Giller v Procopets

Case [2008] VSCA 236


SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 7804 of 1999

ALLA GILLER

Appellant

v

BORIS PROCOPETS

Respondent

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JUDGES:

MAXWELL P, ASHLEY and NEAVE JJA

WHERE HELD:

MELBOURNE

DATES OF HEARING:

27 and 28 August 2007

DATE OF JUDGMENT:

10 December 2008

MEDIUM NEUTRAL CITATION:

[2008] VSCA 236

First Revision 15 December 2008

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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.

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APPEARANCES: Counsel Solicitors
For the Appellant Mr T North SC with
Mr K Davis and
Mr M J Rivette
Carew Counsel Pty Ltd
For the Respondent In person

TABLE OF CONTENTS

MAXWELL P........................................................................................................................................1

THE COURSE OF AUTHORITY

RECENT ENGLISH AUTHORITY

CONSIDERATION

ASHLEY JA…....................................................................................................................................14

THE ADJUSTMENT CLAIM

ERRORS OF PRINCIPLE OR FACT IN THE JUDGE’S APPROACH TO THE ADJUSTMENT CLAIM?  MY CONCLUSIONS SUMMARISED.

SECTION 282 OF THE ACT

MERITS OF THE ADJUSTMENT CLAIM

CONTRIBUTIONS BETWEEN MARCH 1990 AND JULY 1993

THE PERIOD BETWEEN JULY 1993 AND OCTOBER 1996

THE PERIOD BETWEEN OCTOBER 1996 AND TRIAL

CLAIM FOR AN ADJUSTMENT ORDER NOT ESTABLISHED

CAUSES OF ACTION CONNECTED WITH DISTRIBUTION OF THE VIDEOTAPES

BREACH OF CONFIDENCE

WILKINSON V DOWNTON.  DAMAGES FOR MENTAL DISTRESS UNACCOMPANIED BY PHYSICAL OR PSYCHIATRIC INJURY?

A TORT OF INVASION OF PRIVACY?

ASSAULTS

ORDERS70

NEAVE JA..........................................................................................................................................70

BACKGROUND

SUMMARY OF CONCLUSIONS

PRELIMINARY OBSERVATIONS

ADVERSE FINDINGS ON CREDIBILITY

CONDUCT OF THE TRIAL

THE PART IX CLAIM

THE FACTS

THE DECISION BELOW

GROUNDS OF APPEAL

THE ALLEGED ERRORS OF LAW79

SHOULD AN EXTENSION OF TIME BE GRANTED?

SHOULD THERE BE AN ADJUSTMENT?

THE VIDEOTAPE CLAIMS

FINDINGS OF FACT

GROUNDS OF APPEAL AND THE  NOTICE OF CONTENTION

MR PROCOPETS’ CHALLENGES TO FACTUAL FINDINGS

MS GILLER’S CHALLENGE TO FINDING THAT SHE DID NOT SUFFER A…

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Giller v Procopets [2008] VSCA 236
Case
[2008] VSCA 236
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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.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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