Bennett

Whilst I agree with most of your observations,
especially those regarding our continued ability to
mail out after certain adjustments have been made,
there is another factor on which I must comment.

After seeking senior counsel advice, myself and DNA
believe that there are grounds for appeal. As such the
appeal process has begun.

A media release will be issued shortly.

Enjoy the weekend everyone!

--ends--


 --- Craig Ng <Craig.Ng&#167;maddocks.com.au> wrote: >
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&#167;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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> 0872
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>
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