FEDERAL COURT OF AUSTRALIA

Lifeplan Australia Friendly Society Ltd v Woff [2016] FCA 364

ORDERS

THE COURT DECLARES THAT:

1.    Each of Noel Jeffrey Woff (“Mr Woff”) and Richard John Corby (“Mr Corby”) breached duties and obligations owed by each of them to Lifeplan Australia Friendly Society Ltd (“Lifeplan”) and to Funeral Plan Management Pty Ltd (“FPM”), in that:

(a)    between July 2010 and December 2010, without permission they took, used, disclosed to the Ancient Order of Foresters Friendly Society in Victoria Ltd (“Foresters”) and retained Lifeplan’s and FPM’s confidential and valuable information to prepare and advance a business proposal involving Mr Woff, Mr Corby, Funeral Planning Australia Pty Ltd (“FPA”) and Foresters (“the Business Proposal”):

(i)    in breach of the fiduciary duties they owed to Lifeplan and FPM;

(ii)    in breach of the obligations of confidence they owed to Lifeplan and FPM; and

(iii)    in breach of the contractual duties they owed to Lifeplan and FPM;

(b)    between 25 August 2010 and 8 December 2010 (in respect of Mr Woff) and 25 November 2010 (in respect of Mr Corby), they solicited the business of Tobin Brothers Funerals for their proposed business and in the course of doing so denigrated Lifeplan’s and FPM’s fund and services:

(i)    in breach of the fiduciary duties they owed to Lifeplan and FPM; and

(ii)    in breach of the contractual duties they owed to Lifeplan and FPM;

(c)    between October 2010 and 29 December 2010 (in respect of Mr Woff) and 25 November 2010 (in respect of Mr Corby), whilst employees of Lifeplan, they approached funeral directors for the purpose of soliciting their business:

(i)    in breach of the fiduciary duties they owed to Lifeplan and FPM; and

(ii)    in breach of the contractual duties they owed to Lifeplan and FPM;

(d)    between September 2010 and December 2010, whilst still employed by Lifeplan, they took impermissible steps towards establishing their new business in that they were involved in the changes to be made to the rules governing the Foresters’ fund and the preparation of Foresters’ disclosure documents:

(i)    in breach of the fiduciary duties they owed to Lifeplan and FPM; and

(ii)    in breach of the contractual duties they owed to Lifeplan and FPM;

(e)    from 2011 until 2015, they prevailed on a supplier of Lifeplan to use the templates designed to print materials for clients of Lifeplan and FPM to print materials for potential clients of Foresters and FPA:

(i)    in breach of the fiduciary duties they owed to Lifeplan and FPM; and

(ii)    in breach of the contractual duties they owed to Lifeplan and FPM;

(f)    in January 2011, Mr Woff took Lifeplan’s and FPM’s mailing list and provided it to a supplier for the purpose of distributing material to clients on behalf of FPA:

(i)    in breach of the fiduciary duties Mr Woff owed to Lifeplan and FPM; and

(ii)    in breach of the contractual duties Mr Woff owed to Lifeplan and FPM;

(iii)    in breach of the duty of confidence Mr Woff owed to Lifeplan and FPM.

THE COURT ORDERS THAT:

2.    Each of Mr Woff, Mr Corby, FPA and Foresters whether by themselves, their agents, employees or related entities (as defined by s 9 of the Corporations Act 2001 (Cth)) be permanently restrained from using or publishing the documents described in Annexure 1 to this Order.

3.    Each of Mr Woff, Mr Corby, FPA and Foresters within 14 days:

(a)    deliver to the applicants all hard copies of the documents described in Annexure 1 to this Order in each of their possession, custody or control; and

(b)    permanently destroy all electronic copies of the documents described in Annexure 1 to this Order in each of their possession, custody or control

provided that the respondents may retain such copies for the purpose of this proceeding or any appeal until the conclusion of this proceeding or any appeal.

4.    Mr Woff account, including within the meaning of s 1317H(2) of the Corporations Act 2001 (Cth) to the applicants in the sum of $24,238.

5.    Mr Corby account to the applicants in the sum of $24,198.

6.    Each of Mr Woff and Mr Corby pay interest to the applicants in an amount to be assessed if not agreed.

7.    Subject to these orders and existing orders as to costs, the applicants pay Foresters’ costs of the proceeding on a party and party basis up to 11 am on 12 May 2015 and thereafter on an indemnity basis.

8.    Subject to these orders and existing orders as to costs, Mr Woff and Mr Corby pay the applicants’ costs of the proceeding against them on a party and party basis up to 11 am on 12 May 2015, and the applicants pay the costs of Mr Woff and Mr Corby of the proceeding thereafter on a party and party basis.

9.    The application by Mr Woff and Mr Corby to vary or add to the order made on 29 May 2015 be refused.

10.    The application by Foresters to vary or add to the order made on 29 May 2015 be refused.

11.    The applicants pay the costs of Mr Woff and Mr Corby on a party and party basis of the applicants’ application dismissed by order made on 12 December 2012.

ANNEXURE 1 – Part A

(Annexure A from Third Further Amended Statement of Claim)

Annexure 1 – Part B

(Annexure B from Third Further Amended Statement of Claim)

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

BESANKO J:

1    I delivered reasons for judgment in this proceeding on 15 March 2016 (Lifeplan Australia Friendly Society Ltd v Woff [2016] FCA 248). I will refer to those reasons as the principal reasons. These reasons should be read with the principal reasons and I adopt the descriptions of the parties and documents in the principal reasons.

2    On 15 March 2016, I adjourned the proceeding to a date to be fixed for the making of final orders. I ordered that the applicants file and serve within seven days draft minutes of order reflecting the conclusions expressed in the reasons and containing any other orders they seek. The applicants filed and served draft minutes of order. The draft minutes of order were entitled “Applicants’ Proposed Orders”. The applicants’ proposed orders differed in some respects from the proposed orders the applicants advanced during closing submissions at trial. The orders advanced at trial are identified in the principal reasons (see [4], [5] and [6]).

3    In the principal reasons, I said that the applicants were entitled to the declaration against Mr Woff and Mr Corby set out in the orders advanced at trial (at [482]). The declaration in the applicants’ proposed orders is more detailed than the declaration set out in the orders advanced at trial. Mr Woff and Mr Corby oppose the making of the more detailed declaration. They submit that a declaration should not be made against them. I have already decided that a declaration should be made against Mr Woff and Mr Corby and I do not consider it appropriate to allow Mr Woff and Mr Corby to reargue the point. In the alternative, they submit that the applicants should be held to the declaration set out in the orders advanced at trial.

4    In the principal reasons, I said that I had found that Foresters knowingly assisted Mr Woff and Mr Corby in the breach of their fiduciary duties in the respects which I identified, and induced a breach of their contracts in the manner set out in the reasons, but that there were no profits which the applicants were entitled to recover from Foresters. I said that I wished to hear from the applicants and Foresters as to whether I should make the declaration sought in paragraph 2 of the orders advanced at trial (at [483]). The applicants’ proposed orders seek a declaration against Foresters in terms of the findings in the principal reasons. The applicants submit that I should make the declaration. Foresters submits that I should not make the declaration because there is no ongoing relationship between the parties and the declaration will produce no foreseeable consequences for the parties.

5    In the principal reasons, I said that the applicants were entitled to the orders they sought concerning the documents in Annexure A and Annexure B. I said that those orders should be made against FPA, as well as Mr Woff and Mr Corby. I said that I considered that the orders should also be made against Foresters (at [484]). In its written submissions on the question of final orders, costs and other orders, Foresters sought to argue that the orders concerning Annexure A and Annexure B should not be made against it. I have decided that the orders should be made against Foresters and, in the circumstances, I do not consider it appropriate to allow Foresters to reargue the point.

6    During the course of oral submissions, the parties agreed that the orders advanced at trial (see principal reasons at [6]) should contain a proviso as follows:

Provided that the respondents may retain such copies for the purpose of this proceeding or any appeal until the conclusion of this proceeding or any appeal.

I agree that this proviso is appropriate.

7     In the proposed orders, the applicants sought a further order to those it advanced at trial as follows:

4    Each of Mr Woff, Mr Corby, FPA and Foresters within 14 days:

a.    request from funeral directors all unused documents developed by or for Foresters or FPA utilising templates for the Funeral Plan Management Pre-Paid Funeral contracts which are listed at item 4 of part B of Annexure 1.

Mr Woff, Mr Corby and Foresters oppose the making of this order. They point to the fact that this was not an order sought at trial.

8    In the principal reasons, I said that Mr Woff must account to the applicants in the sum of $24,238 and Mr Corby in the sum of $24,198. The applicants seek orders for the payment of interest on those amounts and I consider that appropriate.

9    In the principal reasons, I said that I would hear the parties as to costs. The applicants seek an order that each of Mr Woff, Mr Corby and Foresters pay the applicants’ costs of and incidental to the proceeding in an amount and on a scale to be assessed if not agreed. Mr Woff and Mr Corby submit that such an order should not be made. They accept that they should pay the applicants’ costs on a party and party basis from 14 May 2012 when the proceeding was commenced until 22 January 2013 when they made a Calderbank offer (Calderbank v Calderbank [1976] Fam 93), but submit that the applicants should pay their costs on an indemnity basis from the date of the offer. In the alternative, they rely on a Calderbank offer they made on 27 May 2015. Foresters also opposes the making of an order for costs against it and it claims that it should receive its costs of the proceeding and that those costs should be on an indemnity basis from May 2015 when it made Calderbank offers and a Rules of Court offer under r 25 of the Federal Court Rules 2011 (Cth) (“the Rules”).

10    Two other orders were sought by one or more of the respondents. On 12 December 2012, another judge of this Court, who was then the docket judge, rejected an application by the applicants for a separate trial on the issue of liability only and his Honour made an order that the costs of the application be reserved (Lifeplan Australia Friendly Society Ltd v Woff [2012] FCA 1415). Mr Woff and Mr Corby seek an order that their costs of that application be paid by the applicants.

11    As set out in the principal reasons, shortly before trial the applicants abandoned their copyright claim (at [22]). At that time, I made an order that the costs of the application to amend, including the costs thrown away and the costs of the argument on the application, be paid by the applicants to Mr Woff and Mr Corby and Foresters, and I gave liberty to apply in relation to the order. Mr Woff and Mr Corby seek to exercise that liberty to apply and they seek an order for indemnity costs in relation to the application. Foresters also seeks an order for indemnity costs, but only in relation to the abandonment of the copyright claim.

12    A brief overview of the early stages of this proceeding is as follows. The applicants commenced this proceeding against Mr Woff, Mr Corby and FPA as a Fast Track Application on 14 May 2012. On 12 April 2013, they applied to join Foresters as a respondent. On 7 June 2013, I gave the applicants leave to join Foresters and I made an order that the application be removed from the Fast Track list.

Issue 1 – the declaration to be made against Mr Woff and Mr Corby

13    I have made one alteration to the declaration set out in the applicants’ proposed orders to reflect the findings in the principal reasons. I have changed the starting month from July to October in paragraph 1(c). Subject to that, I think that the declaration against Mr Woff and Mr Corby set out in the applicants’ proposed orders should be made. As I have said, it is more detailed than the declaration advanced by the applicants at the trial. Mr Woff and Mr Corby did not submit that the declaration did not reflect the findings in the principal reasons.

14    In Rural Press Limited v Australian Competition and Consumer Commission [2003] HCA 75; (2003) 216 CLR 53 at 91 [89], Gummow, Hayne and Heydon JJ said that close attention should be given to the form of declarations and that the declarations in that case “spoke merely of ‘an arrangement’ having a purpose and effect, without giving any content to that expression and without indicating the gist of the findings of the primary judge identified in the arrangement”. Their Honours described the declarations as providing a bad precedent.

15    It seems to me one thing to seek additional orders after reasons for judgment have been published. It is another to reformulate foreshadowed declarations so that they accurately reflect the findings made. The latter is permissible, perhaps even required. I think it appropriate to make the declaration against Mr Woff and Mr Corby which is set out in the applicants’ proposed orders, subject to the alteration which I have identified.

Issue 2 – whether a declaration should be made against Foresters

16    The declaration which the applicants seek against Foresters is in the following terms:

THE COURT DECLARES THAT:

…

2.    Foresters knowingly assisted and induced Mr Woff and Mr Corby to breach their duties and obligations owed by each of them to Lifeplan Australia Friendly Society Ltd (Lifeplan) and to Funeral Plan Management Pty Ltd (FPM), in that:

a.    between July and September 2010, Foresters knowingly assisted Mr Woff and Mr Corby to breach their fiduciary duties to Lifeplan and FPM by using Lifeplan’s and FPM’s confidential and valuable information in deciding whether to proceed with the Business Proposal;

b.    from 20 October 2010 until 29 December 2010 Foresters knew that Mr Woff, in breach of his fiduciary duties to Lifeplan and FPM, was soliciting business from funeral directors for the proposed business with Foresters and was likely to continue to do so, in circumstances where Foresters was working towards the proposed business and where it did nothing to discourage Mr Woff from soliciting funeral directors;

c.    between September and December 2010, Foresters;

i.    knowingly assisted Mr Woff and Mr Corby to breach their fiduciary duties to Lifeplan and FPM; and

ii.    induced Mr Woff and Mr Corby to breach their contractual duties to Lifeplan and FPM;

by playing an active role in the conduct of Mr Woff and Mr Corby taking impermissible steps towards establishing their new business by involving Mr Woff and Mr Corby in the changes to be made to the rules governing the Foresters’ fund and the preparation of the Foresters’ disclosure documents.

17    The applicants submit that the Court’s power to make declarations is a very wide power. They referred to the observations made by Gibbs J (as his Honour then was) in Forster v Jododex Australia Pty Limited (1972) 127 CLR 421 at 437-438 that the Court (in that case, the Supreme Court of New South Wales) was given a broad discretion to make a declaration. His Honour referred to the observations of Lord Radcliffe in Ibeneweka v Egbuna [1964] 1 WLR 219 at 225. Lord Radcliffe said:

After all, it is doubtful if there is more of principle involved than the undoubted truth that the power to grant a declaration should be exercised with a proper sense of responsibility and a full realisation that judicial pronouncements ought not to be issued unless there are circumstances that call for their making. Beyond that there is no legal restriction on the award of a declaration.

18    The applicants also referred to Ainsworth and Another v Criminal Justice Commission (1992) 66 ALJR 271; (1992) 106 ALR 11 at 22 per Mason, Dawson, Toohey and Gaudron JJ; at 33-34 per Brennan J, and to Tobacco Institute of Australia Limited v Australian Federation of Consumer Organisations Inc (No 2) (1993) 41 FCR 89 (“Tobacco Institute”), and in particular, the observations of Sheppard J at 94.

19    The circumstances in Tobacco Institute clearly involved a matter of public interest in that the issue was whether an advertisement which addressed passive smoking was misleading or deceptive within s 52 of the then Trade Practices Act 1974 (Cth). Sheppard J said at 100:

Whatever counsel for the appellant may now say about the effect of this Court’s judgment or the questions which were in issue, the fact is that their client fought the question of misleading or deceptive advertising, contending that a proper result was that the advertisement was not misleading or deceptive and thus not in breach of s 52 of the Act. That proposition has been rejected firmly by each of the judges who has dealt with the matter. That being the case, it would seem quite undesirable to me that, in a matter involving as it does the public interest – really the public health and well-being of the nation – the court having reached its conclusion should not formally indicate the result of the litigation by an appropriate declaration of rights.

20    The applicants also referred to cases in which the Court had been moved to make a declaration in order to indicate the Court’s disapproval of the respondent’s conduct. One such case was SC Johnson and Son Pty Ltd v Reckitt Benckiser (Australia) Pty Ltd (No 2) [2012] FCA 1362 at [12] which was a case involving a representation by packaging and sale which was misleading or deceptive or likely to mislead or deceive in contravention of s 18 of the Australian Consumer Law in Schedule 2 of the Competition and Consumer Act 2010 (Cth).

21    Foresters also referred to a number of authorities. It is sufficient for me to identify the two principal authorities to which it referred. In Gardner and Another v Dairy Industry Authority of New South Wales (1977) 52 ALJR 80; (1977) 18 ALR 55 at 69, Mason J (as his Honour then was) (with whom Jacobs and Murphy JJ agreed) said the following:

It remains for me only to say that had I been of a different opinion in relation to the first three rearrangements I would not have been disposed to grant declaratory relief to the appellants. The rearrangements were no longer in operation when the appellants commenced their proceedings. They had been superseded by the fourth rearrangement which had been set up under the auspices of amending legislation. It was not contended that the appellants, had their argument been correctly founded, were entitled to damages or other consequential relief. All that was suggested was that the Executive might in some undefined way initiate administrative or legislative action which would improve the lot of the appellants and persons in the appellants’ position. It is one thing to say that declaratory relief will be granted against the Executive or a statutory authority in relation to existing rights and transactions. It is quite another thing to say that it should be granted in respect of past transactions under legislation which has been repealed or amended when the court's declaration will produce no foreseeable consequences for the parties.

22    Foresters emphasised his Honour’s observation about granting a declaration which will not produce any foreseeable consequences to the parties. That observation was referred to with approval in Truth About Motorways Pty Ltd v Macquarie Infrastructure Management Ltd [2000] HCA 11; (2000) 200 CLR 591 at 613 [52] per Gaudron J. Foresters submits that the declaration sought by the applicants will produce no foreseeable consequences for the parties. It submits that those cases in which the Court has granted a declaration in order to indicate its disapproval of a respondent’s conduct have been actions by a regulatory authority involving representations which were misleading or deceptive or untrue and which are made to a wide audience. There is clearly a significant public interest in such cases.

23    In my opinion, a declaration against Foresters should not be made in this case. The applicants’ claim against Foresters was for an account of profits. On the face of it, that is a private law claim. The applicants established some elements of their claim, but not all of the elements and, in those circumstances, they failed to establish an entitlement to profits. I do not think that in the ordinary course the Court would make a declaration that the applicant has established some elements of its claim. If this be too narrow a view of the power to make a declaration, then the declaration should nevertheless be refused because it will have no foreseeable consequences for the parties. There is nothing to suggest that the parties have an ongoing relationship. It may be taken that there is “disapproval” of Foresters’ conduct as identified in the principal reasons, but this case does not have a public interest element, for example, a misstatement in a disclosure document where a declaration will serve a purpose of correcting a falsehood or untruth.

Issue 3 – should paragraph 4 a. be included in the orders?

24    I would not make the order sought in paragraph 4 a. of the applicants’ proposed orders for a number of reasons. First, it is not clear to me that there is utility in the Court making an order requiring the respondents to make a “request” of funeral directors. Secondly, it is not clear to me that there would be any obligation on funeral directors to return the documents referred to in paragraph 4 a. and I do not think it appropriate to make an order where a third party who has not been involved in a proceeding may be uncertain as to its legal obligations. It seems to me that there may well be a good argument that property in the documents has passed to the funeral directors and I do not understand there to be any suggestion that the funeral directors were knowingly involved in the breaches attending the pre-paid funeral contracts. Finally, this particular order was not part of the orders advanced at trial and, if it was to be sought, it should have been sought at trial.

Issue 4 – what order for costs should be made as between the applicants and Mr Woff and Mr Corby?

Issue 5 – what order for costs should be made as between the applicants and Foresters?

25    The facts overlap and it is convenient to deal with these issues together. The starting point is the result at trial. The applicants were successful against Mr Woff and Mr Corby and, in the ordinary course, the latter would be ordered to pay the former’s costs. Foresters was substantially successful in resisting a very substantial claim by the applicants and, in the ordinary course, the latter would be ordered to pay the former’s costs. I do not think the adverse findings as to the matters identified in the principal reasons and the limited relief obtained in relation to the documents is sufficient to change that prima facie position. The issue is whether the Calderbank offers by Mr Woff and Mr Corby and by Foresters, and the Rules of Court offer by Foresters should lead to different orders.

26    In January 2013, the applicants were represented by Minter Ellison and the then respondents, Mr Woff, Mr Corby and FPA, were represented by Arnold Bloch Liebler. Arnold Bloch Liebler wrote to Minter Ellison on 22 January 2013. The letter was said to be without prejudice save as to costs. In the letter, the then respondents made an offer to settle the proceeding to the applicants. The terms of the offer were as follows. First, the then respondents offered to pay the sum of $120,000 to the applicants which sum was said by the then respondents to represent the estimated net present value of FPA’s cumulative profits for the next 20 years in respect of Foresters/FPA badged pre-paid funeral contract and funds connected with FPA’s business invested in Foresters Funeral Benefit Fund between 1 January 2011 and 30 September 2011. Secondly, the then respondents also offered to pay $230,000 to the applicants with respect to the applicants’ costs. Thirdly, the then respondents offered to consent to orders that they be restrained, whether by their servants, agents or otherwise howsoever from using or disclosing the confidential information set out in Annexure A to the Amended Fast Track Statement, and reproducing or communicating to the public any of the applicants’ copyright works set out in Annexure B to the Amended Fast Track Statement. Fourthly, the then respondents said that they would consent to an order that the proceeding be dismissed with no order as to costs. Fifthly, the then respondents offered to deliver up on oath hard copies of all documents in their possession, custody or control which were obtained by them during their respective periods of employment with the first applicant and which were not publicly available, and to permanently delete all electronic copies of such documents and to confirm on oath that such documents had been deleted. Finally, the then respondents’ offer included a term that the parties enter into complete mutual releases, that the terms of settlement be confidential, and that the terms of settlement be reduced to writing in the form of a deed to be executed by the parties.

27    The letter went on to say that the then respondents were willing to negotiate with the applicants as to the wording of the injunction and obligation.

28    In the letter, Arnold Bloch Liebler set out the reasons the then respondents considered that the offer should be accepted. Reference was made to the fact that, on 19 September 2012, Mr Woff and Mr Corby redrafted and made arrangements for the replacement of disclosure and marketing documents which had to that time been in use in relation to the promotion and marketing of Foresters/FPA badged pre-need funeral products by Mr Woff and Mr Corby. The offer was open for acceptance until 4 pm on 5 February 2013 and if not accepted, Arnold Bloch Liebler said that it would be produced to the Court on the question of costs.

29    The applicants, through Ashurst Australia, responded to the letter from Arnold Bloch Liebler by letter dated 5 February 2013. The applicants rejected the offer. They made the point that one of their objectives was to secure a public acknowledgement of wrongdoing by the then respondents and a vindication of their position. They said:

The proposal does not involve any public declaration or acknowledgment that you acted contrary to your legal obligations generally, and your fiduciary duties in particular, in the establishment of your competitive business arrangements while employed by Lifeplan and in the use of proprietary Lifeplan/FPM materials subsequent to your Lifeplan employment. At a minimum, the applicants require that you admit the facts of your wrongful conduct and consent to declarations that you breached your duties.

30    As I have said, Foresters was joined as a respondent by order of the Court made on 7 June 2013. From that date, Foresters has been represented by Turks Legal.

31    On 8 May 2015, Turks Legal wrote a letter to Ashurst Australia and that letter was said to be without prejudice save as to costs. The letter identified Mr Woff, Mr Corby and Foresters collectively as the respondents. The letter stated that each of the respondents denied that it had any liability to the applicants in respect of the alleged misconduct. It stated that, to the extent that any misconduct was proved, Foresters said that the applicants would not be entitled to more than a nominal or minimal account of profits. The letter set out the reasons why the respondents denied liability and the reasons why Foresters considered that the applicants’ claims would fail entirely or result in, at best, a nominal or minimal account of profits. The letter stated that the evidence showed no more than that Foresters may have inadvertently infringed the applicants’ copyright (if any) between February and September 2011 and that Foresters had promptly withdrawn and replaced the alleged infringing documents when notified of the applicants’ complaints in September 2011. The letter identified the various causes of action relied on by the applicants and set out reasons why those causes of action would not succeed. The letter stated that Foresters did not knowingly assist Mr Woff and Mr Corby in any breach of fiduciary duty or of confidence. As to the BCP, it contained the following statements:

19.    Some of the information referred to in Annexure A may be confidential (for example, the Applicants’ sales figures broken down by funeral director). Some of the information is not confidential at all. For example, friendly societies publish their bonus rates. A compilation of publicly available bonus rates cannot be confidential.

20.    In any event there is no evidence that Foresters did anything to instigate, encourage or assist the breaches alleged. Nor is there any evidence that Foresters used the Applicants’ confidential information, other than the use (if any) the Foresters’ Board may have made of information contained in the FPA Business Concept Paper in considering Woff’s and Corby’s proposal in September 2010.

32    The letter stated that, for the purposes of the offer made in the letter, Foresters acknowledged the applicants’ allegations that Mr Woff and Mr Corby had breached their employment contracts with the applicants in a number of ways “most materially for the purposes of the Proceeding by emailing to their personal email addresses allegedly confidential information belonging to the Applicants and using confidential information of the Applicants in preparing the Funeral Fund Business Concept paper which Woff and Corby presented to the Foresters Board in September 2010”.

33    The letter then stated that Foresters made an offer to settle to the applicants in the following terms. It would pay the applicants the sum of $2.5 million in full and final settlement of all claims made by the applicants in the proceeding against each of Mr Woff, Mr Corby and Foresters and that sum would be paid to the applicants within 28 days of the date on which the offer is accepted. On acceptance of the offer, the parties would consent to orders that the proceeding insofar as it was against Mr Woff, Mr Corby and Foresters be dismissed with no order as to costs. The offer was open for acceptance for 14 days from the date of the letter. Foresters reserved the right should the offer be rejected to rely on the offer to support a claim for indemnity costs from the date of the letter. The offer was not accepted by the applicants.

34    On the same day, that is, 8 May 2015, Foresters, through Turks Legal, made an offer of compromise to the applicants under r 25 of the Rules. That offer was for the payment of $2.5 million inclusive of costs in settlement of the claims against Foresters and Mr Woff and Mr Corby. The offer was open for 14 days and said to be made without prejudice. It was in material respects in the same terms as the Calderbank offer made on or about the same date. The offer was not accepted by the applicants.

35    On 27 May 2015, Esser Legal wrote a letter to Ashurst Australia. Esser Legal was acting for Mr Woff and Mr Corby. Esser Legal made certain allegations about the “disastrous” performance of the applicants’ Funeral Fund No 2. The letter was stated to be an open letter. The letter contained an offer to settle which was prefaced with the phrase “without any admissions of liability”. The offer made by Mr Woff and Mr Corby involved the following terms. First, Mr Woff and Mr Corby would consent to a declaration in terms of paragraph 31(b) of the Second Further Amended Statement of Claim. This declaration related to a breach of obligations of confidence, not to a breach of fiduciary duties. Paragraphs 31(a) and (b) were as follows:

31.    Against each of Woff and Corby:

(a)    a declaration that each of Woff and Corby breached their fiduciary duties to Lifeplan and FPM;

(b)    a declaration that each of Woff and Corby breached their obligations of confidence, including those under the Confidentiality and Intellectual Property Declarations and an Information Technology Agreement they each executed in favour of the Applicants;

Secondly, Mr Woff and Mr Corby would consent to an order that they would not, themselves or by their employees or agents, use or publish in any manner whatsoever any of the applicants’ documents as set out in Annexures A and B of the Second Further Amended Statement of Claim. Thirdly, they would consent to an order that they would not themselves or by their agents or employees seek to pass themselves off or in any material used by them as in anyway howsoever being employed or associated with either one of the applicants. Fourthly, they would consent to an order that the proceeding be otherwise struck out with no order as to costs, including reserved costs. Fifthly, they would consent to an order that the existing costs orders in their favour, including the order for costs thrown away made in 2013 estimated by the costs’ expert to be worth $125,000 be not pursued or enforced. The offer also contained an offer to consent to a mutually agreed statement to be released to the public recording inter alia settlement of the claims against them, acknowledging their consent to various orders made in the Federal Court, and an all parties acknowledgement that Mr Woff and Mr Corby were in no way associated with the applicants now or in the future. Finally, the offer included a term that there be mutually comprehensive releases in the usual form between relevant parties. The applicants did not accept this offer.

36    On 29 May 2015, Turks Legal wrote a letter to Ashurst Australia which was said to be without prejudice save as to costs. The letter contained an offer by Foresters to settle the proceeding. The revised offer included the following terms. First, Foresters would pay the applicants the sum of $2 million within 28 days of the date on which the offer is accepted, and the sum of $1 million by 30 June 2016, and a further sum of $1 million by 30 June 2017 in full and final settlement of all claims made by the applicants in the proceeding against each of Mr Woff, Mr Corby and Foresters. Secondly, each of Foresters and the applicants would waive and not seek to enforce any interlocutory costs order in the proceeding made in their favour. Thirdly, as soon as reasonably practicable following acceptance of the offer, the applicants would consent to orders that the proceeding insofar as it was against Mr Woff, Mr Corby and Foresters be dismissed with no order as to costs. The offer was open for acceptance until 9.30 am Adelaide time on Monday, 1 June 2015 and Foresters reserved the right to rely on the offer should it not be accepted on the question of costs. The applicants did not accept this offer. I should say that, for reasons related to the applicants’ application to amend, the parties agreed that this offer was to be treated for costs purposes as having been made on 8 May 2015.

37    The applicants’ solicitor has sworn that as at 22 January 2013 the applicants’ costs were approximately $411,000 and that as at 8 May 2015 the applicants’ costs were approximately $3,055,000.

38    I do not think the applicants acted unreasonably in refusing the offer contained in the Arnold Bloch Liebler letter dated 22 January 2013. I say that for the following reasons. First, the offer did not involve a public acknowledgement of wrongdoing. There was no offer to consent to declarations of wrongdoing. That is not in itself an end of the matter because all the circumstances must be considered and a generous offer of damages or compensation may, depending on the circumstances, outweigh the absence of an acknowledgement of wrongdoing. The other matter which should be noted is that it is relevant that the then respondents were put on notice by the applicants that a public acknowledgement of wrongdoing was important to the applicants because it means the then respondents cannot claim to be under any misapprehension as to what the applicants were seeking. However, I do not think that it is relevant beyond that. In particular, I do not think it can be accorded greater weight, at least for the purposes of costs, because of the attitude of a particular applicant. The matter is to be assessed objectively, at least in the ordinary case. Secondly, the terms of the offer if more favourable than the applicants’ entitlement of approximately $50,000 plus 60% to 70% of $411,000, were not obviously or significantly more favourable. Thirdly, FPA was still operating at that point. As I said in the principal reasons (at [414]), it might have been the primary target had it succeeded. As it happened it did not, but that was not known on 22 January 2013. I do not think it unreasonable for the applicants to see what transpired with FPA. Finally, although it is difficult for me to be precise as to what was discovered and when, it is clear that Mr Woff and Mr Corby failed to discover a number of documents in this proceeding (at [44]-[48]).

39    I would not put any weight on the offer by Mr Woff and Mr Corby as set out in the letter from Esser Legal dated 27 May 2015. It involved only a limited public acknowledgement of wrongdoing and nothing approaching the applicants’ entitlement to profits and costs at that point in time.

40    As to the Foresters’ offers, I can focus on the offer in the letter dated 29 May 2015 because of the agreement of the parties that it is to be treated as having been made on 8 May 2015. Although the Foresters’ offer was only made by Foresters, it involved a settlement of the claims against Mr Woff and Mr Corby as well as Foresters. Therefore, the relevant comparison is between the offer and the judgment against Mr Woff and Mr Corby as well as Foresters. The Foresters’ offer does not contain any public acknowledgement of wrongdoing by Mr Woff and Mr Corby or indeed by Foresters itself. However, the financial aspect of the offer is very favourable compared with an order that Mr Woff and Mr Corby pay the applicants’ costs, and the applicants pay Foresters’ costs. In light of the favourable financial aspect of the offer, I think the point was reached where it was unreasonable for the applicants not to accept the offer even in the absence of a public acknowledgement of wrongdoing by the respondents. The applicants should pay Foresters’ costs of the proceeding up to 11 am on 12 May 2015 on a party and party basis and thereafter on an indemnity basis.

41    I have already said that the offer made by Mr Woff and Mr Corby on 27 May 2015 was not sufficient of itself to affect the order as to costs against them. However, if acting reasonably, the applicants ought to have accepted the Foresters’ offer that would have brought the proceeding to an end against Mr Woff and Mr Corby as well. In that sense, Mr Woff and Mr Corby are entitled to take the benefit of the offer made by Foresters. In the circumstances, I do not need to consider the argument that both offers (i.e., that of Foresters and that of Mr Woff and Mr Corby) can be combined and that it was unreasonable for the applicants not to accept the combined offer or something very similar. In the circumstances, Mr Woff and Mr Corby should pay the applicants’ costs of the proceeding against them up to 11 am on 12 May 2015 on a party and party basis, and the applicants should pay the costs of Mr Woff and Mr Corby on a party and party basis after that date. I would not order that the applicants pay the costs on an indemnity basis. I have a discretion and there are good reasons not to order indemnity costs. The bulk of the costs after 12 May 2015 relate to the trial. As set out in the principal reasons, Mr Woff was an unsatisfactory witness at the trial who (among other things) failed to give proper discovery and who invented a false explanation to try and explain the reasons he had not given proper discovery. Mr Corby did not even give evidence.

Issue 6 – the reserved costs of 12 December 2012

42    In my opinion, it is appropriate to make an order that the costs of Mr Woff and Mr Corby of the applicants’ application for an order for a separate trial on the issue of liability be paid by the applicants. The applicants made an application which failed. I note the observations made by Justice Mansfield at the time of refusing the applicants’ application (Lifeplan Friendly Society Ltd v Woff (2012) FCA 1415 at [17]-[23]), but I do not discern anything in the events which have transpired since then which should deflect me from making an order for costs which reflects the result of the application.

Issue 7 – whether one or more of the respondents are entitled to indemnity costs in relation to the orders made on 29 May 2015?

43    I would not alter or add to the order for costs I made on 29 May 2015. It is true that I granted liberty to apply, but my recollection is that I did this because the respondents, and in particular, Mr Woff and Mr Corby wanted to consider applying for an order that their costs be taxed and paid immediately. Nevertheless, I will consider the application by the respondents for an order that these costs or part of them be paid on an indemnity basis. The grounds for such an order advanced by Mr Woff and Mr Corby differ from the grounds advanced by Foresters.

44    Mr Woff and Mr Corby contend that there should be indemnity costs essentially because of the lateness of the applicants’ application. I refer to their written submissions (paragraphs 3 to 8 inclusive) which I will not set out. I reject their argument. Nothing they have said suggests to me that an order for indemnity costs is appropriate.

45    Foresters sought an order that its costs in relation to the abandonment of the copyright claim should be paid on an indemnity basis from 29 January 2014 because it submits that from that date the applicants, properly advised, should have known that their copyright claim had no chance of success. I do not propose to set out its submissions which are detailed in paragraphs 46 to 65 of its written submissions. I reject its submissions essentially for the reasons advanced by the applicants. I do not think that the abandonment of the copyright claim had a significant effect on the evidence led at trial and I note that the applicants were successful in obtaining relief in relation to the documents in Annexure A and Annexure B. Furthermore, the approach advanced by Foresters would require me to examine the merits. Having regard to the nature of the application and the two matters to which I have referred, I am not prepared to do that.

Orders

46    I will make the following orders:

THE COURT DECLARES THAT:

1.    Each of Noel Jeffrey Woff (“Mr Woff”) and Richard John Corby (“Mr Corby”) breached duties and obligations owed by each of them to Lifeplan Australia Friendly Society Ltd (“Lifeplan”) and to Funeral Plan Management Pty Ltd (“FPM”), in that:

(a)    between July 2010 and December 2010, without permission they took, used, disclosed to the Ancient Order of Foresters Friendly Society in Victoria Ltd (“Foresters”) and retained Lifeplan’s and FPM’s confidential and valuable information to prepare and advance a business proposal involving Mr Woff, Mr Corby, Funeral Planning Australia Pty Ltd (“FPA”) and Foresters (“the Business Proposal”):

(i)    in breach of the fiduciary duties they owed to Lifeplan and FPM;

(ii)    in breach of the obligations of confidence they owed to Lifeplan and FPM; and

(iii)    in breach of the contractual duties they owed to Lifeplan and FPM;

(b)    between 25 August 2010 and 8 December 2010 (in respect of Mr Woff) and 25 November 2010 (in respect of Mr Corby), they solicited the business of Tobin Brothers Funerals for their proposed business and in the course of doing so denigrated Lifeplan’s and FPM’s fund and services:

(i)    in breach of the fiduciary duties they owed to Lifeplan and FPM; and

(ii)    in breach of the contractual duties they owed to Lifeplan and FPM;

(c)    between October 2010 and 29 December 2010 (in respect of Mr Woff) and 25 November 2010 (in respect of Mr Corby), whilst employees of Lifeplan, they approached funeral directors for the purpose of soliciting their business:

(i)    in breach of the fiduciary duties they owed to Lifeplan and FPM; and

(ii)    in breach of the contractual duties they owed to Lifeplan and FPM;

(d)    between September 2010 and December 2010, whilst still employed by Lifeplan, they took impermissible steps towards establishing their new business in that they were involved in the changes to be made to the rules governing the Foresters’ fund and the preparation of Foresters’ disclosure documents:

(i)    in breach of the fiduciary duties they owed to Lifeplan and FPM; and

(ii)    in breach of the contractual duties they owed to Lifeplan and FPM;

(e)    from 2011 until 2015, they prevailed on a supplier of Lifeplan to use the templates designed to print materials for clients of Lifeplan and FPM to print materials for potential clients of Foresters and FPA:

(i)    in breach of the fiduciary duties they owed to Lifeplan and FPM; and

(ii)    in breach of the contractual duties they owed to Lifeplan and FPM;

(f)    in January 2011, Mr Woff took Lifeplan’s and FPM’s mailing list and provided it to a supplier for the purpose of distributing material to clients on behalf of FPA:

(i)    in breach of the fiduciary duties Mr Woff owed to Lifeplan and FPM; and

(ii)    in breach of the contractual duties Mr Woff owed to Lifeplan and FPM;

(iii)    in breach of the duty of confidence Mr Woff owed to Lifeplan and FPM.

THE COURT ORDERS THAT:

2.    Each of Mr Woff, Mr Corby, FPA and Foresters whether by themselves, their agents, employees or related entities (as defined by s 9 of the Corporations Act 2001 (Cth)) be permanently restrained from using or publishing the documents described in Annexure 1 to this Order.

3.    Each of Mr Woff, Mr Corby, FPA and Foresters within 14 days:

(a)    deliver to the applicants all hard copies of the documents described in Annexure 1 to this Order in each of their possession, custody or control; and

(b)    permanently destroy all electronic copies of the documents described in Annexure 1 to this Order in each of their possession, custody or control

provided that the respondents may retain such copies for the purpose of this proceeding or any appeal until the conclusion of this proceeding or any appeal.

4.    Mr Woff account, including within the meaning of s 1317H(2) of the Corporations Act 2001 (Cth) to the applicants in the sum of $24,238.

5.    Mr Corby account to the applicants in the sum of $24,198.

6.    Each of Mr Woff and Mr Corby pay interest to the applicants in an amount to be assessed if not agreed.

7.    Subject to these orders and existing orders as to costs, the applicants pay Foresters’ costs of the proceeding on a party and party basis up to 11 am on 12 May 2015 and thereafter on an indemnity basis.

8.    Subject to these orders and existing orders as to costs, Mr Woff and Mr Corby pay the applicants’ costs of the proceeding against them on a party and party basis up to 11 am on 12 May 2015, and the applicants pay the costs of Mr Woff and Mr Corby of the proceeding thereafter on a party and party basis.

9.    The application by Mr Woff and Mr Corby to vary or add to the order made on 29 May 2015 be refused.

10.    The application by Foresters to vary or add to the order made on 29 May 2015 be refused.

11.    The applicants pay the costs of Mr Woff and Mr Corby on a party and party basis of the applicants’ application dismissed by order made on 12 December 2012.

ANNEXURE 1 – Part A

(Annexure A from Third Further Amended Statement of Claim)

Annexure 1 – Part B

(Annexure B from Third Further Amended Statement of Claim)

Associate:

Dated:    14 April 2016

SCHEDULE OF PARTIES