Kriesner v Magistrate sitting at Dandenong - [2004] VSC 389

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

PRACTICE COURT

No. 6290 of 2003

ERNST KRIESNER	Appellant
v
THE MAGISTRATE SITTING AT DANDENONG AND ENID KRIESNER AND PETER KRIESNER	Respondents

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JUDGE:	OSBORN J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	28 SEPTEMBER 2004
DATE OF JUDGMENT:	28 SEPTEMBER 2004
CASE MAY BE CITED AS:	KRIESNER v THE MAGISTRATE SITTING AT DANDENONG & ORS
MEDIUM NEUTRAL CITATION:	[2004] VSC 389

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Magistrate not bound to conclude that bailment alleged was proven or that alleged bailee wrongly disposed of goods – No vitiating error of law exhibited.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr S. Wilmoth	Robert Halliday & Associates
For the Second Respondent	Mr B. Carew	Springvale Monash Legal Service Inc.
No appearance by or on behalf of any other party.

HIS HONOUR:

The appellant in this matter is the former husband of the second respondent whom I shall refer to as Mrs Kriesner, and the father of the third respondent whom I shall refer to as Peter and of another son named Martin. Following the breakdown of his marriage to Mrs Kriesner in the 1980s, the appellant moved to the Philippines and left a quantity of furniture and personal belongings with friends named Reader.

In 1987, the Readers requested that Martin remove the goods and take custody of them. Martin did this, and took the goods by carrier to the premises at which he resided with his mother, Mrs Kriesner. Mrs Kriesner could not accommodate certain items of furniture and they were sold. Others were placed in the house and, importantly for the present appeal, some sealed boxes of personal belongings were placed under the house and in the garage.

The appellant asserts that these belongings included memorabilia of some real personal significance to the appellant. The appellant's claim alleges some 12 boxes of personal belongings were lodged at Mrs Kriesner's residence, but the evidence of Mrs Kriesner and Martin supports the view that three were placed under the house and three in the garage.

Over the years, the boxes in the garage were water damaged, and it appears the goods in the boxes under the house were also affected by rodent damage and decay. I shall return to this issue in due course. Mrs Kriesner says that in the early 1990s she requested the appellant, by way of oral requests made through Martin, to remove the boxes. In the event, the boxes were not removed.

In 1996 or 1997, Mrs Kriesner disposed of the boxes and their contents as rubbish. Thereafter, in 1998 and again in 2002, the appellant demanded return of the goods which he believed were at Mrs Kriesner's residence. Some goods were returned but when the bulk of the goods were not returned, the appellant ultimately issued a claim in the Magistrates' Court at Dandenong in 2003 seeking return of the goods or, in the alternative, damages.

The particulars of claim allege that Martin acted as the appellant's agent and that Mrs Kriesner…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2004] VSC 389
Decision Date: 28 September 2004

CaseChat Overview and Summary

In the matter of Kriesner v Magistrate sitting at Dandenong, the central dispute involved the interpretation and application of bailment law, with the plaintiff asserting that the defendant had wrongfully disposed of goods that were in their care. The case was heard in the Supreme Court of Victoria, where the plaintiff sought a judicial review of a decision made by a magistrate regarding the alleged breach of a bailment agreement. The primary issue before the court was whether the magistrate had erred in their application of the law relating to bailment, specifically whether the magistrate was required to conclude that the bailment was proven or that the bailee had wrongly disposed of the goods.

The court examined the magistrate's decision to determine if there was a vitiating error of law that had influenced the outcome. The plaintiff argued that the magistrate was obligated to find that the bailment was proven and that the bailee had improperly disposed of the goods. However, the court found that the magistrate was not bound to draw such conclusions. The court held that the magistrate's role was to assess the evidence and apply the relevant legal principles, not to be compelled to reach a specific factual determination. The court concluded that there was no evidence of a material error of law in the magistrate's decision, and thus, the decision should stand.

In reaching its decision, the court emphasised that the magistrate was not required to find that the bailment was proven or that the bailee had acted wrongly. The court noted that the magistrate had properly considered the evidence and applied the law in reaching their decision. Therefore, the court found that there was no basis for a judicial review on the grounds of a vitiating error of law. Consequently, the court dismissed the plaintiff's application and affirmed the magistrate's decision. The final order of the court was that the application for judicial review be dismissed, with the plaintiff to bear the costs of the proceedings.

Orders