis of actual or apprehended bias are well-established: see, e.g., Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337; Minister for Immigration & Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507; Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427; Charisteas v Charisteas [2021] HCA 29; (2021) 273 CLR 289; QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15; (2023) 409 ALR 65 and Mohareb v New South Wales (No 2) [2024] NSWCA 69.
56 An allegation of actual bias is a serious allegation that should not be made absent proper grounds: Mohareb at [8] (Gleeson and Stern JJA). Such an allegation must be “distinctly made and clearly proved”: Jia Legeng at 531 [69] (Gleeson CJ and Gummow J), 546 [127] (Kirby J).
57 In Drummond v Canberra Institute of Technology (No 3) [2022] FCAFC 169; (2022) 294 FCR 346 at 357 ([46] to [48]) a Full Court of this Court (Rangiah, Charlesworth and Banks-Smith JJ) stated:
46. As to actual bias, in Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71, North J held at 134:
Actual bias exists where the decision-maker has prejudged the case against the applicant, or acted with such partisanship or hostility as to show that the decision-maker had a mind made up against the applicant and was not open to persuasion in favour of the applicant.
(Citations omitted.)
47. His Honour continued at 135:
… [P]roof of actual bias by inference from the facts and circumstances of the case will usually involve an assessment of a series of actions by the decision-maker which, when taken together, form a whole picture leading to the conclusion of pre-judgment. It is unlikely that one single action, as distinct from a pattern of conduct, will demonstrate actual bias.
… [A]ctual bias does not necessarily involve deliberate, knowing, or wilful prejudice against an applicant … A decision-maker may not be open to persuasion and, at the same time, not recognise that limitation.
48. In Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507, Gleeson CJ and Gummow J observed at [71]-[72]:
Decision-makers, including judicial decision-makers, sometimes approach their task with a tendency of mind, or predisposition, sometimes one that has been publicly expressed, without being accused or suspected of bias. The question is not whether a decision-maker’s mind is blank; it is whether it is open to persuasion …
… The state of mind described as bias in the form of prejudgment is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented.
58 The inquiry into whether there is actual bias requires an “assessment of the state of mind of the judge in question”: Wilson at 437 to 438 [33] (Gummow A-CJ, Hayne, Crennan and Bell JJ).
59 The criterion for the determination of the apprehension of bias on the part of a judge was explained by Gleeson CJ, McHugh, Gummow and Hayne JJ in Ebner at 344 to 345 [6], as being whether:
... a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide.
60 This test is objective and one of “possibility (real and not remote), not probability”: Ebner at [7] (Gleeson CJ, McHugh, Gummow and Hayne JJ). In QYFM Kiefel CJ and Gageler J (as his Honour then was) explained at 77 [38]:
Application of the criterion was identified in Ebner, and has been reiterated, logically to entail: (1) identification of the factor which it is said might lead a judge to resolve the question other than on its legal and factual merits; (2) articulation of the logical connection between that factor and the apprehended deviation from deciding that question on its merits; and (3) assessment of the reasonableness of that apprehension from the perspective of a fair-minded lay observer.
(citations omitted)
61 To similar effect see QYFM at 83 [67] (Gordon J), 107 to 108 [162] (Edelman J), 114 to 115 [194] (Steward J), 123 [225] (Gleeson J); and Charisteas at 296 [11] (Kiefel CJ, Gageler J (as his Honour then was), Keane, Gordon and Gleeson JJ).
62 As to the qualities of the fair-minded lay observer:
(1) in Charisteas at 297 [12], the High Court of Australia explained:
As five judges of this Court said in Johnson v Johnson, while the fair-minded lay observer “is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice”;
(footnote omitted)
(2) in QYFM, Kiefel CJ and Gageler J (as his Honour then was) explained at 79 ([46] to [49]):
[46] Here, as the parties properly recognised in argument, much depends on the characteristics to be attributed to the hypothetical fair-minded lay observer in applying that standard. The observer is to be placed in a contemporary setting. Uncritical attitudes of the past cannot be assumed to be those of the present.
[47] Being “fair-minded”, the observer “is neither complacent nor unduly sensitive or suspicious”. Yet the observer is cognisant of “human frailty” and is all too aware of the reality that the judge is human. The observer understands that “information [as well as attitudes] consciously and conscientiously discarded might still sometimes have a subconscious effect on even the most professional of decision-making”.
[48] Being “lay”, the observer “is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge”. Though the observer may be taken to understand that the judge, by reason of professional training and experience and fidelity to the judicial oath or affirmation, will have a greater capacity than most to discard “the irrelevant, the immaterial and the prejudicial” and to discharge the judicial function uninfluenced by past professional relationships, “the public perception of the judiciary is not advanced by attributing to the … observer a knowledge of the law and an awareness of the judicial process that ordinary experience suggests not to be the case”. This indicates that the observer will see the person who is currently a judge as the person who was formerly an advocate and may be less inclined to dissociate the advocate from the cause advocated than would someone steeped in the adversary process with a cultivated sense of the ethics of the legal profession and the profundity of the judicial oath.
[49] Nor is the observer so abstracted and dispassionate as to be insensitive to the impression that the circumstances in issue might reasonably create in the mind of the actual party who is asserting an apprehension of bias. The observer can be taken to appreciate that a party – especially an individual, and especially a non-citizen facing deportation on the basis of his conviction – might understandably experience a justifiable sense of disquiet in seeing his former prosecutor turn up as one of his judges.
(footnotes omitted)
63 I also bear in mind the following observations of Gleeson CJ, McHugh, Gummow and Hayne JJ in Ebner at 348 ([19] to [20]):
[19] Judges have a duty to exercise their judicial functions when their jurisdiction is regularly invoked and they are assigned to cases in accordance with the practice which prevails in the court to which they belong. They do not select the cases they will hear, and they are not at liberty to decline to hear cases without good cause. Judges do not choose their cases; and litigants do not choose their judges. If one party to a case objects to a particular judge sitting, or continuing to sit, then that objection should not prevail unless it is based upon a substantial ground for contending that the judge is disqualified from hearing and deciding the case.
[20] This is not to say that it is improper for a judge to decline to sit unless the judge has affirmatively concluded that he or she is disqualified. In a case of real doubt, it will often be prudent for a judge to decide not to sit in order to avoid the inconvenience that could result if an appellate court were to take a different view on the matter of disqualification. However, if the mere making of an insubstantial objection were sufficient to lead a judge to decline to hear or decide a case, the system would soon reach a stage where, for practical purposes, individual parties could influence the composition of the bench. That would be intolerable.
64 From the applicant’s affidavit affirmed on 14 March 2024 and his written and oral submissions, I have identified the following grounds advanced by the applicant as bases for my disqualification.
65 The first ground is that, following the applicant’s request in May 2023 that the proceeding be managed by a judge rather than a Registrar of the Court (see [26] above), I became the docket judge at the request of Mr Dalzell, who is described by the applicant as a friend of mine.
66 There are several strands to this complaint:
(1) the assertion that Mr Dalzell is a friend of mine. At the hearing on 4 April 2024, I asked the applicant to identify the evidence upon which he relied to prove that assertion. He indicated that he had no such evidence. The applicant’s assertion that I am a friend of Mr Dalzell is not only unsupported by evidence, but false. For completeness, I note that the applicant’s assertion is also not proven by his suggestion in his submissions that I used what the applicant described as a Scottish pronunciation of Mr Dalzell’s surname and his suggestion (again unproven) that Mr Dalzell is Scottish; and
(2) the assertion that the delay between the order made on 19 May 2023 that the proceeding be referred for allocation to a judge and the allocation of the proceeding to me on 28 August 2023 was a result of manoeuvring between Mr Dalzell and myself to have the proceeding allocated to me. There is, as the applicant acknowledged, no evidence in support of that assertion. It is also false.
67 Thus, this ground provides no basis for a conclusion: (1) of actual bias; or (2) that there exists a factor that might lead me to decide the case other than on its legal and factual merits (i.e. the first step identified in QYFM ([60] above)).
68 The second ground is that I am a “Zionist Jew”; the applicant is “a staunch anti-Zionist Iranian litigant”; and the applicant’s book was highly critical of “Zionists”.
69 At the 4 April 2024 hearing, I asked the applicant what evidence he relied upon in support of his assertion that I am a “Zionist Jew”. He indicated that he had no such evidence, but that internet searches of my surname (which were not in evidence) “came up with Scottish-Jewish background”. The applicant’s assertion is unsupported by evidence and is false.
70 Thus, this ground also provides no basis for a conclusion: (1) of actual bias; or (2) that there exists a factor that might lead me to decide the case other than on its merits.
71 The third ground concerns my decision to allow counsel for ACS and Mr Braeuniger to make submissions at the 8 February 2024 hearing on the service application (see [39] above). In particular, the applicant submitted that at the hearing on 8 February 2024, I:
(1) allowed counsel for ACS and Mr Braeuniger to make submissions concerning the service application;
(2) did not challenge those submissions and took them at face value; and
(3) ordered the applicant to “sit down and be quiet” thereby depriving the applicant of the opportunity to test those submissions.
72 As to (1), as the transcript reproduced at [39] above demonstrates, I allowed counsel for ACS and Mr Braeuniger to make submissions concerning the service application. I did so on the basis that the outcome of that application may have affected ACS and Mr Braeuniger.
73 This was a ruling on a question of procedure. Such rulings are commonplace and unremarkable. Indeed, Cheeseman J allowed counsel for Mr Braeuniger to make submissions on an application concerning service on other respondents in Saffari (No 1) (at [43]). The making of such a ruling is not evidence of pre-judgment. Further, no logical connection between the ruling that I made and an apprehended deviation by me from deciding the case on its merits has been identified and I am not satisfied that a fair-minded lay observer would reasonably apprehend that I might not bring an impartial mind to the resolution of the issues in this proceeding. In this regard, the observations of Wheelahan J (with whom Wigney and Abraham JJ agreed) in Kazal v Thunder Studios Inc (California) [2023] FCAFC 174 at [260] are apposite:
Ordinary judicial practice also involves judges making decisions. The decisions might include, as here, decisions on interlocutory applications, rulings on evidence in the course of the trial, and the making of findings following trial. Ultimately, the judge has to give final judgment. Judicial decisions usually involve one party being successful, and another being unsuccessful. The fact that a party has been unsuccessful should not, without more, lead the fair-minded lay observer to think that the judge has done other than bring an impartial and unprejudiced mind to bear on the matters in issue: Doggett v Commonwealth Bank of Australia [2019] FCAFC 19 at [11] (Kerr, Davies and Thawley JJ). That is because the focus of the reasonable apprehension of bias is not on whether the judge decided the case adversely to one party, but whether the judge did not decide the case impartially or without prejudice: Re JRL; Ex parte CJL [1986] HCA 39; 161 CLR 342 at 352 (Mason J). Therefore, apprehended bias will not generally be established by pointing to adverse findings in the judgment under challenge, even where the findings involve strong adverse credit findings: Rush v Nationwide News Pty Limited (No 8) [2019] FCA 1382 at [25] (Wigney J), citing Royal Guardian at [234] (Ward JA, Basten JA and Emmett AJA agreeing) and Knaggs v Director of Public Prosecutions (NSW) [2007] NSWCA 83; 170 A Crim R 366 at [95] (Campbell JA, Mason P and Tobias JA agreeing). It follows also that, even if the judge is shown to have been in error in relation to some rulings or findings, that would not ordinarily speak to whether the fair minded lay observer might think that the judge might not have brought an impartial mind to bear on the issues. That is because the fair-minded lay observer would appreciate that the administration of justice is a human process which accommodates the possibility of error by providing for appeals. The existence of error does not normally carry with it a reasonable apprehension that the judge was not impartial in the conduct of the trial or in the consideration of the case.
74 See also Mohareb at [11]; and Drummond at 358 [55], where the Full Court of this Court noted that the mere fact that a judge had made rulings against a party is of itself insufficient to establish apprehended bias.
75 As to (2), the transcript does not record a challenge from me to the submissions made by counsel for ACS and Mr Braeuniger. However, that provides no basis for concluding that there is actual or apprehended bias. Similarly, there is no evidence that I accepted those submissions at face value and a conclusion that I did so simply does not follow from the absence of a challenge.
76 As to (3), at the hearing on 4 April 2024, I provided the applicant with a copy of the transcript of the 8 February 2024 hearing and gave him an opportunity to review it before he pursued this submission further. The applicant took that opportunity and accepted that the transcript does not record the words he recalled to have been said by me: “Sit down and be quiet”. The transcript, the relevant parts of which are extracted at [39] above, records that:
(1) I stopped the applicant from interjecting during the submissions of counsel for ACS and Mr Braeuniger and told the applicant that he would have an opportunity to respond to those submissions;
(2) counsel for ACS and Mr Braeuniger then continued his submissions; and
(3) I then invited the applicant to respond and he did so.
77 Thus, this ground provides no basis for a conclusion of: (1) actual bias; or (2) an apprehension of bias.
78 The fourth ground concerns my decision to allow the Dalzell affidavit and Exhibit JD-1 into evidence over the applicant’s objections (see [41] above). The applicant submitted that I admitted the Dalzell affidavit, in circumstances where:
(1) the affidavit was non-sensical and irrelevant;
(2) as a result I became “wholly familiar with its references to the applicant’s personal life, religious (or lack thereof) and political beliefs including contents of the Book which was the catalyst for these proceedings”; and
(3) the contents of this book are irrelevant to this proceeding.
79 During the hearing of the bias application on 4 April 2024, I invited the applicant to identify where in Mr Dalzell’s affidavit and Exhibit JD-1 I might find references to the applicant’s book, and to his background and beliefs. I then allowed the applicant an opportunity to do so by the filing of a one page further submission.
80 The applicant filed a further submission (of three pages). That submission travelled beyond the issue in respect of which leave was given (and also addressed the parts of Exhibit JD-1 which the applicant contends are irrelevant and the applicant’s complaints about submissions made by counsel for ACS and Mr Braeuniger). To the extent that the further submission was within the leave granted, it is addressed below.
81 The applicant’s submissions complain of both the admission of the Dalzell affidavit and Exhibit JD-1 into evidence; and the effect of my reading of that evidence.
82 It is clear that I admitted the Dalzell affidavit and Exhibit JD-1 into evidence over the applicant’s objection. However, the applicant has not identified any matter which suggests that my action in doing so exhibited pre-judgment. Again, the making of rulings on evidence is part of ordinary judicial practice and does not, of itself, provide a basis for actual or apprehended bias. In this regard, see [73] and [74] above.
83 The applicant’s submissions suggest that the contents of Mr Dalzell’s affidavit and Exhibit JD-1 to be such that my mere reading of those contents would cause me to form a pre-judgment, or create an apprehension of bias. In that regard, the applicant identified the following parts of Exhibit JD-1:
(1) page 96, which is a photocopy of the front and back covers of the applicant’s book and which forms part of an affidavit filed by the applicant in proceeding SGY1934/2019. The applicant submitted that this contains a snippet of his private life which is irrelevant to the proceeding. The particular snippet is not identified and it is not apparent to me that anything in either of those pages would cause any judge to pre-judge the case or to deviate from determining the case on its merits;
(2) page 99, which is an email from “content-review@amazon.com” to the applicant dated 9 March 2018. This email is part of the same affidavit filed by the applicant in proceeding SGY1934/2019. The email notifies the applicant that: (a) Amazon had received notice from a third party claiming that the book contained defamatory content; (b) as a result, Amazon had suspended sales of the book; and (c) Amazon had provided the applicant’s name and email address to the party who filed the notice. The applicant submits that the inclusion of this email “is to smears the Applicant’s character and ought to have been kept away from the Court’s eyes’ thus creating Apprehension of Bias” (as written). I do not see any logical connection between my reading of this email and an apprehension that I might not determine the case on its merits, particularly when: (a) there is nothing on the face of the email to suggest such a connection; (b) the email is particularised in paragraph 17 of the applicant’s statement of claim; and (c) the email will likely be part of the applicant’s evidence tendered to prove paragraph 17 of the statement of claim;
(3) pages 100 and 104, which the applicant describes as emails that he sent using “ample colourful language angry that his identity and personal information was given to third parties”. These emails are also part of the same affidavit filed by the applicant in proceeding SGY1934/2019. The applicant submits that these emails have no place in this proceeding and their inclusion and admission into evidence has created an apprehension of bias. I do not see any logical connection between my reading of these emails and an apprehension that I might not determine the case on its merits. The use of colourful language is not uncommon in evidence adduced in this and other courts and provides no basis for believing that a judge will take a particular view (whether positive or negative) about a party or witness who uses such language; and
(4) pages 352 and 354 to 357 of Exhibit JD-1. As noted at [43] above, counsel for ACS and Mr Braeuniger withdrew the tender of those documents and they were removed from Exhibit JD-1. The applicant, in his further submissions, refers to parts of those pages and submits that they create an apprehension of bias. Although the test for apprehended bias is objective, I pause to indicate that I have no recollection of those pages, which I saw briefly on 8 February 2024, nor of the parts referred to by the applicant. As those pages are not in evidence, I have no access to them. More importantly, I do not see any logical connection between my reading of those pages on 8 February 2024 and an apprehension that I might not determine the case on its merits.
84 It is commonplace for evidence in proceedings to be capable of conveying a particular impression (favourable or unfavourable) of one or more parties or witnesses. The evaluation of such evidence is a routine task for trial judges. There is no logical connection between a judge reading such evidence and an apprehension that the judge may not decide the case on its merits. Of course, the merits of the case may (or may not) include the evaluation of such evidence.
85 In summary, the applicant has not identified any logical connection between: (1) my decision to admit Mr Dalzell’s affidavit and Exhibit JD-1 (or the contents thereof) on the one hand; and (2) an apprehension that I would deviate from deciding the case on its merits on the other. I am not satisfied that a fair-minded lay observer would reasonably apprehend that I might not bring an impartial mind to the resolution of the issues in this proceeding.
86 Although the applicant framed his submissions concerning this ground by reference to apprehended bias, for completeness, I note that it provides no evidentiary basis for a conclusion of actual bias.
87 The fifth ground is that I failed to consider the service and default judgment applications, including the applicant’s affidavit evidence and submissions in support thereof and did not give the applicant the opportunity properly to present his case on those applications.
88 This ground is directly contrary to the recorded events of the 8 February 2024 hearing. As is clear from the events recounted at [37] to [40] above, at that hearing:
(1) the applicant’s service application was heard in full, including: the reading of the evidence upon which the applicant relied; identification of his written submissions; and the extension of invitations to the applicant to make oral submissions, both in chief and in reply, which invitations were accepted and acted upon. No time limit was placed upon the applicant’s oral submissions and, as the transcript records, he finished each set of submissions when he wished to and was not prevented from going further; and
(2) the applicant expressly withdrew his default judgment application.
89 Thus, this ground provides no basis for a contention of actual or apprehended bias.
90 Next, a number of the applicant’s submissions were to the effect that he considered that I would find against him on the applications that had been argued on 8 February 2024 because (he contended) I would ignore his submissions and accept the submission made by counsel for ACS and Mr Braeuniger. However, as Kennett J succinctly explained in AZC20 v Secretary, Department of Home Affairs [2023] FCA 1252 at [11]:
... an apprehension that the decision maker is likely to come to a certain conclusion is not an apprehension of bias in the relevant sense. What must be shown is a reasonable apprehension that the decision maker might not resolve the question on its merits.
91 Finally, the applicant also submitted that if the Court is unbiased, then it should not matter who hears his case, so I should disqualify myself. I do not accept that submission, which runs contrary to the well-established principle that judges are not at liberty to decline to hear cases allocated to them in the absence of good cause: see [63] above.
92 For all of the above reasons, the bias application should be dismissed.
93 As I have determined to dismiss the bias application, it is appropriate that I consider the remaining applications, to which I now turn.
94 The service application seeks the following orders:
1. An Order that as per Annexure (A) of Affidavit of Service filed on 28 March 2023, pursuant to r 10.02 of the Federal Court Rules 2011 (Cth) as indicated by s 601CX of the Corporations Act 2001 (Cth) in compliance with s 601DE of the Corporations Act where the Second Respondent conducts business in Australia selling Books using the registered names Amazon AU (Annexed as A) and Amazon Australia (Annexed as B) per s 601DA of the Corporations Act in compliance with s 601CT of the Corporations Act conducting business in Australia as Amazon Australia Services Inc (Annexed as C) as Kindle Direct Publishing Service using Amazon Company websites www.amazon.com and www.amazon.com.au (Annexed as D) under ARBN 165 035 058 (Annexure C), by serving documents on the Second Respondent’s Local Agent as per s 601CG of the Corporations Act in accordance with s 601CF of the Corporations Act, the Second Respondent has been properly served.
2. An Order that pursuant to any other Rule dealing with service of documents on foreign owned corporations, the Second Respondent has been properly served.
3. An Order that when the Court finds the Second Respondent has been properly served, Dentons Lawyers whom claim they currently do not represent the Second Respondent, not be permitted to claim they then represent the Second Respondent.
4. An Order that pursuant to r 10.42 of the Rules per r 10.24 of the Rules as interpreted by Section 29 of the Acts Interpretation Act 1901 (Cth), the Third Respondent has been properly served.
5. An Order that in the alternative to paragraph 4, by serving documents on the First Respondent Amazon Commercial Services Pty Ltd (Annexed as E) as the wholly owned subsidiary of the Parent Company Amazon.com Inc (Annexed as F) Shadow Directors of the First Respondent, the Third Respondent has been properly served.
6. An Order that pursuant to any other Rule dealing with service on foreign corporations, with Australian link, the Third Respondent has been properly served.
7. Such further order the Court considers appropriate.
(emphasis in original)
95 The evidence on the service application is primarily in the applicant’s affidavits affirmed on 24 February 2023, 28 March 2023, 14 April 2023 and 15 May 2023. There are also documents attached to the service application and the applicant’s written submissions, which I have taken into account.
96 That evidence establishes – in relation to attempts to serve the originating application – the following:
(1) an extract from a database held by the Australian Securities and Investments Commission (ASIC) taken on 16 October 2019 records that ACS was then a registered Australian proprietary company, with a registered office in Sydney (no further detail as to the address is provided);
(2) an extract from a database held by ASIC taken on 17 October 2019 records that the business name “Amazon AU” was then registered with:
(a) ACS as the holder of the business name;
(b) a renewal date for the business name of 15 June 2020;
(c) an address for service of documents at the William Street address;
(d) a principal place of business at the Park Street address;
(3) another extract from an ASIC database taken on 17 October 2019 records that the business name “Amazon Australia” was then registered with:
(a) ACS as the holder of that business name;
(b) a renewal date for the business name of 27 September 2020;
(c) an address for service of documents being the William Street address;
(d) a principal place of business being the William Street address;
(4) on 12 July 2021, Dentons wrote to the Commissioner:
OAIC reference: Privacy Complaint about Amazon Australia CP2100721
We act on behalf of Amazon Australia Services, Inc. (“Amazon”) in relation to this investigation.
...
(emphasis in original) ;
(5) a company profile for ACS, printed on 23 August 2021 from a website with the address www.ibisworld.com records that ACS: (a) is a wholly owned subsidiary of Amazon.com Inc; and (b) “operates the Amazon.com.au online marketplace”;
(6) on 16 February 2023, the applicant sent the originating application by registered post addressed to ACS at the Park Street address;
(7) on 24 February 2023, the applicant received an Australia Post document titled “Registered Post – Delivery Confirmation – Advice Receipt”;
(8) on 9 March 2023, the applicant sent the originating application by registered post addressed to AAS at the William Street address;
(9) on 22 March 2023, the applicant received an Australia Post document titled “Registered Post – Delivery Confirmation – Advice Receipt”;
(10) on 17 April 2023, the applicant sent the originating application by registered post addressed to Amazon.com Inc at “410 Terry Avenue, North Seattle, Washington USA 98109” (Seattle address);
(11) on 25 April 2023, the applicant received confirmation of arrival of that document in the United States of America;
(12) an extract from an ASIC database taken on 6 May 2023 records that AAS was and since 29 July 2013 had been, registered as a foreign company with a registered office in Sydney (no further detail as to the address is provided); and
(13) a printout from a website with the address www.neverbounce.com made on 6 May 2023 records “company information” for AAS as including its “Headquarters” at the William Street address.
97 The proceeding was commenced by an originating application. Thus, personal service on each applicant is required: r 8.06 of the Rules. Service may be effected in Australia, inter alia, using the means set out in ss 109X and 601CX of the Corporations Act, assisted by the deeming provision in s 29 of the Acts Interpretation Act 1901 (Cth) (AI Act).
98 AAS was recorded on ASIC’s database as at 6 May 2023 as a foreign company, with a registration date of 29 July 2013 (see [96(12)] above). I infer from this extract from ASIC’s database (and taking into account the effect of s 1274B of the Corporations Act) that AAS was a registered foreign company in March 2023, when the originating application was posted to it ([96(8)] above). As a “registered foreign company”, AAS is also a “registered body”, by dint of the definition of the latter term in s 9 of the Corporations Act.
99 Section 601CX of the Corporations Act, upon which the applicant relies, concerns service on a “registered body” and provides in so far as is presently relevant:
Service of documents on registered body
(1) A document may be served on a registered body:
(a) by leaving it at, or by sending it by post to, the registered office of the body; or
(b) in the case of a registered foreign company—by leaving it at, or by sending it by post to, the address of a local agent of the foreign company, being:
(i) in a case to which subparagraph (ii) does not apply—an address notice of which has been lodged under subsection 601CG(1); or
(ii) if a notice or notices of a change or alteration in that address has or have been lodged under subsection 601CV(1)—the address shown in that last-mentioned notice or the later or latest of those last-mentioned notices.
...
(3) Without limiting the operation of subsection (1), if 2 or more directors of a registered body reside in Australia or an external Territory, a document may be served on the body by delivering a copy of the document personally to each of 2 of those directors.
...
(5) Nothing in this section affects the power of the Court to authorise a document to be served on a registered body in a manner not provided for by this section.
(emphasis in original)
100 Section 601CX(1)(a) provides for service of a document on a registered body by sending it by post to the registered office of that registered body. Thus, posting the originating application to AAS’s registered office (in a manner compliant with s 29 of the AI Act) would be sufficient service.
101 The evidence establishes that the applicant posted the originating application to AAS at the William Street address ([96(8)]) above.
102 However, the evidence does not establish that the William Street address is the registered office of AAS. In this regard, evidence that a website refers to that address as the “Headquarters” of AAS (see [96(13)] above) is insufficient to establish that that address is the registered office of AAS. Notably, the applicant has not put into evidence the results of a search of any register maintained by ASIC which records the registered office of AAS. Such registers are maintained and searchable and provide prima facie evidence of, inter alia, registered offices: see ss 1274, 1274A and 1274B of the Corporations Act and regs 9.1.01 and 9.1.02 of the Corporations Regulations 2001 (Cth).
103 Absent evidence that the William Street address is the registered office of AAS, I cannot be satisfied that service on AAS under s 601CX(1)(a) has been effected.
104 I turn now to consider s 601CX(1)(b).
105 The evidence establishes that the applicant sent the originating application by registered post addressed to ACS at the Park Street address (see [96(6)] above). However, this is insufficient to establish that service has been effected within the terms of s 601CX(1)(b), for the following reasons.
106 First, the applicant has not adduced evidence capable of establishing the proposition that ACS has been appointed as the “local agent” of AAS. The expression “local agent” is defined in s 9 of the Corporations Act as:
local agent, in relation to a foreign company, means a person who is a local agent of the foreign company by virtue of subsection 601CG(5).
107 Section 601CG provides:
601CG Local agent: how appointed
(1) A foreign company that lodges a memorandum of appointment, or a power of attorney, that is duly executed by or on behalf of the foreign company and states the name and address of a person who is:
(a) a natural person or a company; and
(b) resident in this jurisdiction; and
(c) authorised to accept on the foreign company’s behalf service of process and notices;
is taken to appoint that person as a local agent.
(2) Where a memorandum of appointment, or a power of attorney, lodged under subsection (1) is executed on the foreign company’s behalf, the foreign company must, unless it has already done so, lodge a copy, verified in writing in the prescribed form to be a true copy, of the document authorising the execution.
(3) A copy lodged under subsection (2) is taken for all purposes to be the original of the document.
(4) A foreign company that appoints a local agent must lodge a written statement that is in the prescribed form and is made by the local agent.
(5) A person whom a foreign company appoints as a local agent is a local agent of the foreign company until the person:
(a) ceases by virtue of section 601CH to be such a local agent; or
(b) dies or ceases to exist.
(emphasis in original)
108 Secondly, for service to be effective under s 601CX(1)(b), the document served must have been left at or sent by post to an address, notice of which has been lodged under s 601CG(1) (as updated when necessary). There is no evidence that the Park Street address is an address which meets this requirement, including any evidence of any search of a relevant ASIC database.
109 The applicant further contends that AAS is aware of the proceeding through Dentons, and that Dentons are retained by Amazon.com Inc “and instructed by Amazon’s legal offices in the US and legal office of [ACS] and [AAS] in Australia”. In this regard, the applicant relies upon the 12 July 2021 letter extracted at [96(4)] above. Although Dentons acted for AAS in the proceeding before the Commissioner, it does not follow that service upon Dentons is effective service in this, separate, proceeding.
D.2.3 Service on Amazon.com Inc
110 The applicant contends that the originating application was served on Amazon.com Inc by the following three methods.
111 The first method was by “handing documents to Amazon.com Inc’s Australian headquarters in Sydney”. However, there is no evidence of such a handing over of documents, that Amazon.com Inc has a registered office in Sydney, or that anyone with authority purported to accept such service on behalf of Amazon.com Inc.
112 The second method was by serving it on Amazon.com Inc’s “corporate headquarters” in Seattle, Washington. This appears to be a reference to the sending of the originating application to the Seattle address ([96(10)] above).
113 The effect of r 10.42 of the Rules is that the Court’s leave to serve an originating application outside Australia is not needed if any one (or more) of r 10.42(a) to (s) is satisfied. It is clear that several of those subparagraphs are satisfied. Thus, leave to serve the originating application outside of Australia is not required. However, that is insufficient to establish that such service has been effected.
114 Service and proof of service outside Australia are assisted by rr 10.46 and 10.47 of the Rules, which provide:
10.46 Method of service
A document to be served outside Australia need not be personally served on a person so long as it is served on the person in accordance with the law of the country in which service is effected.
Note: The law of a foreign country may permit service through the diplomatic channel or service by a private agent—see Division 10.5.
10.47 Proof of service
(1) This rule does not apply to a document served in accordance with the Hague Convention.
Note: Rules 10.63 to 10.68 deal with service of local judicial documents in a country, other than Australia, that is a party to the Hague Convention.
(2) An official certificate or declaration (whether made on oath or otherwise) is sufficient proof of the service of a document on a person in a country other than Australia if the certificate or declaration states:
(a) that the document has been personally served on the person in that other country; or
(b) that the document has been served on the person in accordance with the law of that other country.
(3) If filed, a certificate or declaration mentioned in subrule (2):
(a) is taken to be a record of the service of the document; and
(b) has effect as if it were an affidavit of service.
(emphasis in original)
115 Thus, in the present case it would be sufficient if: (1) service had been effected in accordance with the law of the United States of America; or (2) an official certificate or declaration in the terms contemplated by r 10.47(2) has been provided.
116 The evidence on the present application falls short of meeting those requirements. In particular:
(1) although there is evidence that the originating application was sent to the Seattle address, there is no evidence on this application and only assertion that:
(a) the Seattle address is an address of Amazon.com Inc;
(b) the letter enclosing the originating application was received at that address. The evidence shows only that it was received in the United States of America;
(2) there is no evidence that receipt of a letter sent by post (assuming that such receipt occurred) constitutes service in accordance with the law of the United States of America; and
(3) there is no official certificate or declaration in evidence.
117 For completeness, I note that prayer 4 of the service application refers to r 10.24 which deals with substituted service. However, the applicant has not established, inter alia, that it is not practicable to achieve service in accordance with the Rules.
118 The third contended method of service on Amazon.com Inc was by serving the application on ACS and AAS. This contention must be rejected. Service of a document is not effected on a parent company by serving the document upon a wholly owned subsidiary company (assuming, for present purposes, that AAS was served).
119 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
120 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
121 I turn now to the applicant’s notice to produce application.
122 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.
123 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)
124 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.
125 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.
126 In any event, I would refuse the application for production of the documents sought by reference to those pages of Exhibit JD-1, for the following reasons.
127 First, documents mentioned in an exhibit are not documents mentioned in an affidavit for the purpose of r 20.31, as the following authorities demonstrate. In each of the authorities discussed below, the Court considered whether documents referred to or mentioned in an exhibit were documents referred to or mentioned in an affidavit for the purposes of a rule equivalent to r 20.31.
128 In Beneficial Finance Corp Ltd v Price Waterhouse (1996) 68 SASR 19 Lander J, sitting as part of a Full Court of the Supreme Court of South Australia, considered an appeal from a decision of Olsson J (Beneficial Finance Corporation Ltd v Price Waterhouse (1996) ANZ Ins Cas 76,642) in which Olsson J ordered production of documents referred to in an exhibit to an affidavit.
129 Lander J expressed the following views at 49 to 50:
The affidavit of Mr Forbes exhibits the letter of Clyde & Co of 21 June 1996 and, as I have already mentioned, he deposes to one of the matters raised in the letter itself.
That letter is then exhibited in conformity with r 59.02 being a document referred to in the affidavit. It is not the affidavit which refers to the documents which are the subject of the orders made by Olsson J but it is the exhibit. In Re Hinchliffe the court obliged a party to produce the exhibits to an affidavit which the party had in his possession. The case stands for no more than the rule itself. It is not authority for the proposition that where a party exhibits a document to an affidavit any other documents referred to in that exhibit become subject to immediate and summary production.
The ratio of the case is succinctly stated by AL Smith LJ:
When a person makes an affidavit, and states therein that he refers to a document marked with the letter A, the effect is just the same as if he had copied it out in the affidavit. It is only made an exhibit to save expense. Therefore any person who is entitled to see the affidavit is equally entitled to see the document referred to therein.
I would be disinclined to interpret this rule, as his Honour has, to require any party who exhibits a document to be required to produce any document referred to in that exhibit. That could produce significant hardship. So also, I would not interpret this rule as requiring a party who has referred to a document in a pleading as thereafter under an obligation to produce any document referred to in any of those first-mentioned documents. That is not what the rule says in my opinion. The qualification for the production of the document is that the pleading refers directly to that document, or the document is exhibited to an affidavit, not that the document referred to in the pleading or exhibited in the affidavit in turn refers to another document making that last-mentioned document subject to production.
...
The purpose of r 59.02 is to make available, without the necessity of going through the discovery process in the case of a pleading or in the case of an interlocutory proceeding requiring a deponent to attend for cross-examination in the case of an affidavit, those documents to which a party has referred in the pleading or affidavit. The rule assumes that if a party believed that those documents were important enough to refer to in that party’s pleading or affidavit they ought to be made available immediately and in a summary way to the opposing party. The rule also assumes the documents are necessary for an understanding of the pleading or affidavits.
...
(emphasis added)
130 In ACN 007 528 207 Pty Ltd (in liq) v Bird Cameron [2002] SASC 144 at [7], Burley J followed Beneficial Finance.
131 In Century Drilling Ltd v Gerling Australia Insurance Co Pty Ltd [2004] QSC 120; [2004] 2 Qd R 481, Holmes J (as her Honour then was) noted at 483 [6] the applicant’s argument:
Mr Jackson Q.C., for the applicant, relied, however, on Re Hinchliffe. In that case, an affidavit was made which included reference to counsel’s opinion, marked and annexed to it. The court seems to have regarded the notion of annexure and exhibit as interchangeable. And although reference was made to annexure, it seems that it was not the practice in the relevant division of the court to file exhibits with the affidavit. It was held that a party was entitled to production of the exhibit referred to. Lord Herschell L.C., in concluding that inspection of the documents could not be refused, said,
They form as much part of the affidavit as if they had been actually annexed to and filed with it.
Lindley L.J. gave his opinion to similar effect: there was a right to inspect “an exhibit referred to in the affidavit so as to be made part of it, just as if it were annexed to the affidavit”.
A.L. Smith L.J., in reaching the same conclusion, elaborated:
When a person makes an affidavit, and states therein that he refers to a document marked with the letter A, the effect is just the same as if he had copied it out in the affidavit. It is only made an exhibit to save expense.
132 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)
133 In Murray v Schreuder [2009] WASC 51, Newnes J stated at [69]:
In relation to this ground of the application, the documents containing the legal advice obtained by Professor Schreuder stand in a slightly different position because they are not annexed or referred to in the affidavits filed on Professor Schreuder’s behalf. While I understand they are referred to in the invoices which are contained in annexures DRB10, DRB11 and DRB13, I do not consider that is sufficient for the purposes of an application under O 26 r 8(2). A reference to a document in an exhibit does not give rise to an entitlement to its production under O 26 r 8(2): ACN 007 528 207 Pty Ltd (in liq) v Bird Cameron [2002] SASC 144, [7]; Century Drilling Ltd v Gerling Australia Insurance Co Pty Ltd [2004] QSC 120, [13]. Accordingly, I would not have acceded to the application in relation to the documents containing legal advice so far as it was based on O 26 r 8(2).
(emphasis in original)
134 An appeal against his Honour’s decision was heard and dismissed, but it was unnecessary for the Court of Appeal of the Supreme Court of Western Australia to consider his Honour’s reasoning concerning the notice to produce.
135 Parties who contend that documents referred to in exhibits to affidavits should be produced pursuant to notices issued under r 20.31 and its analogues often do so by reference to the decision of the English Court of Appeal in In re Hinchliffe [1895] 1 Ch 117. However, that decision, properly understood, is authority only for the proposition that a person who had a right to inspect and copy an affidavit had also the right to inspect and copy any exhibit to that affidavit: see In re Koscot Interplanetary (UK) Ltd [1972] 3 All ER 829 at 835 (Megarry J); and Robowash Pty Ltd v Robowash Finance Pty Ltd [2000] WASCA 409; (2000) 158 FLR 338 at 342 [17] (Kennedy J, with whom Wallwork and Anderson JJ agreed).
136 Secondly, if contrary to the conclusion reached above, documents mentioned in an exhibit are documents mentioned in an affidavit for the purpose of r 20.31, I would decline, as a matter of discretion, to order ACS and Mr Braeuniger to produce the documents which the applicant claims the notice to produce seeks.
137 The purpose of r 20.31 is to provide procedural fairness to the recipient of a pleading or affidavit served by another party which pleading or affidavit refers directly to a document. As I explained in Dove v Everforex Financial Pty Ltd [2023] FCA 1171 at [16]:
... [Rule 20.31] is a rule of some antiquity. In Quilter v Heatley (1883) 23 Ch D 42 at 50, Lindley LJ explained that the analogous rule was intended to give the party receiving the pleading or affidavit the same advantage as if the document referred to had been set out in full in that pleading or affidavit. See also Canstruct Pty Ltd v Project Sea Dragon Pty Ltd (No 3) [2023] FCA 905 at [28] (Derrington J); Koolan Iron Ore Pty Ltd v Infrassure Ltd [2020] FCA 233 at [21] (Jackson J). It is also a rule of fundamental principle, reflecting basic procedural fairness: Betfair Pty Ltd v Racing New South Wales (No 2) [2009] FCA 195 at [11] (Perram J). ...
138 The applicant’s reference to:
(1) page 48 of Exhibit JD-1 is a reference to paragraph [17] of the applicant’s statement of claim;
(2) pages 233 and 271 of Exhibit JD-1 is to paragraphs from the judgments of Cheeseman J in Saffari (No 1) and Saffari (No 4) respectively;
(3) pages 265 and 266 of Exhibit JD-1 are to schedules attached to the judgment of Cheeseman J in Saffari (No 3). Those reasons dealt with an unsuccessful application by the applicant for leave to issue two subpoenas and the schedules set out the documents sought by the applicant under the subpoenas; and
(4) “65 other places” is meaningless in the present context and need not be considered further.
139 As can be seen, this is not a case in which the document(s) sought by the applicant have been deployed by ACS or Mr Braeuniger, or that any relevant procedural unfairness has been visited upon the applicant by ACS and Mr Braeuniger not having provided the document(s) sought. The application is, in substance, a premature request for discovery and should be dismissed.
G. THE APPLICATION OF ACS AND MR BRAEUNIGER
140 I turn now to consider the application brought by ACS and Mr Braeuniger.
141 The first order sought by ACS and Mr Braeuniger is:
An order pursuant to r 39.03 that the proceedings be stayed (or, alternatively, stayed as against the fourth respondent) until the applicant has paid the costs orders made in favour of the fourth defendant in Federal Circuit proceeding SYG1934/2019 and in Federal Court proceeding NSD195/2021.
142 Although this prayer for relief: (1) refers to the costs order made in proceeding SYG1934/2019, ACS and Mr Braeuniger did not rely upon that order for the purposes of this application; and (2) refers to r 39.03, ACS and Mr Braeuniger also invoked the Court’s implied power to prevent an abuse of its processes.
143 Rule 39.03(2) of the Rules provides:
Dismissal of proceedings and stay of further proceedings
...
(2) If:
(a) a proceeding has been dismissed in whole or in part; and
(b) the Court has ordered the applicant to pay another party’s (the second party’s) costs;
the second party may apply to the Court for an order staying any further proceedings brought by the applicant against the second party on the same or substantially the same cause of action or relief, until the costs have been paid.
(emphasis in original)
144 In addition to r 39.03(2), the Court has an implied power to stay proceedings, including where a proceeding is to be regarded as an abuse of the process of the Court. See also s 23 of the Federal Court of Australia Act 1976 (Cth). As the Court’s implied power does not depend upon the satisfaction of particular criteria, it is unnecessary to dwell on whether the criteria which enliven the discretion in r 39.03(2) have been satisfied, save to note that ACS does meet those criteria as it was not a party to proceeding NSD195/2021.
145 The discretion is broad. In Phillip Morris Limited v Attorney-General (Vic) [2006] VSCA 21; (2006) 14 VR 538, Ormiston JA (with whom Eames JA agreed) set out, at 564 to 578 ([122] to [150]), a detailed and comprehensive analysis of English and Australian authorities concerning the exercise of the power to stay a proceeding on the basis of a failure to pay costs of an unsuccessful earlier action. At 578 ([149] to [150]), his Honour expressed the following conclusions:
149. In the end, I would prefer to view the authorities as permitting an understanding of the rule as requiring only the exercise of a discretion, being a discretion to prevent vexatious proceedings or otherwise to control abuse of process. Likewise I would view the more stringent authorities as depending too greatly on the Chancery practice, which had its own peculiar rationale which has become of no relevance at least since the passing of the Judicature Act. If one were to prefer the practice on the common law side, then it would be possible to turn to the last reported decision on this subject, to my knowledge, of a common law court sitting in banc, namely, Cobbett v Warner, in particular the judgment of Mellor J. Although, as I have said, it has only been followed once explicitly to my knowledge, in Morton v Palmer in the Queen’s Bench Division, but in respect to non-payment of costs of interlocutory motions, what his Lordship said has never been disapproved and in my opinion can lie consistently with the later authorities, if one assumes, as I think one fairly may, that they each implicitly recognise that such orders involve the exercise of a discretion, however firmly that exercise is suggested in those later appellate authorities. Cave J in Morton v Palmer recognised that the general common law rule had been laid down in cases such as Hoare and Cobbett v Warner, but he perceived the power in the case with which he was dealing to be discretionary in the widest sense.
150. If, however, one might return to that last appellate decision of a common law court where the costs in question were those incurred by an unsuccessful plaintiff in an earlier action, that is Cobbett v Warner, then, as Mellor J stated, that jurisdiction to order a stay is to be invoked in order to prevent one party harassing another. He would have denied that it was a course “to be adopted whenever costs of a former litigation are unpaid” and he properly emphasised that: “This summary jurisdiction should be sparingly exercised, as it deprives the party whose action is stopped of the right to try his cause and if necessary to carry it to the highest tribunal.” With this approach I agree.
(emphasis added)
146 In Cameron’s Unit Services Pty Ltd v Kevin R Whelpton & Associates (Australia) Pty Ltd [1986] FCA 419; (1986) 13 FCR 46 (at 53 to 54), Burchett J considered an application under a predecessor to r 39.03(2), namely O 35, r 6(2) of the Federal Court Rules 1979 (Cth). At 53 to 54 his Honour stated:
It is then necessary to consider the alternative submission that the proceeding should be stayed under Order 35, r 6(2) of the Federal Court Rules 1979 (Cth) until the costs payable in respect of the earlier proceeding have been paid or secured. There is an initial difficulty that the costs have not yet been taxed and cannot be said actually to be payable: see Thames Investment & Securities PLC v Benjamin [1984) I WLR 1381. However in my view the matter can be decided upon broader considerations.
In Rice v Henley (1915) 32 WN (NSW) 54, Harvey J stated the effect of the authorities as follows:
(I)t is a rule that when a plaintiff brings an action and fails, he shall not bring another action for the same cause and against the same defendant till he has paid the costs of the first action. Prima facie under these circumstances the second action is in the eyes of the Court vexatious. . . . But there is no absolute rule under which the Court exercises its discretion, and I do not wish to lay down any rule which may fetter the Court in the exercise of such discretion.
Rice v Henley was held to have correctly stated the law in Bowen v Hickey (1958) 78 WN(NSW) 820. There the Full Court of the Supreme Court of New South Wales held that no distinction could fairly be drawn in a case where the first action had terminated, not by the return of a verdict for the defendant, but by a judgment of nonsuit. However it seems to me that a distinction can be fairly drawn between cases where an action is fought out to a conclusion in favour of the defendant and a case, such as the present, where the first proceeding never got to trial. Furthermore, I respectfully agree with the view expressed in the Thames Investment case at 1383 that “there is no rigid and inflexible rule that dictates what the court must do”.
(emphasis added)
147 An important consideration in applications of this sort is that there will usually have been no determination of the underlying merits of the proceeding. Where there has been such a determination then the party seeking the stay will likely found the application for the stay upon principles relating to res judicata or issue estoppel: see Phillip Morris at 564 [123] and 577 [147].
148 In the present case, I am not satisfied that the proceeding should be stayed until the previous costs orders are paid, for the following reasons.
149 First, the applicant’s claims were summarily dismissed by Judge Street in SYG1934/2019 because of the manner of his pleading. Cheeseman J declined to grant leave to appeal in Saffari (No 4). Thus, there has been no determination of the applicant’s claims on the merits. Secondly, in that context and in a context in which the applicant has recast his pleading, I do not consider the bringing of the present proceeding against Mr Braeuniger to be an abuse of process or vexatious. Thirdly, in the same context, the power to stay the proceeding should be sparingly exercised: Phillip Morris at 578 [150]. This is not an appropriate case in which to impose a stay because of the non-payment of a costs order in a previous proceeding.
150 The second order sought by ACS and Mr Braeuniger is:
Further and alternatively:
(a) an order pursuant to r 19.01(1)(a) that, within 14 days of those order (or by such other date that the Court may determine), the applicant pay into Court:
i. $9,036.60, as security for the first respondent’s costs to the close of pleadings; and
ii. $9,036.60, as security for the fourth respondent’s costs to the close of pleadings; and
(b) an order pursuant to r 19.01(1)(b) that the proceedings be stayed (or, alternatively, stayed as against either or both of the first and fourth respondents) until the security in (a) above is given.
151 Mr Dalzell deposes that:
(1) ACS and Mr Braeuniger seek security for their costs of steps in the proceeding to the point of the close of pleadings; with the intention of then making applications for further security to cover later stages in the proceedings;
(2) ACS and Mr Braeuniger rely upon the applicant’s failure to date to pay the costs orders in favour of Mr Braeuniger in proceedings SYG1934/2019 and NSD195/2021 as providing a reason to believe that he will be unable to pay ACS’s or Mr Braeuniger’s costs in this proceeding if so ordered, and that he is impecunious;
(3) ACS and Mr Braeuniger understand that the applicant is ordinarily resident in Australia, and that he is suing only for his own benefit; and
(4) his estimate – based upon his substantial experience as a litigation solicitor – of the costs involved in preparing the defences of ACS and Mr Braeuniger, together with the costs of this application for security for costs to be in the order of $25,896 and the amount recoverable on assessment to be 70 per cent thereof, or $18,127.20.
152 The applicant adduced no evidence on this application.
153 The application is brought pursuant to r 19.01 of the Rules. The Court’s discretion is broad and is to be exercised by reference to the circumstances of the particular case: Madgwick v Kelly [2013] FCAFC 61; (2013) 212 FCR 1 at 4 [6] (Allsop CJ and Middleton J); All Class Insurance Brokers Pty Ltd (in liquidation) v Chubb Insurance Australia Limited [2020] FCA 840 at [42] to [44] (Allsop CJ).
154 The application is based upon the proposition that the applicant is impecunious, with the conclusion of impecuniosity said to arise by inference from the failure of the applicant to pay costs orders in proceedings SYG1934/2019 and NSD195/2021. Apart from the costs orders, ACS and Mr Braeuniger have adduced no evidence as to the applicant’s assets and liabilities, nor his income, from which an inference as to the applicant’s financial position might be drawn.
155 I have had regard to the letter from the Office of the Sheriff of New South Wales (see [29] above) but do not find it persuasive. Whilst that letter suggests that the applicant was unable to satisfy a debt of $9,900 when the officer called upon him, it also suggests that the applicant was renting the house he occupied and may have sufficient income also to make lease or loan payments on a motor vehicle with a value of $80,000.
156 I am not prepared to infer from the evidence available that the applicant failed to pay the costs orders because of impecuniosity. An inference that is at least equally available is an inference that the applicant is able but unwilling to pay those costs. In this regard, there is ample evidence in the material before the Court that the applicant is not well-disposed toward any of the respondents, including Mr Braeuniger.
157 Thus, ACS and Mr Braeuniger have not discharged their onus of establishing the impecuniosity of the applicant. As this is the only basis upon which security for costs is sought, it is unnecessary to consider other factors which inform the exercise of the discretion, save that if the applicant were in fact impecunious then the orders sought by ACS and Mr Braeuniger would likely stultify the proceeding. I would be reluctant to make an order having such an effect.
158 The application should be dismissed.
159 The third order sought by ACS and Mr Braeuniger is:
Further and alternatively, an order pursuant to r 16.21 that the originating process dated 15 February 2023 and statement of claim dated 19 April 2023 be struck out (or, alternatively, such parts of those documents be struck out as the Court be determine).
160 ACS and Mr Braeuniger make various criticisms of the statement of claim and submit that these matters provided a basis to strike out the statement of claim in whole or in part.
161 I have carefully considered the statement of claim and the various criticisms made of it by ACS and Mr Braeuniger. Having done so, I am not inclined to strike it out at this stage of the proceeding, for the following reasons.
162 First, the applicant is a self-represented litigant. Although he presents as a person of considerable academic intelligence, he does not appear to have any legal training. In those circumstances, I am inclined to allow some leeway in the manner in which the case is pleaded.
163 Secondly, although the statement of claim has been prepared by a self-represented litigant without apparent legal training, it does set out various facts and elements of causes of action upon which the applicant apparently relies. It is far from a perfect pleading, but it is sufficiently intelligible for present purposes.
164 Thirdly, as is apparent from the written submissions filed by ACS and Mr Braeuniger on this application, they have a broad understanding of the case propounded against them in the statement of claim.
165 Finally, to the extent that further clarification is required, it is open to ACS and Mr Braeuniger to seek such clarification by way of a request for particulars. As noted at [20] above, a request for particulars of the originating application was made and met with a derisory response. This may explain why there is no request for particulars of the statement of claim in evidence. I am presently minded to not require ACS and Mr Braeuniger to file a defence to the statement of claim until the applicant has provided a satisfactory answer to: (1) the earlier request for particulars of the originating application; and (2) any promptly served request for particulars of the statement of claim. Should satisfactory particulars not be provided, the application to strike out the statement of claim may be renewed.
166 For the reasons set out above: (1) the applicant’s bias application, service application, and notice to produce application should each be dismissed; and (2) the application brought by ACS and Mr Braeuniger should be dismissed. I will make orders accordingly.
I certify that the preceding one hundred and sixty-six (166) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Goodman. |
Associate:
Dated: 1 May 2024
NO 129 of 2023 | |
ROCCO BRAEUNIGER |
