Supreme Court New South Wales Medium Neutral Citation: Leslie George Lobsey v Liverpool Plains Shire Council [2014] NSWSC 446 Hearing dates: 14 April 2014 Decision date: 14 April 2014 Jurisdiction: Equity Division Before: Kunc J Decision: Statement of Claim dismissed Catchwords: PRACTICE AND PROCEDURE - Summary disposal - Facts could not give rise to any cause of action - No issue of principle Legislation Cited: Civil Procedure Act 2005 (NSW) Copyright Act 1968 (Cth) Local Government Act 1993 (NSW) Trade Marks Act 1995 (Cth) Uniform Civil Procedure Rules Part 13 r 13.4 Cases Cited: Calderbank v Calderbank [1976] Fam Law 93; [1975] 3 All ER 333; [1975] 3 WLR 586 Sydney City Council v Reid (1994) NSWLR 506, 84 LGERA 381 Category: Principal judgment Parties: Lesley George Lobsey (Plaintiff) Robert C Hunt (First Defendant) Michael J Urquhart (Second Defendant) Liverpool Plains Shire Council (Third Defendant) The State of New South Wales (Fourth Defendant) Representation: Counsel: J. Guihot (First, Second and Third Defendants) A. Gerard (Fourth Defendant) Solicitors: Moray & Agnew (First, Second and Third Defendants) I.V. Knight, Crown Solicitor (Fourth Defendant) File Number(s): 2013/294471 Publication restriction: No EX TEMPORE Judgment 1HIS HONOUR: These proceedings were commenced by the plaintiff (Mr Lobsey) by a Statement of Claim filed on 30 September 2013. The defendants are the Liverpool Plains Shire Council (the Council), the General Manager of the Council (Mr Hunt) and another officer of the Council (Mr Urquhart). In addition, Mr Lobsey has named the State of New South Wales as the fourth defendant. 2The Court has before it today an Amended Notice of Motion filed by the first to third defendants on 30 October 2013 and a Notice of Motion by the fourth defendant filed on 8 November 2013. Both of those Notices of Motion seek orders to the effect that the proceedings be dismissed in accordance, amongst other things, with the Uniform Civil Procedure Rules Part 13 r 13.4 on any of the bases disclosed in that rule. That rule provides: (1) If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings: (a) the proceedings are frivolous or vexatious, or (b) no reasonable cause of action is disclosed, or (c) the proceedings are an abuse of the process of the court, the court may order that the proceedings be dismissed generally or in relation to that claim. (2) The court may receive evidence on the hearing of an application for an order under subrule (1). 3The defendants are entitled to relief in terms of their respective motions. 4Before setting out my reasons for making orders in accordance with the defendants' motions it is necessary to say something about the course of the proceedings today. The motions have been heard in the absence of the plaintiff. I have done so because it is clear that Mr Lobsey is aware that the motions were to be heard today. That awareness may be demonstrated by reference to a number of matters. 5When the motions were fixed for hearing before me, the Registrar sent an e-mail to Mr Lobsey on 18 November 2013 which included: Your matter has been listed for hearing of the Motions to dismiss before Justice Kunc on 14 April 2014. It will be a matter for his Honour whether or not he will permit a telephone attendance on that occasion. A copy of your email has been placed on file. You should repeat any request for a telephone attendance to his Honour's Associate nearer to the hearing date. Do not leave it to the last moment, as you have with this email. 6When the motions were fixed for hearing the usual order for hearing was made. In accordance with that order the first to third defendants prepared a Court book in the usual form, which included an outline of submissions on behalf of all of the defendants. That Court book was sent to Mr Lobsey and he was again made aware of today's hearing date by letters, which have been tendered in evidence, sent by both express post and by e-mail. 7Furthermore, Mr Lobsey himself prepared Court books for all of the parties and for the Court and provided a summary of his case. All of these were entitled as being sent in relation to today, 14 April 2014. My Associate also received a further outline of submissions for today sent by e-mail on behalf of Mr Lobsey which was said to respond to the submissions made by counsel for the defendants. The burden of Mr Lobsey's two sets of submissions was that he opposed the relief sought in the motions. 8Finally, when the matter was called on today and Mr Lobsey was not present, further inquiries were made by the solicitor for the first to third defendants. In his Statement of Claim, Mr Lobsey gave contact details for him care of his partner, a Ms Rumble, which also gave a telephone number and Ms Rumble's e-mail. The solicitor for the first to third defendants has given evidence before me that shortly after the matter was called on, during an adjournment which I afforded for this purpose, the solicitor spoke to Ms Rumble. She informed him that Mr Lobsey would not be attending today due to a bad back. She did not suggest that Mr Lobsey was seeking an adjournment of today's hearing or that he otherwise objected to it proceeding in his absence. 9In those circumstances the Court is well satisfied that Mr Lobsey knew the matter would be heard today. 10Turning to the merits of the motions, I have reviewed Mr Lobsey's Court book and the two sets of submissions which he has provided. I have also had the advantage of full written submissions from the first to third and fourth defendants, which I have also considered in detail. 11Mr Lobsey's Statement of Claim seeks the following relief: 1. Breach of Contract 2. Breach of Copyright/trademark/tradename 3. Conversion 4. Detinue 5. Damages 6. Interest pursuant to s100 of the Civil Procedures Act 2005. 7. Costs 8 Further or other orders as this honourable court may deem appropriate. 12While the particular bases of Mr Lobsey's claims are sometimes obscure, the general nature of the way he puts his case is clear. He asserts that he is the holder of what he describes as a "common law" copyright and a common law "trademark" and "tradename" with respect to his given name Leslie George Lobsey, as well as being the "owner" of that name. I note that, consistently with that position, Mr Lobsey has signed the Statement of Claim as "L Lobsey 'TM'". 13In addition to what I will refer to generally as his copyright claim, Mr Lobsey asserts that he delivered a bundle of documents which he describes as his "portfolio" to the Council in or about December 2012 which created what he describes as a "self-executing contract". The terms of that "contract" seem to be that if any employee of the Council used his name without permission, then those persons would become liable to pay liquidated damages in the sum of $500,000 with some further element of "triple damages", and would grant a security interest in all of their property of $1,000,000 for each claimed unauthorised use of his name. 14In 2013 Council sent two letters to Mr Lobsey, both of which were addressed to him, as one would expect, by his name. One was dated 18 April 2013 and concerned what was alleged to be an altercation between Mr Lobsey and two Council employees. That letter was signed by Mr Hunt as General Manager. The second letter was dated 1 June 2013. That was a response to Mr Lobsey's allegations of copyright infringements for using his name. The letter was signed by Mr Urquhart as Director, Corporate Services. 15Mr Lobsey alleges that he had not authorised the first, second or third defendants to use his name and that, therefore, by addressing those letters to him using his given name, the defendants breached the various species of common law rights upon which he relies, breached the "self executing contract", were guilty of conversion and were liable to him in detinue. 16Insofar as the case against the fourth defendant is concerned, there is a bare pleading that the fourth defendant is vicariously liable for the actions of it "employees, servants and agents". While it is nowhere pleaded, I assume that Mr Lobsey alleges that the second and third defendants, and possibly the first defendant, are employees, servants or agents of the State of New South Wales. 17The allegations made in Mr Lobsey's Statement of Claim are plainly hopeless. Without intending any disrespect to the thorough way in which the defendants' submissions in support of their motions have been prepared, it is sufficient for present purposes if I record in broad terms the obvious and fatal problems with Mr Lobsey's case. 18Insofar as Mr Lobsey claims something in the nature of "common law copyright", that claim is unsustainable because copyright is exclusively a creature of statute in the form of the Copyright Act 1968 (Cth). Even if Mr Lobsey were to rely on that legislation, there is no doubt that Mr Lobsey's name is not a "literary work" within the meaning of that Act and is not capable of receiving any copyright protection. Even if it were, I can see no basis upon which Mr Lobsey could claim to be the "author" of his own name. If anyone was the author of his name, it would be his parents. 19Insofar as Mr Lobsey's claim is based on a "common law trademark or tradename", there is again no such thing. Such matters are governed by the Trade Marks Act 1995 (Cth). Reliance on that legislation would fail at the first hurdle, given that his name is not a name used by him or intended to be used by him to distinguish goods or services dealt with or provided in the course of trade by a person from goods or services so dealt with or provided by any other person as defined in s 7 of that Act. Furthermore, on the basis of evidence provided by the first to third defendants, Mr Lobsey has never registered his name as a trademark nor has he ever applied to do so. 20The only relief to protect something in the nature of a trademark or tradename available at common law would be a claim for passing off. However, on no view could it be said that sending a letter to Mr Lobsey at his home using his given name could constitute passing off by any of the defendants. 21Insofar as Mr Lobsey relies on what he has described as a "self-executing contract", his claim cannot succeed. It is well settled that one cannot impose a contract on another party. To the extent that Mr Lobsey's "portfolio" could constitute an offer, there is absolutely no evidence of it having been accepted. Nor is there any suggestion, either in Mr Lobsey's submissions or elsewhere, that something in the nature of consideration passed that would support an enforceable agreement between the plaintiff and any of the defendants. 22Mr Lobsey also makes a claim in conversion and detinue. That claim is also untenable. The subject matter in an action in conversion or detinue must be goods or property capable of possession or being subject to a right of possession. Furthermore, there must be an intentional dealing with the plaintiff's chattels in a way which is repugnant to the plaintiff's right of possession. Plainly enough, Mr Lobsey's name is not goods or property which are capable of possession or subject to a right of possession. It remains settled law in this country that there can be no conversion of a chose in action. Nor can the sending of a letter to the plaintiff using his name be capable of amounting to a dealing with an intent to deprive him of his right to a legal position of his name. 23Finally, the Council and its officers rely on s 731 of the Local Government Act 1993 which provides: A matter or thing done by the Minister, the Director-General, a council, a councillor, a member of a committee of the council or an employee of the council or any person acting under the direction of the Minister, the Director-General, the council or a committee of the council does not, if the matter or thing was done in good faith for the purpose of executing this or any other Act, and for and on behalf of the Minister, the Director-General, the council or a committee of the council, subject a councillor, a member, an employee or a person so acting personally to any action, liability, claim or demand. 24There is no suggestion that the Council, Mr Hunt and Mr Urquhart were not acting in good faith for the purposes of carrying out the Council's functions under the Local Government Act. In those circumstances neither of Mr Hunt or Mr Urquhart can be subject to personal liability. Insofar as Mr Lobsey's claims suggest that the Council is vicariously liable for the conduct of its employees, which in itself is a claim is open as a matter of theory, the defence under s 731 means that there is nothing in respect of which the Council can be vicariously liable in this case. 25Insofar as the claim against the fourth defendant is concerned, I have already noted that Mr Lobsey's Statement of Claim does not expressly plead that the first, second and third defendants are employees or agents of the fourth defendant in such a way that could give rise to vicarious liability for their conduct in the State of New South Wales. Even if there were such an allegation, it would be obviously wrong. By s 220(1) of the Local Government Act 1993 (NSW), the Council is a "body politic" with perpetual succession and the legal capacity of an individual. The Council does not have the status, privileges and immunities of the Crown: see s 220(3). In turn, the fourth defendant has drawn attention to authority that local government and council employees are not "in the service of the Crown": Sydney City Council v Reid (1994) NSWLR 506 at 519, 520; 84 LGERA at 381 at 393. Viewing the matter with maximum generosity towards Mr Lobsey, there is nevertheless no conceivable basis on which any liability could be attached to the fourth defendant for the conduct of which Mr Lobsey complains. 26I have carefully read Mr Lobsey's submissions. They comprise a series of arguments and propositions which, in a haphazard way, quote numerous authorities and passages from textbooks dealing with the areas of law which relate to Mr Lobsey's claim. His most recent submissions, said to be in response to the submissions of counsel for the defendants, repeat the pattern of multiple citation of extracts from statutes and textbooks with the addition of a series of quotations of various Latin maxims dealing with the basic features of the administration of justice. Unfortunately, none of those submissions or any of the other materials advanced by Mr Lobsey in any way come to grips with the fundamental problems which I have identified in Mr Lobsey's claim. 27Before making final orders, there are two other matters which I should record to which I have given attention. 28First, if I was of the view that the facts disclosed in Mr Lobsey's Statement of Claim or in his evidence could give rise to a cause of action against any of the defendants but have simply been inadequately exposed or pleaded, then I would have afforded Mr Lobsey an opportunity to replead his claim. However, that is not the case here. No matter how one looks at it, there is no legal basis that I am able to identify which would give rise to any legal rights in Mr Lobsey against any of the defendants arising from the matters which he has pleaded in the Statement of Claim or which are referred to in the voluminous materials provided to the Court. Accordingly, there is no utility in giving Mr Lobsey an opportunity to replead his case. 29Second, in circumstances where a litigant in person has failed to attend Court and the Court has proceeded to deal with a motion to strike out that litigant's claim, the Court will sometimes afford that litigant one last chance by staying those orders for a limited period of time. The intention of doing so is to give the absent litigant an opportunity to file a motion to seek to set aside whatever orders have been made in that litigant's absence so that the litigant can have an opportunity, if the litigant wishes, to argue the case on a contested basis with the litigant present in Court. 30Again, there is no utility in my doing so in this case. There are two reasons for this. First, as I have indicated earlier in these reasons, the Court is well satisfied that Mr Lobsey knew that the matter would be heard today and that, if the defendants were successful, his claim would be dismissed. 31Second, the very hopelessness of his claim (to which I have already referred) also supports the conclusion that there would be absolutely no use in giving Mr Lobsey a further opportunity to reagitate the matters with which I have dealt today. Were he to be given that opportunity, and if he took it up, that would do nothing more than result in further expense, delay and inconvenience for the defendants. That result would be completely contrary to the requirements of s 56 of the Civil Procedure Act 2005 (NSW) which require the parties to conduct litigation in this Court to achieve the "overriding purpose", namely the just, quick and cheap resolution of disputes before the Court. 32Furthermore, in exercising any discretion under the rules, the Court must have regard to that same overriding purpose. It would be contrary to that overriding purpose for any further opportunity to be given to Mr Lobsey to seek to reagitate the matters which have been the subject of argument before me today. 33It follows that Mr Lobsey's claim should be dismissed. Costs should follow the event. The first to third defendants have drawn my attention to a Calderbank letter which was sent to Mr Lobsey on 17 October 2013. That letter set out a number of reasons (all of which were correct) as to why Mr Lobsey's claim was untenable. The letter offered to end the proceedings on the basis of consent orders whereby the claim against the first to third defendants would be dismissed with no order as to costs. The offer was expressed to be open for a month from the date it bore. 34While Mr Lobsey did not formally respond to that letter, in the material which he included in his Court book in a document headed "Objections to the Defendant's Allegations of Fact", Mr Lobsey says: I also object on the validity of a calderbank offer, yes they wrote a letter but there was never an offer to accept or refuse, they cannot presume calderbank when neither party has signed off on a calderbank, calderbanks are useless unless you are in a marriage regime, I assure you there is no marriage regime here between myself and the defendants therefore there (sic) calderbank has no basis at law and must be refused. 35That paragraph satisfies me that Mr Lobsey was aware of the first to third defendants' Calderbank letter. Furthermore, I infer that Mr Lobsey had read that case, given that he refers to "a marriage regime". It is well known that Calderbank v Calderbank [1976] Fam Law 93; [1975] 3 All ER 333; [1975] 3 WLR 586 arose in a family law context. However, contrary to the submission made by Mr Lobsey, the principle in that case applies across all forms of litigation and is not confined to matrimonial proceedings. 36In circumstances where Mr Lobsey's claim was clearly hopeless, the Court is satisfied that a "walk away" offer with no order as to costs represented a genuine compromise on the part of the first to third defendants. There is no automatic exercise of a discretion in favour of indemnity costs where a Calderbank letter has been used. Nevertheless, it is a significant factor in the exercise of the Court's discretion where the Court is satisfied that the rejection of the offer, in all the circumstances, was unreasonable. In circumstances where, properly advised, Mr Lobsey should have understood that his claim was hopeless, the Court is satisfied that it was unreasonable of him not to accept the offer contained in the letter of 17 October 2013. It is appropriate that the first to third defendants have their costs of the proceedings on the indemnity basis. 37The orders of the Court are: (1)The Statement of Claim filed 30 September 2013 is dismissed. (2)The plaintiff is to pay the first to third (inclusive) defendants' costs of the proceedings on the indemnity basis. (3)The plaintiff is to pay the fourth defendant's costs of the proceedings. 38The exhibits may be returned. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 April 2014