B. BACKGROUND
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.