Security for costs – domain name arbitration

Global Access Ltd v Educationdynamics, LLC & Anor [2009] QSC 373

 

Global Access Ltd the plaintiff was incorporated and registered in the Isle of Man with no assets. It commenced proceedings following an adjudication by the National Arbitration Forum that the domian name “elearner.com” be transferred from the plaintiff to the first defendant. The second defendant is a domain name provider and operates a website for the plaintiff in Queensland. The arbitration was as a consequence of an agreement when the plaintiff and second defendant registered the domain name, which was by regulated by the Registration Agreement that incorporated the Uniform Domain Name Dispute Resolution Policy (UDNDRP) and adopted by the Internet Corporation for Assigned Names and Numbers (ICANN).

His Honour Justice Applegarth considered at length whether the plaintiff was in essence the “defendant” by the nature of their proceedings and the ends they were attempting to achieve. On balance his Honour did not think they were or that the action was an ‘appeal’ from the arbitration decision, but that it did have some similarities in a loose connection.

His Honour noted it was not necessary to embark a detailed analyses of the merits or success and it was not prima facie otherwise.

His Honour concluded:

[58] Accordingly, the plaintiff has a weak claim upon the discretionary consideration

that it “is effectively in the position of a defendant.” The weight to be accorded to

that consideration is substantially outweighed by the weight that should be given to

the fact that the plaintiff is resident out of the jurisdiction and has no assets here,

and the difficulty that the first defendant will encounter in enforcing any costs order

in its favour.

 

Security for costs of $60,000.00 was ordered against the plaintiff.

 

Apart from the detailed analysis of the factors of security for costs it is of interest in its recital of the mechanism for dispute resolution in respect of domain names and the practical reminder of the importance of trade marks and names for internet commerce.

 

Brisbane Barrister – David Cormack

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