A "celebrity" Cavoodle called Oscar who allegedly boasts 10,000 followers on Instagram is at the centre of a custody and defamation dogfight in a Sydney court.
In a case filed in the NSW District Court this year, plaintiffs Kenneth Flavell and Gina Edwards are suing Mark Douglas Gillespie over the custody of Oscar, as well as seeking orders to restrain allegedly defamatory statements being made by him in the future.
Oscar the Cavoodle (aged 2) on the set of Opera Australia's La Boheme in Sydney in April 2018.Credit: James Alcock
Mr Gillespie is defending the case and has filed a defence and cross-claim in court.
As NSW District Court Judge Judith Gibson put it succinctly in a judgment on August 20: "In other words, both parties want the dog."
Judge Gibson said "the parties’ legal representatives tell me that Oscar ... is a social media celebrity, with more than 10,000 followers on Instagram".
"They add that Oscar’s social media posts, which include photographs of his social activities (such as a trip to the opera wearing a tuxedo), are keenly awaited by those followers," Judge Gibson said.
"Oscar's Instagram account is apparently closed pending this litigation, but the parties, although able to agree on little else, assure me that Oscar is a dog of more than usual value."
Judge Gibson said Mr Flavell and Ms Edwards were seeking a range of orders, including an order restraining Mr Gillespie "from removing the dog known as 'Oscar'" from them pending the outcome of the case. Ultimately, they are seeking a declaration they are Oscar's owners.
They are also seeking damages relating to the alleged breach of a contract of bailment – an agreement under which goods are transferred into the possession, but not ownership, of a third party for a period of time – relating to Oscar's upkeep and care.
Mr Gillespie wants Oscar returned to him, and seeks damages for the Cavoodle's "detention".
Judge Gibson said she was also informed in court that Mr Gillespie was seeking control of Oscar's Instagram account "which may or may not still be online, but which could still be an item of some value, due to Oscar’s social media success".
Judge Gibson said it was not clear the court had jurisdiction to hear the case because Oscar's value (in monetary terms) and the cost of his upkeep may have exceeded a $20,000 limit.
While neither party had asked for the case to be transferred to the NSW Supreme Court, the jurisdictional issue meant "this Court’s hands are effectively tied", Judge Gibson said.
"It may seem a very minor matter for the Supreme Court to be troubled by a dispute about a dog, even a celebrity dog with its own Instagram account, but there would appear to be no alternative."
The case was transferred to the Supreme Court, but may eventually return by agreement to the District Court.
Two related defamation proceedings have also been filed in the District Court, but will not proceed until the main dispute is resolved. The case is listed for a preliminary hearing in the Supreme Court on September 15.
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