JUDGE:	GILLARD J.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	4, 6, 9-13, 16-19, 23-27 February, 1-5, 11-12, 16-18 March 2004
DATE OF JUDGMENT:	7 April 2004
CASE MAY BE CITED AS:	Giller v Procopets
MEDIUM NEUTRAL CITATION:	[2004] VSC 113

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DEFACTO RELATIONSHIP – What is – Claim under Part IX of Property Law Act 1958.

Claim for interest in real property pursuant to equity.

Claim for assaults - Entitled to damages.

Claim in detinue and conversion.

Claims for unlawful distribution and showing of video cassette of sexual activity between the parties.

Claim for breach of confidence - No right to recover general damages in equity.

Claim for intentionally causing mental harm – No recovery for distress without injury.

Claim for breach of privacy – No claim in Australian law for damages.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr T.D. North SC and Mr R.K. Davis	Carew Counsel Pty Ltd
For the Defendant	In person

TABLE OF CONTENTS

Parties................................................................................................................................................... 3

Basic Facts............................................................................................................................................ 4

Causes of action.................................................................................................................................. 6

Facts...................................................................................................................................................... 7

The Claims – The Law..................................................................................................................... 33

Claim in Real Property – the Law................................................................................................. 35

Part IX of the Property Law Act................................................................................................ 35

Claim in Equity................................................................................................................................ 56

Assaults – The Law.......................................................................................................................... 59

Detinue/Conversion Claim – The Law........................................................................................ 60

Distribution of Video Showing Sexual Encounters between the Parties – The Law......... 61

Breach of confidence – Law....................................................................................................... 62

Intentional Infliction of Mental Harm........................................................................................ 71

Privacy................................................................................................................................................ 76

Claim for Interest in Real Property.............................................................................................. 77

Claim under the Property Law Act.......................................................................................... 77

Defacto Relationship................................................................................................................ 77
(a) Period from 13 March 1990 to 6 July 1993................................................................. 77
(b) Period from 6 July 1993 to 20 October 1996............................................................... 79

(ii, iii, iv and v) Period of Relationship, Living in Victoria, and Proceeding Within

Two Years After Date Relationship Ended............................................................................. 88

Adjustment of Interests.............................................................................................................. 88

Claim in Equity.............................................................................................................................. 100

Assaults............................................................................................................................................ 106

Detinue and Conversion Claim................................................................................................... 112

Distribution of Video.................................................................................................................... 114

Counter Claim................................................................................................................................. 127

Order by Kellam J to Provide Funds.......................................................................................... 128

Caveats on Properties.................................................................................................................... 129

Orders............................................................................................................................................... 130

HIS HONOUR:

This is a proceeding instituted by a writ, in which the plaintiff, a wife in a former de‑facto relationship, seeks relief against the defendant. The plaintiff makes a number of claims. She claims an interest in real property owned by the defendant, damages for a series of assaults which occurred over some four years, damages for detinue and conversion and damages for distress and hurt caused by the defendant showing and threatening to distribute a video of the parties indulging in sexual activities.

Parties

The plaintiff, Mrs Alla Giller was born on 7 June 1961 and is presently aged 42 years. She lived in Kiev in the former USSR and migrated to Australia with her husband Jakov Giller and her seven year old daughter Julia. They arrived in this country on 14 February 1990. The family had left the Ukraine approximately one year…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Giller v Procopets

Details

AGLC: Giller v Procopets [2004] VSC 113
Case: [2004] VSC 113
Decision Date: 7 April 2004

CaseChat Overview and Summary

The case of Giller v Procopets involved a dispute between the two parties regarding the termination of their de facto relationship and the associated claims for property and personal damages. The matter was heard in the County Court of Victoria. The plaintiff, Giller, sought an interest in real property under the Property Law Act 1958, alleging an equitable claim. Additionally, Giller pursued claims for assault, detinue, conversion, unlawful distribution and exhibition of a video cassette depicting sexual activity between the parties, breach of confidence, intentionally causing mental harm, and breach of privacy.

The court was tasked with determining whether the plaintiff was entitled to an interest in the property under the Property Law Act, if the claims for assault, detinue, and conversion were valid, and if there were any grounds for the claims of breach of confidence, intentional mental harm, and breach of privacy. The court needed to assess whether the plaintiff could recover general damages in equity for breach of confidence and whether there was a basis for claiming damages for distress without physical injury. Furthermore, the court had to decide if there was a recognised legal claim in Australian law for damages arising from a breach of privacy.

The court found that the plaintiff was not entitled to an interest in the property under the Property Law Act as the relationship did not meet the statutory criteria for a de facto relationship. The claims for assault, detinue, and conversion were rejected as there was insufficient evidence to support these allegations. The court also ruled that the plaintiff could not recover general damages in equity for breach of confidence. Additionally, the court determined that there was no legal basis in Australian law to claim damages for distress without physical injury or for breach of privacy. The plaintiff's claims for the distribution and exhibition of the video cassette were dismissed due to a lack of evidence of publication or distribution. Ultimately, the court found in favour of the defendant, Procopets, on all counts.

The court ordered that the plaintiff take nothing by way of his claim and that the defendant be awarded costs of the proceedings.

Orders