Bennett

Some of your observations are not correct, and I feel it is necessary
for me to correct them.

What Justice Finkelstein handed down on 8 April 2004 (at
http://www.austlii.edu.au/au/cases/cth/federal_ct/2004/424.html) was
his Honour's reasons for judgement.  That is not the final orders for
auDA's action, and auDA's action continues in the Federal Court.  There
are more yet to be done.

In auDA's amended Application to the Federal Court (at
http://www.auda.org.au/pdf/dna-amended-app.pdf) auDA simply claimed
that DNA had engaged in conduct in contravention of sections 51A, 52 and
64(2A) of the Trade Practices Act 1974, and that Rafferty was involved
in that contravention.  

auDA and ACCC said (separately) that the notices sent by DNA were
misleading for a variety of reasons.  The Court agreed with some of the
reasons, but not others.  Ultimately, His Honour did find that DNA
contravened section 52 of the Act, and that Rafferty was involved in
that contravention.  (Section 51A is an interpretation provision.)  

Even as the judge said in his Honour's reasons, the claim under section
64(2A) is a 'subsidiary claim'.  See paragraph 2 of the reasons.  It is
simply not true to say that 'the courts rejected the majority of claims
by auDA and ACCC'.  

What are the 'outcome' - well, they are yet to be determined by the
Court.  auDA's claims are reasonably extensive, and they include damages
for class members who have suffered or are like to suffer loss and
damage by the conduct of DNA in the contravention of the TPA (ie.
refunds).  I cannot comment further on this as these issues are still
before the Court.

The difference with simply breaching an Act, and breaching a
Court-ordered injunction prohibiting a particular breach, is that if you
breach an injunction, then that is contempt of Court.  The consequence
of which can include imprisonment.

The current proceedings is not similar to what happened two years ago. 
Two years ago, the proceedings were settled out of Court, and no
injunctions were ordered by the Court.  There was no order to pay costs
from that proceeding.





Craig Ng
Partner
Maddocks
Tel: +61 3 9288 0523

>>> bennett§enetica.com.au 14/04/04 8:11:17 pm >>>
Ron,

appart from the bad publicity that DNS etc have received, what
'outcome' are
you actually happy about?

As far as I can see the courts rejected the majority of claims by auDA
and
ACCC, and the action to be taken as a result of the claim it did uphold
will
have very little effect.

The court has simply said that DNA is not allowed to breach Section 52
for 3
years. Well derr... they were not allowed to do so in the first place.
The
court has not even deemed the breach to be bad enough to force DNA to
send
explanatory notices to their clients as yet.

The outcome is very similar to what happened 2 years ago, the courts
simply
told the parties to stop being bad, and made them pay court costs. It
took
less than 6 months for these people to move state and start up again
doing
the same thing. We've now had to go through another long court case,
and we
are no further along the road then we were 2 years ago, meanwhile DNA
is
still making considerable profits from these actions...

As far as I can see, the only significant damage done to DNA has been
done
by the NZ and UK regulators.

I'm not saying auDA should not be going after DNA, just the bad
publicity is
probably worth it, but the simple fact is that based on the courts
judgements, I'm quite sure that with a few modifications to the text of
the
letters and a change of name, DNA will be able to continue operating
and
doing similar things, and nobody will be able to stop them.

Maybe in about 10 years enough people will have been burnt by this to
make
it not worth while for DNA to do it....

Bennett.



----- Original Message -----
From: Ron Stark < ronstark&#167;snapsite.com.au >
To: < dns&#167;dotau.org >
Sent: Wednesday, April 14, 2004 12:20 PM
Subject: [DNS] Rafferty's Outcome


> To Chris Disspain:
>
> Congratulations and well done on the outcome of auDA's action
against
> Rafferty & Co. I, for one, would like to express my appreciation,
and
> suggest that it was money well spent on behalf of our industry.
>
> I hope that you also succeed in recovering some of the funds that he
has
> taken from unsuspecting registrants.
>
> Ron Stark
>



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