International Writing Institute Inc v. Rimila Pty Ltd & Anor [1994] FCA 1054

. JUDGMENT No. LOS 4.)

FED. COURT OF AUS

EW _SOUTH WALES DISTRICT REGISTRY

No. NG 466 of 1991

wer ws

GENERAL DIVISION

INSTITUTE INC

RECEIVED

12 JAN 1995 Applicant AT OF FOOT USTRALIA AND: RIMILA PTY LIMITED & ANOR NY, Respondents

'*

12 DECEMBER 1994

EASONS FOR JU. LOCKHART J,

Earlier today, after hearing argument from counsel on the question of damages and in particular as to interest up to the date of judgment, I ordered that judgment be entered in favour of International Writing Institute Inc (IWI) in the sum of

$35,506 plus interest of $14,115.58, a total of $49,621.58.

Argument on the question of costs then ensued. Critical to that question is a letter of 5 August 1993 from the solicitors for the respondents to the solicitors for IwWI, which was described in argument as making a "Calderbank offer", a subject to which I shall return in a moment. The letter covers three and one-quarter pages; but in essence it constitutes an offer by the respondents, without prejudice, save as to costs, to consent to the injunction sought by IWI to pay damages of $47,500 and to pay the party and party costs

of IWI as taxed. The letter from the solicitors for the

2-4.

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respondents makes the offer on behalf of both respondents (I

glean that from the use of the plural). Although it was

suggested by counsel for IWI that there may be some degree of

uncertainty as to whether the offer was really made on behalf of Rimila alone or both Rimila and Mr Tubbs, in my view there is no uncertainty about it; it was made on behalf of both

respondents.

The respondents contend that the case proceeded on three causes of action: copyright infringement, breach of fiduciary duty, and wrongful disclosure of confidential information. It was argued for the respondents that Rimila admitted the infringement of copyright, subject to licence. If IWI succeeded on the licence question, but failed on the questions of confidential information and fiduciary duty, the respondents have through their counsel contended that the traditional approach would be to order IWI to pay the costs of the respondents on the questions of confidential information and a breach of fiduciary duty, the respondents to pay IWI's costs of the copyright issues before 6 August 1993. It was said (and sensibly so) that if that were the case the submission would lead to a complicated taxation approach. It was then submitted by counsel for the respondents that the preferable approach was to make an order as to costs but prior