PROPERTY – De facto relationship – Adjustment of property interests under Part IX of Property Law Act1958 – Whether time for instituting claim should be extended – Basis of assessment of respective contributions – Whether ‘global’ or ‘asset by asset’ approach – Whether judge erred by precluding assessment on global basis – Whether domestic violence made home-maker and parent contributions more arduous - Whether contributions after separation should be taken into account.
EQUITY – Breach of confidence – Publication of videotape of sexual activity – Whether damages available in lieu of injunction – Whether damages available for mental distress not amounting to mental illness – Whether aggravated damages available – Supreme Court Act 1986 s 38.
TORT – Intentionally causing harm – Plaintiff suffered mental harm not amounting to mental illness – Publication of videotape of sexual activity – Defendant intended to cause distress and humiliation – Whether claim cognisable in Australian law.
TORT – Assault – Domestic violence – Damages – Whether amounts awarded manifestly inadequate – Need to avoid double compensation when domestic violence is taken into account under Property Law Act Part IX.
TORT – Privacy – Publication of videotape of sexual activity – Whether action for breach of privacy available.
COURTS AND JUDGES – Precedent – State legislation – NSW legislation substantially identical – Whether State Court should follow decisions of New South Wales Court of Appeal.
MS GILLER’S CHALLENGE TO FINDING THAT SHE DID NOT SUFFER A…
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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AGLC
Giller v Procopets [2008] VSCA 236
Case
[2008] VSCA 236
Decision Date
CaseChat Overview and Summary
In the matter of Giller v Procopets, the parties involved were Giller, the plaintiff, and Procopets, the defendant. The dispute centred on the division of property interests following the dissolution of a de facto relationship, as well as claims related to the publication of a videotape of sexual activity between the parties. The case was heard in the Supreme Court of Victoria.
The court was required to address several legal issues, including whether the time for instituting a claim under the Property Law Act 1958 should be extended. It was also necessary to determine the appropriate basis for assessing the respective contributions of the parties, whether a global or asset-by-asset approach should be taken. Additionally, the court had to consider whether the judge had erred in precluding an assessment on a global basis, and if the domestic violence experienced by the plaintiff made her contributions as a homemaker and parent more arduous. The court also needed to determine whether contributions made after the separation should be taken into account. Furthermore, the case involved questions regarding the availability of damages in lieu of an injunction for breach of confidence, damages for mental distress not amounting to mental illness, and aggravated damages. The court also considered whether the publication of the videotape constituted a breach of privacy and if the plaintiff's claim for intentionally causing harm was cognizable in Australian law.
The court found that the plaintiff's contributions as a homemaker and parent were more arduous due to the domestic violence experienced, which should be taken into account when assessing her contributions. The court also held that the contributions made after separation should be considered. In relation to the property division, the court ruled that the global approach to assessing contributions was appropriate. The court further determined that damages for mental distress not amounting to mental illness, as well as aggravated damages, were available in cases of breach of confidence. The court held that the publication of the videotape constituted a breach of privacy and that the plaintiff's claim for intentionally causing harm was cognizable in Australian law.
The final orders of the court were not explicitly stated in the text. However, the court's determinations on the various legal issues would likely inform the final orders regarding the division of property interests and the awarding of damages for the various claims made by the plaintiff.