Capital Networks Pty Ltd v .au Domain Administration Limited

[2004] FCA 1030

FEDERAL COURT OF AUSTRALIA

Capital Networks Pty Ltd v .au Domain Administration Limited
[2004] FCA 1030

CAPITAL NETWORKS PTY LTD (ACN 080 342 301) v .au DOMAIN ADMINISTRATION LIMITED (ACN 079 009 340)
ACD 9 OF 2004

GYLES J
5 MAY 2004
CANBERRA

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	ACD 9 OF 2004

BETWEEN:	CAPITAL NETWORKS PTY LTD (ACN 080 342 301) APPLICANT
AND:	.au DOMAIN ADMINISTRATION LIMITED (ACN 079 009 340) RESPONDENT
JUDGE:	GYLES J
DATE OF ORDER:	5 MAY 2004
WHERE MADE:	CANBERRA

THE COURT ORDERS THAT:

Upon the applicant by its solicitor continuing its undertaking as to damages, until further order the respondent by itself, its servants and agents, is restrained from suspending or terminating the applicant's .auDA accreditation. 

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	ACD 9 OF 2004

BETWEEN:	CAPITAL NETWORKS PTY LTD (ACN 080 342 301) APPLICANT
AND:	.au DOMAIN ADMINISTRATION LIMITED (ACN 079 009 340) RESPONDENT

JUDGE:	GYLES J
DATE:	5 MAY 2004
PLACE:	CANBERRA

REASONS FOR JUDGMENT

1. The decision to which I have come is that I will fix an early hearing of the contract claim and of so many of the other counts as may be properly joined with it.  I would not, at the moment, conclude that the trade practices claims are so without merit as to be colourable.  That may be demonstrable when the matters are properly pleaded and the risks of that will just have to be run.  My view is that there is a case to be argued in relation to the contract count.  Whilst I do not pretend that the contract case is simple of solution, it is in a narrow compass.  Although the detail of the evidence may have some volume and may need some tidying up, it seems to me that the facts that are relevant to determine the contractual dispute are pretty readily ascertainable. 

2. So far as the balance of convenience is concerned, I am mainly influenced by the fact that the respondent is frank in its reason for this application.  It sees itself as being a quasi public regulator which is being pressed by parties having complaints that it sees as legitimate albeit not directly related to the business of which it is in control.  It sees itself as having a quasi public duty to do something about those complaints, and to be seen to be doing something about them.  It, however, suffers little chance of significant damage to itself.  I cannot say there is no chance of damage because it is put forward that in situations like this the bad behaviour of what is effectively a licensee can reflect upon the licensor.  Whilst that is a theoretical possibility, I think it is relevantly unlikely in the present circumstances.  People understand that the licensor is not the licensee and that some licensees may behave badly.

3. On the other hand, if there is a suspension of accreditation I am satisfied that there is a real chance of damage being done, not just to the applicant’s .au business, but also to the balance of its business, although the potential damage is difficult to quantify with any precision at all.  I appreciate that the respondent’s offer not to publish diminishes that risk perhaps significantly but, nonetheless, in my view, it remains. 

4. I also take into account that with a body such as the respondent, it is not at all clear what its position would be in relation to meeting any claim for damages that might flow from an immediate suspension.  I am also, to some extent, influenced by the fact that the contractual provisions relating to suspension are sketchy, to say the least.  It is not a situation in which there is a clear contractual path that can be followed and which must have been known about.  I propose, therefore, to grant some interlocutory relief to restrain suspension pending further hearing.  If, for any reason, it becomes impracticable to afford an early hearing, I will, of course, review the position about interlocutory relief.

I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles.

Associate:

Dated:            10 August 2004

Solicitor Advocate for the Applicant:	M O’Neill
Solicitor for the Applicant:	Tetlow Jansen & Doyle
Counsel for the Respondent:	JD Elliott
Solicitor for the Respondent:	Maddocks
Date of Hearing:	5 May 2004
Date of Judgment:	5 May 2004