domainwatch.org

Tuesday December 13 2005

Internet fraudsters must pay (Chesley Rafferty + Bradley Norrish)

from: http://www.theaustralian.news.com.au/common/story_page/0,5744,17549155%255E2702,00.html

” …

Internet fraudsters must pay
Vanda Carson
December 13, 2005

TWO internet geeks who made a fortune by misleading net users must pay $2.3million, after a court found they flagrantly broke copyright laws in an elaborate scam.

Brad Norrish and Chesley Rafferty were the brains behind a massive operation to copy personal information from 2.2million websites on a UK domain-name register in January 2003.

They used the information to send authentic-looking notices to 50,000 website owners, telling them to pay a fee or risk losing their domain name.

In a decision handed down last week in the Federal Court in Perth, judge Robert French said the award of $1.3million damages plus an estimated $1million in legal costs was justified.

He said their conduct was “flagrant” and that the internet register, called Nominet, had been forced to disable its publicly accessible database, a “drastic” and unique response to a cyber attack on its security systems.

The judgment marked the end of a 2 1/2-year legal battle that began when Nominet sued the pair and their associated companies.

Mr Rafferty, who became bankrupt in October, and the pair’s companies — including Mr Rafferty’s Seychelles-based company — settled the suit before the civil trial in June last year.

Mr Norrish argued he was not liable for breaching copyright and fair trading laws.

… “

Nominet UK v Diverse Internet Pty Ltd (No 2) [2005] FCA 1773 (7 December 2005)
http://www.austlii.edu.au/au/cases/cth/federal_ct/2005/1773.html

” …

Nominet UK v Diverse Internet Pty Ltd (No 2) [2005] FCA 1773 (7 December 2005)
Last Updated: 7 December 2005

FEDERAL COURT OF AUSTRALIA

Nominet UK v Diverse Internet Pty Ltd (No 2) [2005] FCA 1773

INTELLECTUAL PROPERTY – copyright – infringement – assessment of damages – infringement of domain name Register Database – copying of lists of registrants and relevant information – basis for assessment – notional reasonable royalty – not limited to entries actually used – additional damages – punitive character – relevant considerations – flagrancy of infringement – need for deterrence – costs of action

Copyright Act 1968 (Cth) s 115(2), s 115(4)
Corporations Act 2001 (Cth) s 601AB(1), s 601AH
Trade Practices Act 1974 (Cth)

Nominet UK v Diverse Internet Pty Ltd (2004) 63 IPR 543 cited
General Tyre & Rubber Co v Firestone and Rubber Company Ltd [1976] RPC 117 cited
LED Builders Pty Ltd v Eagle Homes Pty Ltd (1999) 44 IPR 24 cited
CAJ Amadio Constructions Pty Ltd v Kitchen (1992) 23 IPR 284 cited
Prince Manufacturing Inc v Abac Corp Australia Pty Ltd (1984) 4 IPR 104 cited
Sullivan v FNH Investments Pty Ltd (2003) 57 IPR 63 cited

NOMINET UK v DIVERSE INTERNET PTY LTD AND OTHERS
NSD 1040 OF 2003

FRENCH J
7 DECEMBER 2005
PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY NSD1040 OF 2003

BETWEEN: NOMINET UK
APPLICANT
AND: DIVERSE INTERNET PTY LTD
ACN 096 827 619)
FIRST RESPONDENT

INTERNET PAYMENTS PTY LTD
(ACN 097 324 868)
SECOND RESPONDENT

BRADLEY STEDMAN NORRISH
THIRD RESPONDENT

CHESLEY PAUL RAFFERTY
FOURTH RESPONDENT

(UK) INTERNET REGISTRY LTD
FIFTH RESPONDENT
JUDGE: FRENCH J
DATE OF ORDER: 7 DECEMBER 2005
WHERE MADE: PERTH

THE COURT ORDERS THAT:

Procedural Orders

1. To the extent necessary, the requirements of the Federal Court (Corporations) Rules with regard to the filing and service of the application for reinstatement of the registration of the Second Respondent and supporting documents be dispensed with.

2(a) The Sixth Respondent reinstate the registration of the Second Respondent pursuant to s 601AH(2) of the Corporations Act 2001 (Cth) for the purposes of enabling the Applicant to obtain and enforce any judgment in these proceedings as against the Second Respondent.

(b) The damages awards made herein shall take effect against the Second Respondent upon the reinstatement of its registration.

(c) The Applicant is to inform the Sixth Respondent when no further steps remain to be taken in relation to enforcement of the judgment against the Second Respondent.

(d) Liberty to the Sixth Respondent to apply for further directions if necessary.

3. All DVDs containing the images of the Respondents’ computer hard drives as held by Blake Dawson Waldron pursuant to paragraph 4 of the Orders of 26 September 2003 and paragraph 4 of the Orders of 24 December 2003 be delivered up to Allens Arthur Robinson for destruction.

Damages

4. Damages are awarded in favour of the Applicant against the first, second, third and fourth respondents jointly and severally:

(a) in the sum of $810,953 being damages for infringement of copyright pursuant to s 115(2) of the Copyright Act 1968 (Cth).

(b) in the sum of $500,000, being additional damages for infringement of copyright pursuant to s 115(4) of the Copyright Act 1968 (Cth).

Costs

5(a) The Respondents are to pay the Applicant’s costs of the proceedings for which they shall be liable jointly and severally other than the costs of the hearing as to liability which shall be borne by the Third Respondent alone.

(b) The costs are to be taxed as one set provided that a supplementary bill may be prepared against the Third Respondent in respect of the hearing as to liability.

… “

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