auDA took Federal Court action against DNA earlier this month alleging the company had breached the Trade Practices Act by engaging in misleading and deceptive conduct. The conduct at the centre of the dispute was a mail-out of domain registration documents by DNA to 400,000 businesses and individuals. auDA is alleging the registration documents are designed to look like an invoice.
However, Shaun Temby, a Phillips Fox lawyer acting for DNA and its director, Chesly Rafferty, told ZDNet Australia he believed auDA did not have the legislative standing to undertake such action. "They just hold a license from an overseas company," Temby said. auDA is licensed by ICANN, the Internet Corporation for Assigned Names and Numbers, to regulate the .au domain name industry.
Temby's remarks follow the release of a statement by Phillips Fox responding to public statements by auDA over the case, which described auDA as a "self-styled regulator". Temby added "My client does not believe that auDA has the necessary standing to bring this action, nor that it has done anything wrong".
However, the chief executive of auDA, Chris Disspain, defended auDA's authority. "There is a letter of endorsement from the government which endorses auDA as a regulator," he said in a phone interview.
Disspain says the Telecommunications Act was amended to give power to the government to regulate domain names, and a letter signed by Senator Richard Alston, the Minister for Communications, Information Technology and the Arts, shows that responsibility has been delegated to auDA.
"It gives me great pleasure to communicate to you the endorsement of the Commonwealth of Australia (the Commonwealth) of auDA as the appropriate entity hold the delegation of authority by the Internet Corporation for Assigned Names and Numbers (ICANN) for administrative authority of the .au country code top level domain (ccTLD)," the letter reads.
However, Disspain claimed he was keen to avoid a slanging match and declined to comment in detail on the Phillips Fox release. "I don't propose to play out our action against Domain Names Australia in the media, I think that would be an unseemly thing to do. We will be putting a media release out either today or tomorrow," he said. "The facts speak for themselves."
DNA and its lawyers have also alleged auDA "jumped the gun" when it called for consumers affected by DNA's alleged breach to come forward and join a class action in the Federal Court. For its part, auDA says it was just trying to be prudent in gathering details of individuals that received the letter at the centre of the action in case the class action proceeded.
"Rather than use the appropriate channels, auDA have jumped the gun and attempted to act outside the court's processes. This is even more alarming when you consider that auDA is not even able to tell us precisely what their claim is or what they allege we have done wrong," said Rafferty.
Rafferty went on to question what it was auDA was complaining about in the first place. "If auDA has any legitimate concerns regarding the notices that we send to business, then they should tell us precisely what they are so that we act on them. We have invited auDA to detail their problems with our documents and they haven't responded."
Are these guys at DNA stupid or something? My company was almost conned into paying one of these things that are designed to look like invoices. Put the guy in jail and he hasn't learned his lesson from the last time.
The excuse that they don't know that the complain is, is just stupid. The question over authority is still not an excuse to deceive people. Shut them down!