Giller v Procopets

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 PSYCHIATRIC INJURY

BREACH OF CONFIDENCE

TORT OF PRIVACY

INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

DAMAGES FOR ASSAULT

AGGRAVATED AND EXEMPLARY DAMAGES

MAXWELL P:

I have had the very considerable advantage of reading in draft the respective reasons for judgment of Neave JA and Ashley JA. For the reasons which Neave JA gives, I agree that the appeal should be allowed. I would make orders in the terms which her Honour proposes.

Unlike my colleagues, however, I would also uphold the appellant’s claim for intentional infliction of emotional distress. My reasons are as follows.

In her statement of claim, Ms Giller alleged that, in distributing and threatening to distribute the videos and in making statements to others about the sexual relationship, Mr Procopets engaged in conduct calculated to degrade and humiliate her and cause her emotional distress. Mr Procopets had thereby committed, so it was alleged, ‘the tort of intentional infliction of emotional distress’.

The trial judge concluded that he was bound to reject the claim:

In the absence of any authority to support the contention that damages are recoverable for mental distress, it is my opinion that Australian law precludes [Ms Giller] recovering damages for intentional infliction of mental harm resulting in distress, humiliation and the like.[1]

At the same time, his Honour explained why he considered that there was ‘a strong argument for compensation for distress in these circumstances’. He said:
The purpose of the law of torts is to provide compensation where an injury has been caused by wrongful conduct of another. The facts of the present case demonstrate that if the defendant set out intentionally to cause harm and distress to the plaintiff by wrongfully showing or threatening to show the video film, which caused anger, humiliation, frustration, upset and distress, it is strongly arguable that the law would not be fulfilling its purpose if it did not permit compensatory damages for such mental distress and upset. The distribution and showing of the video is analogous to the publication of a defamatory imputation and the law should permit recovery for distress depending upon the gravity of the wrongful act and the effect upon the victim. [2]

[1]Reasons [186].

[2]Reasons [185].

This was, with respect, a compelling analysis by a very experienced common law judge. His Honour powerfully demonstrated why, as a matter of principle, compensatory damages for mental distress should be recoverable in a case of intentional conduct such as this. For reasons which follow, I consider that such a claim is cognisable in law and should, in the present case, succeed.

Both the law and psychiatry have come a long way since 1897, when Wright J in Wilkinson v Downton[3] first upheld what has come to be known as the tort of intentional infliction of injury (‘Wilkinson tort’). The recognition of a claim for intentional infliction of mental distress reflects the inevitable, and necessary, development of that tort.[4] On the one hand, a requirement of actual intention to cause harm is surely to be preferred to unsatisfactory notions of imputed intention. On the other, the advance of medical science means that it is no longer necessary to insist on physical proof of mental harm and no longer necessary, or appropriate, to insist on proof of a ‘recognised mental illness’.
[3][1897] 2 QB 57.
[4]I deal below with the important distinction between the harm which the defendant subjectively intended and the harm actually suffered by the plaintiff.

I am aware of no decision in Australia, or in any comparable jurisdiction, holding that such a claim is without legal foundation or otherwise untenable. To the contrary, as will appear, recent statements of high authority in the United Kingdom appear strongly to favour such a development. Moreover, claims of this kind have long been recognised by American courts.[5]
[5]See [37] below.

The absence of affirmative Australian authority recognising such a claim means that there is an unanswered question as to whether the common law should develop in that direction. It seems to me, with respect, that Kirby J was unarguably correct when he said that intermediate appellate courts must share with the High Court ‘the responsibility of declaring and developing general principles of the law.’[6] Of necessity, the number of cases to which the High Court is able to give detailed attention is extremely small. Relevantly for present purposes, it is more than seventy years since the High Court last had occasion (in Bunyan v Jordan[7]) to consider the elements of the Wilkinson tort.[8] There are, of course, limits to the proper role of intermediate courts,[9] but none of those is applicable to the present question.
[6]Burrell v The Queen [2008] 248 ALR 428, [106] (Kirby J); Moorabool Shire Council and Anor v Taitapanui (2006) 14 VR 55, [ 44] (Maxwell P).
[7](1937) 57 CLR 1.
[8]See [12]–[13] below.
[9]Farah Constructions Pty Ltd v Say Dee Pty Ltd (2007) 230 CLR 89, 151–2 [134]–[135].

The course of authority

Whether or not it is correct to describe this question as lying ‘at the frontiers of tortious liability’, it seems appropriate to follow the High Court’s example in Magill v Magill[10] (‘Magill’) and take ‘a vantage point to look back to the commencement of the legal journey and to what developed thereafter.’
[10]Magill v Magill (2006) 226 CLR 551, 572 [52] (Gummow, Kirby, Crennan JJ).

The journey commenced, of course, with Wilkinson v Downton.[11] In that case, Wright J held that if a person wilfully did an act ‘calculated’ to cause harm to another, and did in fact cause physical harm, the injured person had a cause of action (absent lawful justification).[12] The defendant, playing what he regarded as a practical joke, had falsely stated to the plaintiff that her husband had suffered a serious accident. The effect of the statement on the plaintiff

was a violent shock to her nervous system, producing vomiting and other more serious and permanent physical consequences at one time threatening her reason, and entailing weeks of suffering and incapacity to her …

Wright J concluded that the defendant’s conduct
was so plainly calculated to produce some effect of the kind which was produced that an intention to produce it ought to be imputed to the defendant, regard being had to the fact that the effect was produced on a person proved to be in an ordinary state of health and mind.[13]

[11][1897] 2 QB 57.

[12]Ibid 58.

[13]Ibid 59.

Wilkinson v Downton was expressly approved by the Court of Appeal in Janvier v Sweeney.[14] There the defendants actually intended to terrify the plaintiff, who suffered ‘a terrible shock’ as a result and was thereafter incapacitated for work. Bankes LJ (with whom Duke LJ agreed) cited the following statement of Wright J as conveying the substance of the decision in Wilkinson v Downton:

The defendant has … wilfully done an act calculated to cause physical harm to the plaintiff – that is to say, to infringe her legal right to personal safety, and has in fact thereby caused physical harm to her. That proposition without more appears to me to state a good cause of action, there being no justification alleged for the act. This wilful injuria is in law malicious, although no malicious purpose to cause the harm which was caused nor any motive of spite is imputed to the defendant.[15]

[14][1919] 2 KB 316.

[15]Ibid 322.

In Bunyan v Jordan,[16] the plaintiff had suffered neurasthenia[17] as a result of having seen the defendant produce a revolver and then having heard him say he was going to shoot someone. The High Court accepted the law as stated in Wilkinson v Downton and Janvier v Sweeney,[18] but held that the plaintiff’s claim must fail because the defendant’s statement had not been made to her or in her presence. Moreover, in the view of Latham CJ, the defendant’s conduct could not ‘be said to be calculated or likely to cause harm to any person …’.[19]
[16](1937) 57 CLR 1.
[17]See [28] below.
[18]Bunyan v Jordan (1937) 57 CLR 1, 11 (Latham CJ).
[19]Ibid 12.

In the view of Dixon J, it was open to the jury to find that the defendant’s actions

threw the plaintiff into a sufficiently emotional condition to lead to a neurasthenic breakdown amounting to an illness.
I have no doubt that such an illness without more is a form of harm or damage sufficient for the purpose of any action on the case in which damage is the gist of the action … [20]

His Honour considered, however, that it was an essential element of any such cause of action that there have been a reasonable likelihood that harm of some such nature as that claimed by the plaintiff would result from the act done.

[20]Ibid 16.

In Northern Territory v Mengel[21] (‘Mengel’), the High Court was dealing with the tort of misfeasance in public office. In the course of their joint judgment, Mason CJ, Dawson, Toohey, Gaudron and McHugh JJ expressed the view that misfeasance in public office was

a counterpart to, and should be confined in the same way as, those torts which impose liability on private individuals for the intentional infliction of harm. For present purposes, we include in that concept acts which are calculated in the ordinary course to cause harm, as in Wilkinson v Downton, or which are done with reckless indifference to the harm that is likely to ensue … [22]

[21](1995) 185 CLR 307.

[22]Ibid 347 (emphasis added and citations omitted).

More recently, in Magill v Magill[23] (‘Magill’), the High Court was concerned with a novel claim brought by a man against his former wife for false representations made by her that he was the father of two children born during the marriage. In the course of their joint judgment, Gummow, Kirby and Crennan JJ referred to Wilkinsonv Downton and Janvier v Sweeney as examples of successful claims for damages arising out of the making of false statements. In their Honours’ view, Wright J in Wilkinson v Downton had

preferred to recognise the cause of action as arising from an imputed intention to cause another physical harm. Likewise false words and threats uttered with a similar imputed intention to cause physical harm, including nervous shock, were held actionable in Janvier v Sweeney. Subsequent developments in Anglo-Australian law recognise these cases as early examples of recovery for nervous shock, by reference to an imputed intention to cause physical harm, a cause of action later subsumed under the unintentional tort of negligence.[24]

[23](2006) 226 CLR 551.

[24]Ibid 589 [117] (emphasis added and citations omitted).

Later in the same judgment their Honours said:

From about 1930, a number of jurisdictions in the United States of America have come to recognise actions in tort for the intentional infliction of emotional distress, as a further development of the approach in Wilkinson v Downton and Janvier v Sweeney. As the tort has not been recognised in Australia, and as differing decisions have been arrived at in different American States in respect of the availability of the tort in respect of circumstances such as here, depending often on the terms of differing State legislation, the decisions are of limited assistance in determining the content of the Australian common law in question here.[25]

In support of the proposition that the tort of intentional infliction of emotional distress had not been recognised in Australia, their Honours cited statements made in the earlier case of Tame v New South Wales[26] (‘Tame’). Tame was a negligence case and no question fell for decision regarding the scope of the tort of intentional infliction of harm. With respect, I do not read the respective judgments in Tame as having expressed any view about whether damages for distress should be recoverable from a defendant who intended to inflict harm.

[25]Ibid 590 [121] (emphasis added and citations omitted).

[26](2002) 211 CLR 317. The following citations were given: 374-375 [171]-[175] (Gummow and Kirby JJ); 402-3 [251] (Hayne J) and 338-9 [44] (Gaudron J).

Very recently, in Nationwide News Pty Ltd v Naidu[27] (‘Nationwide News’), two members of the New South Wales Court of Appeal gave consideration to the Wilkinson tort in a negligence case involving workplace bullying of an employee by a manager. Both Spigelman CJ and Basten JA cited the following passage from the judgment of Gummow and Hayne JJ in New South Wales v Lepore:[28]

Negligently inflicted injury to the person can, in at least some circumstances, be pleaded as trespass to the person, but the intentional infliction of harm cannot be pleaded as negligence.

By way of emphasising the distinction between negligent and intentional infliction of harm, Spigelman CJ added:
The imperial march of the tort of negligence is such that, as a matter of practice, it has led the legal profession to abjure the sometimes more demanding requirements of proof of an intentional tort.[29]

[27][2007] NSWCA 377.

[28](2003) 212 CLR 511, 602-3 [270] (emphasis added).

[29]Ibid [62].

Spigelman CJ noted the trial judge’s finding that the manager had

wilfully committed a series of acts calculated to cause [the plaintiff] physical harm, being a recognised psychiatric injury. This could constitute an intentional tort of the character identified in Wilkinson v Downton … [30]

His Honour noted the remark of Gleeson CJ in Magill that Wilkinson v Downton and Janvier v Sweeney ‘would probably now be explained either on the basis of negligence, or intentional infliction of personal injury’,[31] and continued:
As in the case of negligence, the requirement of ‘personal injury’ means the test does not extend to any form of psychological damage but requires a recognised psychiatric condition. [32]

Spigelman CJ concluded that, if the manager had been sued for the intentional tort, he would have been liable to pay damages to the plaintiff on the basis of the intentional infliction of psychiatric injury:
There is no finding that [the manager] did actually intend to inflict psychiatric damage. However the nature and scale of his conduct was such, as the expert evidence confirmed, as to constitute a recognised psychiatric injury as a natural and probable consequence of that course of conduct. The limitations of foresight and remoteness are not applicable.[33]

[30]Ibid [67].

[31]Ibid [20].

[32]Ibid.

[33]Ibid [82] (emphasis added).

Basten JA referred to the High Court’s recognition in Mengel of ‘those torts which impose liability on private individuals for the intentional infliction of harm’. His Honour said:

It may be assumed that reference to ‘harm’ is a reference to compensable loss or damage. However, in the present context, that would mean harm going beyond embarrassment, injury to feelings, humiliation or psychological distress and constituting a psychiatrically cognizable injury to mental health. This gives rise to nice questions in terms of intention, which must be answered without assumptions based on hindsight. Thus, the fact that the plaintiff has suffered psychiatric injury, caused by the conduct in question, does not mean either that it was inevitable, or that it was intended.[34]

[34]Ibid [371].

With respect, what their Honours said in Nationwide News serves to highlight the difficulties which attend the present formulation of the Wilkinson tort by reference to an intention to cause ‘a psychiatrically cognizable injury to mental health’. First, rarely if ever could the intent of a defendant be so characterised. Hardly anyone would know how to recognise such an injury, let alone how to bring it about intentionally. Secondly, while it should be possible to demonstrate that mental harm was a reasonably foreseeable result of the intentional conduct, it would seem inordinately difficult for a plaintiff to have to establish that ‘a psychiatrically cognizable injury’ was foreseeable.

Before addressing these questions further, however, I must deal with the recent English authorities.

Recent English authority

In Khorasandjian v Bush,[35] the plaintiff, whose friendship with the defendant had broken down, obtained an injunction to restrain the defendant from making threats of violence against her and harassing her with unwanted telephone calls which were putting her under great stress. The English Court of Appeal dismissed an appeal against the grant of the injunction. Dillon LJ (with whom Rose LJ agreed) noted that the injury for which damages had been claimed in both Wilkinson v Downton and Janvier v Sweeney was described as ‘nervous shock’. His Lordship continued:

On modern authorities in the law of negligence, [“nervous shock”] is understood as referring to recognisable psychiatric illness with or without psychosomatic symptoms (see per Lord Bridge in McLoughlin v O’Brian [1983] 1 AC 410, 431H) or, as put by Lord Wilberforce in the same case, at p 418B, recognisable and severe physical damage to the human body and system caused by the impact, through the senses, or external events on the mind. It is distinguished from mere emotional distress. From the judgment of Bankes LJ in Janvier v Sweeney, it seems that he had much the same concept in mind, in that he refers in various citations to physical damage inflicted through the medium of the mind.[36]

Although there was no medical evidence that the plaintiff was, as yet, suffering from any physical or psychiatric illness, the Court considered that the grant of the injunction was justified because of ‘an obvious risk that the cumulative effect of continued and unrestrained further harassment such as she has undergone would cause such an illness.’[37]

[35][1993] QB 727.

[36]Ibid 736.

[37]Ibid.

In Hunter v Canary Wharf Ltd,[38] Lord Hoffmann said:

The perceived gap in Khorasandjian v Bush was the absence of a tort of intentional harassment causing distress without actual bodily or psychiatric illness. This limitation is thought to arise out of cases like Wilkinson v Downton and Janvier v Sweeney. The law of harassment is now being put on statutory basis…and it is unnecessary to consider how the common law might have developed. But as at present advised, I see no reason why a tort of intention should be subject to the rule which excludes compensation for mere distress, inconvenience or discomfort in actions based on negligence. The policy considerations are quite different. [39]

[38][1997] AC 655.

[39]Ibid 707 (citations omitted).

Lord Hoffman returned to the subject in Wainwright v Home Office[40] (‘Wainwright’). In a speech with which all other members of the House agreed, his Lordship said he did not resile

from the proposition that the policy considerations which limit the heads of recoverable damage in negligence do not apply equally to torts of intention. If someone actually intends to cause harm by a wrongful act and does so, there is ordinarily no reason why he should not have to pay compensation.[41]

If damages for ‘mere distress’ were to be recoverable, however,
imputed intention will not do. The defendant must actually have acted in a way which he knew to be unjustifiable and either intended to cause harm or at least acted without caring whether he caused harm or not.[42]

[40][2004] 2 AC 406.

[41]Ibid [44].

[42]Ibid [45].

His Lordship reserved his opinion on whether compensation should be recoverable, even where the plaintiff proved a genuine intention to cause distress:

In institutions and workplaces all over the country, people constantly do and say things with the intention of causing distress and humiliation to others. This shows lack of consideration and appalling manners but I am not sure that the right way to deal with it is always by litigation. … The requirement of a course of conduct [in the Protection From Harassment Act 1997] shows that Parliament was conscious that it might not be in the public interest to allow the law to be set in motion for one boorish incident. It may be that any development of the common law should show similar caution.[43]
[43]Ibid [46]. Although the Crimes Act 1958 (Vic) now contains an offence of stalking, defined quite broadly, there is no statutory equivalent in this State or elsewhere in Australia to the Protection from Harassment Act 1997 (UK), which provides for the recovery of damages for anxiety where harassment involves conduct on at least two occasions.

Consideration

One notable feature of the common law’s adaptability is its responsiveness to advances in science and technology. For example, as Gummow, Kirby and Crennan JJ described in Magill, the development of medical knowledge during the 20^th century progressively weakened the common law presumption of paternity.[44]
[44]226 CLR 585 [108].

Wilkinson v Downton was of course decided before the turn of that century, and there have been enormous advances in psychiatric understanding since then. The significance of these advances is well summarised by the learned authors of The Law of Torts in Australia,[45] as follows:

At the time of Wilkinson v Downton (1897) medical science had not progressed sufficiently in its recognition of mental injuries (even such mental injuries as nervous shock) so the courts demanded evidence of mental distress in the form of physical injuries – even going so far as to say that there must be an intention to cause physical injury. By the time Janvier v Sweeney was decided (1919) medical science had progressed sufficiently for the courts to say that an action on the case for damages would be available for the intentional infliction of nervous shock. Now, as one writer puts it, ‘medical science is capable of satisfactorily establishing the existence, seriousness and ramifications of emotional harm’ and there is no reason why the courts should not extend the availability of the action on the case for damages to the intentional infliction of severe mental distress alone. It has also been suggested that ‘it would be a reproach to the law if physical injuries [and nervous shock] might be recovered for and not those incorporeal injuries which would cause much greater suffering and humiliation’. Such injuries often occur in cases of sexual harassment, racial harassment and harassment in the work place.[46]

[45]F Trindade, P Cane, M Lunney, The Law of Torts in Australia (4^th ed, 2007).

[46]Ibid 92-3 (citations omitted).

In Bunyanv Jordan,[47] decided in 1937, the plaintiff’s ‘injury’ was described as neurasthenia. According to a 2007 definition, ‘neurasthenia’ is

a set of psychological and physical symptoms, including fatigue, irritability, headache, dizziness, anxiety and intolerance of noise. It can be caused by organic damage, such as a head injury, or it can be due to neurosis.[48]

This list of symptoms suggests that the diagnostic label ‘neurasthenia’ could have been applied to a wide variety of conditions, ranging from the quite mild to the quite severe. Yet Dixon J in Bunyan v Jordan had no doubt that a person suffering from neurasthenia had sustained sufficient injury to claim under the Wilkinson tort. (I note that neurasthenia is nowhere mentioned in the universally-respected Diagnostic and Statistical Manual of Mental Disorders, published by the American Psychiatric Association (‘DSM’).[49] Doubtless this is because, as DSM itself illustrates, psychiatric diagnosis has moved away from such generalised, non-specific labels.)

[47](1937) 57 CLR 1. See [12]-[13] above.

[48]Oxford Concise Medical Dictionary (4^th ed, 2007), 486.

[49]American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders – Text Revision (DSMIV-TR) (4^th ed, 2000).

What DSM makes clear is that there are no clearly-defined diagnostic boundaries separating ‘recognised mental illness’ from other forms of mental disturbance. Typically, DSM lists for each condition a number of ‘diagnostic criteria’, only some of which must be satisfied in any particular case for that diagnosis to be applied. Within any one condition, there is a range of sub-types and a range of degrees of severity. Thus, DSM devotes 140 pages to ‘mood disorders’ and ‘anxiety disorders’ and their numerous sub-classifications. ‘Generalised Anxiety Disorder’, for example, is characterised by

excessive anxiety and worry … [which the] individual finds … difficult to control … accompanied by at least three additional symptoms from a list that includes restlessness, being easily fatigued, difficulty concentrating, irritability, muscle tension, and disturbed sleep …[50]

Once it is appreciated that any disorder of this kind is a recognised mental disorder, it becomes apparent that the common law classification ‘recognised mental illness’ assumes lines of differentiation which no longer exist.

[50]Ibid 472.

The Introduction to DSM emphasises the (inevitable) lack of precision in this field of diagnosis:

Although this volume is titled the Diagnostic and Statistical Manual of Mental Disorders, the term Mental disorder unfortunately implies a distinction between ‘mental’ disorders and ‘physical’ disorders that is a reductionistic anachronism of mind/body dualism. A compelling literature documents that there is much ‘physical’ in ‘mental’ disorders and much ‘mental’ in ‘physical’ disorders. The problem raised by the term ‘mental’ disorders has been much clearer than its solution, and, unfortunately, the term persists in the title of DSM-IV because we have not found an appropriate substitute.
Moreover, although this manual provides a classification of mental disorders, it must be admitted that no definition adequately specifies precise boundaries for the concept of ‘mental disorder’. The concept of mental disorder, like many other concepts in medicine and science, lacks a consistent operational definition that covers all situations. All medical conditions are defined on various levels of abstraction – for example, structural pathology (eg, ulcerative colitis), symptom presentation (eg, migraine), deviance from a physiological norm (eg, hypertension), and etiology (eg pneumococcal pneumonia). Mental disorders have also been defined by a variety of concepts (eg, distress, dysfunction, dyscontrol, disadvantage, disability, inflexibility, irrationality, syndromal pattern, etiology, and statistical deviation). Each is a useful indicator for a mental disorder, but none is equivalent to the concept, and different situations call for different definitions.[51]

[51]Ibid xxx-xxxi.

This brief examination leads to several important conclusions. First, the requirement to show physical harm as a signifier of psychological harm is anachronistic and should be entirely discarded from this area of discourse. Secondly, the term ‘nervous shock’ - and its modern synonym ‘recognised psychiatric illness’ - should also be discarded, based as they are on the unsustainable assumption that a clear line separates ‘psychiatric illness’ from other (lesser) types of mental distress. Thirdly, and consequently, the focus of a court’s inquiry should no longer be on whether a clinician would attach a particular diagnostic label to the plaintiff’s condition – about which there will frequently be legitimate differences of opinion – but on the nature and extent of the mental distress actually suffered by the plaintiff as a consequence of the defendant’s conduct.[52]
[52]Cf, in a different context, R v Verdins (2007) 16 VR 269, [7]–[13].

Taking this approach will, as Lord Hoffman suggested in Wainwright, obviate the need to invoke the fiction of ‘imputed intention’, on which Wilkinson v Downton and Janvier v Sweeney both rested. In Wilkinson v Downton, the defendant intended no harm at all; in Janvier v Sweeney, the intent was to terrify, but no more. In both cases, the court imputed to the defendant(s) an intention to cause the physical/psychological harm which the plaintiff actually suffered, on the premise that the conduct in question was ‘calculated’ (ie had the natural tendency, or was likely) to cause harm of that kind.

As the authors of The Law of Torts in Australia suggest, this fiction probably owes its origin to a combination of two factors.[53] On the one hand, ‘the ordinary defendant knows little about nervous shock … or how to cause it intentionally’. On the other hand, ‘the courts clearly wish to discourage the intentional infliction of mental distress’. [54] As a result, the learned authors say:

[T]he courts have resorted to the fiction of imputing to a defendant an intention to cause physical injury or nervous shock in order to enable a plaintiff to recover damages, even though the defendant might have done the act or made the statement only with the intention of causing mental distress. [55]

[53]F Trinidade et al, above n 42, 87.

[54]Ibid.

[55]Ibid 88.

The approach which I favour accommodates both these factors while dispensing with an unsatisfactory fiction. In a case such as the present, there is an actual intention to cause mental harm. No occasion arises to impute an intention which did not exist. Instead, the defendant will be held liable for the damage shown to have been caused by his intentionally harmful action, subject to the limit of reasonable foreseeability posited in Mengel.[56]
[56]See [14] and [19] above.

As the House of Lords acknowledged in Wainwright, since the claim depends on proof of actual intention there is no policy reason for applying here the ‘recognised psychiatric injury’ limit which has developed in the law of negligence. (I have separately argued that this limiting concept has in any case lost its utility). The measure of damages would, of course, depend upon the nature and extent of the mental harm proved to have been caused.

The present case involved a deliberate course of conduct on the part of Mr Procopets, intended to cause maximum distress to Ms Giller. The judge found that his conduct had caused her great distress. In my opinion, this was a separate

and distinct basis in law for the award of damages 40,000 which Neave JA and I would make on the claim for breach of confidence.

As the High Court noted in Magill, this tort has for many years been recognised by American courts,[57] but American law has adopted an ‘adjectival definition’ of it. The Restatement of the Law (Second) Torts 2d describes ‘intentional infliction of emotional distress’ in these terms:

One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.[58]

[57]See W L Prosser, ‘Insult and Outrage’ (1956) 44 Cal L Rev 40; ‘Negligently Inflicted Mental Distress: The Case for an Independent Tort’ (1970-1) 59 Geo L J 1237.

[58](Emphasis added).

The present case fits comfortably within this definition. But I would not wish to be taken as saying that a claim of this kind could not succeed unless (a) the conduct was ‘extreme and outrageous’; and (b) the emotional distress intentionally caused was ‘severe’. Although it is unnecessary for present purposes to decide the question, I see no need for such words of limitation. The tort of assault and battery, which likewise is capable of encompassing the full range of types of conduct and types of injury, has developed quite satisfactorily without any such limitations. The costs and risks of litigation will impose their own limits as this tort develops further.

ASHLEY JA:

I have had the advantage of reading in draft the reasons for judgment of Neave JA. Her Honour clearly identifies the issues which arise on this appeal and the large majority of the relevant circumstances. I respectfully agree with a number of her Honour’s conclusions. But there are points at which we part company.

First, contrary to her Honour’s ultimate conclusion, I consider that the appellant did not make out her claim for an adjustment of property interests (‘the adjustment claim’) under Part IX of the Property Law Act 1958 (Vic) (‘the Act’).

Second, whilst I respectfully agree with her Honour that the appellant made out her claim for relief in respect of breach of confidence, the basis upon which I have reached that conclusion does not entirely coincide with her Honour’s analysis.

Third, I respectfully disagree with her Honour as to the quantum of compensation which should be awarded to the appellant on the breach of confidence cause of action. I disagree also, if aggravated damages are available for breach of confidence, upon the amount of such damages which her Honour would allow.

Fourth, substantially coinciding with her Honour’s approach, I am of opinion that damages for distress are not available, as the law now stands, for the tort of intentional infliction of harm. That opinion is contrary, however, to the conclusion of Maxwell P, whose reasons I have also had the advantage of reading in draft. His Honour concludes that it is an open question whether damages for mental distress are available under this cause of action, and that such question should be resolved favourably to the appellant.

Fifth, I respectfully disagree with Neave JA as to the quantum of damages – compensatory and exemplary – which should be awarded to the appellant for the proved assaults.

Resolution of a considerable number of issues – upon many of which I agree with her Honour, upon some of which I respectfully disagree – has led me to the conclusions just expressed. Those issues must now be identified, and my resolution of them explained.

The adjustment claim
Errors of principle or fact in the judge’s approach to the adjustment claim? My conclusions summarised.

I agree with Neave JA that the learned trial judge erred in holding that, in his consideration whether the appellant had made out her adjustment claim, he could not bring to account any contributions made by the appellant, as parent and homemaker, to the children of her relationship with the respondent (‘the twins’) after that relationship had ended.

Neave JA has also concluded that the learned trial judge impermissibly fettered the discretion with which he was invested by s 285(1) of the Act by concluding that it was not open to him to take a global approach to assessment of the contributions made by the appellant, but rather concluding that the valuation must be made by a step by step - or asset by asset - approach. Her Honour’s review of the authorities shows that, depending upon the particular case, either approach may be the more appropriate. She further concludes that it might well have been appropriate for his Honour to have taken an asset by asset approach. Nonetheless, she concludes that his putative exercise of the discretion was vitiated because he held himself confined to making an asset by asset evaluation of the appellant’s contributions.

In my opinion, the passage in his Honour’s reasons for judgment which is cited by Neave JA in support of her conclusion[59] does not admit of the error that has been identified. Accepting that the import of his Honour’s remarks is not entirely clear, I think he was only saying that it was desirable, in a case of the present kind , that the evidence should descend, so far as possible, to particularity; and that the circumstances of the particular case were such that resort to particularity had been advisable. That said, I need not further address the issue later in these reasons.
[59][2004] VSC 113, [125]-[126].

Neave JA further concludes, and I agree, that the learned trial judge did not err by holding that, in certain circumstances, the contributions of a de facto partner may be rendered more arduous because he or she was subjected to violence during the course of the relationship. Against that background, her Honour analyses the learned trial judge’s conclusion that such ill treatment as was inflicted by the respondent upon the appellant did not make her contributions relevantly more arduous, and concludes that this was an inference derived from facts found, in respect of which this Court is as well equipped as was his Honour to draw a conclusion. She goes on conclude that an opposite inference should be drawn.

I agree that his Honour’s ultimate conclusion did rest upon inferential reasoning. On the other hand, I am unable to agree with the inference which her Honour draws. For reasons which I must later develop, I consider that the factual foundation for her Honour’s chain of inferential reasoning was not established.

In all, I am not persuaded that such abuse as was inflicted by the respondent upon the appellant made the appellant’s ‘contributions significantly more arduous than they ought to have been’;[60] or that -

… the conduct occurred during the course of the [relationship] and had a discernible impact upon the contributions of the other party.[61]

[60]Kennon v Kennon (1997) FLC 92-757, 84294 (Fogarty & Lindenmayer JJ).

[61]Ibid 84295 (Fogarty and Lindenmayer JJ).

In summary, then, I consider that the learned trial judge erred in his putative application of s 285 of the Act because he did not allow for the effect of such contributions as the appellant might have made to the welfare of her children after the relationship ended. But I have discerned no other error of principle or fact in his treatment of the issue.

His Honour having concluded that no adjustment order was justified, it followed that there was no point in him extending time under s 282(2) of the Act for the appellant to apply for such an order. His Honour did not address, in those circumstances, other considerations which might have been pertinent if the application of s 282(2) had been a live issue.

Section 282 of the Act

Section 282 reads as follows:
Time limit for making applications
(1)If domestic partners have ended their domestic relationship, an application to a court for an order under this Division must be made within 2 years after the day on which the relationship ended.
(2)A court may grant leave to a domestic partner to apply for an order at any time after the end of the period referred to in subsection (1) if the court is satisfied that greater hardship would be caused to the partner applying if that leave were not granted than would be caused to the other partner if that leave were granted.
The judge found that the ‘domestic relationship’ ended on 6 July 1993. The appellant did not challenge that finding.

The appellant initiated a proceeding in the Family Court on 26 August 1998. Following Wakim,[62] the proceeding was transferred to the Supreme Court. In the event, a separate proceeding, commenced by Writ, was instituted on 3 December 1999.
[62]Re Wakim; Ex Parte McNally (1997)198 CLR 511.

The short point, treating initiation of the proceeding in the Family Court as being intended compliance with s 282(1), is that the application was commenced more than five years after the relationship ended, and more than three years after the end of the period specified by that subsection.

Section 282(2) requires a comparison of hardships. There has been some degree of judicial divergence of view in this State whether an applicant for leave under the subsection must also give an explanation for the delay. In my opinion, in the event that a balance of hardship has been shown in favour of the applicant, a Court is entitled to take into account, as a factor bearing upon the exercise of discretion whether to grant leave, the presence or absence of an explanation for the delay; but failure to adequately explain the delay does not preclude a favourable exercise of discretion. That was the thrust of the reasons for judgment of Gillard J in Harris v Harris.[63] His Honour went further, however, than I would be prepared to go in relegating in importance the significance of failure to provide an explanation for delay. In my opinion, the reasons for judgment of Warren J (as her Honour then was) in McGibbon v Marriott[64] more closely approximate the significance which may attach to failure to provide a satisfactory explanation. Beyond that, because it will simply be one of a number of potentially relevant considerations, the weight attaching to the presence or absence of a satisfactory explanation for delay is likely to vary from one case to another.
[63](1997) 22 Fam LR 263.
[64][1999] VSC 381.

The specific focus of s 282(2) is, as I have said, upon comparative hardships. According to the appellant’s written submissions, consideration of hardships ‘would take place in the context of a determination that an adjustment in favour of the appellant would be just and equitable in the event that leave was granted’. In other words, the Court was invited to determine that the appellant’s claim would yield an order for adjustment in her favour. If it did so, hardship (exceeding any hardship to the respondent) would be established.

In this case, by contrast with many others, the evidence bearing on the merits of the s 285 claim was before the Court which had to consider the s 282(2) application. It was not a case in which the applicant for leave asserted an entitlement which, although disputed, remained a question for resolution in respect of which the applicant should not be denied her (or his) day in Court. If, on evaluation of all the evidence, a claim under s 285 could not be established, then the s 282(2) application would necessarily fail. There would be no hardship to the appellant to be balanced out against any hardship to the respondent. If an order for adjustment could be justified, even for a small amount, exercise of the residual discretion would be required. In the latter case, the explanation, if any, for delay in commencing the application could be considered as one item of relevance.

In the particular case, then, before resolving the s 282(2) application, the merits or otherwise of the s 285 claim need to be considered.

Merits of the adjustment claim

I accept that the correct approach to assessing the merits of an adjustment claim is conveniently, if not quite completely, summarised in the reasons for judgment of Brereton J in Kardos v Sarbutt.[65] His Honour’s summary of that approach is set out in the reasons of Neave JA.[66]
[65](2006) 34 Fam LR 550, 558-561, [28]-[38].
[66]Neave JA, [314].

As to the first step in the sequence outlined by Brereton J, I agree with Neave JA that in the particular case the pool of divisible property ought be assessed at date of separation – that is, July 1993. But although in the end it makes no difference to my conclusion about the merits of the adjustment claim, I consider that the value of the pool ought be assessed at about $200,000 rather than the amount of $400,000 arrived at by Neave JA.

The next step in the analysis is an evaluation and balancing of the contributions, financial and other, made by each of the appellant and respondent to the acquisition, conservation or improvement of property of the parties, and of contributions to the welfare of the other party to the relationship or to the welfare of the broader family.

Contributions between March 1990 and July 1993

The learned trial judge concluded, focussing only upon the period between March 1990 and July 1993, that it would not be just and equitable that the respondent’s interest in the Orrong Crescent unit – it was that unit upon which the appellant focussed at trial – be adjusted in favour of the appellant. In a passage criticised by Neave JA, his Honour said:

In my view both parties derived a benefit from the relationship but the financial and non-financial contributions made directly or indirectly by the plaintiff did not exceed the cost of her keep and that of her daughter during the relevant period and there was no contribution made to the acquisition, conservation or improvement of any of the properties or the financial resources of the defendant during that period. So far as the contributions made to the welfare of the family I am quite satisfied that both parties made an equal contribution during this period.[67]

[67][2004] VSC 113, [238].

Neave JA considers that his Honour’s exercise of discretion, so far as it concerns that period, miscarried because:

· In the passage just cited,[68] the learned judge ‘tended to equate [the appellant’s] position with that of a domestic servant rather than that of a domestic partner’, and so devalued the appellant’s contributions which were not readily capable of evaluation in monetary terms.[69]

· His Honour failed to take account of the fact that ‘the violence and threats to kill to which Mr Procopets subjected Ms Giller would have made it significantly more difficult for her to discharge her role as homemaker and parent.’[70]

[68]And, I should think, in an earlier passage in his reasons: Ibid [229].

[69]Neave JA, [354].

[70]Neave JA, [299].

For two reasons, I respectfully disagree with her Honour’s conclusion.

First the learned judge undertook, as his reasons for judgment show,[71] a broad-ranging analysis of the contributions, monetary and otherwise, made by each of the appellant and respondent in the period now under consideration. I do not accept that the passage which I cited at [65] should be understood to mean that his Honour conducted a much narrower enquiry than the entirety of his reasons would suggest; or that, having conducted a broad-ranging enquiry, his Honour effectively put much of what he had concluded to one side, and instead reached a conclusion in respect of the balancing exercise by application of a narrow, ‘domestic servant’, test.
[71][2004] VSC 113, [192], [221]–[229], [231]–[236] and [238].

Second, as I said earlier, I do not accept the proposition that the judge ought to have treated the appellant’s contributions during the period 1990-1993 as having been made more arduous by reason of the proven assaults. His Honour concluded to the contrary. Having regard to the great difficulties which his Honour had in making findings of fact in light of what he held was the endemic dishonesty of both appellant and respondent, and of witnesses called - particularly for the appellant, I would not readily depart from his Honour’s conclusions, even accepting that they involved some inferential reasoning. For that reason, I cannot accept a chain of reasoning which takes as its starting point the existence of a level of abuse, physical and/or psychological, which his Honour did not find to have been established.

The judge was satisfied, despite concluding that he would not accept any part of the appellant’s evidence except if it was corroborated, that in the last 18 months of her domestic relationship with the respondent he had assaulted her on four occasions. Later in these reasons I set out the circumstances of the incidents as he found them to be, and of the injuries – physical, and on several occasions by way of mental distress – which he was satisfied the appellant had sustained. I also explain why, in my opinion, those conclusions should be accepted.

The judge was also satisfied that, in association with one of the proven assaults, the respondent had made threats, including a threat to kill the appellant. The threats had dissolved into the respondent throwing a chair at the appellant, the blow causing soft tissue injury to her right arm, upper right breast and right shoulder which resolved within weeks and without medical attention.

Then there was evidence about abuse of the appellant which was given by her older daughter. His Honour was satisfied that the evidence which the daughter gave on affidavit was ‘grossly exaggerated’ in favour of the appellant. Nonetheless, he was satisfied that it corroborated two assaults – one at least of which was a pleaded incident – and that it gave some general support for there having been violent conduct of the respondent against the appellant.

Again, a document was put in evidence by the respondent. Compiled by a Jewish welfare organisation, it recounted, presumably based on an account provided by the appellant, many incidents of domestic violence during the relationship. But as his Honour was not prepared to be satisfied, in the absence of corroborative material, that any of the pleaded assaults had occurred, I doubt that much should be made of a self-serving account which adverted – at least in part - to unpleaded assaults.

I should mention also that the appellant alleged, and the learned judge found to be established, an assault which occurred on 10 November 1996. I mention that incident not because it took place in the period of cohabitation but because it represents the only incident of violence which the learned judge found to be established in the period between July 1993 and November 1996, a period in which the appellant and respondent continued to have a good deal of contact. That contact included the appellant residing with the respondent on a regular basis. As alleged by the statement of claim, the respondent assaulted the appellant twice during that period. The learned judge found, however, that only one of the alleged assaults had been established. That is not a picture of persistent or unrelenting violence in the years which followed formal separation.

In the event, the appellant alleged, and the judge found established, four assaults which took place in the 14 months between 29 April 1992 and June 1993; whilst the appellant also alleged two assaults in the period between July 1993 and November 2006, one of which the judge found established. In my opinion it ought not be concluded, so far as the plaintiff’s allegations of specific assaults were found to be established, that in the period between March 1990 and July 1993 the appellant was subjected to violence, whether physical or verbal, as would have rendered the appellant’s contributions significantly more arduous than they would otherwise have been

Neave JA observes that ‘there were two other alleged assaults which his Honour did not consider for the purposes of [the appellant’s] damages claims, because they were said to have occurred outside the limitation period’.[72] There is a short point. Had the appellant pressed a case that her contributions had been made the more burdensome by a pattern of violence, evidence about those alleged assaults would have been admissible on the s 285(1) claim regardless that the discrete causes of action were time-barred. So also, evidence of systemic physical or mental abuse would have been admissible regardless whether discrete causes of action were pleaded in assault or battery.
[72]Neave JA, [289].

Even if the evidence had enabled a conclusion that there had been a pattern of physical or mental abuse in the period of the domestic relationship during the period of cohabitation, it would not necessarily follow that it made the appellant’s contributions relevantly more burdensome. I accept that it would have such an effect in respect of periods closely connected in time with proven assaults. But other than that, the learned trial judge obviously considered that the appellant was far from being put in fear of the respondent, or otherwise affected by mental distress. He said so more than once in his reasons. He observed, for instance, that -

On 12 November 1996 the plaintiff obtained an interim intervention order against the defendant after an alleged assault on 10 November 1996. The application was heard on 22 November 1996, when an intervention order was made which provided inter-alia that the defendant was prohibited from assaulting or harassing the plaintiff, approaching her or her children and being within 350 metres of the property in Port Melbourne. The surprising aspect of the events of this period is that the parties resumed a sexual relationship on 19 November 1996 despite the interim order. After the plaintiff had obtained an intervention order at the Melbourne Magistrates’ Court on 22 November 1996, having given evidence on oath that she was in fear of the defendant, she and the defendant that afternoon indulged in sexual intercourse. The evidence revealed that they had sexual intercourse on 19, 21, 22, 23, 24, 25, 26, 27, 28 of November and 1 December 1996. The sexual encounters during this period were filmed by the defendant using a video camera, surreptitiously up to 25 November and then with the consent of the plaintiff. Relations between the parties deteriorated rapidly after 1 December. An altercation occurred on 6 December 1996 and the defendant threatened the plaintiff that he would show the video and photographs taken from the video to various people including her employer. On 8 December 1996 the plaintiff, who had sworn she was in fear of the defendant, attacked him with a length of steel at the Camberwell Market whilst he was filming her and her mother. The defendant suffered bruising injuries.[73]

[73][2004[VSC 113 [9], [279].

This assault occurred within a month of the last proven assault, and less than a month after the appellant obtained an intervention order against the respondent in pursuit of which the appellant alleged that, by reason of the assault, she was in fear of the respondent. As his Honour observed –

On the afternoon after obtaining the intervention order, having given evidence on oath that she was in fear of the defendant, she and the defendant indulged in sexual intercourse. She did so on the following six days and 1 December 1996, hardly the conduct of a person who was in fear of the defendant. The video evidence of the sexual encounters hardly supports the view that she was in fear of him.[74]

[74][2004] VSC 113 [22].

I must make very clear my opinion that no incident of domestic violence is inconsequential. Every such incident should be deplored. Such an incident may call for penal sanction (as in fact was imposed in respect of the November 1996 assault) or entitle a civil remedy in an action for assault. But the authorities to which Neave JA refers[75] do not, in my opinion, support a conclusion that relatively isolated incidents of domestic violence should trigger, in an application under s 285(1) or under similar provisions of the Commonwealth and other States, a conclusion that the victim’s contribution to the relationship were made ‘significantly more arduous than they ought to have been’. Cases where such a conclusion should be reached have been described as ‘exceptional’, and in a ‘narrow band’.[76] There is good reason why that should be so. The idea that a partner’s contributions might be characterised as more burdensome than they would otherwise have been, this telling in money terms in favour of that partner in a property adjustment, originated in the Family Court. It introduced back into family law a conception which had been legislatively removed - the conception of fault. It is understandable that application of the ‘more burdensome’ principle should be closely confined. I think it would be anomalous if some more generous approach was taken in the case of breakdown of a de facto relationship.
[75]Neave JA, [294]-[297].
[76]Kennon v Kennon (1997) FLC 92-757, 84294 (Fogarty & Lindemayer JJ).

In my opinion, the facts concerning assaults by the respondent on the appellant, so far as the judge was able to find them, fell well short of the exceptional class of case to which I have been referring. So also, his Honour’s conclusions as to the impact of the assault upon the appellant’s mental state contraindicate this case being in that class of case. I respectfully differ from the conclusions of Neave JA that the proven assaults ‘made [the appellant] fearful, apprehensive that she would be assaulted again, and anxious to avoid provoking [the respondent]’,[77] and that, (in relation to the making of a delayed application) the same might be explained by ‘the climate of violence which existed when the parties were living together and after they separated!’[78] The findings made by the learned trial judge, which in part depended upon his appreciation of the appellant – an appreciation aided by seeing her in the witness box for a protracted period, and observing her in court otherwise during the trial – tell to the contrary.
[77]Neave JA [299].
[78]Neave JA, [310].

The period between July 1993 and October 1996

Notwithstanding that the learned trial judge considered it to be the law that contributions by the appellant after the domestic relationship ended were not to be brought to account in the adjustment claim, he made findings which bore upon the question what contributions the appellant had in fact made in the period up to October 1996.

The learned judge found, in connection with the two units which were constructed at the Orrong Crescent site, that the appellant attended from time to time and collected up building materials and the like, that she assisted, after works had been completed, to clean up the inside of the units, and that she provided some help in establishing small gardens. He said that it was –
… laughable to suggest that a person makes a substantial contribution to a development because that person happens to be with her partner on a particular day and he says ‘well I am going to clean up the site, would you like to come down and help me?’[79]
The magnitude of what the appellant did, as found by his Honour, is suggested by his reference to ‘what little contribution she made’.[80]
[79][2004] VSC 113, [244].
[80]Ibid [249].

His Honour found that between July 1993 and January 1994 the appellant lived with her parents in Bentleigh. During that period she stayed at the respondent’s home from time to time. Then, from January 1994, she lived with her children in a flat at Port Melbourne. But each month she and the twins spent periods residing at the respondent’s home.

His Honour analysed the extent to which the appellant and the twins resided with the respondent, and related contributions, as follows.

In 1994 they resided at the Orrong Crescent premises on average about seven days each month.

In 1995, the appellant and the twins continued to stay with the respondent from time to time. The pattern was basically the same, subject to the fact that the respondent, the appellant and the twins resided at the Otira Road premises whilst the Orrong Crescent site was being re-developed.

The pattern continued into 1996, but the appellant and the twins progressively spent less time residing with the respondent.

On average, between early 1994 and mid 1996, the appellant and the twins resided with the respondent about every two weeks for two or three nights, about six days per month. The appellant, who was still studying, and working part-time, found it convenient to do so because of the respondent’s assistance with the twins. He often dropped the children off, and picked them up from, a nearby childcare centre.

During periods of co-residence the appellant assisted with the family chores. She provided some food. Otherwise the respondent provided the food and performed the chores.

Arrangements of the kind which I have been describing were practically at an end by May 1996. They ended altogether in late October 1996 – which is not to say that there was not for a shortish period thereafter a sexual relationship between the appellant and respondent.

From May 1996 the respondent successively entered into relationships with two other women. In October 1996 the appellant entered into a short-lived relationship with another man.

Despite their relationship having substantially broken down by the latter part of 1996, the respondent still undertook some role in respect of the twins. So, for instance, he picked them up from the child-minding centre on 6 December 1996.

Although the learned judge made no specific findings about the contributions which must have been made by the appellant as homemaker and parent in respect of times when the appellant and the twins were living apart from the respondent in the period July 1993 to October 1996, he did ‘not accept that any contributions made [by the appellant] during this period exceeded that of the [respondent]’; and he held that ‘in my view it would not be just and equitable as a basis for adjustment’.[81]
[81]Ibid [237].

Plainly enough, the appellant was both studying and working part time during all or most of the period in question. So it was not a case of the twins being in her care for all of the time that they were not in the respondent’s care, or in the care of the appellant and respondent jointly. Nonetheless, I respectfully doubt the validity of his Honour’s conclusion. I should say that, to an extent, the appellant’s contributions, financially and otherwise, were greater than those of the respondent during the period under discussion. I would not make much of the additional financial contribution. Significantly, it represented Commonwealth benefits to which the appellant may or may not have been entitled. But it is inescapable that the twins were in her general care for a greater part of the time than they were in the care of the respondent. The fact that such a regime was, as his Honour perceived it, the appellant’s doing does not alter the reality of the contributions made.

I accept, then, that in the period between July 1993 and October 1996 the appellant’s s 285(1)(b) contributions exceeded those of the respondent. I will delay for the moment my conclusion whether that circumstance should lead to an exercise of discretion in favour of the appellant.

I see no reason to doubt, however, the conclusion of the learned trial judge that, in effect, the appellant’s s 285(1)(a) contributions – that is, in respect of activities carried out at the Orrong Crescent site - were inconsequential. Indeed, argument to the contrary was in substance abandoned by her counsel on the appeal.

The period between October 1996 and trial

The learned judge made no findings specifically directed to contributions made by the parties in the period between October 1996 and trial.

It is hardly surprising that his Honour made no such findings. The writ was filed on 3 December 1999. Although by paragraph 1 of the Statement of Claim it was alleged that the parties had lived together in a de-facto relationship ‘at all relevant times from on or about 13 March 1990’, it was pleaded by paragraph 5 that ‘[o]n or about 20 October 1996 the parties finally separated and the relationship came to an end’. Paragraphs 10 and 11, and incorporated schedules, then identified the alleged contributions made by the appellant, throughout the period of the relationship, which fell within s 285(1)(a) and (b) respectively. The schedules, understandably, said nothing about the period subsequent to October 1996.

Nowhere in the statement of claim was it pleaded that, for the purposes of s 285, the Court should consider contributions made by the appellant after October 1996. Further, the statement of claim was amended as late as May 2003. Nothing was then pleaded as would raise that matter for consideration.

The respondent’s defence, a lengthy and detailed document, albeit not expressed as a lawyer would do it, addressed the allegations raised by the statement of claim.

The respondent made a counter-claim. It raised, inter alia, certain allegations about events subsequent to October 1996. They did not pertain to s 285(1)(b) contributions. Neither did the reply and defence to counter-claim address that question.

A study of the appellant’s affidavit sworn 26 May 2003, which by order of Kellam J was to stand as the witness’s evidence-in-chief, shows that some reference was made to events subject to October 1996. But it was nowhere asserted that relevant contributions had been made after that time. See particularly, paragraphs [213]-[216] and [229]-[238].

Notwithstanding that, as I perceive it, no claim was ever raised in respect of contributions allegedly made by the appellant subsequent to October 1996, paragraph [201] of the appellant’s written submissions in this Court complains that –

… his Honour simply failed to address the significant contributions to the welfare of the children associated with the period from October 1996 until … trial.

It appears, notwithstanding the state of the pleadings and the content of the appellant’s affidavit of evidence-in-chief, that something – it was very imprecise - was said at trial about the period after October 1996 in discussion between the learned trial judge and appellant’s counsel. Again, whilst the appellant pleaded that the relationship had ended in October 1996, and the respondent contended that there never had been a relevant relationship, yet his Honour noted that it had been submitted that ‘one may take into account contributions made after the relationship has ceased;[82] and he considered authorities bearing upon that topic. On the other hand, the learned judge focussed upon the period July 1993 to October 1996.
[82]Ibid [122].

In all, the state of the pleadings, the appellant’s evidence-in-chief and his Honour’s treatment of post-relationship contributions does not encourage a belief that alleged contributions in the period after October 1996 were raised in any proper way for his Honour’s consideration.

Neave JA has concluded, in effect, that the appellant had sole responsibility for bringing up the twins between late 1996 and trial and thereby provided contributions of the s 285(1)(b) kind which ought go into the balance. She has concluded also that credit ought be given to the respondent for such child support payments as he made in that. Noting the respondent’s argument that he was precluded from contact with the children, which he wanted, by an order of the Family Court made at the instance of the appellant, her Honour observes that the respondent could to an extent have relieved the appellant’s childcare burden by exercising the supervised access to which he was entitled; and that his failure (or refusal) to do so belied his claim that he wanted to be more involved in their upbringing.[83]
[83]Neave JA, [338].

If the question of post October 1996 contributions was before this Court, which in my opinion it is not, I would conclude that the appellant’s contributions to the welfare of the twins would have outweighed the contributions made by the respondent by way of payment of childcare in the period between October 1996 and trial.

Claim for an adjustment order not established

The correct approach to determining whether an adjustment order should be made is described in Evans v Marmont[84] relevant passages of which are cited by Neave JA.[85]
[84](1997) 42 NSWLR 70.
[85]Neave JA, [344]-[345]. That approach is consistent with observations of Nettle J in Robertson v Austin [2003] VSC 80, [38]-[40], and of Morris J in Findlay v Besley [2003] VSC 247, [56].

The starting point is the relevant pool of property. The effect of paragraph 13 of the statement of claim, reflected in the reasons of the learned trial judge, and see also paragraph [209] of the appellant’s submissions in this Court,[86] is that adjustment is sought in respect of the property constituted by Unit 2 at the Orrong Crescent site. For those reason, I would treat the potentially divisible pool as being something in the order of $200,000. That is, in the particular circumstances I would not put the value of the Otira Road property into the pool.
[86]By which it is said that the appellant ‘seeks half of the equity in the remaining part of 22 Orrong Crescent’.

Next, confining the appellant’s claim – as I consider it must be confined – to the period between July 1990 and October 1996, I do not consider it just and equitable that there be any adjustment of the interests of the appellant in the relevant property of the respondent.

In respect the period March 1990 to July 1993, I have agreed with the conclusion of the learned trial judge that the appellant’s contributions did not exceed those of the respondent. But for reasons to which I will in a moment refer, I think that such conclusion really adverted to what might be called day to day expenditure and care.

I have concluded, on the other hand, that the appellant’s s 285(1)(b) contributions between July 1993 and October 1996 did exceed those of the respondent. It is plain that due weight must be given to parent and homemaker contributions, and that they should not be assessed in a niggardly way.

It is perhaps arguable that the licence to bring post-relationship contributions into account is not without some qualification – as to which see Jones v Grech,[87] where both Davies AJA and Ipp AJA (as he then was) referred to what had been said by Priestley JA in McDonald v Stelzer.[88] But I have not relied upon any such qualification in reaching the conclusion which I have expressed.
[87](2001) 27 Fam LR 711.
[88](2000) 27 Fam LR 304; Priestly JA had concluded that a trial judge had been entitled to take into account ‘matters very closely connected in subject-matters, time and relevance to financial and non-financial matters during the period of the full de-facto relationship’, provided that ‘some but not fundamental weight’ was given to such matters. Davies AJA expressly agreed with what Priestley JA said. Ipp AJA arguably did not do so.

Looking at the situation overall, the respondent’s contributions in the period between early 1990 and October 1996 did not only consist of such money as he expended in maintaining the household, and physically in caring for the twins and in assisting the appellant to fulfil her educational ambitions. His Orrong Crescent property provided accommodation for the family; and, when it was being re-developed, he provided alternative accommodation whenever the appellant and the twins wished to reside with him. At times, he provided motor vehicle transport for the appellant and the twins. Looked at on a daily living basis, I have accepted the conclusion of the learned trial judge that the contributions of appellant and respondent were equivalent in the period between March 1990 and July 1993. But that is only a part of the story.

Going to contextual matters, the property in respect of which the appellant seeks adjustment is property – more accurately, the successor to property – which was brought into the relationship by the respondent; property which was enhanced (by re-development) at the respondent’s expense.

Further, the relationship out of which the appellant asserts her claim was relatively short-lived.

Making ‘a holistic value judgment in the exercise of a discretionary power of a very general kind’,[89] I do not accept that such excess balance of homemaker and parent care as ran in the appellant’s favour between July 1993 and October 1996 renders it just and equitable to make an adjustment under s 285(1) in respect of the identified property.
[89]Kardoss v Sarbutt (2006) 34 Fam LR 550, 561, [36] (Brereton J).

But suppose I was wrong in concluding that, in the particular circumstances of this case, the period between October 1996 and trial should be eliminated from consideration in the balancing exercise.

Obviously, the appellant acted as homemaker and parent during that period. Her contributions could not be readily converted into money, even if that was an appropriate approach. On the other hand, the respondent’s contributions were entirely monetary. There is an obvious difficulty in balancing out contributions which are of an essentially different character; but I would conclude, as I said a little earlier, although without being able to provide any concrete measurement, that the appellant’s contributions were the greater.

But that would only be part of the story. Contextually, I think that it would be proper to take into account the fact that the period before trial was much elongated by the appellant’s delay – first in commencing a proceeding, then in the interlocutory phase. It would be, I think, somewhat odd if the appellant’s contributions obliged an adjustment essentially because her dilatory conduct meant that the period of relevant contributions was extended. It would not be an adequate answer to such a complaint, I think, simply to value the potentially divisible property at the date when the relevant relationship ended. For such a valuation would in part meet a different complaint – that is, that it would be unjust to value the property as at trial when – by reason of the appellant’s defaults – the value of such property had increased well beyond what would have been the case absent the defaults.

I consider also that, contextually, it would be proper to take into account the fact that the appellant’s actions precluded the respondent making non-financial contributions in the relevant period. That the appellant acted in such a way operated to increase her own non-financial contributions. Doubtless, the focus is upon contributions actually made. Even so, I see no reason why the existence of a circumstance, consequent upon action taken by the appellant, which circumstance denied the respondent the ability to make non-financial contributions, should be wholly ignored. That is at least so where, as the learned trial judge found was here the case, the appellant engaged in wholesale lying and deception; and where some of the lies must have mirrored assertions made in the Family Court proceedings.

In the event, I would make no order for adjustment even if it was open, in the circumstances of the case, to have regard to contributions made by the appellant up to time of trial.

Because it would be futile to do so, I would therefore refuse leave under s 282(2) of the Act for the appellant to apply out of time for an order under s 285(1).

Causes of action connected with distribution of the videotapes

The respondent videorecorded he and the appellant engaging in a variety of sexual activities, in the privacy of a bedroom, on ten occasions between 19 November and 1 December 1996. The learned trial judge found that the appellant was unaware that videorecording was taking place on the first five occasions; but that the contrary was the case on the next five occasions. He referred to her ‘playing up to the camera’.

Following more discord between them, the respondent distributed, and attempted to distribute, copies of the videotape to the appellant’s family and others. He sought to persuade the recipients to view what was depicted. At least two people did so. Further, the appellant made statements to various people which asserted or implied that the appellant was an immoral woman. The respondent’s wrongdoing was largely confined to the period between 5 and 7 December 1996. On 10 December, a complaint having been made, he was taken into police custody. The respondent’s wrongdoing was largely quarantined in time. But the appellant, who was made aware of what the respondent was doing, was evidently and understandably embarrassed and upset. That she should have been so affected – although, as the judge concluded, by no means as severely as she claimed – was not surprising. It was not inconsistent with her being ‘a determined woman who (was) not over-sensitive.[90]
[90][2004] VSC 213, 279.

By her statement of claim the appellant pleaded three causes of action arising out of the respondent’s distribution and attempted further distribution of the videotape and his related conduct: breach of confidence; intentional infliction of emotional distress; and invasion of privacy.

The substantial allegations were set out in the claim for breach of confidence. Particular variations – for instance, that the dissemination of material was a deliberate act calculated to cause distress to the appellant, and that such conduct violated the appellant’s right to privacy – were pleaded in respect of the other causes of action. But essentially the variations were different characterisations of the same conduct. Further, the appellant particularised her alleged personal injury, loss and damage in exactly the same way in respect of all three causes of action. In respect of each of them she claimed, by her prayer for relief, ‘damages including aggravated damages’, ‘exemplary damages’ and delivery up of the videotapes.

It follows that the plaintiff’s success on any one of the three causes of action - except if the injury which could be compensated was something less than the injury which could be compensated under one of the other causes of action, or except if the available relief was something less than that which could be granted under one of the other causes of action – would mean, because the appellant should not be entitled to recover twice over for the same injury - that there was no practical point to the other causes of action.

English courts also seem to be moving in that direction. In Khorasandjian v Bush,[490] the English Court of Appeal dismissed an appeal against the grant of an injunction. One basis for the grant of the injunction was the law of private nuisance, which does not concern us here. However Dillon LJ (with whom Rose LJ agreed) also noted that in both Wilkinson and Janvier, damages were awarded for ‘nervous shock’.

On modern authority in the law of negligence, [‘nervous shock’] is understood as referring to recognisable psychiatric illness with or without psychosomatic symptoms (see per Lord Bridge in McLoughlin v O’Brian [1983] 1 AC 410, 431H) or, as put by Lord Wilberforce in the same case, at p 418B, recognisable and severe physical damage to the human body and system caused by the impact, through the senses, of external events on the mind. It is distinguished from mere emotional distress. From the judgment of Bankes LJ in Janvier v Sweeney, it seems that he had much the same concept in mind, in that he refers in various citations to physical damage inflicted through the medium of the mind.[491]

[490][1993] QB 727 (‘Khorasandjian’).

[491]Ibid 736 (Dillon LJ).

In Khorasandjian, the injunction was granted because of the risk that the harassment of which the plaintiff complained would in the future give rise to a physical or psychiatric illness, though there was no evidence that the plaintiff had yet suffered such an illness.

In Hunter v Canary Wharf Ltd,[492] the Court of Appeal overruled Khorasandjian, so far as it decided that a mere licensee of private property could sue in private nuisance. However Lord Hoffmann noted that:

The perceived gap in Khorasandjian v Bush was the absence of a tort of intentional harassment causing distress without actual bodily or psychiatric illness. This limitation is thought to arise out of cases like Wilkinson v Downton … and Janvier v Sweeney … The law of harassment has now been put on statutory basis … and it is unnecessary to consider how the common law might have developed. But as at present advised, I see no reason why a tort of intention should be subject to the rule which excludes compensation for mere distress, inconvenience or discomfort in actions based on negligence … The policy considerations are quite different.[493]

[492][1997] AC 655, 707.

[493]Ibid.

In Wainwright, Lord Hoffmann[494] referred to the Court of Appeal’s rejection in Wong v Parkside Health NHS Trust[495] of the proposition that damages for intentionally caused mental distress (falling short of psychiatric injury) were recoverable.[496] His Lordship went on to say that he did not resile –
[494]Lord Hope of Craighead and Lord Hutton agreeing. Lord Scott of Foscote appears to have considered that infliction of humiliation, without more, does not constitute a tort.
[495][2001] EWCA Civ 1721.
[496]Wainwright [2004] 2 AC 406, 425 [41].

from the proposition that the policy considerations which limit the heads of recoverable damage in negligence do not apply equally to torts of intention. If someone actually intends to cause harm by a wrongful act and does so, there is ordinarily no reason why he should not have to pay compensation.[497]

That being said, his Lordship reserved his opinion about whether damages should be available for intentionally caused mental distress. However he considered that:

[i]f, … one is going to draw a principled distinction which justifies abandoning the rule that damages for mere distress are not recoverable, imputed intention will not do. The defendant must actually have acted in a way which he knew to be unjustifiable and either intended to cause harm or at least acted without caring whether he caused harm or not.[498]
[497]Ibid 425 [44].
[498]Ibid 426 [45].

Conclusion

I agree with Maxwell P that no Australian decision positively precludes the expansion of the tort of intentional infliction of harm to cover cases in which the plaintiff suffered distress, humiliation or other forms of emotional discomfort, rather than physical or psychiatric injury. In this case, however, I have held that Ms Giller is entitled to recover damages for breach of confidence. In my opinion, it is therefore unnecessary to decide whether the tort of intentional infliction of harm should be expanded to cover mental distress.

However, if this Court were to hold that damages can be awarded for intentionally caused mental distress, the approach discussed by Lord Hoffman has some advantages. It would permit recovery for mental distress, while abandoning the legal fiction of imputed intention which provided the basis for recovery of damages in cases such as Wilkinson. The requirement to prove an actual (rather than imputed) intention to cause harm in the sense described by Lord Hoffman, would confine the scope of the tort and go some way towards meeting concerns that its expansion could lead to a flood of litigation.[499]
[499]Although these concerns are said by one academic commentator to be ill-founded – see P R Handford, ‘Intentional Infliction of Mental Distress: Analysis of the Growth of a Tort’ (1979) 8 Anglo-American LR 1, 11.

Although there are arguments in favour of such an expansion, there are also some contra-indications. It must be conceded that the law of torts operates inconsistently by providing compensation for intentional infliction of purely mental distress in torts such as defamation and false imprisonment, but not in the case of the tort of intentionally causing harm. However the expansion of the Wilkinson principle to cover mental distress would also create inconsistencies. Over the past decade, legislatures across Australia have imposed limits on the availability and amount of damages recoverable in negligence for physical injury. It would seem anomalous to expand the possibility of recovering damages for hurt feelings, even when intentionally caused, at a time when recovery of damages for non-economic loss arising out of physical injury has become increasingly limited.[500]
[500]Regarding the development of the common law by legislative analogy, see David St L Kelly, ‘The Osmond Case: Common Law and Statute Law’ (1986) 60 Australian Law Journal 513.

An expanded tort could potentially apply to a very broad range of situations, including harassment based on race, gender and sexual orientation, bullying, practical jokes, unkindness in family and social relationships and the insensitive management of medical patients, employees,[501] and consumers. As Lord Hoffman commented in Wainwright:

[i]n institutions and workplaces all over the country, people constantly do and say things with the intention of causing distress and humiliation to others. This shows lack of consideration and appalling manners but I am not sure that the right way to deal with it is always by litigation … The requirement of a course of conduct [in the Protection From Harassment Act 1997] shows that Parliament was conscious that it might not be in the public interest to allow the law to be set in motion for one boorish incident. It may be that any development of the common law should show similar caution.[502]

[501]See the comments of Basten JA in Nationwide News [2007] NSWCA 377, [373], in the context of deciding whether an employer was liable for the intentional infliction of harm by an employee on another employee.

[502][2004] 2 AC 406, 426 [46]. (Although the Crimes Act 1958(Vic) now contains an offence of stalking, defined quite broadly, there is no statutory equivalent in this State or elsewhere in Australia to the Protection from Harassment Act 1997 (UK), which provides for the recovery of damages for anxiety where harassment involves conduct on at least two occasions.)

A person who has suffered mental distress as the result of a defendant’s intentional acts may recover compensation under some other legally recognisable claim, as can Ms Giller. In other situations, domestic violence and anti-stalking laws may provide more effective remedies to victims than the payment of compensation after the event. Some acts done, or words spoken, with the intention of causing mental distress are regulated by anti-discrimination laws and statutory complaints schemes, which may or may not provide compensation. Where there is no statutory compensation for victims of such behaviour, I am not convinced that the common law should fill the gap.

A court which has the task of deciding an individual case is poorly equipped to consider the balance which should be struck between providing compensation for intentionally caused mental distress and recognising that the exigencies of life result in some people intentionally causing mental distress to others from time to time. If the intentional infliction of mental distress is to be recognised as a tort, the legislature is in a better position to determine how that balance should be struck.

As Lord Hoffman noted in Wainwright,[503] the Protection From Harassment Act 1997 (UK) prevents recovery of damages for single incidents of harassment.[504] In the United States, The Restatement of the Law (Second) Torts 2d describes the tort of ‘intentional infliction of emotional distress’ as requiring the intentional or reckless causing of severe emotional distress by ‘extreme and outrageous conduct’.[505] Both these limitations may operate as sensible controls on the availability of damages. As I have said, these are matters which should be considered by the legislature.
[503]Ibid 426 [46].
[504]See Protection From Harassment Act 1997 s 7(3), where a ‘course of conduct’ is defined to mean conduct on at least two occasions.
[505]The Restatement of the Law (Second) Torts (2d) Volume 1 (1965) 71.

I would therefore dismiss Ms Giller’s appeal against the learned judge’s failure to award her damages for intentional infliction of emotional distress.

Damages for assault

Eight assault claims were pleaded. Two were statute-barred. Of the remaining six, the trial judge upheld five. As noted earlier, the essential ground of attack on the judge’s conclusions was that the awards of damages were manifestly inadequate. In order to make out that claim it is necessary to show that his Honour erred in principle, misunderstood the facts or that his estimate of damages was entirely wrong.[506]
[506]CSR Readymix ( Australia) Pty Ltd v Payne [1998]2 VR 505, 508-509.

For reasons which follow, I am satisfied that, in each case, this ground is made out. As the judge correctly stated, Ms Giller was entitled to compensation

for any injury suffered, pain and suffering and loss of enjoyment of life, together with any distress, indignity and humiliation.[507]

In my view, the amounts awarded to Ms Giller cannot be regarded as properly compensating her for the pain and suffering, distress and humiliation which must have been the inevitable consequence of these assaults. In reaching that view I have taken account of damages awards made in other cases for assaults occurring in a domestic context.[508]

[507]Reasons [259].

[508]See for example, Johnstone v Stewart [1968] SASR 142, where Bray CJ awarded $2,400 in damages for assault, but did not differentiate between compensatory and exemplary damages. In In the Marriage of Marsh (1993) 17 Fam LR 289, Coleman J made a damages award of $7,000 (including general, aggravated and exemplary damages) in respect of a single assault. In In the Marriage of Kennon (1997) 139 FLR 118, the Full Court of the Family Court upheld a total award of damages of $43,000 for four batteries (three of which gave rise to an award of exemplary damages). In that case, the appellant’s awards of compensatory damages included a significant component for psychological suffering.

I deal with the assaults in chronological order, as his Honour did. In each case, I begin with the relevant part of his Honour’s reasons. It is important to point out that Mr Procopets did not cross-examine Ms Giller on the first four of the five assaults which were found proven. Mr Procopets objected at trial, and again on the appeal, that the Court had limited his cross-examination. His Honour dealt with the objection in these terms:

It is indeed correct that the Court did limit the cross examination of the plaintiff. All told the defendant cross examined the plaintiff for some eight days. The defendant was informed that there was to be a limit on his cross examination and this warning was given on a Friday permitting cross examination until 4:15 pm the following Monday. As things turned out he was given another half hour for cross examination on Tuesday morning. the Court pointed out that he should give consideration to cross examination of the plaintiff concerning the alleged assaults. I do not accept his assertion from the Bar table that he was denied the opportunity. He had the opportunity and he chose not to take it.

I have reviewed the transcript of the relevant exchanges and respectfully endorse his Honour’s conclusion. The assault findings are dealt with on that basis.
29 April 1992 at Orrong Crescent (‘Assault 1’)
I find that the defendant struck the plaintiff with a metal framed kitchen chair on the right arm and her right shoulder. Police were called. I am satisfied that the assault occurred. The injuries were bruising and lacerations to the lower right arm and some restricted painful movement of right shoulder. The plaintiff said that she suffered the effects for about a month. It is difficult to know whether that is true. However she was not cross-examined on her evidence. I am prepared to accept her evidence on the effect of the assault. I assess the damages at $1,000. No medical treatment was sought. The police were called and the Jewish welfare organisation became involved. Whilst the injuries were not serious, I am satisfied that they were not minor.

A review of Ms Giller’s evidence-in-chief shows that these findings accord with her account of this assault and its effects on her. In her particulars of loss and damage, Ms Giller claimed damages for ‘stress, nervous shock and fear for her physical safety’, but gave no evidence that she had suffered from distress or fear as a result of this assault. Nevertheless, this was a serious assault which affected Ms Giller for a month. Ms Giller was in her home, a place where she was entitled to feel safe, when she was assaulted. I consider that damages of $1,000 are manifestly inadequate.

The effects of this and the later assaults have already been taken into account in assessing the extent of Ms Giller’s homemaker and parent contribution. Having regard to the need to avoid double compensation and doing the best I can, I would assess the damages at $5,000.[509]
[509]I have also taken account of the need to avoid double compensation in assessing the damages for the other assaults.

August 1992 at Glenhuntly Primary School (‘Assault 2’)
I find that the defendant and the plaintiff were sitting in a car outside Glenhuntly Primary School. The defendant struck the plaintiff with a clenched fist to her mouth. She suffered a deep cut inside her mouth and was severely bruised and had a swollen lip for a period in excess of one week. I find the assault proven. Again I note that the plaintiff did not seek any medical treatment. I accept that she had bruising and discomfort for about a week. I assess the amount of damages at $500.

Once again, his Honour accepted Ms Giller’s account of the assault and its physical effects on her. She gave unchallenged evidence that she ‘suffered severe pain and shock, and emotional upset and again feared for [her] physical safety’. These matters were all itemised in the particulars of loss and damage. His Honour gave no indication that he was rejecting that part of the evidence of Ms Giller. It was simply not mentioned.

Ms Giller and Mr Procopets were sitting in his car, away from the public gaze, when he punched her on the mouth. In assessing damages for this and later assaults, his Honour regarded Ms Giller’s complaints about the effects as exaggerated and said that she was ‘a determined woman who is not over sensitive’.[510]
[510]Ibid [279].

Ms Giller’s determination, and her failure to be cowed by Mr Procopets’ assaults, is not inconsistent with her fearing him and suffering mental distress as a result of the violence she suffered. It cannot be doubted that the victim of such an assault would have feared for her own safety. Nor are the mental distress and fear caused by such an assault diminished by the fact that she did not seek medical treatment. She suffered facial injuries, which would have been difficult to conceal. Ms Giller’s evidence of the psychological effects of the attack on her is entirely plausible, and should be accepted.

The award of $500 damages is manifestly inadequate. I would assess the damages at $4,000.

In or about 1992 at Orrong Crescent (‘Assault 3’)
The plaintiff is unable to give a date in relation to this assault but I am satisfied that the defendant did assault her by hitting her with his belt, dragging her onto a sofa and striking her in the face with a clenched fist. She suffered bruising to the lower part of the frontal bone of her head, just near the eyebrows and this lasted for about ten days. She also had severe bruising to her eyes which lasted for about ten days and extensive bruising to the jaw. She had painful movement of the jaw for about two or three weeks and her ears rang and buzzed for about two months. This is the incident that Julia observed. The plaintiff also suffered from headaches which persisted for about two months, and dizziness. She lost her appetite and was shocked and remained distressed.
I am satisfied that the assault took place. The effects of the assault were felt for some substantial period of time and I assess the damages at $1,500.

Although his Honour accepted that Mr Procopets did assault Ms Giller

by hitting her with his belt, dragging her on to a sofa and striking her in the face with a clenched fist,

he did not record her unchallenged evidence that Mr Procopets had struck her ‘repeatedly’ and that the assault continued for ‘about half a minute’. Since his Honour otherwise accepted in full Ms Giller’s account of the assault and its effects on her, and gave no indication that he was rejecting those important details, I am satisfied that they should be accepted. This was a case of repeated striking. The physical consequences were more serious and more long-lasting than in either of the first two assaults. Ms Giller’s unchallenged evidence was that, as a result of the assault, she
lost [her] appetite, remained shocked and very distressed and also again… feared for [her] physical safety.

His Honour found that ‘she lost her appetite and was shocked and remained distressed’. Ms Giller had been assaulted on two previous occasions, which would have increased her fear for her physical safety. The presence of her daughter, Julia, would have contributed to the indignity and humiliation suffered as a result of this assault.

Damages of $1,500 are manifestly inadequate. I would assess the damages for this assault at $8,000.

June 1993 at Orrong Crescent (‘Assault 4’)
An argument occurred, the defendant threatened to kill the plaintiff, he threw a chair at her which struck the plaintiff in the right arm and breast, causing her to fall to the floor. He made threats and the police later attended. The police report was placed in evidence by the defendant. The plaintiff suffered bruising to the right arm and upper right breast which lasted for about a week and pain in the right breast for about two weeks and painful movement in the right shoulder for about a month. She suffered shock and severe emotional distress.
I am satisfied the assault took place. I assess the damages at $750.

The judge accepted that Mr Procopets threatened to kill Ms Giller. He also accepted that, for a second time, Mr Procopets threw a chair at Ms Giller. It struck her on the right arm and on the right breast and caused her to fall to the floor. Ms Giller’s unchallenged evidence was that Mr Procopets

then threatened to cut me to pieces and feed my ‘meat’ to his dogs so that my parents would not find me when they arrived.

As to this, the judge found that Mr Procopets ‘made threats’ but he did not refer to their content. The threat made was quite shocking. In the context of the earlier threat to kill, it was no doubt intended to be taken seriously. Again, while his Honour accepted Ms Giller’s evidence that she suffered shock and severe emotional distress, he did not record her unchallenged evidence that she ‘feared for her physical safety’. Once again, it is hardly surprising in the circumstances that she did.

The assault occurred at home, where Ms Giller was entitled to feel safe. As I said earlier, throwing a piece of furniture at a defenceless person is a very serious assault. In my view, the threats which Mr Procopets made are properly to be regarded as part of the assault.[511]
[511]Francis Trindade, Peter Cane and Mark Lunney, The Law of Torts in Australia (4^th ed, 2006), 51.

Damages of $750 are manifestly inadequate. I would assess the damages at $10,000.

10 November 1996 at Port Melbourne (‘Assault 5’)
The defendant admitted that there was a confrontation between the parties but he said that the plaintiff suffered injuries because he grabbed her clothing at the front of her neck to restrain her and that she, in the course of struggling, suffered injury. She states that on 10 November 1996 they were talking outside her flat in Port Melbourne, that he became enraged and took hold of her with his left hand, pulled her body down towards his knee and proceeded to strike her twice with a clenched fist to the left side of her face. In so doing he tore a gold chain from her neck, severely scratching and bruising her. The plaintiff reported the matter to the police that evening. She made a statement which is consistent with her evidence. But more importantly the defendant was charged with the assault and on 14 April 1998 he pleaded guilty to the charge at the Magistrates’ Court. He informed the Court that the plea of guilty was a commercial one because he was facing so many charges that it was far better to plead and finish the whole saga and avoid expense rather than fight the case. A plea of guilty by a person charged with a criminal offence is an admission of all the essential elements that comprise the offence. I am satisfied that the plaintiff was assaulted by the defendant on that occasion. I accept her evidence that she suffered a severely bruised left cheek, a severely bruised and scratched neck and had a buzzing in her left ear and discharge from the ear and headaches for about a month.

As the judge recorded, Mr Procopets pleaded guilty to a charge of assault. That charge was based on the statement which Ms Giller made to police about this incident. As the judge noted, the police statement was consistent with the evidence which Ms Giller gave of the assault. So too are the photographs of the injury which I have seen. As his Honour pointed out, Mr Procopets’ plea of guilty was an admission of ‘all the essential elements that comprised the offence’. His Honour said he was satisfied that Mr Procopets did assault Ms Giller on this occasion. Although his Honour did not say so expressly, I take it from his Honour’s reasons that he treated the plea of guilty as an admission by Mr Procopets that the assault occurred as described by Ms Giller in her statement and in her evidence. The judge accepted Ms Giller’s evidence as to the injuries she suffered. Once again, however, he did not refer to her evidence of having suffered ‘shock and continuing fear for my physical safety’. For similar reasons to those given earlier, that evidence should be accepted.

His Honour referred to several matters which he said were relevant to ‘determining the effect of the injuries upon the plaintiff’. The first was that she had not sought medical treatment. The second was that, despite having obtained the interim intervention order on 12 November 1996, Ms Giller had sexual intercourse with Mr Procopets on 19, 21 and 22 November 1996. The third was that she had struck Mr Procopets with an iron bar on 8 December 1996 at the Camberwell market.

With respect, I do not regard any of those matters as bearing upon the assessment of damages for the assault on 10 November 1996. It was a brutal assault, which caused the injuries described and would have caused great shock and distress. The fact that Ms Giller resumed sexual relations with Mr Procopets nine days later cannot alter those facts. Nor does it diminish the seriousness of the assault that Ms Giller did not seek medical treatment for her injuries. The fact that she herself pursued Mr Procopets when he filmed herself and her mother at the Camberwell market cannot reduce the amount of damages she should receive for this assault.

Damages of $750 are manifestly inadequate. I would assess the damages for this assault at $10,000.

Aggravated and exemplary damages

In the prayer for relief in her statement of claim, Ms Giller sought both aggravated damages and exemplary damages for the assaults. His Honour did not separately address either head of damage.

The distinction between the two was clearly explained by the High Court in Lamb v Cotogno,[512] as follows:

Aggravated damages, in contrast to exemplary damages, are compensatory in nature, being awarded for injury to the plaintiff’s feelings caused by insult, humiliation and the like. Exemplary damages, on the other hand, go beyond compensation and are awarded ‘as a punishment to the guilty, to deter from any such proceeding for the future, and as a proof of the detestation of the jury to the action itself’.[513]

[512](1987) 164 CLR 1.

[513]Ibid 8.

There is no occasion for a separate award of aggravated damages in the present case, as I have already taken account of the effect of the assaults on Ms Giller’s emotional state. I do consider, however, that this is a case where exemplary damages should be awarded. The physical violence of Mr Procopets towards Ms Giller would have shocked any jury.[514] Such brutal behaviour must be deterred. Physical violence of any kind is to be deplored, but it is all the more reprehensible when the perpetrator has shared with the victim an intimate domestic relationship of trust and confidence and the two have had children together. One of these assaults occurred in the presence of Ms Giller’s daughter, Julia, and Mr Procopets must have known that the girl would have been distressed by seeing him beat her mother.[515] The second assault and fourth assaults involved the striking of Ms Giller with a metal chair, which created the risk of grave injury. Mr Procopets acted with utter contempt for Ms Giller’s rights as a person. His behaviour was cowardly in the extreme and should be denounced. Mr Procopets showed no contrition for his actions. [516] The compensatory damages awarded for these assaults are inadequate to punish him for his conduct.[517]
[514]The distinction between aggravated and exemplary damages has also been described as follows: ‘[a]ggravated damages are given for conduct which shocks the plaintiff and hurts his or her feelings. Exemplary damages are awarded for conduct which shocks the tribunal of fact, representing the community’, Gray v Motor Accident Commission (1998) 196 CLR 1, 35 [101] (Gleeson CJ, McHugh, Gummow and Hayne JJ).
[515]The effects of domestic violence on children have been recognised by the Family Court in parenting order decisions: see for example, In the Marriage of Jaeger (1994) 18 Fam LR 126; In the Marriage of Patsalou (1994) 18 Fam LR 426. See generally HA Finlay, RJ Bailey-Harris and MFA Otlowski, Family Law in Australia (5th ed, 1997) [7.154,], [9.36].
[516]In the Marriage of Marsh (1993) Fam LR 289, 296 (Coleman J).
[517]Backwell v AAA (1997) 1 VR 182. In that case it was held that, even though compensatory and exemplary damages are awarded for different purposes, if the compensatory damages are adequate to serve the purpose of punishment and deterrence, additional exemplary damages should not be added. See 186 (Tadgell JA), 207-208 (Ormiston JA). An application for special leave to appeal to the High Court was refused.

In my view, there should be an award of exemplary damages in the total sum of $13,000, comprising the following awards for the first, second, third and fourth assaults:
·    Assault 1  $2,800
·    Assault 2  $2,200
·    Assault 3   $4,000
·    Assault 4  $4,000
Exemplary damages should not be awarded in respect of Assault 5, for which Mr Procopets has already been punished. In total, therefore Mr Procopets should be ordered to pay Ms Giller damages of $50,000.

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[2008] VSCA 236

10 December 2008 (First Revision 15 December 2008)