DNA to test federal court judgement

Domains Names Australia (DNA) is appealing against a Federal Court judgement which branded its mail-outs as misleading and deceptive.

Last week, .au Domain Administration (auDA), the administrator of .au domain names, won its a Trade Practices Act claim against the Perth-based company and its director Chesley Rafferty.

Justice Finkelstein determined that notices sent by DNA in July and September 2003 were misleading and deceptive.

The judge agreed with auDA claims that the notices falsely represented that they were notices for renewals of existing domain names, that the domain name was due for renewal by the closing date referred to in the notice, and that the recipient of the notice risked losing their domain name if they did not request DNA to renew it.

Justice Finkelstein also found that Rafferty was personally involved in DNA contravening the Trade Practices Act and will grant injunctions against both DNA and Rafferty from further breaching legislation.

Rafferty's lawyer, Darren Pratt of Phillips & Fox in Perth, told ARN that a notice of appeal was filed in the Perth Federal Court on Thursday, though the proceedings are being handled in Melbourne.

Pratt said the defence had issues relating to orders and costs with regard to proceedings involving the Australian Competition and Consumer Commission. The auDA proceedings hadn't been finalised, he added.

The defence counsel said various claims made by the prosecution, such as DNA making false representations, were rejected or not proven. "It's far from the comprehensive victory that's been claimed," Pratt concluded.

On hearing of the appeal, auDa Industry Liaison Officer Elspeth Ross said neither she nor auDA lawyers were aware of it.

However, in a statement issued last week (see www.auda.org.au), auDA CEO Chris Disspain, said while he was delighted to have won the battle but there was still more to do.

"We will now continue to pursue our class action against DNA and Chesley Rafferty to secure refunds for the many thousands of people who have been misled and deceived by these notices," he said.

"While misleading and deceptive notices, like the ones sent out by DNA and Chesley Rafferty, are rare, auDA strongly advises all Australians to register or renew their .au domain names only through an accredited registrar or appointed reseller."

Chesley Rafferty had not returned calls when this story was posted.

Justice Finkelstein's judgement can be seen in full on the Australian Legal Instiutute's website at www.austlii.edu.au.