Leslie George Lobsey v Liverpool Plains Shire Council [2014] NSWSC 446

Leslie George Lobsey v Liverpool Plains Shire Council [2014] NSWSC 446

The statement of claim was dismissed because, even accepting the plaintiff's pleaded facts and materials, they could not give rise to any cause of action against any defendant: there was no common law copyright or trademark in the plaintiff's name, no accepted contract or consideration, no property capable of conversion or detinue, no basis for State vicarious liability, and the Council officers were protected by s 731 of the Local Government Act 1993. The plaintiff's failure to accept the first to third defendants' Calderbank offer was unreasonable, warranting indemnity costs for those defendants.

Jurisdiction
Australia
Judgment Date
14 April 2014
Procedural Posture
Practice and Procedure Summary Disposal / Hearing of Motions by the Defendants to Dismiss the Statement of Claim Under Uniform Civil Procedure Rules Part 13 R 13.4
Outcome
Statement of Claim dismissed
Legal Topics
['summary Dismissal' 'no Reasonable Cause of Action' 'common Law Copyright' 'common Law Trademark or Tradename' 'self Executing Contract' 'conversion and Detinue' 'vicarious Liability' 'local Government Statutory Immunity' 'calderbank Offer' 'indemnity Costs']
['civil Procedure' 'copyright' 'trade Marks' 'contract' 'torts' 'local Government' 'costs'] ['summary Dismissal' 'no Reasonable Cause of Action' 'common Law Copyright' 'common Law Trademark or Tradename' 'self Executing Contract' 'conversion and Detinue' 'vicarious Liability' 'local Government Statutory Immunity' 'calderbank Offer' 'indemnity Costs']

Case Brief

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Procedural Posture

Practice and Procedure Summary Disposal / Hearing of Motions by the Defendants to Dismiss the Statement of Claim Under Uniform Civil Procedure Rules Part 13 R 13.4

Legal Issues

  1. 1 ['Whether the proceedings should be dismissed under Uniform Civil Procedure Rules Part 13 r 13.4 as disclosing no reasonable cause of action, being frivolous or vexatious, or an abuse of process.' "Whether the plaintiff's name could be protected by common law copyright, trademark or tradename rights." "Whether the plaintiff's alleged portfolio created a self-executing contract binding the defendants for use of his name." 'Whether addressing letters to the plaintiff by his name could amount to conversion or detinue.' 'Whether the Council officers, the Council, or the State of New South Wales could be liable for the complained-of conduct.' 'Whether indemnity costs should be ordered in favour of the first to third defendants because of a Calderbank offer.']

Ratio Decidendi

The statement of claim was dismissed because, even accepting the plaintiff's pleaded facts and materials, they could not give rise to any cause of action against any defendant: there was no common law copyright or trademark in the plaintiff's name, no accepted contract or consideration, no property capable of conversion or detinue, no basis for State vicarious liability, and the Council officers were protected by s 731 of the Local Government Act 1993. The plaintiff's failure to accept the first to third defendants' Calderbank offer was unreasonable, warranting indemnity costs for those defendants.

Court Disposition

Statement of Claim dismissed

Orders

  • ['The Statement of Claim filed 30 September 2013 is dismissed.' "The plaintiff is to pay the first to third (inclusive) defendants' costs of the proceedings on the indemnity basis." "The plaintiff is to pay the fourth defendant's costs of the proceedings."]