Saffari v Amazon.com, Inc

Federal Court of Australia|2022-06-21|Before: Cheeseman J

The applicant's request dated 12 June 2022 seeking leave to issue a subpoena to Janet Menzies be refused.
The applicant's request dated 18 June 2022 seeking leave to issue a subpoena to Amazon Commercial Services Pty Ltd be refused. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

INTRODUCTION 1 Shahriar Saffari is the applicant in proceedings where he seeks leave to appeal from two interlocutory decisions of the Federal Circuit Court of Australia (now the Federal Circuit and Family Court of Australia). He has lodged two requests for leave to issue subpoenas with a view to the proposed subpoenas being returnable at the hearing of his application for leave to appeal on 28 July 2022. These reasons address Mr Saffari's requests to issue subpoenas in the leave to appeal proceedings. The requests were considered in Chambers in accordance with the approach endorsed by the parties in respect of the first request. Mr Saffari provided a copy of his requests to the fourth respondent, Mr Brauniger, who opposes the grant of leave to issue the subpoenas the subject of the requests.

THE SUBPOENAS 4 The first subpoena that Mr Saffari seeks leave to issue is addressed to Janet Menzies, who Mr Saffari says is currently employed by ACS in the position of 'Amazon Country Manager'. The second proposed subpoena is addressed to ACS. Neither Ms Menzies nor ACS is a party to the proceedings in this Court. They were not parties to the Circuit Court proceedings. 5 The schedules of documents targeted for production in each of the draft subpoenas addressed to Ms Menzies and ACS are extracted and form Schedule 1 and 2 to these reasons. They are substantially similar. 6 Mr Saffari contends that Ms Menzies is in control of the documents the subject of the subpoena and that he "needs information in control of the Witness". Further, that the "evidence that are subject to this Subpoena are vital to [his] case". 7 Similarly, in respect of the subpoena directed to ACS, Mr Saffari submits that his "personal information and Kindle account held by Amazon.com Inc was also held by the relevant office of [ACS] because [Mr Saffari] resides in Australia". Mr Saffari similarly submits that he "needs information in control of the Witness" and the "evidence that are subject to this Subpoena are vital to [his] case". 8 Mr Brauniger opposes leave being granted to issue the subpoenas on several bases, including that leave has not been granted to Mr Saffari to adduce or to rely upon any fresh evidence or matter that was not before the Circuit Court. I interpolate to note that the same may be said in respect of any further evidence that may be obtained as a result of compulsory processes such as the issue of subpoenas or orders for discovery (in respect of the latter see Saffari v Amazon.com, Inc (No 2) [2022] FCA 674). Further, that no such leave has been sought, presumably because Mr Saffari does not have the documents that he seeks to obtain under subpoena and so is not in a position to seek leave to adduce fresh or further evidence on his applications for leave to appeal. 9 Mr Brauniger submits that although the reason given for the request for leave to issue a subpoena to ACS is that the "Resident Director's office was involved in breaching the Privacy Act at the relevant time by divulging the Appellant's private information along with other Torts as alleged in the Appellant's Statement of Claim", ACS was not a party to the Circuit Court proceedings and is not a party to the leave to appeal proceedings.

CONSIDERATION 10 The documents sought by Mr Saffari under both proposed subpoenas may have been relevant in the Circuit Court proceedings. As I outlined in Saffari No 1 at [14] to [17], those proceedings were dismissed before pleadings had closed. The documents, which Mr Saffari now seeks to obtain under the proposed subpoenas, were not before the Circuit Court. Mr Saffari has not established any basis on which the documents, even if in existence and under the control of one or other of the proposed addressees, could be relevant to the current proceedings - which, as noted at the outset, are proceedings for leave to appeal from two interlocutory decisions of the Circuit Court. 11 The first interlocutory decision relates to a dispute about whether three of the respondents below, each of whom appear to be outside jurisdiction, were served, in circumstances where it is common ground that no application for leave to serve out was made. 12 The second interlocutory decision relates to the Circuit Court's decision to summarily dismiss Mr Saffari's application against Mr Brauniger on the basis that the pleading did not reveal a prima facie cause of action against Mr Brauniger; and accordingly, Mr Saffari did not have a reasonable prospect of success within the meaning of s 17A of the Federal Circuit Court of Australia Act 1999 (Cth). 13 In these circumstances, granting leave to Mr Saffari to issue the draft subpoenas at this stage in proceedings for leave to appeal would be contrary to the overarching purpose of the civil procedure provisions, which is to resolve disputes as quickly, inexpensively and efficiently as possible: s 37M(1)(b) of the Federal Court of Australia Act 1976 (Cth).

CONCLUSION 14 For these reasons, the requests for leave to issue the draft subpoenas to Ms Menzies and ACS are refused. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Cheeseman.

Associate: Dated: 21 June 2022 SCHEDULE 1 - Schedule of documents in draft subpoena to Janet Menzies The documents and things you must produce are as follows: Records of all internal and external communications and documents in possession of Amazon, being Amazon.com Inc and Amazon Commercial Services Pty Ltd and Amazon Australia Services Inc (Kindle) relating to the Applicant's Account and the Appellant's Book sold by Amazon. Including all information regarding the person or persons involved in making the complaint to Amazon and the person or persons involved in handling of the Appellant's Amazon account and the person or persons involved in divulging the Appellant's private information to the person or persons that made the complaint to Amazon. Records of all communications regarding the Appellant's case in the Federal Court expanding from 01 January 2018 and present between Amazon and the followings: Rocco Braeuniger Matt Furlong Angelene Falk Alexander Street Jeff Morneau Andrea Conn Corinne Matti Ben Kirkwood "Document" includes, without limitation, originals and copies of all correspondence, letters, memoranda, minutes, written and electronic communications, emails, SMS messages, MMS messages, Chat messages, diary notes, forms, internal memoranda, telephone memoranda, reports, file notes, agreements, accounts, receipts, invoices, computer discs or USBs, computer and video and master tapes and any other form of digital or electronic storage of information. SCHEDULE 2 - Schedule of documents in draft subpoena to ACS The documents and things you must produce are as follows: All records relating to the Applicant's Amazon and Kindle account including the number of books sold, alterations to numbers of books sold and records of all internal and external communications and documents in possession of Amazon, being (Amazon.com Inc and Amazon Commercial Services Pty Ltd and Amazon Australia Services Inc (Kindle)) relating to the person or persons involved in making the complaint to Amazon and the person or persons involved in handling of the Appellant's Amazon account and the person or persons involved in divulging the Appellant's private information to the person or persons that made the complaint to Amazon. Records of all communications regarding the Appellant's case in the Federal Court expanding from 01 January 2018 and present between Amazon and the followings: Janet Menzies Rocco Braeuniger Matt Furlong Angelene Falk Alexander Street Jeff Morneau Andrea Conn Corinne Matti Ben Kirkwood "Document" includes, without limitation, originals and copies of all correspondence, letters, memoranda, minutes, written and electronic communications, emails, SMS messages, MMS messages, Chat messages, diary notes, forms, internal memoranda, telephone memoranda, reports, file notes, agreements, accounts, receipts, invoices, computer discs or USBs, computer and video and master tapes and any other form of digital or electronic storage of information.

SCHEDULE OF PARTIES NSD 195 of 2021 Respondents Fourth Respondent: ROCCO BRAUNIGER

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