Leave to appeal from dismissal of proceedings against Amazon and Mr Bezos
33 I will first consider the application for leave to appeal in respect of the interlocutory order dismissing the proceedings against Amazon and Mr Bezos, noting that Mr Saffari did not press the leave application insofar as it concerned Mr Thibodeaux. In my view, it would not be appropriate to grant leave to appeal in respect of the orders made dismissing the Circuit Court proceedings.
34 First, the decision to dismiss the proceedings against Amazon and Mr Bezos on the basis that the writ was stale is not attended by sufficient doubt to warrant the grant of leave. At the relevant time, r 6.17 of the Circuit Court Rules provided that:
Unless the Court otherwise orders, a document may not be served more than 12 months after it is filed.
35 At the time the orders were made, the proceedings had been on foot for some 19 months. The primary judge noted that (at PJ [2] to [3]):
2 No proper step has been taken to effect service on the first, second and third respondents in accordance with the Federal Court Rules 2011 (Cth), as picked up by r 1.05 of the Federal Circuit Court Rules 2001 (Cth) ("the Rules"). Under r 6.17 of the Rules, the application must be served within 12 months of the commencement of the proceedings. The proceedings were commenced on 31 July 2019.
3 The applicant believes that he has taken steps to effect service; however, they are not in accordance with the Federal Court Rules and the Rules.
36 The primary judge was correct in his analysis. The primary judge's reference to Mr Saffari "believing" that he had taken steps to effect service is a reference to Mr Saffari's contention below, which was repeated in these proceedings, that service on Mr Braeuniger in his personal capacity constituted service on the other respondents, and in this way, or so the argument went, the need to obtain leave to serve out of the jurisdiction was obviated. In Mr Saffari's interlocutory application in these proceedings, Mr Saffari persisted in that contention, and subsequently sought special leave to agitate the point in the High Court. For the reasons given for refusing the stay application, and noting that Mr Saffari has not at any time applied for leave to serve out, I am not satisfied that there is sufficient doubt about the correctness of the primary judge's decision in respect of service on Amazon and Mr Bezos to warrant the grant of leave.
37 Secondly, Mr Saffari's contention that he was denied procedural fairness in relation to the dismissal of his claim against Amazon and Mr Bezos is not made out in the circumstances of this case for the following reasons. That the primary judge was required to observe the requirements of procedural fairness in this matter is not in dispute. The evidence before me demonstrates that the primary judge did afford Mr Saffari procedural fairness. The primary judge gave Mr Saffari an opportunity to be heard on the issue of service to the respondents. Further, the primary judge's comments at PJ [3] demonstrate that he was aware of the basis that Mr Saffari claimed to have served Amazon and Mr Bezos, but did not accept that by those acts service had been effected. That conclusion was both open to the primary judge, and correct on the material that Mr Saffari pointed to on this application. For what it is worth, I note that Mr Saffari did not ask for an adjournment. The transcript reflects that he was both articulate and assertive before the primary judge. That said, I do not overlook that he was self-represented and it may not have occurred to him to press for an adjournment. In any event, an adjournment, even if granted, was unlikely to have been of any practical utility to Mr Saffari given his committed position that leave to serve out was not required. Similarly, even if the validity of the application had been extended, it is unlikely to have been of practical utility because of Mr Saffari's stance on service. The conduct relied on before the primary judge, and on which Mr Saffari continues to rely on in this Court, was not effective as a means of serving Amazon and Mr Bezos in accordance with the Rules.
38 It is relevant to note that ss 32 and 57 of the Circuit Court Act require the Circuit Court to proceed without undue formality, to endeavour to ensure that the proceedings are not protracted, and that proceedings in the Circuit Court are not invalidated by reason of a 'formal defect or irregularity' unless it is productive of substantial injustice that cannot be remedied by an order of the Circuit Court. The decision to dismiss the proceedings against the respondents outside the jurisdiction was not a determination on the merits and did not preclude Mr Saffari from instigating fresh proceedings, which could then have been served in accordance with the Rules. As has been observed, "judges and magistrates are encouraged, where it is possible and appropriate to do so, to decide cases promptly and to give their judgments immediately": see Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v AAM17 (2021) ALJR 292; [2021] HCA 6 at [26] and [31] (referring to extra-curial observations made by Gleeson CJ, as his Honour then was).
39 Before leaving the issue that Mr Saffari raises in relation to procedural fairness, it is appropriate to acknowledge that by his own description, Mr Saffari's experience of appearing before the primary judge was intimidating and stressful. Mr Saffari's amended application for leave to appeal describes his interactions with the primary judge as involving a "hurried, continually interrupted, intimidating, inquisitorial exchange [regarding the ASOC]", that the primary judge was "standing up throughout shuffling impatiently with an unusual demeanour", and that the primary judge "impatiently [cut] off [Mr Saffari] within 2 minutes of asking his question". During the hearing on 28 July 2022, Mr Saffari echoed these observations, and submitted that the transcript did not convey "the true picture [of what occurred during the relevant proceedings]". It is trite to observe that transcripts will often not capture the atmospherics of a hearing. The transcript of the hearing before the primary judge does reveal that there were what appear to have been some heated exchanges. Those exchanges do not appear to have been one way. The transcript records exchanges between Mr Saffari and the primary judge in which Mr Saffari made comments that were plainly offensive and the primary judge demonstrated some forbearance in the face of those comments. Even so, and recognising that the Circuit Court is a busy court and that the judges of that Court operate under considerable pressure, it is regrettable if Mr Saffari's experience was as he described. However, I am not satisfied that the issue raised by Mr Saffari in relation to procedural fairness either of itself or in combination with his other submissions are such that leave to appeal should be granted.
40 Finally, it is significant that the decision to dismiss the application as stale is not a decision on the merits. The orders do not have the effect, practically or otherwise, of finally determining the rights of the parties. There does not appear, on the materials before the Court, to be any barrier to Mr Saffari commencing fresh proceedings against Amazon and Mr Bezos, and seeking leave to serve those proceedings out of the jurisdiction. In bringing any such application, Mr Saffari would carry the burden of establishing that he has a claim recognised at law for any relief claimed in any such future proceedings. Accordingly, I am satisfied that no substantial injustice would result from a refusal of leave to appeal the decision of the primary judge in respect of Amazon and Mr Bezos.