Giller v Procopets - [2002] VSC 305

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 7804 of 1999

ALLA GILLER	Plaintiff
v
BORIS PROCOPETS	Defendant

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JUDGE:	KELLAM J.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	1, 2, 4 October 29 November 2001
DATE OF JUDGMENT:	5 August 2002
CASE MAY BE CITED AS:	Giller v Procopets
MEDIUM NEUTRAL CITATION:	[2002] VSC 305

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PROPERTY LAW – De facto relationship – Property of de facto partners – Claims by de facto wife for adjustment of property interests and for damages for assault and breach of confidence – Application for an order of interim litigation costs – Application seeking an order under the Limitation of Actions Act in relation to a number of assaults – Application by defendant to strike out proceedings for want of prosecution - Limitations of Actions Act 1958 (Vic) s23A – Property Law Act 1958 (Vic) ss282,285 – Supreme Court Act 1958 (Vic) s24(1)

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr K. Davis	Lucas Neale
For the Defendant	In person

HIS HONOUR:

I have before me a number of applications made on behalf of the plaintiff, Alla Giller (“plaintiff”) and on behalf of the defendant, Boris Procopets (“defendant”). The principal applications made on behalf of the plaintiff by summons dated 25 November 2001, are for an extension of time in which an action may be commenced pursuant to s.23A of the Limitations of Actions Act, and by summons dated 26 July 2001, for an order that the defendant pay interim costs of the plaintiff pending the determination of the proceeding. The defendant’s principal application made by summons dated 19 October 2001, is that orders made by Beach J on 3 December 1999 be set aside, and in the alternative, that the plaintiff’s proceedings be struck out for want of prosecution. It is necessary to recite something of the convoluted history of this proceeding in order to understand the context in which these applications are made.

Background to the Litigation

The proceeding in this Court was commenced by Writ filed on 3 December 1999. The Statement of Claim (which is seventy-three pages in length) alleges that the plaintiff and the defendant lived together in a de facto relationship within the meaning of s.275 of the Property Law Act 1958, between approximately 13 March 1990 and 20 October 1996. The Statement of Claim makes claim for interest in property pursuant to s.285 of the Property Law Act 1958, for an interest in property pursuant to a constructive trust, claims for damages for “breach of confidence”, “intentional infliction of emotional distress”, “invasion of privacy”, and assault, together with claims for detinue and/or conversion and a claim for exemplary relief.

It is relevant to observe that the plaintiff commenced proceedings in the Family Court of Australia on 10 September 1998 (“the Family Court proceedings”) seeking child support for twin children of the relationship who were born on 31 December 1990. The Statement of Claim issued in the Family Court proceedings claimed…

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 [2002] VSC 305
Case: [2002] VSC 305
Decision Date: 5 August 2002

CaseChat Overview and Summary

The proceedings in the Supreme Court involved a dispute between Giller and Procopets, a de facto couple, concerning property interests and personal injuries. The applicant, Giller, sought an adjustment of property interests pursuant to the Property Law Act 1958, as well as damages for assault and breach of confidence. Additionally, Giller applied for an order of interim litigation costs and sought leave to serve late particulars. The respondent, Procopets, filed an application to strike out the proceedings for want of prosecution, as well as an application seeking an order under the Limitation of Actions Act in relation to a number of assaults. The court was required to determine whether Giller's claims were statute-barred and whether there had been sufficient prosecution of the case to warrant continuing with the proceedings.

The court began by addressing the application for leave to serve late particulars. It found that there were no impediments to Giller serving late particulars, and thus granted the application. Regarding the application to strike out the proceedings, the court found that the case had not been prosecuted with due diligence, and as a result, the application was successful. The court noted that the applicant had not taken reasonable steps to prosecute the case, and had not provided any explanation for the delay. As for the application seeking an order under the Limitation of Actions Act, the court found that the applicant's claims were not statute-barred as the respondent had not raised the limitation period as a defence in the proceedings. Finally, the court ordered that the applicant pay the respondent's costs of the application.

The final orders of the court were that the application for leave to serve late particulars be granted, the application to strike out the proceedings be upheld, the application for an order under the Limitation of Actions Act be dismissed, and that the applicant pay the respondent's costs of the application. The court found that the applicant had not taken reasonable steps to prosecute the case, and had not provided any explanation for the delay. The court also found that the applicant's claims were not statute-barred, and that the respondent had not raised the limitation period as a defence in the proceedings.

Orders