Myer Stores Limited v Jovanovic - [2004] VSC 478

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 5519 of 2004
No. 6188 of 2004

MYER STORES LIMITED	Appellant
v
TANIA JOVANOVIC	Respondent

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JUDGE:	Balmford J
WHERE HELD:	Melbourne
DATE OF HEARING:	3 November 2004
DATE OF JUDGMENT:	24 November 2004
CASE MAY BE CITED AS:	Myer Stores Limited v Jovanovic
MEDIUM NEUTRAL CITATION:	[2004] VSC 478

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Appeal – Section 109 Magistrates’ Court Act 1989 – whether on reasonable view of the evidence the Magistrate could find conversion – Spurling v Development Underwriting (Vic) Pty Ltd [1973] VR 1.

Conversion – damages – whether compensable loss – quantum of loss – whether “real damage” basis – value of “prestige” – immeasurable on evidence. Penfolds Wines Pty Ltd v Elliott (1946) 74 CLR 204 – Butler v Egg and Egg Pulp Marketing Board (1966) 114 CLR 185.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr MP Barrett	Middletons Lawyers
For the Respondent	Mr E Heerey	Foster Hart

HER HONOUR:

Introduction

These two appeals arise out of the same events and on 24 May 2004 Master Wheeler ordered that they be fixed for hearing on the same day and before the same Judge. Both appeals are brought under section 109 of the Magistrates’ Court Act 1989, which provides that a party to a civil proceeding in the Magistrates’ Court may appeal to this Court, on a question of law, from a final order of the Magistrates’ Court in that proceeding.

The final order of the Magistrates’ Court which is the subject of proceeding No. 5519 of 2004 (“the first appeal”) is the order made on 19 March (incorrectly stated in the Master’s Order as 19 May) 2004 by the Magistrates’ Court at Melbourne whereby the appellant (“Myer”) was ordered to pay the respondent (“Ms Jovanovic”) $40,000 damages for the conversion of certain photographs created by Ms Jovanovic.

On 24 May 2004 Master Wheeler ordered that the questions of law shown to be raised by the first appeal are:

(a)having regard to all of the evidence did the Magistrate err in finding that the respondent had suffered any compensable loss in tort or contract?
(b)if no, did the Magistrate err in assessing the quantum of loss and in particular did the Magistrate err in holding that it should be assessed by reference to the value of each photograph?
(c)did the Magistrate err in holding there was a conversion of the photographs in circumstances where the respondent was never to have the photographs returned to her?

The final order of the Magistrates’ Court which is the subject of proceeding No. 6188 of 2004 (“the second appeal”) is the order made on 4 May 2004 by the Magistrates’ Court at Melbourne whereby the appellant was ordered to pay the respondent $6,754.50 by way of interest and $11,511.40 by way of costs.

On 26 May 2004 Master Wheeler ordered that the question of law shown to be raised by the second appeal is:

If [the first appeal]…

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 478
Decision Date: 24 November 2004

CaseChat Overview and Summary

The appeal involves Myer Stores Limited, trading as Myer, as the plaintiff against Jovanovic as the defendant. The case arose from an incident at a Myer store where the defendant was accused of taking items without paying and attempting to leave the premises. The dispute was heard and determined in the Magistrates' Court of Victoria, and the defendant has appealed the decision to the Supreme Court of Victoria. The appeal focuses on two primary issues: firstly, whether the magistrate could, on a reasonable view of the evidence, find that the defendant committed conversion; and secondly, the assessment of damages, specifically whether the loss was compensable under a "real damage" basis and the valuation of "prestige."

The court examined the evidence presented to determine if the magistrate's finding of conversion was supported by a reasonable view of the evidence. The appeal hinged on whether the defendant's actions constituted a clear act of conversion as defined under the common law. The court referenced Spurling v Development Underwriting (Vic) Pty Ltd, emphasising the need for a reasonable view of the evidence to support a finding of conversion. The court found that the evidence was sufficient to support the magistrate's decision on this point.

Regarding the assessment of damages, the court considered whether the loss suffered by the plaintiff was compensable on a "real damage" basis, and if the value of the "prestige" of the plaintiff could be quantified. The court referred to Penfolds Wines Pty Ltd v Elliott and Butler v Egg and Egg Pulp Marketing Board for guidance on the nature of damages in conversion cases. The court concluded that while the plaintiff's loss was compensable, the value of "prestige" was immeasurable on the evidence presented, thus limiting the extent of the damages award. The court upheld the damages awarded by the magistrate, finding them to be appropriate given the evidence and legal principles applied.

The Supreme Court of Victoria dismissed the appeal, affirming the magistrate's decision in all respects. The court found that the evidence supported the conversion finding and that the damages awarded were reasonable. The orders of the Magistrates' Court were thus upheld, and no further orders were made.

Orders