auDA -- which has launched class action proceedings against the company, Domain Names Australia, over the mailout -- said in a statement today the Federal Court had on Monday declined its application for an interlocutory injunction preventing the company from using the funds.
"The application was unsuccessful as [Justice Finkelstein] concluded there was insufficient evidence to show that the proceeds were likely to disappear as as auDA fears," auDA said in a statement.
auDA's class action proceedings, issued on 18 August, claim the company has breached the Trade Practices Act.
auDA said today it had commenced legal proceedings in the Federal Court in Melbourne against DNA and its sole director, Chesley Paul Rafferty, claiming recent mail-outs by DNA were "misleading or deceptive, or likely to mislead or deceive, in breach of the Trade Practices Act".
auDA said it was bringing the action "on behalf of all members of the public who have existing .au CCTLD (eg .com.au, .org.au, .net.au) or gTLD (eg .com, .net, .org) domain names and who received notices from DNA and made payments pursuant to those notices".
auDA sent out a consumer alert in July which outlined the administrator's views of some mail-outs issued by DNA. "The communication is headed 'Domain Name Registration' and could, in auDA's opinion, be easily mistaken for an invoice. To this extent, auDA considers that the communication could be misleading or deceptive," the alert read.
It's not the first time the company's director has been taken to court by the regulator. Chesley Rafferty has been a director of both DNA and another company involved in controversial mail-out activity, Internet Registry. "auDA took legal action against Mr Rafferty and Internet Registry in 2002, as a result of which Mr Rafferty gave several undertakings in the Federal Court. auDA believes that this latest mailout by DNA is in breach of some of Mr Rafferty's undertakings, and we are pursuing the matter vigorously."
The regulator is seeking refunds and damages, permanent injunctions against DNA and Rafferty, designed to prevent what auDA believes is conduct likely to mislead or deceive.
Domain Names Australia is neither a 'Registry', nor a registrar. They are a domain reseller.