Giller v Procopets [2004] VSC 113

6. 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 prior to that date and had spent the previous twelve months living in poor circumstances in Italy. The plaintiff met the defendant on 16 February 1990.

9. The defendant, Boris Procopets, was born on 2 February 1945, is presently aged 59 years and migrated to Australia in 1978 from Kiev, USSR. He resided thereafter in Melbourne.

12. The plaintiff and defendant met a few days after the plaintiff arrived in Australia, and the defendant provided help and assistance to the plaintiff's family. The Giller family had been sponsored by a Jewish welfare organisation. The marriage of the plaintiff and her husband, according to the plaintiff, was unhappy and within one month the plaintiff commenced to live with the defendant at his residence at 22 Orrong Crescent, Caulfield, with her daughter, on 13 March 1990. The marriage break up was evidently fairly amicable because the defendant provided assistance to the husband Jakov, who moved into a property owned by the defendant at Otira Road, Caulfield.

15. As at 13 March 1990 the defendant had a number of properties which generated income. He was not working. He occupied himself collecting a variety of used articles, repairing and selling them. He looked after his rental properties. He also bought motor vehicles which he sold, usually at a profit.

19. The facts which led to the dispute and this proceeding can be briefly summarised. In 1988 the defendant acquired four pieces of real estate. Each was subject to mortgage. He resided in one of the properties and the other three were leased. His income in March 1990 was derived from these properties. On 13 March 1990 the plaintiff and defendant commenced a de-facto relationship residing at the defendant's property at 22 Orrong Crescent Caulfield. The child Julia also resided with them. The plaintiff fell pregnant very soon after co-habitation commenced and on 31 December 1990 she gave birth to twin sons Albert and Arthur. On 20 November 1990 her marriage was dissolved.

22. On 1 July 1993 the plaintiff's parents arrived from Israel with their son. They went to reside with the plaintiff and the defendant. On 6 July 1993 the parties separated. The plaintiff alleged that the defendant violently evicted the plaintiff, her daughter, the twins and the plaintiff's parents and brother. The defendant denies that he evicted the family and states that he requested the parents and the brother to leave. However, the plaintiff also left with the three children. That day the family obtained a flat in Bentleigh. Between July 1993 and January 1994, the plaintiff and her daughter and twin sons resided with her parents in Bentleigh but during that period she stayed at the defendant's home from time to time. In January 1994 she obtained a flat in Port Melbourne where she lived with the twins and her daughter. From January 1994 until at least December 1996 the plaintiff lived at Port Melbourne. She alleged she spent periods in each month residing at the defendant's home. When this occurred she took the twin sons with her but not Julia, who stayed at her father's place or with her grandparents.

25. By about May 1996 it appears that the parties had reached a point where the relationship was practically at an end. It is said by the plaintiff that by about 20 October 1996 she ceased to have any relationship with him. She asserts that the relationship after July 1993 was a de-facto relationship. The defendant contends that it was a male/female relationship but not a defacto one.

28. 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.

31. Between 5 and 7 December 1996 the defendant showed a video of the sexual activities of the parties to one person, left a video with the plaintiff's father and threatened to show the video to a number of people including the plaintiff's employer. He made contact with her employer on 9 December. He was taken into custody by the police early the following day. He did not attempt to show the video again until about the middle of the following year when he showed it to a female friend of his.

34. On 26 August 1998, the plaintiff commenced proceedings in the Family Court of Australia seeking an interest in the real property owned by the defendant, and damages.

37. By reason of the decision of the High Court in Re Wakim; Ex parte McNally[1], the defacto proceeding was transferred to be heard in this Court. A separate proceeding was instituted in this Court on 3 December 1999. On the same day Beach J in this Court made orders for the future conduct of the proceeding in this Court, including orders restraining the defendant dealing with his real estate and a bank account.

41. The plaintiff has pleaded a number of causes of action in her Statement of Claim. The Statement of Claim is a very long, extremely detailed and verbose document.

44. The statement of claim contains a number of causes of action in respect to four categories of complaint.

47. The first category claims an interest in the property owned by the defendant at 22 Orrong Crescent, Caulfield North. Two causes of action are pleaded in respect to that claim. First, a claim pursuant to Part IX of the Property Law Act 1958 which deals with a claim by a de-facto partner for an interest in real property. In the alternative, a cause of action is pleaded seeking an interest in the property pursuant to the principles of equity concerning trusts.

50. The second category of claims concern the alleged assaults. All told there are eight causes of action claiming damages for assault, the first alleged assault occurring in early 1992 and the eighth alleged assault occurring on 10 November 1996. The first three assaults are alleged to have occurred at a time greater than six years prior to the institution of the proceeding in the Family Court and accordingly were statute barred. The plaintiff made application to extend time pursuant to s 23A of the Limitation of Actions Act 1958 and Kellam J on 14 August 2002 refused to extend time in respect to the first two assaults but extended time in respect of the third assault which allegedly occurred on 29 April 1992[2]. All told there are six alleged assaults. The plaintiff claims damages in respect of each alleged assault.

53. The third category of complaint is a claim in detinue and/or conversion. The plaintiff alleges that as at 20 October 1996 when the relationship finally came to an end the defendant refused to permit her to take possession of items owned by her and the defendant refused to deliver up the goods. It is alleged he converted them to his own use.

56. The fourth category of claim concerns the videoing of the parties' sexual encounters during the months of November and December 1996 and the distribution by the defendant of videos to other persons. The plaintiff has pleaded three causes of action, namely a claim for damages for breach of confidence, a claim for intentional infliction of emotional distress and finally a claim for invasion of privacy. The plaintiff claims compensatory, aggravated and exemplary damages.

60. In the course of the interlocutory steps, Kellam J made an order that the evidence at trial be by affidavits subject to cross-examination. The statement of claim occupies some 41 pages together with schedules of 31 pages. The plaintiff swore an affidavit on 26 May 2003 comprising 269 paragraphs over 47 pages. In addition she relied upon two affidavits that were filed in the Family Court. Substantial parts of the Statement of Claim, in particular the schedules, and the affidavits, contain material which is irrelevant or marginally relevant and material which is designed to criticise the defendant and his living conditions in an endeavour to paint him as a nasty, mean, dirty, violent, miserable person. One may be excused for observing that if this is true, why did the plaintiff spend time with him? Much of the criticism is irrelevant, a lot of it is exaggerated and some of it is untrue. It caused the defendant, who appeared for himself, to contest the criticisms. The trial became extremely prolonged. I raised a criticism on the first day of the trial that paragraphs of the affidavits were argumentative, conclusionary, speculative and non-factual and I said that I expected counsel to focus on the issues in the case. The defendant made the point that these issues had been raised against him and until they were abandoned he wished to deal with them. From time to time it was necessary for me to indicate that I would not rely upon material in the various affidavits. This was in an endeavour to expedite the hearing. In addition to the plaintiff's affidavits, she relied upon a number of affidavits from a variety of sources. Many of the affidavits contained conclusionary evidence, sweeping and untrue generalisations and irrelevant material. The worst examples were the affidavits of the plaintiff, Mrs Bella Drobitsky, Mr Semyon Furman and Julia Giller. Some of the material of the defendant was irrelevant but he had an excuse - he is not a lawyer.

63. Before stating the facts it is necessary to make a number of observations. The resolution of the factual disputes has been a difficult exercise in this proceeding due to a number of reasons. First, many affidavits tendered in the plaintiff's case contain much material designed to paint the defendant in the poorest light and was irrelevant. Some of it was untrue and deliberately so; especially evidence of the plaintiff and her family. This is a familiar tactic used by family lawyers to blacken the other party's reputation, making it difficult for the party to refute the slur, especially where applications are made on affidavit material. As I have already stated, this damning evidence caused the defendant anguish and activated him into contesting many statements of little importance to the issues in the case but nevertheless affecting his reputation and character. As he rightly pointed out his cross examination on these matters sometimes went to credit and he was able to demonstrate that some of the evidence was untrue.

66. Secondly, the plaintiff as a witness has no credibility and falls into the category of witnesses whose evidence cannot be accepted unless confirmed by evidence from a reliable and credible source, or admitted or corroborated by false denials of the defendant. She is an attractive, intelligent, cunning woman who is manipulative and will lie deceive and mislead if it is in her interests, especially her financial interests. Some of her affidavit evidence was deliberately false. She has managed by deception to gain financial advantage from the following organisations since arriving in Australia in February 1990 -

(a) The Department of Social Security - she obtained a single parent's pension after she and her husband parted despite living with the defendant and being supported by him. Her daughter by her marriage Julia, lived with the parties. She obtained a weekly sum in the vicinity of $205 per week. Her deception was added to by her entering into a lease agreement with the defendant by which she received from the Department a rent subsidy. This occurred very early in the relationship.

(b) Her child Julia went to a local Jewish school Beth Rivka in 1990. She misled the school into believing she was a single parent and accordingly received subsidised fees. The school found out within two school terms, Julia was requested to leave and a proceeding was brought against Mrs Giller in the Magistrates' Court for some $4,500.

(c) She gave birth to the twins on 31 December 1990. In the year 1994 she made application for the two boys to attend a child minding centre. Her application form revealed that she was a single parent and the defendant was noted as an uncle who had permission to collect the children. By this device she obtained subsidised child care fees for the two children.

(d) She enrolled her daughter Julia at the Mt Scopus School in 1996. She misled the school as to her situation including her financial position. After Julia had completed her schooling Mt Scopus brought a proceeding against her in the County Court and recovered a judgment in the sum of $55,000. The cause of action was fraud.

72. The plaintiff obtained an intervention order from the Melbourne Magistrates' Court on 22 November 1996. She had obtained an interim order on 10 November ex parte. This occurred after an alleged assault. Despite her alleged fear, and at this stage the parties were not living together, she indulged in sexual intercourse with the defendant on 19 November 1996 and on 21 November 1996. 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.

75. On 8 December 1996 the defendant was present in the market videoing at a distance the plaintiff and her mother selling goods. The plaintiff became irate and picked up a car lock which comprised a rod of steel, approached the defendant and swung it at him. She hit him, causing bruising injuries to his upper body. Again hardly the conduct of a person in fear of the defendant. The plaintiff's version given to police on 10 December 1996 is untrue as the video of the incident establishes. The incident occurred two days prior. Her statement was deliberately untrue. So was her mother's version of the incident.

78. Some of the plaintiff's affidavit evidence was exposed in cross-examination as deliberate lies. The defendant cross-examined her, at times skilfully, over a period of some eight days. Some of the evidence which damned the reputation and character of the defendant was shown to be a deliberate lie. I refer to her evidence concerning the payment of fees for child minding. She said the defendant did not pay any of the fees. He produced a calendar which was on the refrigerator and which was marked. It was suggested to her that the markings indicated when each had to pay. She initially said that that was the arrangement but he did not meet it and then when confronted with the calendar for the following year, she first of all denied that she filled in the calendar and then speculated that the reason was because he was obliged to pick the children up on the days that were marked. I do not believe her. In paragraph 212 of her affidavit she said she had not received any child support since 7 December 1998. She alleged that the accrued arrears "now exceed $30,000". This was quite untrue. It is hard to accept that it was due to a defect of memory. Paragraph 172 is also incorrect. It asserts that prior to 6 December 1996 the defendant did not seek to have any contact with the twins by himself. It is clear that between June and December he had constant contact. He was picking up the children and delivering them to a child minding centre and this would be sometimes two to three days per week. Again in my opinion paragraph 172 is a deliberate lie. The last sentence of paragraph 177 asserts that although the defendant was granted supervised contact with the twins he never availed himself of that contact. She admitted this was incorrect. It is hard to accept that that was due to a memory lapse. Her description as to the state of Otira Road when the defendant moved into the property in late 1994 is exaggerated and I do not accept it. Her evidence as to the pensions that were obtained from the moment she moved in with the defendant up until July 1993 is also inconsistent and untrue. She first of all said that she and her husband had an unemployment pension for some considerable time, then she changed her version to say they only had it for a few weeks and she then obtained a sole parent pension. However, when a document was produced in re-examination of her, showing that the sole parent pension was granted in 1992, she denied that she had first received the sole parent pension from March 1992. She said that the letter she had received was in a form that always contained the first sentence suggesting that she just made a claim for a sole parent pension. I do not accept her explanation. This cross examination demonstrated her willingness to lie if she thought it appropriate. Her evidence as to why she endorsed three cheques provided by the defendant to her in July 1996 to a Mr Cwikla was unbelievable. She asserted that she did it, to put the money beyond the reach of the defendant. This was an extraordinary proposition bearing in mind that the defendant had taken the step of obtaining three cheques under $10,000 to avoid the bank reporting the transactions to the authorities and handing over the cheques to her. At that stage she was in complete control of her own monies. I do not accept her evidence. In re-examination she told the Court that between 1994 and 1996 the defendant spent about one night per fortnight at her Port Melbourne residence. This does not accord with the evidence of her daughter. It was the first time it was mentioned in the case. I do not accept the plaintiff's evidence in relation to this matter either. Her evidence contained in paragraph 102 is also a deliberate untruth. It reads -

"102 - If the children regurgitated their food, which they did frequently, especially Albert who was the weaker of the twins, the defendant would collect the regurgitated food into a container and make the children eat it again. If they refused to eat the regurgitated food he would slap their faces or shake them until they ate the food. When I tried to interfere and stop him, he would also assault me."

82. In an affidavit sworn on 4 November 1997 by the defendant, he in fact criticised her for not looking after the children. This was put to her. She then admitted to this Court that the children had had a problem holding down their food for most of their early years. She then admitted that when food was regurgitated on occasions they attempted to get the children to eat it. This is not a surprising state of affairs when young children are prone on occasions to spit out their food. What was said in paragraph 102 is a lie. I do not accept that the defendant became angry and slapped their faces. Indeed there was considerable evidence placed before the Court which showed that the defendant as a loving and caring father who had a very good relationship with the twins in their early years. There were many instances in the proceeding when the plaintiff gave evidence that was hard to accept or unbelievable and, on occasions, was deliberate lies. She is very intelligent, and it was apparent that she on occasions anticipated the cross examination and was prepared to make up a story or speculate to head off the questions. Not only did the plaintiff tell lies, but she appears to have induced others to tell like lies. An affidavit by her brother contained material which he frankly conceded in the end was incorrect. He struck me as an honest witness. He was not prepared to support the plaintiff in much of her evidence as to the behaviour of the defendant. In addition she met a retired Professor Poynter some 10 years after she had met him at the University of Melbourne and prompted his memory that on one occasion he observed her in a distressed and injured state. This led to an affidavit which in the end turned out to be incorrect. Not for one minute am I criticising the deponent. I am quite satisfied that Professor Poynter did see the plaintiff on one occasion distressed and showing signs of injury. However his evidence was out by at least one year and as corroborative evidence of a particular assault was shown to be of no corroborative value at all. Whilst one might criticise the deponent for his careless approach to the evidence, nevertheless the plaintiff and her advisers must accept some responsibility for the situation. Further the affidavit of the daughter Julia, which is similar in terms to her mother's affidavit, was exposed as containing much false evidence. Paragraphs 11 and 12 of her affidavit, which I have excluded as being irrelevant, were put to Julia after she was shown a video and I am quite satisfied on all the evidence that what she swore was false and in my opinion deliberately false.

85. There are other aspects of the daughters' evidence which was in my view false and it is hard to accept that the errors came about because of a faulty memory. Her evidence about the messy house turned out to be that there were a lot of boxes around the place and there were papers on the floor. Her evidence in relation to this was exaggerated and overstated. Her evidence in relation to the problem the twins had eating solids in paragraph 15 is in my view untrue. One compares it with paragraph 12 which, although excluded, was put to the witness, and she admitted that it was untrue. Her evidence in paragraph 35 is based upon what others have told her. Paragraph 36 is also a lie. She said -

"36 - I recall the defendant would assault the plaintiff almost daily for even the most minor thing."

This was over a three year period. This is clearly a lie. In the end she said that the word "assault" meant verbal as well as physical. On no view is that a correct statement. In paragraph 44 she talks about both parties deciding to subdivide the property but when giving evidence she frankly admitted that she did not know and she thought they were talking about it. In paragraph 45 she said that the defendant was regular visitor to the flat but this was in my view incorrect. I do not believe her when she said it was true. Paragraph 47 is also exaggerated and according to her evidence she only went there a few times between 1994 and 1996. Much of the criticism I have made of the daughter Julia's evidence has come about because of the failure by those responsible for preparing the affidavit to carefully consider what she was saying.

90. I am also satisfied that some of the evidence of the plaintiff's mother was contrived and some of it untrue. Her evidence concerning the circumstances of obtaining money which was ultimately lent to the defendant was untrue.

93. The defendant, who described himself as fat and ugly, is some 15 years older than the plaintiff, and is not the most attractive looking man. However, I am quite satisfied that he is intelligent, cunning and determined. Equally I am satisfied that he would lie and cheat if he could gain something from it. He also falls into the category of a witness whose evidence the Court would not accept unless confirmed or corroborated in some way by independent evidence, admission or false denials of the other party. There were many instances in his evidence where I am satisfied that he was telling deliberate untruths. Further he appeared for himself in the proceeding and cross-examined with a degree of skill most of the witnesses called by the plaintiff. He adopted a certain modus operandi in his cross-examination which became fairly apparent. He would seek to test the memory of witnesses and show that his memory was far superior, and in most cases he was successful in doing so. But he then indulged in dishonest conduct. Most witnesses were cross-examined allegedly on credit aimed at showing that the witness was dishonest in some way. This prompted at least one witness to become very aggressive and annoyed and demand an apology. Other witnesses when confronted with the lie more often than not looked in amazement, sometimes gave a faint smile but categorically denied the assertion. Mr Vladimir Khostov, an electrician, was cross-examined suggesting that his job with the defendant had been terminated because he was indulging in drug dealing. He had been in the country some four weeks having come from Russia and was working on a casual basis for the defendant. He left, as he said, to obtain other employment. I am satisfied it was a deliberate lie by the defendant to suggest that Mr Khostov was drug dealing.

96. Another example concerned Mr Leonid Volkov who was cross-examined suggesting that he agreed to look at the video and that he was prepared to give the defendant a document and demanded money from the defendant. This was denied by the witness and I believe him. The defendant in my view made up the story to put to Mr Volkov. The defendant put to Mrs Raisa Furman that he had no cassettes with him when he approached her and said that he was trying to get the plaintiff not to dump him. The witness said that that was untrue. It was then put to the witness that she and Mrs Giller were getting together because Mrs Giller was going to get money out of the defendant. It was put to Mr Semyon Furman that the defendant did not go to speak to him and that he did not speak to the defendant. I believe the witness that the defendant did seek to speak to him. It was put to the brother Alex Zuperman that he had, when the defendant was talking to him about the tape, gone up to the defendant and grabbed the tape from him and the defendant tried to get it back. Again this was a lie on the part of the defendant. In addition I am satisfied that the defendant was a willing party to some of the plaintiff's deceptions of the Department of Social Security.

99. The defendant has an excellent memory of the events, supported by many documents that he obviously kept over the years. However, I am satisfied that in cross-examination he was not truthful in respect to a number of matters that were put to him. He falls into the category of a very cunning person who lies if he thinks it can gain him an advantage. He was cross-examined about his interview with Senior Constable Cain. Many of his answers in cross-examination demonstrated a person who was prepared to lie if he thought it could help him.

102. The propensity of both the plaintiff and the defendant to lie and deceive makes the resolution of the factual matters in this proceeding extremely difficult. Of course the plaintiff has the burden of establishing her various causes of action.

105. The facts which I now set out are in the main non-contentious, but it will be necessary to further consider the facts in relation to particular issues.

108. The plaintiff was born on 7 June 1961. She trained as a teacher in Kiev in the USSR. She married Jakov Giller and they had a daughter who was born on 2 November 1982. The plaintiff and her family left the USSR hoping to migrate to the United States of America in early 1989. They went to a camp outside Rome in Italy and remained there for about one year. The evidence indicates that their stay was an ordeal, things were not easy and money was scarce. Eventually it was ascertained much to their disappointment that they could not go to the United States of America and on 14 February 1990 they arrived in Melbourne, Australia. They were sponsored immigrants. The plaintiff had very limited english.

111. The defendant was born on the 2nd February 1945 and is some 16 years older than the plaintiff. He was trained as toolmaker in Kiev in the USSR and obtained qualifications in that trade. In 1978 at the age of 33, he left Kiev, eventually arriving in Australia on 26 July 1979. He obtained employment as a toolmaker between 1979 and 1983. In 1983 he began investing in property. In 1986 he purchased a residential property at 37 Otira Road, North Caulfield for $188,500. It was registered in his name. He obtained a loan to purchase the property, secured by mortgage. It is more particularly described in Certificate of Title, volume 4170, folio 919. In 1987 he purchased a property at 22 Orrong Crescent, Caulfield North for the sum of $171,100 which again was purchased with a loan secured by mortgage. It is more particularly described as Certificate of Title, volume 04711, folio 036. He also acquired properties at 59 Hotham Street, St Kilda in 1987 for $151,000 and 120 Westbury Street, St Kilda in 1988 for $248,500. The Hotham Street property is more particularly described in Certificate of Title, volume 5459, folio 777 and the Westbury Street property is more particularly described in volume 4891, folio 189. These two properties were also purchased with loans secured by mortgages. He resided in a large house at 22 Orrong Crescent and leased out the other three properties. By the beginning of February 1990 he was not engaged in any employment, but spent his time looking after his properties, maintaining them and seeking tenants. He also purchased and sold motor cars and collected second hand goods and sold them.

114. The plaintiff and her family arrived in Australia sponsored by a Jewish organisation and facing the task of settling into a new country which was entirely foreign to them, learning a new language and a new way of life and culture. Fortunately they were supported by the Russian Jewish community in Melbourne. On the 15 February 1990 the plaintiff and her family met the defendant. The defendant was then aged 45 years and the plaintiff then aged 28 years. The plaintiff is, and was on 15 February 1990, an extremely attractive woman with a shapely figure. She did not speak English at that stage. The defendant who was then aged 45 years, was a man owning a number of properties, all of which were subject to mortgage. He had been in this country since July 1979, spoke reasonably good english, was street wise, an investor in property although he could hardly be described as a good looking man. He did describe himself in cross examination as a fat, round and dumpy man but one thing he did have in his favour, he was a man of property.

117. The plaintiff said that her marriage to her husband had deteriorated whilst they were in Italy, and the parties more or less agreed to separate when they arrived in Australia. They did in fact separate on 13 March 1990 and the plaintiff together with her daughter moved in to the defendant's home at 22 Orrong Crescent, Caulfield. They commenced a sexual relationship about that time and very soon thereafter the plaintiff became pregnant. The parties lived under the same roof until 6 July 1993. Twin boys were born to the union on 31 December 1990.

120. During the period from 13 March 1990 until 6 July 1993 the defendant was not engaged in any employment. He continued to look after his investment properties, doing maintenance and attending to his tenants, and spent a lot of his time at home. He was also involved in buying and selling second hand goods in this period and also in purchasing, repairing and selling a few motor vehicles. In the year 1990 the plaintiff resided at home, the parties shared the household activities and the defendant paid all outgoings in respect to the property, namely the mortgage payments, rates, taxes, electricity, gas and other outgoings. He also purchased clothing for both the plaintiff and her daughter Julia and provided some assistance to Julia who attended a Jewish school Beth Rivka in St Kilda in 1990 for a number of terms.

123. The plaintiff was in receipt of money in the year 1990. There is some dispute about the nature of the source of the monies, but on any view it was provided by the Commonwealth government. On one version for the first number of weeks after the plaintiff arrived in Australia, she and her husband received unemployment benefits but by the time she had moved in with the defendant she was in receipt of a sole parent pension. The other version is that the plaintiff and her husband received a joint pension or benefits for some years and the plaintiff first received the sole parent pension in March 1993. The documentation leads me to the conclusion that the latter version is correct. The amount of the benefits was something in the order of about $205 per week. The plaintiff states that she was required to attend the bank with the defendant who demanded that she take the fortnightly pension out of her bank account and pay the cash to him. He disputed that she paid the amount of the pension to him. The evidence does reveal that she did spend some of the pension monies on her own living requirements and some on Julia's schooling requirements, contrary to what is stated in her Statement of Claim and her affidavit. For some months in the year 1990 the plaintiff attended an institution to learn english.

126. In the following year 1991 the plaintiff was looking after the needs of the two children but, I am satisfied, so did the defendant. By this time the household was in receipt of benefits of the order of about $230 per week. The parties perpetrated a fraud on the Commonwealth Department of Social Security. The parties fraudulently entered into a lease which imputed that the plaintiff was a tenant in the property and this was used to extract a rent subsidy from the Commonwealth government. I am satisfied that the plaintiff and the defendant were willing parties to this fraud.

129. In 1991, the plaintiff continued her studies learning english and later that year enrolled at the University of Melbourne to undertake a Bachelor of Education which she commenced in 1992. During that year the defendant did not have employment and accordingly was able to perform many of the household duties, including driving the plaintiff to various places, looking after the children while she was attending lectures at the University of Melbourne and her english classes. The times of her lectures varied, some early in the morning, some late afternoon and the defendant undertook a number of chores concerning the children, including Julia, and also performing cooking and doing household chores.

132. The plaintiff continued her studies in the year 1993. Up to 6 July 1993 the pattern was much the same as in the previous year. The defendant was not in employment, was doing some of the household chores including looking after the children, and the plaintiff was attending lectures at the university, as well as performing parenting and household tasks.

135. The plaintiff's parents Arkady Zuperman and Sofia Rudutskaya left Kiev and settled in Israel for a short period of time. The defendant provided financial help whilst they were in the Ukraine and also through his sister provided assistance to them whilst they were in Israel. I am satisfied that the defendant was instrumental in obtaining the necessary entry permits for the plaintiff's parents and also financially assisted them come to Australia. They arrived in Australia on 1 July 1993 with their son Alex who was then aged thirteen years. They lived at the defendant's premises at Orrong Crescent. In a matter of days it was apparent that the presence of the parents and their son was not to the liking of the defendant. Primarily as he put it, because the plaintiff's daughter Julia and the son did not get on and were arguing, and also the added numbers in the house were hardly conducive to a pleasant situation. It also appears that the defendant did not get on with the plaintiff's parents, in particular her mother. There is a dispute as to what occurred on 6 July 1993. The plaintiff stated that the defendant lost his temper, a verbal and physical confrontation occurred and the defendant demanded that the plaintiff, her daughter, her parents and her brother leave the home. It is said that the defendant dragged out the bedhead from the bed used by the parents and broke it up in the backyard. He denies the plaintiff's version. That version is not supported by the brother's evidence and the daughter Julia's evidence is vague. I accept the defendant's version, that he required and indeed demanded that the parents and the brother leave the home because it was creating problems, and the plaintiff said that if they were going, so was she. The end result was that on 6 July 1993 the plaintiff, Julia, the plaintiff's parents and brother left the premises at Orrong Crescent. Surprisingly they found a flat 4/13 Philip Street, Bentleigh that night. The plaintiff was quick to point out to the Court that she was able to obtain the flat mainly because of the defendant's reputation. However, there is evidence that up to July 1993 there had been physical confrontations between the plaintiff and the defendant and on at least two occasions the plaintiff left the home and sought refuge. She said she was constantly mistreated, from time to time was assaulted, she was dominated by the defendant and the house was untidy, cluttered and a mess. She said he mistreated the children including Julia and he was mean. Clearly at times the plaintiff was not happy at the premises. Despite the alleged confrontation on 6 July 1993 it is surprising to note that on 26 July 1993 the parties got together, including the plaintiff's parents to enter into a contract concerning an alleged loan made to the parents. I accept the version of events given by the plaintiff. He did not want the plaintiff and the twins to leave. She decided to go with the parents.

138. The plaintiff did not call herself Mrs Procopets. This is not surprising as it appears to be a Russian custom for the woman to retain her own name in a marriage. That accords with the approach of many women nowadays in Australia who do not change their name on marriage. The daughter Julia retained her father's name. When the plaintiff registered the twin's names she did not include the defendant's name as the father. She states that he objected to that course. I do not accept her version. It is incumbent upon the mother of an illegitimate child to complete the birth certificate and it is a matter for the mother whether or not she discloses the father of the child. The true position in my opinion is bound up with the benefits received from the Commonwealth. The plaintiff did hold herself out in some quarters as a single parent.

141. I accept the evidence of the defendant that he did not want the plaintiff to leave and take their children with her and that he wanted them to come back. However, in the meantime the plaintiff activated an application made earlier for a Housing Commission flat. She gave evidence that when she and her husband arrived in Australia she made application for a Housing Commission flat which was basically put on hold during the following years. It is difficult to know what the true position is. However, when she left the residence of the defendant, it was a matter for her whether she returned. She went to live with her parents in Bentleigh and it appears that some time late in October she returned to live with the defendant from time to time. She spent periods of a few days per week with the defendant during the period from about 20 October 1993 to January 1994. On those occasions she returned and slept with the defendant and brought with her the two boys. Julia, who did not like the defendant, refused to return and did not do so. However, the plaintiff did not stay there permanently and returned to reside with her parents, who in the meantime had moved to a flat in St Kilda.

144. In November 1993 the plaintiff successfully completed her Bachelor of Education at the University of Melbourne and in the following year went through a graduation ceremony which was attended by her parents and the defendant. It is clear that the plaintiff and the defendant were extremely proud of the plaintiff's graduation.

147. The plaintiff was offered a Housing Commission flat in December 1993 and she took up a tenancy at 96 East Esplanade, Port Melbourne. The daughter Julia and the twin sons resided at the premises. The rental payable by the plaintiff depended upon her income. She remained in that flat for a number of years, finally bringing the lease to an end in about 1999. I am satisfied that during part of that period she failed to disclose her full income to the Department. She did for a period pay a small rental based upon the income she disclosed.

150. Although she had the flat at Port Melbourne and maintained her household there she returned for periods to reside with the defendant at Orrong Crescent in the year 1994. She also commenced studying interpreting and translating and successfully completed the course.

153. It is difficult to know how much time the plaintiff spent at the defendant's residence in the year 1994. She gave evidence that she spent approximately half of each month at the residence. Julia gave evidence that she never returned to live at that residence, and although she stayed with her father and her grandparents from time to time she stated that her mother never left her alone at the Port Melbourne flat. The defendant denies that the plaintiff spent long periods with him during the year 1994. His evidence was that there was not a set pattern, it varied from month to month. Initially visits were in the order of two days a week for some weeks and then there would be a gap. He said that in later years it was less frequent. In my opinion the time spent at Orrong Crescent was not as extensive as the plaintiff maintained. She did return from time to time to reside at Orrong Crescent, and doing the best I can, it was in the order of about seven days in each month. When this happened the defendant looked after the two boys who were attending a child minding centre nearby. During this period the plaintiff was in receipt of a single parents' pension, a family pension and also income from working as a part-time teacher and doing casual interpreting. She stated, and I accept her evidence, that from time to time she took food to the defendant's premises when she stayed there but I do not accept that she paid out of her own pocket any of the defendant's expenses during this period. In other words her contribution to the household comprised of food for the family.

156. In the year 1995 the plaintiff commenced studies at the University of Melbourne to be a teacher, teaching english as a second language. She also worked as a casual interpreter and was employed as a teacher at the Prahran-Windsor Primary School on what is described as forty percent time. She continued to stay with the defendant from time to time at Orrong Crescent taking the boys with her when she did so and taking food with her from time to time. In the latter part of 1994 and early 1995 the defendant considered, decided, prepared and finalised a development proposal at 22 Orrong Crescent. He was the owner/builder. In March 1995 the house was demolished and construction commenced of two units on the property. In order to finance the transaction, the defendant obtained loans from a bank which were paid in instalments during the course of the construction. Construction took place over the next fourteen months. As owner/builder the defendant was very involved in all aspects of the construction.

159. During the year 1995 the plaintiff continued as a teacher and also as a casual interpreter, and in addition received the single parent's pension and the family pension. She was in charge and control of her money.

162. The defendant moved into his premises at 37 Otira Road, Caulfield. Much criticism has been levelled at him as to the general state of cleanliness of the premises and more particularly, the quantity of articles and equipment that were inside and outside the house. It is a criticism that I pay no attention to. He was buying and selling goods and he was making and repairing goods from second hand goods. He did not have the facilities or workshops at Otira Road which he had at Orrong Crescent. Whether or not the plaintiff wished to stay at Otira Road was a matter entirely up to her. She did come and go and she brought the children to stay there. I am satisfied that in the year 1995 the pattern seen in the previous year was basically followed. She did stay with the defendant from time to time. In this period the defendant did visit the flat at Port Melbourne but I am satisfied that he only stayed overnight once or twice in this period. He was extremely busy in this period planning and arranging the construction and obtaining sub-contractors to perform the work. He carried out some of the work himself. The plaintiff contends that in this period she assisted him with the work. The alleged work is particularised in paragraph 10.1.2 of Schedule A to the Statement of Claim. Her contributions to the construction are very much in dispute and I will consider this issue later. The defendant denies that she made any contribution to the construction of the units.

165. The plaintiff stated that in mid-1995, December 1995 and January 1996, she and her parents paid sums of money to the defendant for the construction of the units. Her mother gave evidence that she and her husband lent a sum of money. The evidence was extremely vague and inconsistent with the position of the parties. Whilst the plaintiff was in receipt of a number of pensions, making money as teacher and casual interpreter but supporting herself and the children, her parents were not working and were living on pensions. The parties including the plaintiff's parents apparently acquired some motor vehicles which they later sold. The plaintiff gave evidence that she paid three instalments totalling $4,000 towards the construction of the units at 22 Orrong Crescent in mid-1995 by attending at a bank in the city at the request of the defendant and paying amounts of interest on the mortgages. The defendant stated that the plaintiff did not pay any money into any of his accounts. I do not believe the plaintiff. I do not accept that she made any financial contribution. It is said that the plaintiff paid the defendant a sum of $10,000 in December 1995 towards the cost of constructing the units. It is also said that the parents provided the defendant with the sum of $12,000 towards the construction in January 1996. The details of these payments, where the money was sourced from and the circumstances are all very vague and the evidence is somewhat inconsistent. The plaintiff, her mother and the defendant gave evidence in relation to the matter. What appears to be extremely odd is that on 26 July 1996 the defendant repaid the alleged loans by three cheques, payable to the plaintiff. I am not satisfied of the truthfulness or reliability of the evidence of either the plaintiff or the defendant. They entered into an arrangement whereby the amount, which was in the vicinity of $26,000, was divided into three separate cheques of $8,666.66 each. This was done to avoid the bank informing the authorities of a transaction of $10,000 or more. The three cheques were made out to the plaintiff. She then endorsed the cheques over to a man by the name of Lesh Cwikla. Mr Cwikla was involved in buying and selling motor vehicles. The explanations in relation to raising the money paying it to the defendant, the method of repaying the amount, the payments and why the cheques were endorsed to Cwikla raises suspicion about the transactions. The mother was cross examined as to where she got the money to lend, with her husband, the sum of $12,000 towards the construction of the units in January 1996. Her evidence was to the effect that she obtained a loan without security from a female person who was not called as a witness. She said that she obtained the loan because she requested this person to lend it to her and that she lent the money to the defendant because he asked for it. I am not satisfied the evidence was the truth. It seems odd to say the least that the money, when paid by the defendant in July 1996, was not paid in a cheque to the mother to repay the loan. The defendant's version was that the two payments totalling $22,000 were repayments of money lent by him to the plaintiff and her parents and that the alleged payment of $4,000 was untrue. Whilst the evidence tended to support the defendant's version, he could not give any satisfactory explanation as to why he gave the plaintiff $26,000 in July 1996. He said it was a loan to her. I do not believe him. The whole evidence is shrouded in mystery and suspicion. Why did the plaintiff endorse the cheques to Mr Cwikla? She gave an explanation that it was to put it beyond the reach of the defendant. That is nonsense and I do not believe her. There must have been another reason. On the other hand why did the defendant lend her $26,000 at the end of July 1996. By this time the relationship between the parties was extremely rocky; a suggestion has been made that both had entered into sexual relationships with new partners. The Court has not heard the truth concerning these transactions. I do not accept that the monies were paid by the plaintiff to the defendant as a contribution towards assisting with the construction of the units.

168. In the latter six months of 1996 the plaintiff worked as a teaching aide, this time on fifty percent time, and was paid accordingly. She had casual interpreting jobs and was also in receipt of the two pensions. She was leasing the property at Port Melbourne at a small rent although later the rent was increased substantially when her true financial position was revealed.

171. The plaintiff asserts that she decided to bring the relationship to an end in October 1996 and gave evidence that on 20 October 1996 the relationship ceased. The pattern over the year 1996 was that from time to time she did stay with the defendant at Otira Road but I find that in 1996 she was spending less and less time at that residence. In May 1996 the defendant met Marina Kavalertchik and commenced a relationship with her. On 3 June 1996 the parties, together with the plaintiff's parents, brother and the two boys, went to a restaurant to celebrate the plaintiff's thirty-fifth birthday. Again I have conflicting evidence of what occurred. I have seen a video of some of the events of the night. It was asserted that the defendant was difficult, that he assaulted the plaintiff, and verbally abused the plaintiff and her parents. I am not persuaded that he did assault anybody nor am I satisfied that anything untoward occurred that evening. The video which was produced in evidence showed a completely different picture. Indeed it shows a friendly occasion. It shows the defendant having a friendly and close relationship with the two boys. In July 1996 the defendant's relationship with Marina Kalvalertchik ceased and it is said that the defendant recommenced a relationship with Bella Drobitsky in about September 1996. He had had a previous relationship with her in the late 1980's.

174. Some time in October 1996 the plaintiff commenced a relationship with Dmitry Blanovsky. The relationship apparently lasted for about one month. The defendant learned of the association. On the other hand the defendant had had a relationship earlier that year and recommenced a relationship with Mrs Drobitsky. It is quite apparent that around this time both parties were looking for companionship elsewhere. It is that setting which is the background to the events which occurred in the months of November-December that year.

177. On 10 November 1996 the parties met near the plaintiff's Port Melbourne flat and an altercation occurred. The plaintiff alleges the defendant assaulted her by grabbing her around the neck and punching her on the side of the face. The defendant asserts that she became annoyed with him and started to strike him and in order to defend himself he grabbed her clothing around the neck, and that as a result she suffered bruising around the neck. He denies striking her on the face. Soon afterwards the plaintiff made a complaint to the Port Melbourne police. Photographs of the plaintiff show marks around her neck and a swollen left cheek. The plaintiff obtained an interim intervention order ex parte against the defendant from the Melbourne Magistrates' Court on 12 November and the further hearing was adjourned until 22 November 1996. The terms of the order forbade the defendant to come within a certain distance of the plaintiff. Nevertheless the parties talked and on 19 November 1996 they met. The defendant made a number of promises that he would behave. He was very anxious that they should get back together. Thereafter the parties resumed a sexual relationship at the defendant's home in Otira Road. Unbeknown to the plaintiff he videoed their sexual encounters. They had sexual relations on 19 November, on the 21, 22, 23, 24, 25, 26, 27 and 28 November and on 1 December 1996. The plaintiff was unaware that the defendant was videoing their sexual activities until 25 November 1996. She did not object to the continuation of the videoing. It is very apparent from observing the video that the plaintiff was aware that they were being filmed. She played up to the camera, and the parties indulged in a variety of sexual activities, including fellatio and cunnilingus. The filming did not appear to inhibit the parties in their sexual activities. Neither party showed any sign of embarrassment or inhibition during the filming.

180. In the meantime the intervention application was heard in the Melbourne Magistrates' Court on 22 November. The parties had indulged in sexual activity on 19 and 21 November. Prior to the hearing the defendant requested the plaintiff not to seek an intervention order against him. This is clear from their conversation captured by the video on 19 November 1996. The plaintiff stated that she proposed to proceed with the intervention order and the assault charges against the defendant would be dropped. The defendant indicated that he would prefer assault charges than have an intervention order. It was very clear from the conversation that the plaintiff was aware of the procedures in the Magistrates' Court, which she had observed during her role as an interpreter. She told the defendant that it did not depend upon him; she was asking for an intervention order and "I will get it automatically at my request, with or without your consent." The defendant indicated he would tell his side of the story but the plaintiff pointed out it was on the balance of probabilities if "the Judge is convinced that you are a real threat to me". The plaintiff made it quite clear that she was going to proceed with the application and the defendant stated he did not want an intervention order and that he would prefer to stand trial for assault. He ended by pointing out to her that she was blackmailing him. Despite this and the entreaties of the defendant not to obtain an intervention order against him the parties attended the Court together, and the plaintiff gave evidence on oath that she was afraid of the defendant and was fearful for her own safety. It is difficult to accept that her evidence was truthful bearing in mind their intimate relationship at that time. Nevertheless she obtained the order. One of the terms was that the defendant was not to contact the plaintiff except in the company of the police. That afternoon sexual intercourse took place. The parties continued to indulge in sexual activity which was filmed up to 1 December 1996. There is no doubt the intervention order caused the defendant a degree of distress. By its terms the defendant was prohibited from assaulting or harassing the plaintiff, approaching her except in the presence of police, he was not permitted to be within 350 metres of her flat at Port Melbourne and was restrained from damaging her property.

183. The parties fell out after 1 December 1996. On 6 December 1996 the defendant picked up the twins at the Caulfield Child Minding Centre in his car and caught up with the plaintiff who was in her car with her mother, and a verbal exchange took place. The defendant held up photographs of the plaintiff to the mother which showed some sexual activity and nudity. He told the mother that her daughter was an immoral woman.

186. On Sunday 8 December 1996, the plaintiff and her mother were at the Camberwell Market. Her mother was selling various items. The defendant attended at the market and commenced to take a video film of their activities some distance from the plaintiff. This caused the plaintiff to become extremely angry. She picked up a car wheel lock consisting of a length of steel and approached the defendant who was still filming the plaintiff and her mother and struck him a number of times with the piece of steel. By this time the plaintiff was aware that the defendant was threatening to show the video film to others, including her employer, had left a tape with her father and had shown it for a short period to Mrs Volkova. She was extremely annoyed with him. Nevertheless her conduct was surprising bearing in mind that she has sworn on oath on 22 November that was she was in fear for her life. She then walked away and made contact with police.

189. On the night of 9-10 December 1996 the plaintiff made a statement to the police which was taken by Senior Constable Mark Cain. By this time she had been referred to the Moorabbin police complex which had a squad concerned with dealing with family relationships. The statement comprises six pages. Although the plaintiff acknowledges that the statement is true and correct and that she has made it knowing that if she has made a false statement she may be liable to penalties of perjury, I am quite satisfied that a number of portions of the statement are untrue. Her version of what occurred at the Camberwell Market was as follows -

"The day I went to the Camberwell Market, it was the eighth day of December, it was around 10.30-11 am. I was at one of the stalls with my mother when the owner of the stall brought my attention to a man she had seen video taping us with a camera. A gentleman called Robert Perkins who I now know as a Rotary Club volunteer he offered his help as he witnessed this person videotaping me. I recognise this male as Boris Procopets, my ex-defacto. Boris came over to me and tried to talk to me. Boris started talk about the intervention order again, I told him that after what he had done the day before, distributing the videotape, that we had nothing further to discuss."

193. The videotape which was produced of that confrontation shows that what the plaintiff said was untrue.

"As a result of Boris's conduct I have been very fearful for my life and that of my children. I cannot sleep at night and have not been able to carry on a normal life since Boris hit me back on the 10th of November 1996. Boris knows every move I make and has admitted watching my every movement with binoculars. I'm scared everywhere I go and I look of my shoulder all the time. When I think about Boris's behaviour and his violent outburst I believe that he is more than capable of carrying out his threats. I have suffered much mental anguish as a result of this mans behaviour and constantly I am frightened by the fact that he constantly follows me around, I just want him to stop and leave me alone."

200. This cannot be accepted when considered in the light of the party's conduct during the latter part of November. On 7 December the plaintiff taped telephone conversations with the defendant and taped a number of conversations on the following days.

203. There were discussions between the parties from about 1 December in which the defendant threatened to show the video of their sexual activities to others. On 5 December 1996 he tried to show the video to the plaintiff's father in the presence of her brother Alex. They refused and the defendant left a cassette with them. This was handed over to the plaintiff who was extremely distressed by the thought of the video being shown to her family. On the same day the defendant attempted to leave the video with Mr and Mrs Furman and on 6 December 1996 the defendant showed sexually explicit photographs to the plaintiff's mother from his car when the mother was in the plaintiff's car nearby. On 7 December 1996 the defendant showed the video for a matter of a minute or two to Mrs Meda Volkova, whom he did not know. He brought a video recorder with him to enable her to see the video. She refused to look at the video when she realised what was on it and asked the defendant to leave, which he did, promising to bring another one back. He did not do so. The plaintiff was aware of these events. On 9 December the defendant rang the operations manager of Victorian Interpreting and Translating Service saying that he was representing a group of interpreters concerned about the unethical behaviour of one of the interpreters and that she was using her position to gain sexual favours. The defendant told the operations manager that he had a video cassette secretly made, in which the interpreter was engaging in sexual activity. The defendant denied that he made the telephone call. I do not believe him.

206. Later that evening the plaintiff made a statement to the police which she signed in the early hours of 10 December. The plaintiff had approached the police earlier on or about 6 December after the incident involving the defendant showing the photographs to her mother. Over the period from 6 December through to 8 December the plaintiff recorded a number of telephone conversations with the defendant. She made another detailed statement on 16 December 1996. It is clear from the statements that her main concern was that she did not want to have any contact with the defendant, as he appeared to be following her. While she referred to the threat of showing the video and the fact that he did try to show her parents the video, the main thrust of the statements concern contact with the defendant. A statement made on 2 February 1997 again is concerned with the relationship since about January 1994 and the reference to the showing of the video is contained in one paragraph in which it is noted that the defendant had possession of the video and that he was going to give copies to a number of people who were named.

209. The telephone calls recorded by the plaintiff without the knowledge of the defendant were admitted into evidence. They have been translated. In the telephone calls the defendant does make some admissions in relation to some facts to which I will refer later.

212. In the early hours of Tuesday 10 December 1996 and clearly very soon after the plaintiff had signed her statement, Senior Constable Cain and other police took the defendant into custody and at 4.30am commenced an interview with him. This continued through to 7am. The questions covered a number of topics, including the relationship between the plaintiff and the defendant. He was also asked about the filming of the sexual activities and when asked why he commenced filming, he stated that he wanted the intervention order removed. He lied when he told the police that the plaintiff knew about the existence of the camera for the whole period. I do not accept that. Indeed looking at the video it is very clear that she became aware from about 25 November 1996. He was asked what he did with the tapes. It is very clear that the defendant was aware that a complaint had been made about showing the videos and his fingerprints were taken. He was told that he may be charged with offences of breaching the intervention order and assault. The evidence revealed that the video was not shown to any other person after 10 December, nor was any threat made after that date to show the video to anybody. The video did get into the possession of Mrs Drobitsky who was handed the tapes and some documents in a sealed envelope by the defendant. Mrs Drobitsky said that she viewed the video in the privacy of the defendant's home in the following year 1997, at which time she was having a relationship with him. The relationship ceased in about mid-1997, and despite requests by the defendant to her to hand over the tapes, she refused to do so. Later after their relationship had ceased, she made contact with the plaintiff, telling her about the existence of the tapes and that she had seen one of them, and arrangements were made for her to go and see Senior Constable Cain. She made a statement to the police. The plaintiff arranged for her to attend at the police station. As a result of Mrs Drobitsky's statement, the defendant was charged with breaching the intervention order and was imprisoned for a period of approximately thirty-one days before he obtained bail from a Judge of this Court. This occurred in the latter part of 1997.

215. I have closely considered the evidence and observed both the plaintiff and the defendant whilst giving evidence and in Court. Each dislikes the other to the extent bordering on hatred. Each has spent considerable time on the proceeding. I have observed the way the defendant has presented his case and in particular the way he has cross examined the plaintiff and her witnesses. In my view both the plaintiff and defendant are amoral; they lie, deceive, and mislead as a way of life. The oath means nothing to either of them. Each will lie if he or she thinks it will benefit him or her. As I have said, the defendant pursued a tactic in cross examination of the plaintiff's witnesses of making up a story aimed at blackening the reputation and honesty of the witness. The plaintiff must have gained something from the cross examination because she instructed one of her counsel to put to a witness that he had made a claim on insurance, the suggestion being that he had made a fraudulent claim. It was not put with any conviction by counsel.

218. The plaintiff is an attractive, intelligent, cunning woman who, during evidence was quick, alert and intellectually nimble enough to change her story. She was quick to anticipate cross examination and invent a story to meet the challenge. She is an extremely manipulative person. The defendant is a dishonest man who is extremely cunning, is prepared to indulge in deception to gain an advantage or a benefit, and lies without thought. On the other hand if I was prepared to choose between the plaintiff and the defendant as to the degree of reliability and accuracy I thought that the defendant was more likely to be honest and accurate than the plaintiff. He has an excellent memory of events aided by documents which he has retained. However that is not saying very much at all. What either party said had to be viewed with a degree of scepticism and in the end I was left in the position where I could not accept the evidence of either party unless it was corroborated in some way. Because of the difficulties in accepting the evidence of either I have found the resolution of the factual issues in this case extremely difficult.

222. The first category of claims seeks an interest in the real property of the defendant. A number of causes of action have been pleaded seeking an interest in the property. At the date when the parties commenced cohabitation, namely 13 March 1990, the defendant owned four pieces of real estate. The parties commenced their cohabitation at 22 Orrong Crescent, Caulfield. In late 1994 the defendant, demolished the house and in 1995/96 built two units on the land. He built the two units using sub-contractors. The units were completed in about May 1996. In late 1994, the defendant commenced occupation of his property at 37 Otira Road, Caulfield and he has remained in that property ever since. The front unit, being 22A, was sold in October 1997. The back unit has remained unoccupied. He sold two other properties earlier. The claim made by the plaintiff identifies the rear unit at 22 Orrong Crescent as the real property in which she seeks an interest. Her pleading refers to making contributions in respect of other properties but it is clear that if she has an interest it is in respect of that property. That property was valued in September 2002 at $480,000.

225. The plaintiff seeks an interest pursuant to the statutory cause of action found in Part IX of the Property Law Act 1958. Part IX was introduced into the law in 1987 by the Property Law (Amendment) Act 1987 which came into operation on 1 June 1988. The statutory cause of action gives the court jurisdiction to adjust the interests of defacto partners in real property. Section 285 (1) was amended by the Property Law (Amendment) Act 1998 which came into operation on 29 June 1998. The amendment does not apply to the present application by reason of s. 276 of the Act. Hence the jurisdiction of the Court in this proceeding is confined to adjusting the interests in real property, if appropriate, of the defacto partners.

228. In the alternative, the plaintiff seeks to rely upon the general principles of law and equity relating to interests in property. The pleading is hardly the paradigm of good drafting. The heading to paragraph fourteen asserts "Claim for Interests in Property -Equitable Claims including Constructive Trust" and thereafter the pleadings make claims for a constructive trust, an enforceable contract, equitable estoppel, and failure of consideration. However in final address Mr T.D. North SC who appeared with Mr R.K. Davis for the plaintiff stated that the cause of action relied upon was based on a constructive trust. He referred to Green v Green[3], Grant v Edwards[4] and Maharaj v Jai Chand[5]. It is convenient to consider the law relating to the statutory cause of action found in Part IX of the Property Law Act first. This Part was enacted into the law to overcome the injustices that sometimes resulted after a defacto relationship ceased and one of the partners received little or no recognition for the contributions made to the relationship. The law of trusts and to a lesser extent contract often failed to deliver a fair and just outcome after a defacto relationship had finished despite the endeavours of the Courts to broaden the law to encompass contributions other than directly financial[6]. It facilitated the proof by a partner in a defacto relationship to obtain an interest in real property. The Act has since been amended to include any property[7]. This case is concerned with real property, although contributions to any property are to be taken into account.

Part IX of the Property Law Act

233. A plaintiff seeking an interest in real property of either or both partners of a defacto relationship has to prove the following under Part IX of the Act:

(i) That the parties were defacto partners in a defacto relationship[8].

(ii) That the defacto relationship existed for a period of at least two years, although the Court may make an order, where the relationship lasted less than two years, if there was a child of the defacto partners, or a failure to make the order would be a serious injustice because the plaintiff has made substantial contributions within the meaning of s.285(1)(a) or (b) or has had the care and control of the child of the other partner. [9]

(iii) That one or both defacto parties lived in this State on the day the proceeding was commenced[10].

(iv) That both partners have lived in this State for at least one third of their relationship - see s. 280(b)(i) or the plaintiff has made a substantial contribution within the meaning of s. 285(1)(a) or (b)[11].

(v) That if the relationship has ceased, the proceeding was commenced within two years after the date the relationship ended - s.282(1). -A court may grant leave to bring the proceeding out of time[12].

(vi) That it is just and equitable to adjust the interests of the defacto partners or either of them in real property because of the financial, non-financial, home-making and/or parenting contributions made by the plaintiff or both of them, or any written agreement entered into by them[13].

242. The statutory cause of action, does not affect any right of a defacto partner to any remedy or relief under any other law, statutory or otherwise[14]. It is the duty of the Court to end the financial relationship so far as it is practicable and to avoid further proceedings between the parties[15]. The Court has extremely wide powers to give effect to any adjustment of property[16] and may adjourn the proceeding if there is the likelihood of significant change in the circumstances of the parties[17] and defer the operation of the order if a partner is to become entitled to property which may be applied in satisfaction of any order[18].

245. In the present proceeding there is no dispute that the plaintiff has established elements (iii) and (iv). They are factual elements which are straightforward and usually not in dispute. It is unnecessary to say anything more about them. The other elements are contested and are very much in dispute. It will be necessary to say more about the other elements.

248. Before considering the law concerning Part IX it is necessary to state the law prior the enactment of the Part. In construing and applying the legislation the Court must give effect to the purpose of the enactment which is apparent from its wording and the mischief which it addresses. The Part is based upon the New South Wales Defacto Relationships Act 1984. The New South Wales Act is similar to Part IX but it is important to bear in mind that there are some differences. By way of example the New South Wales Act deals with a right to maintenance although that right is restricted. The New South Wales Act was passed following the New South Wales Law Reform Commission Report on Defacto Relationships, June 1983. The law as it stood in 1983 concerning disputes between defacto partners over property, was based upon financial contributions made by the partners to the property. It was recognised that the law was restrictive, that often it worked an injustice especially to the partner who stayed home and attended to the needs of the family, and its major deficiency was that it did not recognise substantial indirect contributions. The law was developing, but sometimes it denied a just result. In the New South Wales Law Reform Commission Report, at page 151, the Commission said -

"The major deficiency of the current law governing property disputes between defacto partners is that is provides no sure means of recognising substantial indirect contributions (whether financial or otherwise) to the wellbeing of the other partner or the family."

252. In Wirth v Wirth[19], the High Court made it clear that disputes between husband and wife and defacto couples concerning property were to be decided in accordance with the strict law. At page 231 Dixon C.J. had this to say about property disputes -

"The law of property governs the ascertainment of the proprietary rights and interests of those who marry and those who do not. It has in the past contained special rules governing the title to property in the case of husband and wife and the relation is such that it has not been found possible to discard all the rules of the law of property which are founded upon its existence. But the title to property and proprietary rights in the case of married persons no less than that of unmarried persons rests upon the law and not upon judicial discretion." (Emphases added)

256. Notions of what is fair and just had no part to play in the resolution of a dispute over property. The same observations were made later in 1985 in Muschinski v Dodds[20].

"..There is no jurisdiction in an Australian court of equity to declare an owner of property to be a trustee of that property for another merely on the ground that, having regard to all the circumstances, it would be fair so to declare....The flexible remedy of the constructive trust is not formless as to place proprietary rights in the discretionary disposition of the Court acting according to vague notions of what is fair."[21] (Emphases added)

263. As at 1956, the year of the decision in Wirth v Wirth[22], in this State there were a number of avenues open to those lawfully married concerning property disputes. The parties could seek relief in a divorce proceeding. If the married person was unable to establish a ground for divorce, it was open to either party to bring a proceeding pursuant to s.161 of the Act in relation to property. Because it was difficult in those days to obtain a divorce within a short time, there were many cases involving disputes between husband and wife under s.161. As was made clear in Wirth v Wirth[23], the rights of the parties had to be determined in accordance with the strict law. The re-enactment of s.161 in 1962 revolutionised the law especially in relation to the matrimonial home which became the subject of a rebuttable presumption of joint ownership[24].

266. In 1959 the Commonwealth Parliament passed the Matrimonial Causes Act and this dealt with property disputes between lawfully married husbands and wives who instituted a proceeding pursuant to the Matrimonial Causes Act. However pending any such proceeding, the jurisdiction was left with the Supreme Court to decide disputes between husband and wife pursuant to s.161 of The Marriage Act 1958. There is no doubt that the section gave a wide discretionary power to the Court[25]. However prior to the amendment of s.161 any dispute between husband and wife had to be decided in accordance with the strict legal principles as if they were strangers.

269. A defacto partner on the other hand had no assistance from statute and had to rely on the principles of law relating to contract and trusts. A number of cases in the late 1950's demonstrated the difficulties that a defacto partner had in seeking an interest in property. The cases involved married couples but were decided prior to the

re-enactment of s.161 of the Marriage Act and hence in accordance with strict law. The cases were Ward v Ward[26] and Pearson v Pearson[27]. In the latter case the Full Court referred to the presumption of advancement which applied to husband and wife but not defacto couples[28]. In the latter case Mason and Brennan JJ at page 260 summarised the restrictive approach of the law to the defacto relationship. Their Honours said-

"In a case where a man and a woman are cohabiting though unmarried there is no presumption, either of equity or human experience, that they intend their relationship to have the same consequences upon their individual property rights as marriage has upon the property rights of spouses. An assumption that the parties to such an arrangement intend to maintain independent control of money and property and to retain a testamentary power to dispose of assets in which they have an interest is more likely to coincide with reality than an assumption of joint ownership. Provisions of sections 79 and 80 of the Family Law Act 1975 now furnish a further ground for not applying the special rules governing the title of property in the case of spouses in order to resolve property disputes between parties who have cohabited but who have not married. On dissolution of the marriage, sections 79 and 80 confer a discretionary power upon the Family Court of Australia to alter the property interests of the parties to marriage if it is just and equitable to do so. On the termination of an association between a man and a woman who are not married to each other, no discretionary power may be exercised and the jurisdiction of the courts of equity are simply to declare the proprietary rights of the parties - a jurisdiction which a court of equity is not at liberty to exceed either in the case of husband and wife or in the case of a man and a woman who are not married: see Wirth v Wirth[29] per Dixon CJ; Hepworth v Hepworth[30] per Windeyer J. Therefore, special rules effecting the title to property of husband and wife can have no application in the present case." (Emphases added)

273. A defacto partner who was seeking an interest in property had to rely upon the principles relating to trust and contracts. The early cases established the following propositions -

(a) Questions of the rights of a defacto partner to an interest in real property had to be decided in accordance with the principles of law and equity applying to disputes between strangers concerning jointly used property.

(b) The plaintiff would have to establish either that the defendant held the property on trust for the plaintiff or both of them or that the parties had entered into some agreement with respect to the property. The onus of proof lies upon the plaintiff.

(c) That if the parties agree before or at the time of the purchase to purchase real property and contribute their savings and subsequently apply their income to the property then effect would be given to their common intention.

(d) If there had been a substantial financial contribution by the parties, and if it was difficult to ascertain exactly what contributions were made, then the proper approach was to order equal division.

(e) It may be possible to infer an agreement from the conduct of the parties, for example, where one party contributes the deposit and the other party takes the title in his or her name and executes a mortgage and the parties out of joint savings pay off the mortgage[31]. Or the parties may by their conduct treat their savings as made and to be used for their common benefit[32]. The time to consider the relevant intention of the parties whether it be mutual or unilateral is at the time of acquisition of the property[33].

279. A property dispute between husband and wife in a divorce proceeding was decided pursuant to the Matrimonial Causes Act 1959, and later the Family Law Act 1975 and, if a divorce proceeding was not instituted, was to be decided in accordance with s.161 of the Marriage Act. However a claim by a defacto partner was not assisted by any statutory enactment and accordingly any such dispute had to be decided in accordance with strict law.

282. Although the English courts for a period of time applied what was described as "palm tree justice"[34], in 1970 the House of Lords made it clear that the rights of the parties had to be decided in accordance with strict law. In Gissing v Gissing[35], the House of Lords affirmed that the dispute had to be decided in accordance with strict law and depended upon the law of trusts.

285. There is helpful summary of the Law in Cowcher v Cowcher[36]. The English law had reverted back to the strict position applied in this country in Wirth v Wirth[37]. The English law made it clear that it was extremely difficult for a defacto person to obtain an interest in property registered in the name of another.

288. The strictness of the law was not lost on the High Court and in a series of cases the High Court laid down principles which recognised that contributions which were not directly financial could lead to a situation where it would be against good conscience to deny that the legal owner held the property in trust for both partners. In Muschinski v Dodds[38], Deane J at page 620 referred to the principle where there was no intention expressed by the partners as to the beneficial interest in the property. His Honour said -

"..the principle operates in a case where the substratum of a joint relationship or endeavour is removed without attributable blame and where the benefit of money or other property contributed by one party on the basis and for the purposes of the relationship or endeavour would otherwise be enjoyed by the other party in circumstances in which it was not specifically intended or specially provided that that other party would so enjoy it. The content of the principle is that, in such a case, equity will not permit that other party to assert or retain the benefit of the relevant property to the extent that it would be unconscionable for him so to do." (Emphases added)

292. What His Honour said was quoted with approval and applied in Baumgartner v Baumgartner[39].

295. If the principle is applied then it becomes necessary to determine the terms of the constructive trust. If it is not possible to trace the contributions with any degree of certainty, equality of beneficial ownership as a starting point is appropriate[40].

298. The plaintiff does rely upon these principles in relation to her alternative cause of action and it will be necessary to refer to them later.

301. The Family Law Act 1975 repealed the Matrimonial Causes Act of 1959 and property disputes between husband and wife were decided in accordance with the Act. The Family Law Act does not apply to a property dispute between defacto partners.

304. When one approaches the question on a strict legal basis, the starting point is indeed the determination of who held the beneficial interest in the disputed asset and this was to be determined in accordance with the legal title. Hence as a general rule a partner who did not make any financial contribution to the acquisition of the home in which they lived was not entitled to an interest in the home even if that person had made a substantial contribution to home-making, and caring for children The law of trusts could be applied if financial contributions were made by the other party, and this may result in a resulting trust. If it could be established that there was a common intention in relation to the property then the person who had the legal title was not permitted to defeat the interest of the other if it was contrary to the common intention. In Muschinski v Dodds[41], the High Court held that claims to ownership of property could be established based upon trust actual, implied or constructive and more recently the Court recognised claims to real property based upon concepts of contribution[42]. But it was well recognised that the law failed adequately to give effect to non-financial contributions and this led to the passing of the New South Wales Act_._

307. I have spent some time tracing the law and the difficulties facing a defacto partner in obtaining an interest in property, because it is the background to the new legislation and is relevant to identifying the mischief the legislation sought to address. The Hon. J.H. Kennan the Attorney General in 1987 when delivering the second reading speech concerning the amendment to the Property Law Act, said -

"The object of the Bill is to simplify and modernise the law governing disputes between defacto partners over real property, in particular, the family home. This is the most critical area of dispute between defacto partners and the area where dissatisfaction with the present law has been the greatest."[43]

311. After referring to the obligation imposed on a Court by the legislation to have regard to both financial and non-financial contributions the Attorney went on to say -

"The adoption of these criteria by the courts will overcome the significant injustice which has afflicted defacto partners, usually deserted defacto wives, seeking a fair apportionment of the property after the end of relationships. Under the traditional criteria applied by Victorian courts in dealing with these disputes, regard was given only to whether the applicant defacto partner had a legal or recognised equitable interest in the real property which had been brought into the relationship or accumulated in the course of the relationship. This meant that the partner in whom the title to the property was vested could leave the relationship without being required to recognise the contribution of the other partner, usually the defacto wife. A defacto wife usually has made a significant contribution both as a home maker and indirectly to the other partner's capacity to acquire the property."

315. As to the question of whether the parties did have a defacto relationship, it is appropriate to refer to what the Attorney said in regard to that -

"As to the definition of defacto partner, I should note that the Bill's definition is based on the definition in the Commonwealth Social Security Act 1947, which has been interpreted in numerous cases. It has been modified slightly to accord with principles of plain english, but the meaning is unchanged."

319. The legislation was introduced to overcome the deficiencies in the law relating to trusts in this area. In considering and applying Part IX it is appropriate to consider the policy of the Act and what it was intended to achieve. That is, proper and substantial effect should be given to contributions which were other than financial. However, Part IX does not give the Court an unfettered discretion to do palm tree justice, and any order must satisfy the description of "just and equitable" in the light of contributions made.

322. Before considering each element of proof, it is appropriate to dispel a number of myths about the application of Part IX. First, a defacto partner is not entitled to an interest in any real property of the other partner merely because the other partner owns property and may even own substantial property. Secondly, the fact that the asset owning partner adopts a frugal lifestyle and does not lavish the other partner with money, presents and/or holidays are irrelevant to the issue of an interest in the property. Thirdly, the mere fact that the claiming partner has had to endure an unhappy lifestyle with the asset rich partner is not a basis of itself to a claim in property. Some of the evidence and claims made by the plaintiff in the present proceeding seem to assume that these matters gave her a right to property. Indeed in a telephone conversation with the defendant recorded by her in December 1996 she did exclaim that she had endured the defendant for some seven years.

325. In Evans v Marmont[44], a Full Bench of the Court of Appeal in New South Wales considered the rights of defacto partners pursuant to the New South Wales Act which is similar to the Victorian Act. Gleeson CJ and McLelland CJ in Equity (Meagher JA agreeing) had this to say in the course of their reasons which, in my view, apply equally to the Victorian legislation-

* The policy underlying the legislation appears from the terms of the report of the Law Reform Commission.

* One should not approach an application under the Act by beginning with an assumption that equal division of property is appropriate and then asking whether the circumstances of the case required some departure from that position.

* The contributions of a defacto partner as home-maker and parent, as a general rule, should be accepted as contributions of substance.

* It is inappropriate to value the contributions of a home-maker or parent by reference to wage levels applicable to a domestic servant or other commercial provider of services or benefits and it is important to give full and proper value to those contributions.

* It is necessary to consider the contributions made by both parties to determine what is just and equitable in the circumstances.

* In considering the contributions made the question will arise whether the contributions of the plaintiff have already been sufficiently compensated and this requires the Court to consider the value of the contributions of the plaintiff and a determination of the value of what the plaintiff has received in return.

* Whilst the financial circumstances of the parties will be relevant, the fact that one party is rich and the other is not, is not of itself a reason that it is just and equitable to make an adjustment.

* The length of the relationship, any promise or expectation of marriage and lost opportunities by the plaintiff because of his or her contribution to the home-making and parenting are relevant.

* The role of the Court was to interpret and apply the statute and it was not the intention of Parliament to equate defacto relationships with marriage or to make the same provisions with respect to defacto partners as the Family Law Act made with respect to married people.

* There are substantial differences between the Family Law Act and the new legislation.

* One substantial difference is that a marriage is a legal relationship which is an institution being the union of a man and a woman to the exclusion of all others voluntarily entered in for life. "Marriage involves matters of legal status and public opinion....No such commitment need be involved in a defacto relationship."

* The Court in considering the application is not engaging "in an unbounded exercise in distributive justice", and considerations of fault are not relevant.

"Although because of the particular facts in Dwyer v Keljo[45], it was appropriate for his Honour to refer specifically to the plaintiff's contributions, it is important to bear in mind that s.20(1) directs regard be had to contributions of the designated kinds made by each of the defacto partners: often it may be found that contributions of the kinds referred to in paragraph (b) will involve shared activities or reciprocal benefits not giving rise to any disproportionate burden which it would be just and equitable to satisfy by an adjustment of interests in the (real) property." (Emphases added)

344. I have added "real" in the last line as the property concerned in this proceeding is real property.

347. Their Honours concluded by emphasising what was to be taken into account in considering the claim for an interest in property. Their Honours said at page 79, and I have inserted the Victorian provision in what their Honours said, -

"There is nothing in section 20(s.285) of the Act, of the kind found in s.75(2o) of the Family Law Act, which requires or entitles the Court to take into account, as a factor alongside those referred to in para (a) and para (b) "any fact or circumstances which in the opinion of the Court, the justice of the case requires to be taken into account." More importantly s.20(s.285) specifies in para (a) and para (b), the matters to which the Court is to have regard. As was pointed above, those matters will ordinarily have to be considered, and a judgment as to what is just and equitable having regard to those matters will ordinarily have to be made in context, and that context may well include the factors of the kind referred to by Hodgson J at first instance in Dwyer v Keljo[46]. However, para (a) and para (b) prescribe the focal points by reference to which the discretionary judgment as to what seems just and equitable must be made. They are not merely two matters, or groups of matters, which take their place amongst any other relevant considerations. It is by having regard to those matters that the Court may adjust property interests in a just and equitable manner. The concept of remedying an injustice the applicant would otherwise suffer because of his or her reasonable reliance on a relationship or his or her reasonable expectations from the relationship seems to ask, with respect, to involve a major shift in the focus dictated by s.20(s.285), as does the notion of importing, by analogy, the principles according to which equity awards compensation for breach of equitable duties. This appears to us to broaden the scope of the inquiry well beyond that contemplated by the legislature. It is pertinent to note that recovery of damages for breach of promise to marry was abolished by Statute in 1976." (Emphases added)

351. In my opinion the observations made by their Honours apply equally to the construction and application of s.285 of the Victorian Act. The same observations were made by Meagher JA at pp97-8. He summarised the approach as follows -

"Section 20(s.285) enables the Court to `make such order adjusting the interests of the partners in the property as it seems just and equitable having regard to' two specified factors. Those two factors both relate to the contributions, direct and indirect, made by each of the partners to either the property or the welfare of them both. As a matter of english that can only mean that the Court may have regard to each of the two factors and not to any other factors. In particular it precludes the Court, in s.20 application, from having any regard to fault, needs, maintenance, compensation, expectation damages, reliance damages or quasi-equitable damages."

355. I have briefly traced the law as it stood at the time when the legislation was introduced because the Court, in construing the elements of the statutory cause of action, must take into account the policy of the legislation and what it sought to achieve. Its setting in the historical background of the restrictive nature of the law of trusts assists in this exercise. It is necessary to emphasise that Part IX of the Act creates a statutory cause of action and the elements of proof necessary to establish a right are specified by the legislation. Part IX must be construed as any other legislative provision.

358. I now turn to the elements of proof which are in dispute. The plaintiff asserts that there was a defacto relationship which commenced in March 1990 and continued through to October 1996. There is no doubt that the parties did separate on 6 July 1993 and if the separation is interpreted as a break in their defacto relationship, it is the plaintiff's contention that the defacto relationship recommenced sometime in October 1993. The defendant for his part denies there ever was a defacto relationship despite the fact that the parties did live together between 13 March 1990 and 6 July 1993 under the one roof in a family relationship.

361. The statutory cause of action depends upon proof that there was a defacto relationship. Section 275 defines "defacto relationship" as meaning "the relationship between defacto partners of living or having lived together as if they were husband and wife although not married to each other".

"(a) In relation to a man, a woman who is living or has lived with the man as if she were his wife although not married to him; and (b) In relation to a woman, a man who is living or has lived with the woman as if he were her husband and although not married to her."

368. The question comes down to whether the plaintiff and the defendant were living at some point "as if they were husband and wife although not married to each other". When the Attorney General introduced the Bill into Parliament, he said that there were a number of cases which had looked at the question under the Social Security Act. He was of the view that those cases would guide the Court in determining whether or not there was a defacto relationship.

371. The Social Security Act was re-enacted in 1991 and in the fourth edition of the work Annotations to the Social Security Act 1991 by Peter Sutherland and Allan Anforth there is a helpful discussion of the cases concerning the earlier legislation. The authors point out that the earlier cases which considered the principles are still relevant even though there had been a change to the legislation.

374. In Roy v Sturgeon[47], Powell J at page 458 discussed what was meant by the phrase "living together as a husband and wife on a bona fide domestic basis". It is noted that the Victorian definition is different but in my view His Honour's observations equally apply to the Victorian Legislation and its application. His Honour said -

"With respect, it seems to me that to attempt to dissect the phrase `living together as a husband and wife on a bona fide domestic basis' into `discrete elements', and then to test the facts of the particular case by reference to a set of a priori rules in order to establish whether a particular `element' is, or is not, present, is to ignore the fact that, just as human personalities and needs vary markedly so, too, will the various aspects of their relationship which lead one to hold that a man and woman are living together as husband and wife on a bona fide domestic basis vary from case to case. As I said in D v McA it seems to me that each case will involve the Court making a value judgment having regard to a variety of factors relating to a particular relationship, those factors including, but not being limited to, the following: 1. the duration of the relationship; 2. the nature and extent of the common residence; 3. whether or not a sexual relationship existed; 4. the degree of financial interdependence and any arrangements for support, between or by the parties; 5. the ownership, use and acquisition of property; 6. procreation of children; 7. the care and support of children; 8. the performance of household duties; 9. the degree of mutual commitment and mutual support; 10. reputation and "public" aspects of the relationship." (Emphases added)

378. As His Honour frankly conceded, his approach was not novel. He had considered what the Administrative Appeals Tribunal had decided in relation to the Social Security Act. I note that later these elements were written into the New South Wales Act.

381. As His Honour pointed out the list is not exhaustive. One must look at all circumstances bearing in mind the myriad differences in human relationships and activities. In the end it is a question of considering all the matters, weighing them carefully and making a decision. What is of importance is the objective factors but it cannot be overlooked that subjective factors also play their part. The parties' intentions as to forming, continuing and bringing to an end, a defacto relationship are important. The subjective intentions are relevant. However, in my opinion the important factors are the living arrangements of the parties, their intention to have a full and wholesome relationship, the fact of such a relationship whether or not they share a common household, any degree of financial interdependence, a sexual relationship and pooling of resources. I think the degree of mutual commitment and mutual support are also factors of some importance. However in the end it is a question of weighing all relevant matters and making a decision whether or not a defacto relationship did exist at the relevant time, namely whether or not the parties lived together "as if they were husband and wife". Of course it cannot be overlooked that community attitudes change, and that parties make their own arrangements to suit their own lifestyle needs and wishes.

384. The plaintiff has to prove that the defacto relationship existed for a period of at least two years and that is a question of fact in the present case. Further she has to prove that the present proceeding was commenced within two years after the date the relationship ended. Again that is a question of fact. The Court may grant leave to bring the proceeding out of time.

387. The crucial and important element is the issue of contributions which is dealt with by s.285.

"(1) A Court may make an order adjusting the interests of the defacto partners in the real property of one or both of them that seems just and equitable to it having regard to - (a) the financial and non-financial contributions made directly or indirectly by or on behalf of the defacto partners to the acquisition, conservation or improvement of any of the property or to the financial resources of one or both of the partners; and (b) the contributions, including any contributions made in the capacity of home maker or parent, made by either of the defacto partners to the welfare of the other defacto partner or to the welfare of the family constituted by the partners and one or more of the following - (i) a child of the partner; (ii) a child accepted by one or both of the partners into their household, whether or not the child is a child of either of the partners; and (c) any written agreement entered into by the defacto partners."

394. The approach in considering the application of s.285 is to -

(i) Determine the real property owned by the parties or either of them during the relationship and owned at the commencement of the proceeding;

(ii) identify the real property in which the plaintiff seeks an adjustment of the interests;

(iii) determine the financial and non-financial contributions made by both parties directly or indirectly to the acquisition, conservation or improvement of any of the property or financial resources of one or both parties; (note it is not confined to real property);

(iv) determine the contributions made, including contributions in the capacity of home maker or parent by either or both to the welfare of the other defacto partner, or the welfare of the family constituted by the partners and any children;

(v) determine the respective contributions of each partner, weighing up the contributions and deciding whether it is just and equitable to adjust the interests of the parties in the real estate by reason of the said contributions.

400. The New South Wales approach was discussed by Powell J in D v McA[48], Roy v Sturgeon[49] and by Hodgson J in Dwyer v Keljo[50]. It is observed that the New South Wales approach is to determine what the plaintiff has already received by reason of her contributions and determine whether the recognition and compensation already provided by the other partner is sufficient having regard to the plaintiff's contributions.

403. The approach suggested is an appropriate one but not an inflexible one. In Evans v Marmont[51] the two Chief Justices said -

"It began by repeating four questions formulated by Powell J in earlier cases. Those questions set out, in a convenient sequence, certain matters which arise for consideration under s.20. There is nothing in the precise formulation of the questions, or in the sequence, which is, or was seen to be, legally binding."

407. In my opinion it is clear from the wording of s.285 that the Court is concerned to determine and evaluate the contributions made by the parties during the defacto relationship. This was the view of Powell J in Roy v Sturgeon[52]. I respectfully agree with him. In particular he drew attention to a paragraph (b) and noted the contributions were to "the welfare of the family constituted by the partners" but more importantly he referred to the history of the legislation and its policy. It is a statutory cause of action. It is grounded upon a relationship being a defacto relationship subsisting between parties. It is the relationship which founds the jurisdiction.

410. There have been cases in which the courts have held that pre defacto relationship contributions and post defacto relationship contributions are relevant. There is a continuing controversy in New South Wales with Powell JA as he now is, maintaining that the contributions must be made in the course of the relationship. The controversy was discussed in Del Gallo v Frederiksen[53]. In that case the Court of Appeal was concerned with pre-relationship contributions but they were made in mutual contemplation of the relationship coming into existence. Rolfe AJA said that it was arguably open to take them into account whereas Heydon JA was of the view that the earlier contributions were relevant. Powell JA was of the view that what he said in Roy v Sturgeon[54] was good law.

413. In a later Court of Appeal decision of Jones v Grech[55], the controversy continued. Powell JA maintained his views. Davies AJA was of the view that the events which occurred prior to the commencement of the last period of a defacto relationship were to be taken into account.[56] Ipp AJA was of the same view and then added that there was no difference in principle between contributions made before and after the relationship.[57]

416. I respectfully disagree with the views which are contrary to those of Powell JA. They overlook in my respectful opinion the history of the law leading to the passing of the Act, its object, and importantly that it is a statutory cause of action based upon the existence of a relationship. It is not a question of saying that s.285 does not preclude prior and post defacto relationship activities being relevant to contribution, it is a question whether the section does provide that the Court may take into account contributions made before and after a defacto relationship. There is nothing in the provision that supports that. More importantly paragraph (b) is concerned with contributions to the welfare of the family constituted by the partners. Once the relationship ceases then there is no longer any family constituted by the partners. In addition I refer to what Vincent J said in this Court in Conn v Martusevicus[58] where His Honour said -

"While s.285 imposes an obligation upon the Court to have regard to a number of particular kinds of contributions which may have been made, the Legislature has not attempted to confine narrowly the concept of `contribution' and there is, in my opinion, no good reason for the courts to do. Fundamental limitations to the scope of the section in this context, are contained in the expression `defacto partner' which makes it clear that any such contribution to be relevant must have been made by a person who fell within that description at the time of its making and posses a sufficient nexus with relationship." (Emphases added)

420. Mr North submitted that because the definitions of defacto partner and defacto relationship referred to the past tense, it followed that one may take into account contributions made after the relationship had ceased. In my opinion a reference to the past was necessary to enable ss.279 and 281 and the jurisdiction in s.285 to be invoked where the relationship has ended. I can see an argument that a contribution made in contemplation of the establishment of the defacto relationship may be taken into account. However, I cannot see that a contribution is relevant if made after the relationship ceases. It is the relationship which grounds the cause of action. In the present case Mr North sought to rely upon the contribution made by the plaintiff in looking after the children after the relationship ceased. In regard to that I note that the defendant was obliged to and did pay maintenance for the children. Secondly, the contributions referred to in paragraph (b) concern "the welfare of the family constituted by the partners" and the children. That in my view can only mean a contribution whilst a family relationship exists. In my view the plaintiff would not be making a contribution looking after the children to "the welfare of the other defacto partner or to the welfare of the family constituted by the partners". But in any event how could one determine the adjustment to the real property based upon a post-relationship contribution constituted by looking after the children. If this case had been heard within six months of the break up of the relationship, how would the Court approach the question? In my view it is not open to a Court to consider contributions made after a relationship has ceased. I respectfully agree with Powell JA.

423. Mr North relied upon a Family Court decision of In the marriage of Williams[59]. The Family Law Act is different to the Property Law Act and takes into account a larger and broader range of matters when dealing with property disputes. I am not assisted or persuaded by the decision[60]. In considering the contributions under paragraph (b), the Court should evaluate the quality of the contributions made. They will vary.

426. The point was made by Wilson J in Mallet v Mallet[61]. Whilst observing that, the contribution made as a home maker and parent must be assessed not in a merely token way, His Honour emphasised that it must be assessed "in terms of its true worth to the building up of the assets". He pointed out that the quality of the contribution made as a home maker or parent may vary enormously.

429. In my view it is important to make an evaluation of the quality of the contributions. It has been said that this can open up a pandora's box and create problems at trial. I do not agree. In some cases the evidence may be such that a Court cannot make such an evaluation with any degree of certainty. The Court expects the best evidence in relation to contributions. In my view the parties should, in conformity with that rule, provide evidence as to the financial contributions made and the other contributions and this should not be difficult if the legal representatives focus on the real issues in the case. Unfortunately in the present case that was not followed. Very little effort was made on the plaintiff's part to provide direct evidence of financial contributions she made. In my view the global approach to contributions is not appropriate. It may be appropriate under the Family Law Act but it is not appropriate in an application such as the present. The parties should endeavour to place before the Court with as much certainty as possible the contributions that were made, financial and non-financial.

432. A sweeping global approach in my view may lead to an injustice which in an emotion filled piece of litigation may leave the parties dissatisfied. When all is said and done when applying the principles of equity in relation to the constructive trusts, the Court expects that a step by step financial approach will be established and in my view the Court should expect the same in an application under the legislation. Defacto cases can engender as much emotion, distress and hatred as can a family law case. Indeed it was very apparent in the present proceeding that the parties hated one another and were determined to succeed in the proceeding by any means available to them, including wholesale lying on oath.

435. In conclusion the cause of action is a statutory one; it arises out of the relationship, it is concerned with the contributions made by the parties as defined by s.285 during the relationship, and importantly the Court will only adjust the interests of the parties in any real property if it is "just and equitable" to do so having regard to the contributions. Mr North submitted that if the plaintiff had been subjected to physical and/or further abuse or violence so that the contributions made were rendered significantly more arduous as a result and that was a relevant factor in assessing the value of such contributions. He referred to the Full Court of the Family Court decision of Kennon v Kennon[62] and Conn v Martusevicius[63]. A sweeping general observation such as that has a tendency to mislead. It is necessary for the Court to consider the contributions. Whether or not a plaintiff has been subjected to violence or the like and whether that does in fact affect the ability to make the contributions must depend very much upon the evidence. It may be relevant but I would not think that in most cases even if there were acts of violence from time to time, or verbal abuse or the like, that such contributions would be made more arduous. It would depend upon the effect on the plaintiff of the conduct and its effect upon her ability to carry out her household and parenting tasks.

439. Although the Statement of Claim appears to make a number of claims in equity seeking an interest in the real estate, in final address Mr North confined the cause of action to a claim that the defendant held the real estate presently owned by him at 22 Orrong Crescent in trust for the plaintiff and himself. It was put that the shares were fifty-fifty. However Mr North frankly conceded that if the plaintiff was to succeed on this claim it may be a lesser interest. He confined the claim to evidence of the parties' relationship between 6 July 1993 and October 1996. In putting the plaintiff's case, Mr North relied upon the decision of Green v Green[64]. Gleeson CJ at page 352 discussed the relevant principles and first of all pointed out that the flexible remedy of the constructive trust is not to be used as a medium for the notions of fairness and justice. At page 353 His Honour said -

"Nevertheless, it is now well settled that there are circumstances in which a Court of Equity will intervene to declare the existence of the interest in the family home on the part of spouse or defacto partner, and the unifying principle underlying the cases where such intervention is regarded as appropriate is that in the circumstances of the case, and in accordance with equitable doctrines, it would be unconscionable on the part of a person against whom the claim is set up to refuse to recognise the existence of the equitable interest."(Emphasis added)

443. His Honour went on to observe that the most common case is where a person made a direct or indirect financial contribution towards the cost of acquiring, improving or maintaining the property.

446. His Honour referred to what Lord Diplock said in Gissing v Gissing[65] where his Lordship emphasised that where the beneficiary acted to his detriment in a reasonable belief that he would acquire a beneficial interest in the land, in those circumstances it would be inequitable to allow the trustee to deny the interest. However as Gleeson CJ pointed out, the High Court in Baumgartner held it was not only the actual and specific intention of the parties which may establish the trust but also "on the basis of a pooling of resources for the purposes of a joint relationship which has come to an end".

449. Gleeson CJ referred to the decision of Grant v Edwards[66]. The case was approved by the Privy Council. His Honour referred to what the Privy Council said in Maharah v Jay Chand[67]. Their Lordships after referring to defacto relationships had this to say -

"In such cases a contract or an express trust as at the time of the acquisition may not be established, because of lack of certainty or consideration or non-compliance with statutory requirements of writing, but a constructive trust may be established by an inferred common intention subsequently acted upon by the making of contributions or other action to the detriment of the claimant party. And it has been held that, in the absence of evidence to the contrary, the right inference is that the claimant acted in the belief that she (or he) would have an interest in the house and not merely out of love and affection..."(Emphases added)

453. In Grant v Edwards68 Browne-Wilkinson VC said this -

"If the legal estate in the joint home is vested in only one of the parties, the other party, in order to establish a beneficial interest, has to establish a constructive trust by showing that it would be inequitable for the legal owner to claim sole beneficial ownership. This requires two matters to be demonstrated: (a) That there was a common intention that both should have a beneficial interest; (b) That the claimant had acted to his or her detriment on the basis of that common intention."

457. His Lordship went on to consider what was proof of common intention. He said that it could happen by way of an express agreement or the making of admissions, or a common intention could be inferred from the making of contributions to the cost of the property or meeting expenses in maintaining it. There may be any number of ways in which one may infer a common intention has been established.

460. As Deane J said in Muschinski's case, the guiding principle is "equity will not permit that other party to assert or retain the benefit of the relevant property to the extent that it would be unconscionable for him so to do".

463. Mr North put this cause of action at the beginning of his submissions. He said the cause of action related to the circumstances between 6 July 1993 and October 1996. He did not suggest that the cause of action related to the first period of the parties' relationship. His submission was that during this period a decision was made that the property at Orrong Crescent would be demolished, two units would be erected on the land, one to be sold to pay off the mortgage and the other to be the family home of the plaintiff and the defendant and their children. It was said that promises were made to that effect, contributions were made in the form of assistance, and that it would be unconscionable for the defendant to deny the interest because the plaintiff had acted to her detriment relying upon the arrangement and promises. An interesting question arises as to the identity of the detriment. Mr North appeared to struggle with this concept as did his junior in reply. It seemed to be suggested that if the promises had not been made the plaintiff would have brought any relationship to an end and Mr Davis in reply seemed to suggest that the plaintiff would not have continued in a relationship thereby giving her, as he put, it quality time with her children. I have some difficulty with these concepts of detriment and it will be necessary to further consider them when considering the cause of action and the facts.

466. If the plaintiff establishes a constructive trust, the question of quantification arises. This depends upon the contributions made, the extent of the detriment and it may be that where the Court is unable to determine the extent of the contributions, the Court will resort to the maxim "equality is equity". Gleeson CJ in Green v Green[68] discussed the principles.

470. There are eight causes of action for assault pleaded but two were statute barred and time was not extended. Accordingly there are six causes of action, the first one being an assault that was alleged to have occurred on 29 April 1992.

473. Strictly, an assault is an attempt or threat to do violence to another person without in fact striking that person but the word is used to describe what is in law a battery, namely, an intentional or negligent touching of the victim. In Wainwright v Home Office[69], Lord Hoffmann said -

"Battery involved the touching of the person with what is sometimes called hostile intent (as opposed to a friendly pat on the back) but which Robert Goff LJ in Collins v Wilcock redefined as meaning any intentional physical contact which was not `generally acceptable' in the ordinary conduct of daily life."

(a) That the defendant intentionally or negligently touched her and, if the plaintiff wishes to recover substantial damages;

(b) As a result of the unauthorised touching, she suffered injury.

483. If a defendant alleges that he was justified in assaulting the plaintiff, the burden rests upon the defendant to prove the justification.[70]

486. The defendant did not plead justification in respect to any of the alleged assaults. He did suggest in evidence that he was restraining the plaintiff in relation to the eighth assault.

489. Any trespass to the person gives a right of action without proof of any injury or expense. In the absence of any injury the plaintiff is entitled to nominal damages. A plaintiff is entitled to recover substantive damages when injury results and this included injury to a person's dignity. The issues in relation to the assaults appear to be whether they in fact occurred and if they did, the nature and extent of the plaintiff's injuries and what amount should be awarded for damages.

493. The plaintiff claims as at 20 October 1996 she was the owner of a number of chattels and was entitled to be in possession of them. She claims a demand was made upon the defendant to deliver up the chattels, he refused, accordingly he detained them without cause and thereby converted them. The items are set out in Schedule I to the Statement of Claim.

In order to prove her claim in detinue the plaintiff had to establish -

(i) That she had an immediate right to possession of the goods detained;

(ii) that a demand was made that he deliver the goods to her;

(iii) that the defendant intentionally refused to do so;

(iv) that the goods should be delivered up, if still in existence, or proof of the value of each article entitling her to damages.

501. It is alleged that because the defendant failed to deliver up the goods he converted them to his own use and if that is proven, then the plaintiff would be entitled in the alternative to damages for conversion. As I understand the way the plaintiff put her case, the value of the items is said to be $4,060. That is the amount she claims in the detinue claim and in the alternative, damages in the sum of $4,060 for conversion.

Distribution of Video Showing Sexual Encounters between the Parties - The Law

505. The plaintiff alleges that in November 1996 the defendant videoed their sexual activities at his home in Otira Road, Caulfield. The evidence established those facts and was not disputed. The plaintiff says she was unaware of the filming until the sixth occasion. The filming took place on 19, 21, 22, 23,24, 25, 26, 27 and 28 November 1996 and 1 December 1996. The plaintiff admits she became aware of the filming on 25 November, and this is apparent when one views the video. The plaintiff alleges that between 5 and December 1996 the defendant threatened to show the video to a variety of people, that he left the video cassette with a number of people, that he actually showed the video to a number of people and that later in 1997 he showed it to a female friend of his.

508. The plaintiff contends that she was extremely upset by his conduct and she claims damages including aggravated and exemplary damages. The plaintiff has relied upon three separate causes of action.

511. The plaintiff did not suffer any injury, physical or mental because of the activities of the defendant. She did not seek or obtain any medical treatment. Early on 10 December 1996 the police took the defendant into custody and from then on the risk of the defendant continuing with the threats to distribute or show the video or the risk of him actually distributing it was remote. However, the plaintiff was extremely angry, annoyed, upset, concerned, anxious, distressed, humiliated and embarrassed by what the defendant did. She claims damages for the distress caused by the defendant's conduct.

515. At the outset it is necessary to identify the alleged wrongdoing by the defendant. The plaintiff says whilst the parties were indulging in a range of sexual activities, the relationship was one of confidence and any information gathered or recorded during the existence of that relationship could not be revealed to a third party without the consent of both parties. Clearly she did not give any consent, express or implied, to the defendant to distribute or show the cassette to a third person.

518. In those circumstances in my opinion the plaintiff in order to succeed has to establish the following -

(i) That during their sexual activities a confidential relationship existed between the parties;

(ii) that what appears on the video tape of their sexual activities was a portrayal of information of a confidential nature;

(iii) that there had been an unauthorised use of the information by the defendant to the detriment of the plaintiff.

(iv) that she suffered injury as a result and was entitled to damages.

See generally Talbot v General TV Corporation Pty Ltd[71].

524. In Moorgate Tobacco Co Ltd v Phillip Morris Ltd (2)[72] Deane J defined the exclusive equitable jurisdiction as follows -

"Like most heads of exclusive equitable jurisdiction, its rational basis does not lie in proprietary right. It lies in the notion of an obligation of conscience arising from the circumstances in or through which the information was communicated or obtained. Relief under the jurisdiction is not available, however, unless it appears that the information in question has `the necessary quality of confidence about it' and that it is significant, not necessarily in the sense of commercially valuable (see Argyll v Argyll) but in the sense of the preservation of its confidentiality or secrecy of substantial concern to the plaintiff." (Emphases added)

528. The principle does extend to information concerning the personal affairs and private life of a plaintiff. This is clear from the decision of Argyll v Argyll[73]. In Breen v Williams[74]_,_Gummow J said[75] -

"In equity, misuse of confidential information may be restrained. The subject matter is not confined to trade secrets. It extends to information as to the personal affairs and private life of the plaintiff, and in that sense may be protective of privacy."

532. It is important to identify with a degree of specificity that which is said to be confidential information. As Deane J said in the Moorgate Tobacco Company case[76] -

"That being so, the starting point of the alternative argument must be the identification of the relevant confidential information."

536. The fact that the plaintiff engaged in sexual relations with the defendant was a known fact and it could not be said that it was confidential information. Clearly it was common knowledge to those who knew the parties. The revelation of this fact to any person who knew the parties, or indeed strangers would not of itself on proper analysis be a source of any concern to the plaintiff. However, her participation in the sexual activities occurred during an intimate relationship with the defendant, was a private matter and what the parties do in the course of their sexual activities was a matter for them and them alone and not to be disclosed to others. On any view they were private matters.

539. In Stephens v Avery[77],Sir Nicholas Browne-Wilkinson V.-C. was dealing with an application to strike out a statement of claim based upon a claim for breach of confidence and the information related to sexual conduct of a lesbian nature between the plaintiff and another. She revealed the details to a person who in turn disclosed them to the press. It was submitted that sexual conduct, whether it be heterosexual or homosexual, lacks the quality of confidentiality because by taking part in the sexual activity both sexual parties know what has happened and accordingly neither can claim the information is confidential. In dealing with the argument His Lordship said[78] -

"In my judgment this submission is wholly misconceived. It is based on the premise that as between unmarried sexual partners there is no duty of confidentiality. Therefore, both parties are free to discuss the matter with the whole world. I will assume that submission to be correct but without expressing any view on its correctness in law. Even on that assumption, the fact that the other partner to a sexual relationship may disclose what has happened does not mean that he or she has done so. To both people the details of their sexual lives are high on their list of those matters which they regard as confidential. The mere fact that two people know a secret does not mean that it is not confidential. If in fact information is secret, then in my judgment is capable of being kept secret by the imposition of the duty of confidence on any person to whom it is communicated. Information only ceases to be capable of protection as confidential when it is in fact known to a substantial number of people." (Emphases added)

"In principle, therefore, I can see no reason why information relating to that most private sector of everybody's life, namely sexual conduct cannot be the subject matter of a legally enforceable duty of confidentiality."

545. In fact three video cassettes were tendered in evidence. One shows a series of sexual encounters, the first occurring on 19 November 1996, the second occurring on 21 November and the following seven days including 28 November 1996 and 1 December 1996. The sexual activities took place at the defendant's home at Otira Road in his bedroom. The video shows sexual intercourse and other sexual activity between the parties and it is apparent from the video that by 25 November 1996 the plaintiff is aware that the encounters were being filmed. It is the plaintiff's case that any alleged defacto relationship ceased in October 1996. It is the defendant's case that there was no defacto relationship in the year 1996 and that it was a male-female relationship.

548. The first question is whether such a relationship at that time was a confidential relationship. The law recognises that the relationship of marriage is a confidential one and the obligation to respect the confidence continues even after divorce[80]. The plaintiff and defendant were not married at the time when the sexual activities took place and were not involved in a defacto relationship. The relationship was one of affectionate friendship. A confidential relationship can arise by express or implied agreement, or an express and implied arrangement between the parties to keep confidential what has been discussed or done. The circumstances may be such that it is obvious without anybody expressly saying so that a relationship of confidence has been established. In my view persons indulging in a sexual activity in the privacy of their own home create a confidential relationship during such activity. In my view it is difficult to think of anything more intimate than consensual sexual activities between two parties in the privacy of their home. It involves a relationship of mutual trust and confidence which is to be shared between the persons but is not to be divulged to others without the consent of both parties. To quote Ungoed-Thomas J in Argyll v Argyll[81] -

"The confidential nature of the relationship is of its very essence and so obviously and necessarily implicit in it that there is no need for it to be expressed. To express it is superfluous; it is clear to the least intelligent."

His Lordship's observations related to a marriage, but in my view his comments are apposite to a private sexual relationship between consenting persons.

"These cases, in my view, indicate (1) that a contract or obligation of confidence need not be expressed but can be implied; (2) that a breach of confidence or trust or faith can arise independently of any right of property or contract other, of course, that any contract which the imparting of the confidence in the relevant circumstances may itself create; (3) that the Court in the exercise of its equitable jurisdiction will restrain a breach of confidence independently of any right of law."

557. In my opinion a confidential relationship can exist between parties indulging in sexual activity in private.

560. It can be stated at this stage without further discussion that the showing of the video film of the sexual activities without consent of the parties would be an unauthorised distribution of the information. However the question that does arise in this case is whether or not the plaintiff can recover general damages for the alleged breach?

563. The cause of action is an equitable one. Equity has in the exercise of its original jurisdiction granted injunctions to restrain wrongful conduct whether arising from violation of a right or from a breach of contract or confidence. Indeed the cases show that the Courts of Equity have restrained not only the imparting of information verbally or in writing but also restraining copies of etchings[82]. As it is an equitable cause of action, the remedies are equitable. General damages for physical or mental injury, distress, upset and the like are common law remedies. They are not recoverable in equity. If the plaintiff establishes her cause of action for breach of confidence, can she recover general damages? She has not pleaded or sought to prove any monetary loss as a result of the alleged distribution and showing of the videos. It is not a question of providing the plaintiff with restitution. It is well recognised that restitution is available but a restitutionary remedy is not damages.

566. The question concerning the right to recover general damages contains another important and difficult issue, namely, damages for what type of alleged injury? The common law allows damages in respect to certain wrongful acts for physical or mental injury and in some areas damages for distress, upset and what might be described as an attack upon one's dignity and feelings. Examples of the latter damages is in the field of defamation and trespass to the person including false imprisonment. However save for a few exceptions, the common law did not allow damages for distress, upset, humiliation, anxiety and the like. The latter category of damages could be recovered if suffered as a result of an injury. But on their own the common law did not recognise a right to recover damages for such alleged complaints. The law permits the recovery of damages for nervous shock. The general rule at common law was that for mental suffering alone unaccompanied by any physical or established mental injury, no award of damages could be made. However if physical or mental injury has been suffered, then distress type damages are recoverable. They could be explained as being parasitic damages. But where a person makes a claim that the wrongful conduct caused mental anguish to the person, in the absence of any physical or established mental injury, the plaintiff was not entitled to succeed except in a few cases such as defamation and trespass to the person including false imprisonment. It follows that the plaintiff has to overcome two hurdles. First, establish that the law allows the recovery of general damages for breach of confidence and secondly that the damages can be awarded for mental suffering which is not accompanied by any physical or mental injury.

569. In equity damages was never a remedy for breach of an equitable obligation. However the equity courts did allow equitable compensation and in McKenzie v McDonald[83], Dixon AJ referred to the decision of Nocton v Lord Ashburton as establishing that there was a jurisdiction to remedy breaches of equitable duties and this extended to compensation in a case where the plaintiff's confidence had been abused. But equitable compensation is not common law damages. As there was some doubt whether or not a Chancery Court could award damages, Lord Cairns' Act was passed in 1858. The Act was not passed into law in this State until 1928. Section 38 of the Supreme Court Act 1986 provides-

"If the Court has jurisdiction to entertain an application for an injunction or specific performance, it may award damages in addition to, or in substitution for, an injunction or specific performance." (Emphases added)

573. In Talbot v General TV Corporation Pty Ltd[84] the question arose whether or not the plaintiff in that case could recover damages where he had imparted in confidence to a television station an idea for a program. His proposal was not accepted by the television station but some months later it produced its own program based upon the idea. The plaintiff sought damages for his lost opportunity to make money out of his idea for a program, as well as an injunction. At page 241, Harris J considered whether there was jurisdiction to award damages as well as an injunction. He referred to s.62(3) of the Supreme Court Act 1958 which was the Victorian equivalent of the law of Lord Cairns` Act. His Honour noted that damages could be awarded for the commission or continuance of any wrongful act[85]. Harris J was of the view that the statutory provision gave jurisdiction to the Court to grant damages for the lost opportunity resulting from the breach of confidence. The damages were awarded in circumstances where there was also a claim for an injunction.

576. Marks J further considered the question[86] and was of the view that what was being awarded was money compensation. On appeal the Full Court declined to reconsider the question because Harris J as a Trial Judge had already ordered an enquiry as to damages.[87]

579. The approach of the Court is criticised in Meagher Gummow and Lehand's Equity Doctrine and Remedies[88] It is unnecessary for me to say anything more about the question because the plaintiff has sought general damages for distress, upset, annoyance and the like. She has not claimed an injunction. Section 38 could not apply. The Court would not be awarding damages in addition to or substitution for an injunction. The videos were delivered to the County Court pursuant to an order on 24 June 1998. They remained with the Court. No case had been quoted to me which recognises such damage for breach of confidence. In my opinion it is not open to the plaintiff to recover general damages for distress, hurt, humiliation, annoyance and upset for breach of confidence assuming that she established the other elements of her cause of action.

582. Mr North referred to the case of Campbell v Mirror Group Newspapers Ltd[89], a decision of Morland J in England. In that case, the claimant, a model sued a newspaper for revealing certain matters about her attendance at Narcotics Anonymous. Ms Campbell alleged that she suffered distress, embarrassment and anxiety which was aggravated by the publications in the newspaper. The Judge found a breach of confidentiality and that the publication did cause her significant distress. He then went on to consider the effect of the English Human Rights Act 1998, and European Convention on Human Rights. He then considered the Data Protection Act 1998 and concluded there had been a contravention on the Act by the newspaper. The Act permits the recovery of compensation, including compensation for distress. It appeared that it was not disputed that damages for breach of confidence and compensation under the Act would cover both primary and aggravated damages. His Lordship went on to hold that the claimant was entitled to damages or compensation for both breach of confidentiality and under the Act. He assessed damages or compensation for both breach of confidentiality and under the Act. His Lordship did not discuss whether distress type damages could be recovered for breach of confidentiality. It appears that it was accepted that she could. This may have come about because it was clear under the Act that she could recover such damages. He assessed damages or compensation as he described it, in the sum of £2,500 and awarded an extra £1,000 for aggravated damages.

585. On appeal the judgment was set aside[90]. Other than stating that the Judge was justified in awarding aggravated damages there was no discussion about the right to recover damages of a distress type nature for a breach of confidence.

588. Mr North submitted that although there was no authority supporting the claim for general type damages of the nature suffered by the plaintiff, there was no good reason in principle why compensation could not be awarded for distress occasioned by breach of confidence or where the alleged injury suffered was non-pecuniary. He referred to the work of Taulson and Phipps[91] and observations made by Professor Cornish in his work[92]. The latter pointed out that damages for injury to feelings are available in defamation and copyright infringements, so why should the like damages not be awarded in a breach of confidence case which is slowly being adapted to accord protection to privacy and personal reputation. It was put that a duty of confidentiality can exist to protect personal privacy and the object of the exercise is to protect the feelings of the person in the confidential relationship, and accordingly it must follow that if the wrong is constituted by the breach, it is a wrong which causes in some cases the infliction of distress type injuries.

591. I observe the comments made by the learned commentators, but the law does not at this stage recognise or permit such damages for breach of confidence. I must apply the law as I find it.

594. In my opinion the plaintiff would not be entitled to recover damages for distress type injuries resulting from the alleged breach of confidence.

597. Mr North accepted that there was no entitlement in equity to exemplary damages and he referred to Harris v Digital Pulse Pty Ltd[93] a decision of the NSW Court of Appeal. The High Court has held that a plaintiff is not entitled to recover exemplary damages where the wrong doer has been substantially dealt with by the criminal law. This is relevant in the present proceeding[94].

601. The law recognises that where a defendant by an intentional act or statement intending to cause nervous shock to the plaintiff succeeds in doing so and the plaintiff suffers injury, the plaintiff is entitled to recover damages at common law against the defendant. The cause of action was recognised in the case of Wilkinson v Downton[95]. In that case the defendant falsely represented to the plaintiff, a married woman, that her husband had met with a serious accident which caused physical injuries. The defendant intended this as a practical joke but he made it in circumstances with the intent that it should be believed. The plaintiff did believe it to be true and in consequence suffered a violent nervous shock producing physical injury entailing weeks of suffering and incapacity. Wright J[96] had this to say -

"The defendant has, as I assume for the moment, 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."

605. In most cases the defendant intends to cause some form of mental distress and this may manifest itself in a variety of ways such as anger, embarrassment, horror, grief or humiliation. The Court will readily impute to a defendant an intention to cause physical harm to the plaintiff. However it is necessary for the plaintiff to prove that he or she suffered an injury, physical or mental as a result of the wrongful conduct.

608. The cause of action was affirmed by the Court of Appeal in Janvier v Sweeney[97]. In that case one of the defendants persuaded the plaintiff to show him some letters by making false statements and threats with the intention of putting the person in fear. The plaintiff fell ill from nervous shock. She was entitled to damages.

611. The cases establish that a plaintiff has to prove the following elements of the cause of action -

(i) That the defendant wilfully did an act or made a threat in relation to the plaintiff;

(ii) At the time the act was done it was calculated to cause harm to the plaintiff;

(iii) That as a result of the act the plaintiff suffered physical or mental injury.

617. Given the evident purpose of the conduct, the Court is prepared to impute to a defendant the intention to cause the physical injury including nervous shock.

620. However it is essential for a plaintiff to prove some form of injury, which of course includes some form of mental injury. Pure mental distress would not suffice. In the Law of Torts in Australia[98], the learned authors say -

"On the other hand, it would appear that there is no clear authority, at least in the Australian and English law of torts, that an action on the case for damages is available for the intentional infliction of purely mental distress or, as it is sometimes described, mental distress simpliciter. Certainly, where the mental distress is inflicted in the course of commission of another tort such as battery, assault, false imprisonment, trespass to land or defamation, damages have been awarded for the infliction of the mental distress; but there have been no decisions where the courts in Australia and England have awarded damages in tort where the only injury inflicted is mental distress even where the injury has been intentionally inflicted by the defendant."

624. However the learned authors go on to say that there is no reason why damages should not be awarded for mental distress and that there is no authoritative decision that lays down that the damages are not available.[99]

627. It appears that in the United States the tort of intentional infliction of mental distress is flourishing. The Courts in the United States recognise a right to recover damages for an intentional infliction of mental distress.

630. Later cases do suggest that one may be able claim damages for intentional infliction of purely mental distress[100]. In two decisions the Court of Appeal was prepared to grant injunctions to restrain defendants from indulging in conduct which had the effect of causing severe mental distress to the plaintiffs without actual illness[101].

633. In Hunter v Canary Wharf Ltd[102] 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."

What his Lordship said was obiter dicta. Since that case, the House of Lords has had another opportunity to consider this question.

638. The Court of Appeal in Wainwright v Home Office [103] held that there was a tort of intentional infliction of harm. It was not trespass; it was more akin to trespass and negligence and it required an intention to cause harm which was then in fact caused, or recklessness as to whether it would be caused. The Court held that emotional distress by itself was insufficient to found the tort unless bodily harm or recognised psychiatric illness resulted from it. In that case the claimants, a mother and son, were strip searched for drugs on a prison visit. The search was not done in accordance with prison rules and the claimants were humiliated and distressed. In the Lords[104], Lord Hoffman delivered the leading speech. His Lordship discussed[105] the cause of action based upon the old case of Wilkinson v Downton[106]. He traced the cases that followed that decision and he said[107] -

"I do 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. But I think that if you adopt such a principle you have to be very careful about what you mean by intend. In Wilkinson v Downton, Wright J wanted to water down the concept of intention as much as possible. He clearly thought, as the Court of Appeal did afterwards in Janvier v Sweeney that the plaintiff should succeed whether the conduct of the defendant was intentional or negligent. But the Victorian Railway Commissioner's case prevents him from saying so. So he devised a concept of imputed intention which sailed as close to negligence as he felt he could go. If on the other hand 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 intended to cause harm or at least acted without caring whether he caused harm or not. Lord Woolf CJ as I read his judgment.. might have been inclined to accept such a principle. But the facts did not support a claim on this basis."

642. His Lordship went on to say that if it was proven that there was a genuine intention to cause distress he wished to reserve his decision whether compensation should be recoverable. He drew attention to the Protection from Harassment Act 1997. He noted that the claimants could not succeed under Wilkinson v Downton[108] because the trial Judge did not find that it was the intention of prison officers to cause distress. However it is observed that his Lordship reserved for another day whether or not one could recover damages for distress by the unjustifiable conduct of the defendant who intended to cause such harm. His Lordship sounded a warning. He pointed out that in institutions and workplaces all over the country people constantly do and say things with the intention of causing distress and humiliation. As his Lordship said -

"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."

He also noted that Parliament was conscious in defining harassment in the Act 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." His observation was referring to the fact that a harassment was defined as "a course of conduct".

648. Lord Scott of Foscote[109] was of the view that the law should not extend to allowing damages for intentional infliction of mental distress. As his Lordship said -

"Some institutions, schools, university, colleges, regiments and the like (often bad ones) have initiation ceremonies and rites which newcomers are expected to undergo. Ritual humiliation is often a part of this. The authorities in charge of these institutions usually object to these practices and seek to put an end to any excesses. But why, absent any of the traditional nominate torts such as assault, battery, negligent causing of harm etc should the law of tort intrude. If a shop assistant or a bouncer or a barman of the club is publicly offensive to a customer the customer may well be humiliated and distressed. But that is no sufficient reason why the law of tort should be fashioned and developed with a view to providing compensation in money to the victim."

652. 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.

655. Whilst I can see a strong argument for compensation for distress in these circumstances, to allow such a cause of action may result in a flood of litigation because of the behaviour of a person intending cause distress to another. It is clear from what Lords Hoffman and Scott said that this was a matter of concern. Lord Hoffman seemed to be of the view that if there was a pattern of conduct this may be sufficient to permit the cause of action to proceed. 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 the plaintiff recovering damages for intentional infliction of mental harm resulting in distress, humiliation and the like.

659. Although it has been advocated from time to time that there should be a cause of action based on failure to respect the privacy of a person, both English law and Australian law have not recognised a cause of action based upon breach of privacy. In Kaye v Robertson[110] the English Court of Appeal held that there was no cause of action based upon personal privacy. This has been recently confirmed in Wainwright v Home Office[111]. In ABC v Lenah Game Meats Pty Ltd[112], the High Court was concerned with the grant of an interlocutory injunction where the claim was based on an invasion of privacy. The High Court recognised that the cause of action in privacy is in a process of development but held there is no authority at present which recognises such a cause of action in Australia. There is a degree of encouragement from the views expressed by Gummow and Hayne JJ[113].

662. In my opinion the law has not developed to the point where the law in Australia recognises an action for breach of privacy[114]and[115].

665. In my view the plaintiff cannot succeed on a cause of action based on breach of privacy.

669. Surprisingly in final address, Mr North put at the forefront of his submissions a claim for an interest in real property based upon equitable principles. He submitted that during the period from 6 July 1993 to 20 October 1996 the facts demonstrated the plaintiff's entitlement to an interest in the unsold unit on 22 Orrong Crescent on the basis that the defendant held the real estate on a constructive trust for the benefit of both parties. I say it is surprising, bearing in mind that the statutory cause of action as a general rule is easier to establish than a right pursuant to the principles of equity. However I propose to deal with the cause of action based upon Part IX of the Property Law Act.

Claim under the Property Law Act

673. The first element to consider is whether the parties were defacto partners in a defacto relationship. In order to determine this issue, it is necessary to divide up the period of their relationship into two.

678. The plaintiff arrived in Australia on 14 February 1990 with her husband and daughter and within a matter of days she met the defendant. It is unnecessary to decide the facts concerning the circumstances leading to 13 March 1990 when the parties commenced to live together at 22 Orrong Crescent. Apparently the plaintiff was dissatisfied with her marriage and eventually made a decision to commence to live with the defendant. The daughter Julia resided with the parties. The plaintiff's husband with the assistance of the defendant moved into the defendant's property at 37 Otira Road, Caulfield. Julia commenced school at a local Jewish school. The plaintiff's marriage to her husband was dissolved on 20 November 1990. The parties lived as a couple with Julia at the defendant's premises for the year 1990. They commenced a sexual relationship and on 31 December 1990 their twin boys were born. Up to 6 July 1993 the parties lived together as a family in the defendant's residence. Both made financial contributions to the family. Both performed household chores and looked after the children. They socialised as a family. They remained together until 6 July 1993 when the plaintiff, her daughter and the twins left the premises.

681. The defendant denied there was a defacto relationship during this period but he was unable to put any submissions to the Court that a defacto relationship did not exist. I am satisfied on the evidence that the plaintiff and defendant during the period from 13 March 1990 to 6 July 1993 were defacto partners in a defacto relationship. I am satisfied for the following reasons -

* They entered into a sexual relationship with the intention of it being an exclusive relationship.

* The plaintiff moved into the defendant's house in March 1990 with her daughter.

* Twin sons were born of the union on 31 December 1990.

* The plaintiff, defendant and the three children lived as family at the defendant's premises.

* Both the plaintiff and the defendant made financial contributions to the household.

* The parties held themselves out as a couple with a family.

* The parties indulged in a social life as a family. The defendant at the request of the plaintiff provided financial and other support to her parents and brother to enable them to come to Australia. He was supportive of the plaintiff.

* The parties resided under the one roof together as a family until 6 July 1993.

* The parties performed household tasks at the family home.

694. On 6 July 1993 the plaintiff, her daughter, the twin sons and the plaintiff's parents and brother left the defendant's premises at 22 Orrong Crescent. Intention to maintain a defacto relationship and the overt acts of the parties concerning a relationship are relevant to the question whether there was a defacto relationship in this period.

697. A matter of some relevance to the question of intention concerns the actual parting of the partners.

700. The plaintiff's parents and brother arrived in Melbourne on 1 July 1993. They moved in with the parties and their children. The plaintiff's brother Alex Zuperman was then aged thirteen and a half years and the daughter Julia was then aged eleven years. There is a factual dispute between the parties as to what led to the separation. The plaintiff asserts that when her parents arrived her mother was appalled by the state of the house. The mother made some comment in front of the defendant and the plaintiff became angry and stated in the presence of the defendant that she was no more than a slave. It is said the defendant reacted by ejecting the plaintiff, Julia, the twins, the plaintiff's parents and brother from the house. The plaintiff gave evidence that the defendant lost his temper, that he dragged the parent's bed head which the plaintiff said she had bought, outside and chopped it up. She said that the family was forced outside, it was in the middle of winter, the children were cold and had nowhere to go and the defendant would not permit them to come into the house. The defendant's version is different. He found that the brother and Julia could not get on and appeared to be arguing all the time, the defendant did not get on with the plaintiff's mother and he found the presence of the additional persons in the house not to his liking. He demanded that the family leave but he did not demand that the plaintiff, her daughter and two children should leave. As I have difficulty with the honesty of both parties, it is necessary to consider whether there is any evidence supporting either version. The mother Sofia Radutskaya in her affidavit has given a version which is similar to the plaintiff's version. She states that after the argument "the defendant put all of us including the three children, out the front door and locked us out of the house." The mother speaks little english and her evidence was given through an interpreter. I have considerable doubts about the credibility of the mother. First of all she dislikes the defendant and has had very little contact with him in all the years she has been in Australia. It was obvious during the course of the trial that there is no love lost between the defendant and the plaintiff's mother. Secondly, as a witness she was prepared to change her story if she thought it was appropriate. Her evidence as to where she obtained some money which she alleged she lent the defendant was unbelievable and I am satisfied was false. She was also asked about her activities to derive income. She is a pensioner. It was clear that she was far from frank when asked about buying and selling items. All told I found her a very unsatisfactory witness. Her evidence about where her daughter lived after July 1993 was very vague and I would not place any reliance upon it. Her evidence about the state of the defendant's home which she described in harsh terms hardly stood up to cross examination when shown photographs of the home. Her evidence in cross examination about what happened at the Camberwell market was prevaricating and in my view evasive. Her evidence in paragraph thirty-eight of her affidavit, that on 15 December 1996 she received a telephone call from her daughter who said the defendant had told her he was going to take an overdose and that she attended the home with her, is clearly wrong. It occurred in November 1996 and as the cross examination continued I formed the impression that she was making up the evidence as she went. I do not accept the evidence of Mrs Radutskaya as to the circumstances of the break up.

703. The brother Alex in his affidavit said that he saw the same incident involving the defendant attacking the parent's bedhead but in cross examination agreed that he was wrong in that evidence. He did not see any such incident. He said he cannot remember the reason for leaving. One poses the question if it was such a dramatic event as painted by the plaintiff and her mother, how is that a thirteen and a half year old boy could not remember such an event, especially as he had been in Australia for less than a week. He was then cross examined as to his memory of the layout of the house and he was vague, although that may be understandable because I got the distinct impression that he and his parents have had little to do with the defendant after July 1993. In paragraph seven of his affidavit he stated that when the family left the home they were put up in a flat for the day. He then said that that was wrong. He was asked about observations that he made about any changes he observed in the plaintiff, but his evidence was vague. It transpired that he had had very little opportunity to make any observations of the plaintiff in Kiev as at that time he was only nine years of age. He agreed that he and Julia had arguments. He agreed that Julia's room was as untidy as any other room in the house.

706. He was asked about a party in 1996 in June in which the plaintiff alleges that the defendant was violent towards her. He does not remember hearing any violence or hearing any foul language nor did he hear any arguments. He was extremely vague about this part of the evidence. Two matters emerged from his evidence. Namely, first that there were arguments involving Julia, secondly that he does not support the evidence of the plaintiff that the defendant lost his temper and smashed the bedhead and forced the plaintiff and the children out as well as the parents and the brother.

709. In my opinion the defendant did not force the plaintiff, the daughter and the two boys out. He did demand that her parents and brother leave the home. In my view the plaintiff took the opportunity to leave. She was not happy at the residence. There was some evidence of mistreatment. By this time she was in receipt of a pension, and I am satisfied that she made the decision that she would leave with her parents. What happened thereafter until October 1996 is much disputed between the parties. The plaintiff for her part asserts that the defendant made promises to her that if she would come back and live with him, he would do various things. She gave evidence which was to the effect that she spent periods with him at his home during the next three years. In her affidavit she referred to promises being made at the end of July 1993 about marriage and transferring property. She said that in early August she began spending one to two nights each week with the defendant, that despite the promises about marriage and transferring property she did not believe him and some time in November 1993 she left the home at Orrong Crescent and resumed living with her parents. She then said that there was another agreement in November 1993 in which the defendant made promises about demolishing the house at Orrong Crescent and building two units on the land; one would be the family home. She stated that she would not resume a relationship with him until he included his name as father of the twins on the birth certificates. In this six month period I am satisfied that the parties did spend time together at Orrong Crescent. However I do not accept the evidence that the resumption of the sexual relationship was on the basis of any promises. One thing that occurred during this six month period is that a decision was made by the plaintiff to acquire her own premises. She states that when the family first arrived in 1990 they were put on a waiting list for Housing Commission accommodation and in July 1993 she made urgent pleas for a Housing Commission flat. In December 1993 she was offered a flat at 96 Esplanade East, Port Melbourne. She accepted the flat and moved in with her daughter and the twins in February 1994. It is clear that it was her intention in the last six months of 1993 not to resume living with the defendant, to conduct her own life as she wished, to be in charge of her finances and set up her own household independently of the defendant. She said that by February 1994 she had established a pattern of spending three to four nights each week with the defendant. It is clear that Julia did not wish to have anything to do with the defendant. As a witness Julia was unsatisfactory. I think that she was induced to sign an affidavit which was prepared by others and contained many sweeping statements that were not true and she admitted as much in the witness box. She said that she was upset by the family arrangements during this period and she tried to put a lot of the events out of her mind. She did not stay overnight with her mother and the boys at Orrong Crescent. However she stated that her mother always made sure that she was supervised and that when Julia slept at Port Melbourne her mother was always there.

712. Julia's evidence, the brother Alex Zuperman's evidence and the plaintiff's mother's evidence in relation to the living arrangements of the plaintiff with the defendant are of very little assistance. All seem to be very vague about what was happening and I gained no support from their evidence for the version given by the plaintiff. The defendant for his part said that the plaintiff did stay with him at Orrong Crescent and later at Otira Road in the period from July 1993 through to mid-1996. He said she would stay usually Friday, Saturday and Sunday but not every week. Both parties called evidence which provided some support for their versions. However the evidence of the plaintiff's witnesses was sparse on the topic, and I came to the view that the defendant's witnesses provided some credible evidence supporting the defendant's version.

715. It is important to trace through what the parties were doing during this period. The defendant was not employed at any time from the beginning of the relationship in March 1990 through to the end of 1996. In the early years he spent his time looking after his properties and was available to look after and assist with the twins. Going back in time the plaintiff in 1992 commenced an education degree at the University of Melbourne. She spent much time during the week at the university. This continued into 1993 and the plaintiff spent substantial time at the university during term time. It was during these periods that she relied upon the defendant to provide assistance with the twin boys. At the end of 1993 she completed her Bachelor of Education. In the following years she commenced studying interpreting and translating at RMIT University and attained accreditations. In the year 1995 she studied to be a teacher of english as a second language at the University of Melbourne. She worked as a casual interpreter and was employed as a teacher at Prahran Primary School working on a forty percent time basis. She continued with that work in 1995 and in 1996.

718. During 1994 the defendant made a decision to develop the property at Orrong Crescent. At the end of that year he moved into 37 Otira Road. There is no doubt that the house was cluttered with boxes and belongings as the house did not have the same workshops and accommodation as at Orrong Crescent. The house was not an attractive proposition to live in but nevertheless that was the household the defendant established. In March 1995 the house at 22 Orrong Crescent was demolished and construction of two units commenced. The defendant was the builder-owner and organised and supervised the building using sub-contractors. He obtained a loan from the bank to enable the development to go forward. The units were completed in or about May 1996. During the latter part of 1996 the plaintiff was working as a teaching aide on a fifty percent time basis, and interpreting. The relationship between the parties was unhappy from about May 1996. In the meantime the plaintiff maintained her premises at Port Melbourne. Julia lived there and was never left there on her own. Julia did spend time with her father and her grandparents. Julia did not go to Orrong Crescent or Otira Road when her mother and the twins stayed there. From time to time the parties went out as a family but not often. The plaintiff was a free agent who had her own house and household. She was in receipt of pensions and income which she kept and controlled, and her contributions in this period to the household of the defendant were minimal. She said in evidence that she took food over when she attended at the premises and secondly that from time to time she paid small accounts to the defendant. The defendant disputed the evidence and said it was lies. I do not believe the plaintiff paid any bills. She did take some food to the defendant's home. When she was there she did some household chores, such as cooking but not much else.

721. I find that during that period the plaintiff did stay at the defendant's premises, that the frequency was on the average about every two weeks for two or three nights. I accept that during this period she did assist with the family chores whilst at the home but in this period she was a free agent. She had her home at Port Melbourne and she was in control of her own monies. Julia never went to the defendant's home to stay overnight. The plaintiff was pursuing her own education and working as a teacher and interpreter. She found it convenient to attend at the defendant's premises because of his assistance with the children. In 1994 and 1995 the defendant often dropped the children off and picked them up from the childcare centre. However I am satisfied that she did not provide any financial contribution to the household in this period.

724. The plaintiff made a number of statements to the police. These statements revealed that she said their relationship ceased in July 1993.

727. On 10 November 1996 the plaintiff alleged that the defendant assaulted her and she made a complaint to the police. In her statement made in the early hours of 11 November 1996 the plaintiff said that in March 1990 she commenced a defacto relationship and that the relationship lasted until July 1993. On 10 December 1996 she attended at the Moorabbin police complex and spoke with Senior Constable Cain about the relationship. In a very full and detailed six page statement, she repeated again that the relationship was commenced as a full-time relationship until July 1993.

730. In a statement made on 2 February 1997 which also is a very long and detailed statement, the plaintiff stated that after she left the home on 6 July 1993 she moved into a flat with her parents and that thereafter she "sometimes.. would stay at Boris's home in Caulfield and on other occasions.. would stay with her parents". She said she lived with them on and off for about six months. She then had this to say -

"In January 1994 I received approval for Housing Commission accommodation in Port Melbourne and after signing the lease, I moved into my current home in Port Melbourne in that month. After moving in I started evening courses studying interpreting at RMIT, I needed somebody to help pick up our children from kindergarten which was in Caulfield. My parents would pick up the children two nights a week and Boris collected the children on one night during the week. I relied upon Boris for this assistance, but Boris's assistance always came with a price. I maintained my relationship with Boris during this time only because Boris would make me feel guilty about the circumstances of our relationship. By this I mean that he would say that because I did not want to continue my relationship with him, I was depriving our children of their father, he also used to say that the family was a package deal and that if I left him he would not maintain contact with the children or support me in any way. When the time came for Boris to change and improve his financial situation, Boris encouraged me to help him do this. Boris said he was doing this for the good of our children and their future and could not do this without my assistance." (Emphasis added)

"During my relationship with Boris we would engage in sex fairly infrequently, it would happen about once a week in his home in Otira Road, Caulfield North. I led a very hectic life, I was studying at Melbourne University, I was taking care of my family with little assistance financially or emotionally from Boris and I was holding down two part-time jobs."

738. However what she didn't say was that she was in receipt of pensions and income during this period and her gross income in this period was somewhere in the vicinity of seven or eight hundred dollars a week. She did not need and did not ask for any financial support from the defendant.

741. In my opinion the parties did not have a defacto relationship after 6 July 1993. I say that for the following reasons -

* When the parties separated on 6 July 1993, the plaintiff formed the intention that she would not return to the defendant's household. In the following seven months she lived with her parents and from time to time stayed with the defendant. Her daughter Julia did not accompany her. During this period she agreed to enter into a lease with the Housing Commission for a property in Port Melbourne.

* During the period from July 1993 to October 1996 the plaintiff was an independent free agent doing as she wished, living in Port Melbourne from February 1994, maintaining a family household at that address and in control of her finances.

* She did not make any financial contribution to the defendant's household. I reject her evidence that she did so. I do accept that she brought food with her when she stayed with the twins at the home.

* She resided with the defendant intermittently over the period and on average stayed about six days per month.

* She pursued her own career by completing her education and obtaining accreditation as an interpreter and working as a part-time teacher.

* She found it convenient from time to time to seek the services of the defendant with the twins which he gladly gave and her decision to stay with the defendant from time to time was much influenced by the assistance that he could provide.

* The defendant lived on his own at Orrong Crescent up to the end of 1994 when he moved into Otira Road. The parties maintained separate households.

* She told the police in a number of statements that the defacto relationship ceased in July 1993.

* The brother gave no evidence as to the relationship during this period and the evidence of Julia was vague and did not support the plaintiff's contention as to the frequency of staying at the defendant's premises.

* Other evidence of their relationship supported the defendant's version.

754. There was evidence that the defendant on a few occasions described the plaintiff as his wife and there is evidence that she was so described and that some people thought she was his wife. However I am not much assisted by this evidence. The Court is concerned with the facts of the actual relationship rather than how others may have understood it. I accept that from time to time the parties went out socially together and took the children, and that on occasions they had meals at friends' houses. The defendant called a number of witnesses who assisted him with the development at Orrong Crescent and despite the fact that some witnesses were there for quite lengthy periods, there is very little evidence of the presence of the plaintiff. I was impressed with the defendant's witnesses. The defendant in a number of contexts has referred to a relationship until 1996, that the plaintiff was his wife and prepared documents referring to the plaintiff as his wife. It is necessary to consider the content of the statements, the circumstances and why he said what he did. One thing is clear, the defendant was inconsistent in what he said. His answer or representation depended on what he thought he should say to assist his cause at the time. The extracts of evidence from the trial before Smith J must be considered together; they show inconsistent evidence. So do the interviews with the police and the recorded telephone calls.

757. I have carefully considered the evidence and I am not satisfied that during the period from 6 July 1993 to the end of October 1996 the plaintiff and defendant were defacto partners in a defacto relationship. The plaintiff has failed to prove the relationship during this period.

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

762. The plaintiff has established that the defacto relationship existed for a period of at least two years, that both partners lived in this State on the date that the proceeding was commenced, and that both partners lived in this State for at least one-third of their relationship. However she has failed to prove element (v). This proceeding was commenced in the Family Court in August 1998. This is some five years after the relationship ceased. The Court does have power to grant leave to bring the proceeding out of time and the plaintiff has made such an application. I will defer consideration of the application until I have dealt with the sixth element.

766. The first matter to address is the real property owned by the parties or either of them at the beginning and the end of the relationship. I will take the commencement date of the cohabitation as 13 March 1990. At that date the defendant owned four properties. He was registered as proprietor of the four properties in 1987-1988. Each was subject to a mortgage. As at 30 June 1990 the position was as follows - 214

771. At the time of the commencement of the proceeding he owned two properties, namely Otira Road and Orrong Crescent. Once the development at Orrong Crescent had been completed, the defendant was the proprietor of two lots and this occurred on 10 September 1996. Each property was mortgaged to the Commonwealth Bank. At the date of commencement of the proceeding the unit at the front had been sold and accordingly there were two pieces of real estate, namely the back unit and Otira Road. The plaintiff has identified the remaining unit at 22 Orrong Crescent as the real property in which she claims an interest and seeks an adjustment of the defendant's interest.

774. At the commencement of the defacto relationship the legal and beneficial interests were owned by the defendant. The plaintiff had no interest in the property.

777. Evidence was called as to the value of the property at Orrong Crescent and the values of the units.

780. Barry John McLennan, a licensed real estate agent and certified practicing valuer, gave evidence. He has had considerable experience in valuations. However he suffered from a distinct disadvantage in valuing the properties. He was asked to value the properties in September/October 2002 at dates 13 March 1990, 20 October 1996 and 29 October 2002. He suffered a particular disadvantage in relation to the value of the property at Orrong Crescent. It was demolished in 1994. He did not have any opportunity to inspect the property and make some assessment of the value of the improvement on it. So far as Otira Road was concerned he was looking at the property in October 2002 and had to determine the values at a date some twelve years previously. In addition, in seeking to rely on comparable sales he was denied the opportunity of checking the improvements on the comparable land sales at the relevant times. He valued 37 Otira Road and 22 Orrong Crescent. The evidence revealed that Otira Road was a more sought after address and more valuable than Orrong Crescent. He valued 37 Otira Road at 13 March 1990 for $190,000. He was cross examined suggesting the true value was in the high $200,000's at that time. The defendant had purchased Otira Road in late 1986 for $188,500. It was put to him and he accepted that from 1986 there had been steady increases in values in the order of some 22 percent each year. He agreed that in the year 1987 there was an increase of 21.4 percent on values in that area and this would add another $40,339 to the valuation. He did say that every valuation had a margin of error of about ten percent. However despite that concession, accepting that there had been an overall increase of 21.4 percent this would bring the price up around $228,839. He said that in the latter part of the 1980's there was a downturn. However he accepted that this was mainly in the commercial area but had some effect on the residential areas. Taking into account the fact that there had been steady increases in the values during these years I do not accept his valuation at $190,000. Indeed in my view the valuation was somewhere around $250,000. He valued 37 Otira Road on 20 October 1996 at $335,000. He valued it at 29 October 2002 at about $636,000. The defendant did not appear to contest these figures.

783. Turning to Orrong Crescent, Mr McLennan valued that property on 13 March 1990 at $180,000. He accepted that he could be out by some ten percent. The defendant purchased the property in 1987 for $171,000. It was difficult for Mr McLennan to value the property because he did not know the improvements on it and said that he basically valued it as land value only. In my view he was at a disadvantage. He was shown a photograph of the property and was told that it had a sauna, spa, swimming pool and workshop and he agreed that those improvements would have increased the value. He referred to a comparable sale but had to admit that he had not seen the property and could not say the value of the improvements. It was valued at $310,000. In my opinion his evidence of valuation is at a marked under value. It is difficult to know what it was. However taking into account that there had been substantial increases in the values over the years between 1987 to 1990, one would expect that the value would be somewhere in the vicinity of $225,000 to $250,000. Mr McLennan valued the back unit, which was unsold as at 20 October 1996, at $300,000. The defendant thought that that amount was in the ball park area. In my view the valuation is correct. Finally Mr McLennan valued the back unit as at 19 September 2002 at $480,000. In my opinion this valuation was correct.

786. The plaintiff seeks an interest in that property. She seeks an adjustment of the interest held by the defendant. She contends the interest should be adjusted to fifty percent each.

789. In the years ending 30 June 1990, 1991, 1992 and 1993 the defendant paid substantial sums of money off his four mortgages namely $75,180, $73,464, $63, 300 and $53,736. A perusal of the defendant's tax returns during this period shows that his income was made up of rent and interest. He suffered substantial losses each year and accordingly paid no taxation. It was contended that the money that the plaintiff was deriving from her pensions and which she says was paid to the defendant enabled him to pay his interest payments. I am not persuaded that the monies that she contributed from the pensions exceeded the true value of the cost of boarding for her and Julia and meeting their expenses. It is interesting to observe with respect to Orrong Crescent that between 30 June 1990 and 30 June 1993, the defendant reduced the mortgage principal by the sum of $11,759 and in that period he paid $60,316 in interest. He was cross examined as to how he could pay the mortgages. The annual sums were indeed substantial. However he showed that on 30 July 1990 he obtained a bill discount facility of $65,000 which he did not use in any way to pay off any of his debts. He further gave evidence that he had substantial sums of money which enabled him to pay off his debts. Whilst I have doubts about his credibility, I am satisfied that he was able in this period to pay all his debts as they fell due. He was not asked where the money came from. One should not speculate as to where he got the money. He said during that time that he bought and sold some cars. I am satisfied on the evidence that he did have sufficient funds to be able to pay the principal and interest on the mortgages. The mortgages had been in place since 1988, and in the years prior to the plaintiff moving in, he had been able to properly service each of the mortgages. An attempt was made by the plaintiff to suggest that he was financially embarrassed because of the Pyramid failure in 1990, however the evidence satisfied me that although he did suffer an initial loss, he was reimbursed the full amount over the following three years. As he pointed out, in 1990 he obtained a bill discount facility of $65,000 which commenced on 30 July 1990. The evidence does not persuade me that the defendant was in any way financially embarrassed during this period and he was able to continue to repay his principal and interest on the mortgages from the date when he acquired the properties and after the plaintiff and her daughter commenced to reside with him.

792. That brings me to the plaintiff's financial contributions. The plaintiff gave evidence that she had no savings when she came into the relationship, and that the defendant at the beginning had to support her and Julia. In addition after the children were born he supported them. According to her affidavit, she said in the year 1990 she received unemployment benefits of the rate of $220 per week and from December 1990 until July 1993 she received two pensions, being the Family payment pension and the Sole Parent benefit. She said that she received some $325 per week. She stated that she paid all the money to the defendant and that he had total control of the money. In her Statement of Claim in Schedule A, she repeats that she paid the defendant those sums of money during those periods and that they were applied in part to meet all the mortgage repayments. She was cross examined by the defendant and the cross examination revealed that the amounts mentioned did not come to $220 per week in the first year and $325 per week thereafter. Further she admitted that she did use some of the money for her own purposes, including education items for Julia and some for her own expenses. In the years 1992 and 1993 she had the expenses of travelling to and from the university and other incidental expenses. I do not accept her evidence in her affidavit where she says "the defendant took it all and I never saw it again nor did he ever give me any money of my own". The defendant for his part says that she kept her money. I do not believe either the plaintiff or the defendant in this regard and accordingly it is difficult to know what amount of money came into the household from the pensions. As I have said, both pensions were paid as a result of misleading statements made by the plaintiff to a government department. In addition, by the fraud of both parties the department was induced to provide a rent subsidy on the basis the plaintiff was renting from the defendant the premises in which she resided.

795. The evidence in relation to the types of pensions and the amounts is inconsistent and contradictory. Despite saying that she was receiving unemployment benefits for the total period of 1990, she gave evidence on a number of occasions that she and her husband were on unemployment for a number of weeks and thereafter she obtained the sole parent pension.

798. In cross examination another picture emerged. The plaintiff in her evidence and Statement of Claim said that she was in receipt of $220 per week for the year 1990, $325 per week from December 1990 to July 1993. She said that she handed over all the money to the defendant.

801. Cross examination revealed that during the year 1990 she and her husband received a joint pension and the latter took half. She was uncertain as to how long that arrangement continued. It was put to her that it was in 1992 that she received the sole parent pension and she stated that she did not remember. When put to her that it was not $220 per week she said it was roughly that figure. A passbook was produced which showed the figure coming in was $203.25 per week. Initially she was unsure what the cheque payment was for and further she thought it was her share and not her husbands. Her evidence at that point was vague, contradictory and evasive and it was apparent to me that she was seeking to rationalise events rather than giving evidence based on her memory. In the end she was uncertain. In respect of the second period, in which she said she contributed $325 per week, she admitted she was uncertain but thought it was "very close to correct". She stated in evidence that between February 1994 to October 1996 she paid approximately $125 per week to the defendant. She clarified her evidence by saying that she estimated this amount based upon the cost of food that she supplied when she went to stay with the defendant and that she paid small bills such as electricity and the like. I have already said that I do not accept her evidence in relation to this. On no view could the amount have been $125 per week for food. Her cross examination was indeed lengthy. Many days later in re-examination she produced some documents that should have been discovered relating to payment of pensions. By letter dated 27 March 1992 the Department wrote to her commencing the letter -

"I am writing to you about your claim for Sole Parent Pension. We can pay you Sole Parent Pension from 26 March 1992."

805. The amount involved was $574.40 per fortnight which does not support her evidence that she was receiving $325 per week. But more importantly the letter commences with a reference to her claim for the Sole Parent Pension. This accorded with what was put to her in cross examination many days before. She stated to me when this was pointed out, that her memory was that she received unemployment benefits with her husband for only a few weeks when they first arrived and that thereafter she was in receipt of Sole Parent Pension. This was contrary to her evidence in cross examination where she stated she was uncertain for how long she received a joint pension with her husband. I do not believe her evidence. She said that the reference in the letter dated 26 March 1992 to "your claim for Sole Parent Pension" was explicable because she said in evidence -

"Every letter starts with this writing. That's how it starts."

809. I do not accept her evidence. This is another of many examples where she was prepared to say anything in the witness box to meet a piece of evidence that contradicted her own evidence. By this time she said that she and her husband were only on unemployment for a few weeks. A pensions record print out dated 4 June 1992 shows that she was on a Sole Parent Pension but the grant date was in fact 26 March 1992 contrary to her evidence and the total amount including rental assistance of $70 was $296.20 per week.

812. She attempted to give an explanation in re-examination as to the amount she was receiving but I am not prepared to accept her evidence. I do not accept that she paid $220 per week or indeed $203.35 per week during the first year. The evidence strongly points to her receiving a joint pension with her husband during this period. I do not accept that between December 1990 and July 1993 she received $325 per week or indeed $296.20 per week. The evidence does reveal that she was in receipt of the latter sum from 26 March 1992 for the Sole Parent Pension. The evidence is so vague and uncertain for the period from the beginning of 1991 until 26 March 1992 that I am unable to say what amounts of money the plaintiff was receiving up to 26 March 1992. I do not accept that she made substantial contributions up to 26 March 1992 and because of her lack of credibility I am unable to say what amount of the $296.20 per week she received from 26 March was actually paid into the household.

815. In the period from 13 March 1990 to 6 July 1993 the plaintiff and her daughter resided at the defendant's home. He paid the mortgage instalments, the utilities accounts and provided food and sustenance for the family. During this period the plaintiff resided at the home and was kept by the defendant. Out of the monies that she did receive during this period, she did admit that some amounts were expended on Julia and on her own needs. From 1992 she attended the university. She had her own expenses. There were also of course the expenses of running the household. Criticism was made that the defendant was mean and that he was frugal. I have little doubt that he was very careful with his money, but nevertheless I am not persuaded by the plaintiff that any monies that she did contribute to the household directly or indirectly contributed to the acquisition, conservation or improvement of any of the properties of the defendant or to the financial resources of either partner. The reality is that she was kept by the defendant during this period and any monies from pensions would have been well and truly spent on the cost of housing and looking after the plaintiff and her daughter.

818. In so far as it could relevant to the issue of contributions during this period I do not accept that the plaintiff paid on average $125 directly or indirectly to the defendant's household from July 1993 until October 1996. I do accept her evidence that she provided some food on occasions but I have no doubt at all that the contribution made by her would not have represented anything over and above the cost of looking after her when she stayed at Otira Road. I do not accept that she made any indirect contribution to the premises at 120 Westbury Street, St Kilda by helping to clean the place.

821. Turning to the question of contributions made by the plaintiff in her capacity as home maker and parent, I am satisfied that during the period from 13 March 1990 to 6 July 1992 she did make a contribution to the welfare of both the defendant and the family constituted as it was in this period by Julia and the boys. However during the same period the defendant made a substantial contribution in the capacity of home maker and parent to the welfare of the plaintiff and the family.

824. During this period the defendant was not working. He spent his time looking after his rental properties, the home, and acquiring and fixing second hand goods and buying and selling cars. He spent much of his time at home. He was able during this period to look after the twins and also Julia who in 1990 attended for a number of terms the Beth Rivka Ladies College, later going to a State school. He was attentive to the needs of the plaintiff during 1990 and drove her to the doctor and other places. In the years 1991, 1992 and 1993 he was able to provide substantial services to the household and was the person who looked after the twins when the plaintiff was pursuing her studies and education. His contribution to the welfare of the family as both home maker and parent was substantial. This included shopping and cooking.

827. The plaintiff also did her share as a home maker and parent. I accept that she helped maintain the home, that she did clean and cook and care for the children, however, I do not accept her assertion made in Schedule C of her Statement of Claim that she was responsible for food, shopping, cooking, washing, ironing, cleaning, vacuuming and all tasks around the home, nor do I accept her assertion that she was "almost solely responsible for the supervision of the twins and their needs". It is untrue to assert that she "took them to school and solely maintained the twins". They were not attending school in the first period.

830. During the period from 13 March 1990 to 6 July 1993 the plaintiff with the assistance of the defendant was able to achieve a great deal. She had come from an oppressed and deprived society in Kiev to this country and was unable to speak english when she arrived. She and her husband separated. She moved in with the defendant who provided her with all the support needed to enable her to assimilate in this country. In the first year she was kept by the defendant. He provided the home, food and all amenities. What contributions the plaintiff made were insufficient to cover the cost of keeping her and her daughter. The plaintiff became pregnant. In March-April she commenced her studies of the english language and these continued until about August that year. Thereafter she continued to study english at home with the defendant's assistance. In the meantime the defendant provided assistance to the plaintiff's parents and brother who had migrated to Israel. Whilst the defendant makes a fair point that it was the plaintiff's association with him that provided that assistance, it is a matter that I do not take into account. However, it does explain amongst many other things why the defendant is upset because of what he perceives is a lack of gratitude shown by the plaintiff and her mother. In the year 1991 the plaintiff continued to study english and in the following year commenced a course at the University of Melbourne. The course was in education. Her background in the Ukraine was in that area. She commenced studying at the university, and this required her to attend lectures on approximately three days per week at different hours. When this occurred the defendant looked after the twins. On occasions he drove the plaintiff to the university. In the latter part of 1992 the plaintiff attended a school as a student teacher and the defendant assisted her by driving her to and from the school. I am satisfied that he also provided her with some assistance in the preparation of the lessons. In the following year she continued her studies. Again when she was at university the defendant looked after the twins. Even though criticisms are made of his care and attention I do not accept the criticism. I have seen enough in this case to be satisfied that the defendant had a very loving relationship with his twin boys. It is an unfortunate feature of this case that a lot of the hatred that is clearly apparent has led to an estrangement between the defendant and the twins. In 1993 the plaintiff attended another school as a student teacher and again the defendant assisted her by driving her to and from school. And later in that year the plaintiff attended at another primary school and again the defendant provided some assistance.

833. When one considers the relationship between the two partners, it is very apparent that the plaintiff was able to learn english, and her english today is excellent, to obtain a degree in education whilst at the same time having a home base. She is extremely critical of what she described as the defendant's appallingly unkempt home, his frugality with money and his alleged failure to assist with the housework or the children and it is put that this increased her work as a home maker and parent. I do not accept her evidence. I have little doubt that the home was cluttered with boxes and items, I do not accept that it was dirty, and even if the defendant was frugal with his money, as he pointed out, he has some assets to show for his endeavours. I do not accept her assertion as to the level of her contribution as home maker and parent and in my view the defendant contributed as much as she did in this regard.

836. The so called ill treatment of the plaintiff by the defendant constituted by the assaults, even assuming the Court was to accept the plaintiff's evidence of the alleged assaults, did not make her household duties any more arduous than they were.

839. I have already stated that in my opinion the alleged contributions made by the plaintiff to the welfare of the family after 6 July 1993 are not relevant. However if it is relevant I am satisfied that in this period the defendant also made a substantial contribution in the area of home maker and parent. From time to time the plaintiff stayed at his home with the two children. He supplied all of the food and amenities. From time to time he assisted with looking after the twins. This enabled the plaintiff to continue her studies and to obtain work as an interpreter. She was in receipt of a substantial pension and income at this time and yet made no contribution to the defendant's household. It was her choice in my view to follow the lifestyle that she pursued during this period. She maintained her own household but more importantly her own independence. I do not accept that any contribution made during this period exceeded that of the defendant and if it was relevant in my view it would not be just and equitable as a basis for adjustment.

842. In the end the Court has to determine whether or not it would be just and equitable to adjust the interests of the parties in the defendant's real property by reason of the contributions that were made during the defacto relationship. In my opinion it would not be just and equitable to adjust the interest of the defendant in the property at Orrong Crescent by reason of the contributions that were made. 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. I have carefully considered the evidence and in my opinion the plaintiff has not established a right to an adjustment of the defendant's interests in either Orrong Crescent or Otira Road. Accordingly her claim under Part IX of the Property Law Act fails. It is unnecessary to determine whether the plaintiff is entitled to leave to bring the claim pursuant to s.282(2).

846. As I have stated, Mr North put at the forefront of his submissions a claim in equity with respect to the unsold unit at Orrong Crescent. He submitted that the evidence established that between 6 July 1993 and the end of October 1996 the plaintiff received promises from the defendant, made substantial contributions to the development at Orrong Crescent, that she relied upon the promises made in providing services and the like, and that she acted to her detriment by reason of that reliance and provision of services, and accordingly the defendant held the property on trust for the plaintiff and himself. Mr North referred to the principle of equity being equality but did accept that the evidence may lead to the conclusion that the plaintiff was entitled to something less than a half interest in the property. He relied upon the principles stated in Green v Green [116].

849. The first question to address is whether or not there was any common intention or binding representations made that the plaintiff should have a beneficial interest in the property at Orrong Crescent. The property had been purchased in 1987, and the legal and beneficial interests in the property were solely vested in the defendant. The property was subject to a mortgage and the defendant was able each year to pay his instalment of principal and interest. When the plaintiff commenced cohabitation at the residence, nothing was said about her having any interest in that property. In the years that followed the defendant paid the mortgage instalments. The plaintiff made no direct or indirect financial contribution to the acquisition of the property. Her case is that after 6 July 1993 promises were made leading to an inferred common intention that she should have an interest in the property. In addition she says that in that period she made a substantial contribution to the development. The plaintiff asserts that there were agreements reached, however the evidence is expressed in a conclusionary form. First of all it is said that at the end of July 1993 an agreement was reached in that the defendant promised he would marry the plaintiff, acknowledge the twins as his own by having his name included on the birth certificate as their father and transfer to the plaintiff one of the properties or alternatively a half interest in two of the properties. No effort was made to place direct evidence as to discussions which led to those conclusions and I would not be prepared to accept the plaintiff's evidence unless it was corroborated in some way. I do not accept, as is asserted by her, that the defendant had refused to have his name included on the birth certificate as the father of the children. It was clearly not in the interest of the plaintiff or the defendant, bearing in mind the fraud perpetrated by the plaintiff in obtaining the pension, to reveal the defendant's existence as father. Further at that time, namely in 1991, the Registration of Births, Deaths and Marriages Act 1959 required the parents or either of them to give information concerning births and the obligation rested upon the father or mother within sixty days following the birth to furnish the necessary particulars. At that stage s.16A required that if a person was registered as the father of the child the family name of the child was to be registered in the Register of Births. I do not accept the evidence of the plaintiff that the defendant was the person responsible for not having his name included on the birth certificate. There is more to the story than emerged from the evidence. It is another example by the plaintiff to smear the defendant's name. The plaintiff has never called herself Mrs Procopets and the children were registered with second name of Giller.

852. I do not accept her evidence that any such agreement was made to the effect that he would transfer interests in his properties to the plaintiff. She asserts that thereafter she spent one or two nights a week with the defendant at Orrong Crescent. On the other hand it is quite clear that she resided with her parents during this period and during this time she took steps to obtain the lease of the Port Melbourne unit. Evidently within that six month period as her evidence reveals she came to the view that he did not intend to marry her nor was he prepared to acknowledge the twins on the birth certificate. She stated that not withstanding repeated requests he refused to transfer any interests in the properties. I do not believe her evidence that during this period the defendant made any promises about transferring the property. She went on to state that she would have nothing more to do with him and ceased to see him on or about 18 November 1993 and following. She then said that he urged her again to return to him and according to her evidence it would be on the basis that she would return to live with him and recommence the relationship and the house at 22 Orrong Crescent would be demolished and the land sub-divided and two units built. Again I do not accept her evidence. I am not persuaded that there were any representations made let alone any form of agreement between them or the establishment of the common intention by the parties that she should have any interest in the property. The fact is she did not resume living with him. She was determined to obtain her own premises and live independently of the defendant.

855. A decision was made by the defendant to proceed with the development and in early 1995 the house was demolished and the construction of two units commenced. It was said by the plaintiff that she made financial contributions toward assisting with the cost of the building as did her parents. It will be necessary to refer to this evidence later. It is difficult to know what the truth is. I am not persuaded on the evidence that the plaintiff made any financial contribution to the development.

858. Schedule A of the Statement of Claim sets out the assistance that the plaintiff said she provided for the development. She was cross examined in relation to a number of the alleged contributions and her evidence, like a lot of her other evidence, was uncertain and evasive. She was very quick to advance reasons for what she alleged she had done rather than providing direct evidence as to the contributions. There was very little corroborative evidence of the contributions that she made. On the other hand the defendant denied that the plaintiff provided any real worthwhile contribution to the development and he was supported by a number of witnesses who were able to say that when they worked on the site they did not see the plaintiff working there. During this period the plaintiff was busy with her obligations to the Education Department, and apparently was working Monday, Wednesday and Friday in her job. She asserted that she spent much of her Tuesday and Thursday and the late afternoons on the other days at the site. I do not accept her evidence. It is nonsense to suggest that she would be at the site for that period of time. It was a typical building site with contractors and the defendant performing the works and there was no work for the plaintiff to do during the building. The defendant was the owner-builder and he arranged and supervised the construction of both units. He obtained a loan from the bank which was paid in instalments as each part of the work was certified. I also draw attention to what she told the police in her statements made in December 1996 about her relationship and how busy she was.

861. I accept that the plaintiff did attend from time to time. I accept the evidence that she did assist to clean the inside of the units after the works had been completed and that she also from time to time attended at the site and collected up building materials and the like from the site. I also accept that during the period when the small gardens were being established she did provide some work in relation to those activities. However when one has a relationship of "boy-girl", it is not unusual to do things together from time to time. It is 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?" It is also laughable to suggest that a person makes a contribution because she happens to be with her partner when he lodges plans or when he talks to bank managers about loans.

864. I am not persuaded by the evidence of the plaintiff that the parties formed any common intention that she should have an interest in the unit. It is contrary to the events that were occurring at the time. She had refused to return on a full-time basis to the household of the defendant after 6 July 1993. Thereafter she acquired her own premises. She pursued her own lifestyle and ambitions and was a free independent agent doing what she wanted. She found it satisfactory to maintain a friendship and a relationship with the defendant but she refused to recommence a close personal relationship with him. Mr North pointed out that Julia was a problem because she did not want to have anything to do with the defendant. Julia at that stage was aged eleven or twelve years. As the evidence revealed, Julia spent time with her father and her grandparents. In my view it could hardly be said that that was the reason why the plaintiff refused to resume the cohabitation. According to the plaintiff's evidence the common intention was agreed in a context of her going to live with the defendant. She did not do so. Further the defendant is not a person who would likely give away anything. He is a man who had managed to purchase a number of properties and had successfully accumulated assets. He was not the type of person who would transfer an interest in his real estate to anybody unless he was satisfied that it was in his interests to do so.

867. The plaintiff has not proven on the balance of probabilities that there was any common intention of the parties that she should have a beneficial interest in any of the defendant's property. In making that finding I do accept that a common intention may be inferred from all the facts. In this regard I refer to what Browne-Wilkinson V-C said in Grant v Edwards [117] in discussing the speech of Lord Diplock in Gissing v Gissing[118]. Of course the question of financial contribution would be relevant but would not be the only way one might infer an intention. However I am not persuaded that the plaintiff made any real contribution to this development. It is not to say that she did not on occasions provide some assistance but the contribution if costed, would be a very small financial contribution. The fact is that the evidence does not show a common intention that she should have an interest.

870. If I am wrong, the plaintiff has to establish that she acted to her detriment on the basis of the common intention that she should have an interest. When pressed in final address Mr North had some difficulty pointing out what detriment the plaintiff suffered on the basis that promises had been made that she should have an interest in the property. One got the distinct impression from his final submissions and also the evidence that the answer was she would have brought the relationship to an end and had nothing more to do with him. In reply Mr Davis put forward the view that if the promises had not been made she would have brought the relationship to an end and would have spent more time with the twin boys.

873. It is difficult to know what the detriment could be. The plaintiff did provide some assistance but it was assistance which if costed was of little financial value. To assist a person for a few hours one afternoon to establish a garden bed is hardly a detriment of any significance. She pursued her own lifestyle. She did what she wanted to do. She found it helpful to ask the defendant from time to time to look after the twins. He was glad to oblige. She did not move in with him to establish a household. In my view she suffered no detriment even assuming that there was some representation that she would have an interest or some common intention to that effect. She suffered no loss as a result.

876. In the end result the Court has to be satisfied that it would be inequitable for the defendant to have sole beneficial ownership of the unit at Orrong Crescent. In my view the evidence does not establish that it would be inequitable. When the plaintiff came to the country the defendant owned the property. He paid all instalments on the property. He made all arrangements and took the responsibility and the risk of the development on his own shoulders. He raised the loan. He supplied the security. She continued to do what she wanted to do and pursue her own lifestyle and work. In this time she was continuing to develop her skills as an interpreter. What little contribution she made was made in the context of providing assistance from time to time. It differs substantially from parties who live together for long periods, who have children together and maintain a household, and a property is acquired during their relationship and the parties make substantial direct and indirect financial, non-financial and other contributions to the total welfare. That is not this case. That is not to say that one could not establish a case in the absence of those facts, but it would be very difficult for a plaintiff to do so.

879. In her Statement of Claim the plaintiff asserted that in August in 1995 she paid three instalments totalling $4,000 into a bank account of the defendant to pay interest on the loan for construction of the units. She stated that on 8 December 1995 she gave him $10,000 after the sale of a car and that her parents in the following month gave him $12,000 also after the sale of a car. I have already referred to these transactions. It is said that they were paid to assist with the construction. I do not accept that. On the other hand I do not know who was telling the truth about these payments. I have already discussed the evidence. I do not accept the contention or the evidence of the plaintiff that the amounts were lent to the defendant.

882. On the totality of the evidence I am not persuaded that the plaintiff has established any interest in the property in accordance with the principles of equity, and her claim fails.

886. All told there are six causes of action alleging that the defendant assaulted the plaintiff. The first is alleged to have occurred on or about 29 April 1992 and the last alleged to have occurred on 10 November 1996. At the outset it is pertinent to make a number of observations. The alleged injuries by and large were bruising type laceration injuries and on no occasion did the plaintiff seek medical advice. Secondly, some of the claims are extremely stale, going back now some twelve years. Thirdly the police were involved in two of the incidents but no evidence was called from the police concerning these incidents. Finally because of the plaintiff's lack of credibility, I would not be satisfied as to any of the assaults unless there is some evidence which supports the plaintiff's versions. There are a number of matters in evidence which provide some support for the plaintiff's versions.

889. First of all, the defendant did not cross examine the plaintiff on the first four assaults. In final address when this was put to him, he responded that the Court had limited his cross examination. 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 4.15pm 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.

892. There is some evidence that at times the defendant was violent towards the plaintiff. The daughter Julia gave evidence and in her affidavit she said -

"I recall the defendant would assault the plaintiff almost daily for even the most minor things."

896. In cross examination it became apparent that that was a grossly exaggerated statement and Julia indicated that when she used the word "assault" that included a verbal assault. I am critical of those who were responsible for the preparation of her affidavit. It was not the only exaggerated statement made in her affidavit. Julia was a witness who was clearly wishing to support her mother but nevertheless grossly exaggerated her evidence in the affidavit. Julia gave general evidence as to a number of assaults. She was unable to refer to a date with any certainty but I am satisfied that her evidence was correct in relation to an incident which the police attended and an incident when she observed the defendant kicking the plaintiff. She provides general support for violent conduct by the defendant towards the plaintiff including striking the plaintiff.

899. A retired Associate Professor at the Faculty of Education Geoffrey Poynter gave evidence of observing the plaintiff in 1992 suffering from bruising and abrasions on her neck, appearing distressed and embarrassed, and reluctant to say anything about what had happened. The plaintiff does claim an assault occurred in August 1992. The witness went on to say in his affidavit that his attention had been drawn to that assault and the injuries he observed were consistent with what is set out in the Statement of Claim. However in cross examination the defendant skilfully showed that the Professor was wrong in relation to the year 1992. I am satisfied that the Professor did see some sign of injury on the plaintiff but it was not in the year 1992 and it is difficult to relate what he saw to a particular assault. However what he observed and her apparent reluctance to talk about it suggested that she had been involved in an incident in which she was struck and no suggestion was made that she suffered injury through some other cause. I would be prepared to accept the evidence that the injuries observed were as a result of an assault. Further the defendant tendered in evidence a report from the Victoria Police which referred to an incident on 3 June 1993 concerning a domestic assault at 22 Orrong Crescent.

902. The defendant also tendered in evidence a report apparently from the Jewish Community Services which referred to an incident occurring around 29 April 1992 which again referred to the defendant attacking the plaintiff. The report notes "this episode of domestic violence apparently is one of many that has occurred during their relationship." The defendant tendered the document even though he was warned during the course of the trial that a document when tendered went in for all purposes.

905. Finally the plaintiff, unbeknown to the defendant, recorded a number of telephone conversations between the parties during the period from 5 to 10 December 1996. There are observations made in the telephone calls about the assaults and although I accept that the plaintiff was surreptitiously recording the telephone calls for her own purposes and no doubt seeking admissions from the defendant, I am satisfied that in some statements the defendant conceded that there were some assaults.

908. The defendant did cross examine the plaintiff about the fifth and sixth assaults. It is convenient now to deal with each alleged assault. In determining the amount of damages in respect of any cause of action that has been established, I emphasise that the damages are compensatory. The damages are to compensate the plaintiff for any injury suffered, pain and suffering and loss of enjoyment of life, together with any distress, indignity and humiliation. There is no element of punishment in the assessment of damages. The gravity of the assault, the severity of the injuries and the period of suffering are all relevant to the assessment.

(i) On or about 29 April 1992 an assault at Orrong Crescent.

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.

(ii) In or about August 1992 at Glenhuntly Primary School.

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.

(iii) In or about 1992 at Orrong Crescent.

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.

(iv) In or about June 1993 at Orrong Crescent.

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.

(v) On or about 7 June 1996 at a restaurant in Elwood.

The defendant contested this alleged assault. An evening had been arranged to attend a restaurant for the plaintiff's birthday. The party comprised the plaintiff, defendant, plaintiff's parents and brother, and the twins. The plaintiff's evidence was not convincing as to the events of that night. The plaintiff's mother gave evidence as to the incident. She did not observe the defendant strike the plaintiff. However the defendant was in a bad mood and I am quite satisfied that at times he made some derogatory and aggressive remarks to the plaintiff and her parents. The mother confirms the evidence of the defendant that the twin boys went upstairs into another room and that the defendant videoed the boys. The video was tendered. There was nothing about those events which in any way suggested that the defendant had struck the plaintiff. The mother observed some red marks on the arms and legs of the plaintiff but I am by no means persuaded on the balance of probabilities that the defendant struck the plaintiff. According to the plaintiff, the defendant used a camera case to strike her on the arms, legs and back. She said that she was bruised on both legs and also on the upper back.

The brother did not give evidence in chief about the incident but in cross examination he says he does recall his sister appeared to be crying but he can't say why the defendant left and he didn't see any violence or hear any foul language. He didn't hear any arguments. He was extremely vague about the party. I have observed a video of the function. It does suggest a reasonably happy evening.

Although the plaintiff only has to prove her case on the balance of probabilities I am not persuaded that her version of events is correct and accordingly her claim for this alleged assault fails.

(vi) On or about 10 November 1996 at Port Melbourne.

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.

In assessing damages I take into account that she did not seek medical treatment. I have seen photographs of the injuries. I also take into account that the plaintiff suffered from a skin condition which had the effect of making her injuries look more prominent but this does not assist the defendant with respect to the appearance of the injuries which the plaintiff had to endure. Further I note that despite obtaining an interim intervention order on 12 November 1996, allegedly because she was in fear of the defendant, the plaintiff had sexual intercourse with the defendant on 19 November 1996 during the day, on 21 November 1996 and on the afternoon of 22 November 1996 after she obtained the permanent intervention order. In addition I note that on 8 December 1996 at the Camberwell Market the plaintiff approached the defendant with an iron bar and struck him a number of times whilst he was filming the plaintiff and her mother. I take those matters into account in determining the effect of the injuries upon the plaintiff. I assess the damages at $750 taking into account the injuries and their effects upon the plaintiff. The plaintiff also claims a sum of $428 for damage to a gold necklace. I have grave doubts about the value of the necklace. When asked about it she was vague as to its value. Nevertheless I am prepared on the balance of probabilities to assess the damage to the necklace at a value of $428. Accordingly she is entitled to recover $1,178 as a result of that assault.

914. I am satisfied that the plaintiff has established five out of the six assaults and I assess the total damages at $4,928.

918. In her Statement of Claim, the plaintiff alleges that she was an owner of a number of goods and was entitled to possession of them as at 20 October 1996. The items are listed in Schedule I to the Statement of Claim and comprise coats, jackets, dresses, a leather handbag, children's clothes and shoes and a number of dictionaries. The plaintiff was cross examined at some length in relation to these items. She herself has valued the items at $4,060. Again I am faced with a credibility issue. It is the plaintiff's word against the defendant's word. He denies that the articles were left with him and a number of matters were raised in the cross examination which raised doubts about the plaintiff's version. Two of the items relate to children's formal suits and Italian shoes and the evidence revealed that the twins were wearing the items on 7 June 1996 at the birthday function. She had said they remained at the defendant's home. They returned to their mother's home that night in Port Melbourne. When this was pointed out to the plaintiff, she very quickly said that there must have been another gathering and they were left at the defendant's home. I do not believe her evidence. There was a real contest as to the English-Russian dictionary and evidence was adduced which showed that the defendant had purchased dictionaries answering that description. In addition there was a real dispute about two scientific Russian-English dictionaries.

921. The plaintiff gave evidence that when the relationship ended on 20 October 1996 the defendant refused her permission to remove the items from his home. She said she made a demand on him to return those items in 1998. However another piece of evidence which raises considerable doubts about the plaintiff's version is that she had keys to his home in November 1996. On or about 17 November 1996 the defendant was admitted to the Alfred Hospital and the plaintiff had access to his premises on that occasion.

924. Faced with the credibility issue and the doubts I have about the plaintiff's evidence in relation to a number of items, I am not persuaded on the balance of probabilities that the defendant had possession of the items on and after the middle of October 1996. Further, the evidence relating to value was based upon a calculation made by the plaintiff who said she visited shops and made some assessment. I would not be satisfied even on the balance of probabilities as to the value of the items based on that evidence.

931. The plaintiff has pleaded three alternative causes of action and I have ruled that the cause of action based on privacy is not available to her in Australian law at present. I have ruled that the law does not permit the plaintiff to recover for breach of confidence, general damages for distress and annoyance type injuries. I have also ruled that the law does not permit recovery of damages for distress in a claim for intentionally causing mental harm. However it is appropriate to briefly discuss the two causes of action and make findings in case the matter goes on appeal.

934. It is convenient to first of all state my findings of fact. On 10 November 1996 the defendant assaulted the plaintiff. The plaintiff reported the matter to the police and made a statement. On 12 November an Interim Intervention Order was made ex parte against the defendant. On 17 November 1996 the defendant was admitted to hospital and it appears he alleged he had attempted to commit suicide. There is no doubt that he played on the emotions of the plaintiff on that occasion. On 19 November 1996 the parties indulged in sexual intercourse and other sexual activities at the defendant's home. This was repeated on 21 November and the eight following days in November and 1 December 1996. The parties attended the Melbourne Magistrates' Court on 22 November 1996 and the plaintiff gave evidence that she was in fear of the defendant and the intervention order was made. Despite this alleged fear, sexual intercourse took place between the parties that afternoon.

937. In her affidavit the plaintiff has given evidence that having obtained the intervention order on 22 November 1996 she observed in the following few days that there were problems with her car and she then says -

"Invariably, the defendant was nearby ready, willing either to assist me or provide a lift on each occasion. I found that he was monitoring my movements and I observed him video taping and through binoculars watching me at various places with the children and my parents."

941. That evidence is extraordinary in the light of the sexual activities physically indulged in during the last ten days of November 1996. Despite this evidence she stated that in order to persuade her to resume her relationship he promised to transfer properties to her and marry her. As a result she said that on number of occasions in November 1996 the parties engaged in sexual relations. The defendant secretly filmed their activities. On the sixth occasion the plaintiff became of aware of the filming and agreed to it.

944. It was apparent that after 1 December and before 6 December the parties fell out and on 6 December 1996 the defendant picked up the twins at the Caulfield Child Minding Centre and drove along the road behind the plaintiff. He then placed a number of photographs on the windscreen of the plaintiff's car, showing them to the mother. They appeared to be photographs of the plaintiff and defendant indulging in sexual activity. On 8 December 1996 the defendant attended at the Camberwell Market with his video camera and commenced to film the plaintiff and her mother at the market. The plaintiff observed this, and picked up a steel rod and approached the defendant and struck him a number of times, causing him injury.

947. The defendant threatened the plaintiff that he would show the video to her friends, acquaintances and her employer. These threats were made between 5 and 9 December 1996. It is apparent from the recorded telephone calls that he threatened to do this and he did distribute the video. On Monday 9 December the defendant rang Ms Softic, Operations Manager of the Victorian Interpreting and Translating Service. She identified the person as Boris, after the male person told her that. She observed that he had a slight accent and was from a European background. She said the accent was slight to heavy. He informed Ms Softic that he was concerned about a group of interpreters indulging in unethical behaviour. He refused to identify the person and but he stated he would have a fully signed document and a video cassette to support his story. He said that an interpreter was using her position to gain sexual favours and that he had a video cassette. He assured her that he would make contact with her in the following week. Evidence was given from a number of people about the distribution and despite the denials of some of their evidence by the defendant, I accept the evidence of all the witnesses other than Mrs Drobitsky. I will come back to Mrs Drobitsky's evidence in a moment. However the evidence from a number of witnesses establishes the following -

(a) 5.12.96 - On that day the defendant went to the plaintiff's parents' premises and had a conversation with her father in which he described the plaintiff in vulgar language and produced a video of the parties engaging in sexual relations. He requested that Mr Zuperman place the video in the cassette player and look at the tape. He handed the tape to the father who refused to accept it. He repeatedly requested him to do so. The father asked him to leave the premises and as he left the video was left with the brother Alex Zuperman. I accept the evidence of the son in relation to this incident. The plaintiff was told what happened and she was extremely distressed by the incident. The brother and father did not look at the video. The brother handed it over to the plaintiff.

(b) 5.12.96 - On that day the defendant attended the home of Mr and Mrs Semyon Furman. Mrs Furman is a friend of the plaintiff. The defendant did not know either person. He told Mrs Furman that the plaintiff was a bad person and a prostitute and he then produced a video and requested that she look at it. He told her that he wanted Mrs Furman to look at the video to show the defendant's relationship with the plaintiff. She refused to accept the video and told him to leave. As he was leaving the residence he spoke to the husband and requested that he take the video and he refused to do so. The defendant left and did not leave the video cassette with the Furmans.

(c) 6.12.96 - On that day the defendant was in his car with the twins, following the plaintiff's car. He drove up by the side of the car. He was abusive to the plaintiff and her mother. He produced a number of photographs which appeared to be sexually explicit photographs which he placed on the window in front of the plaintiff's mother and kept yelling out, "look at your daughter, she is a slut, look what she is doing". The plaintiff's mother did her best to avoid looking at the photographs.

(d) 7.12.96 - On this day the defendant attended the residence of Mrs Meda Volkova, who is the mother of a friend of the plaintiff, at Caulfield. Mrs Volkova was alone when the defendant knocked on her door. The defendant produced a video cassette and asked her to view it. When she informed him they had no VCR the defendant returned with a VCR and connected it to the TV and commenced to play the video cassette. It was shown for about two or three minutes. Mrs Volkova realised that it showed a male and female having explicit sex and she demanded the defendant to leave the home. He said he would bring another tape. About ten minutes later Mrs Volkova's husband returned home. Later on the son Leonid Volkov came home and he rang the police who took possession of the VCR and the video cassette. Mr Leonid Volkov said that he did not look at the video.

953. The only other person who gave evidence who said that she saw it was Mrs Bella Drobitsky. Before I come to her evidence it is necessary to note that on 10 December 1996, the police went to the defendant's home and he was taken back to the police station and interviewed for a number of hours. It is very apparent that by this time the police were aware of the activities of the defendant and he was interviewed in relation to the events. He was asked about the distribution of the cassettes and it was also pointed out that an intervention order had been made against him. He was asked about giving a copy to Mrs Volkova, and giving one to the plaintiff's brother. He was asked whether it was his intention in distributing the tape to upset the plaintiff and he was not prepared to make any comment in relation to that even though he did answer most if not all the other questions. There is no doubt that he fully understood from that very long interview on the morning of 10 December 1996 that the police were investigating the distribution, and he was informed that he was going to be charged with breaching an intervention order, and unlawful assault recklessly causing injury. It could not have been lost upon the defendant that the police took a very dim view of the video. He was again interviewed on 16 December and informed that he was going to be charged with two breaches of an intervention order.

956. The defendant had a relationship with Mrs Drobitsky prior to 1990. The relationship resumed sometime in late December 1996. It continued until about mid-1997. The defendant brought the relationship to an end about mid-1997. I am quite satisfied that Mrs Drobitsky was upset and annoyed by the breakdown of the relationship and I am satisfied that she developed a deep hatred of the defendant which continues to today. I found her an unsatisfactory witness, who was prepared to change her story if she thought it was appropriate, and I am satisfied that she sided with the plaintiff in the last half of 1997. The defendant gave evidence that he handed to her in December 1996 an envelope containing some documents and a number of video cassettes. He sealed the envelope and asked her to keep it for him. She gave evidence that some time in mid-1997 the defendant showed her a video of the plaintiff and him having sex and gave the video and some documents to her to keep in safe custody. He did request later that she return them but she refused to do so. The video and documents were handed to the police. After her relationship with the defendant ceased he did ask her to return the documents and video to him but Mrs Drobitsky telephoned the plaintiff and provided her with the documents and video. The tape and documents were then handed over to the police. She made a statement to the police which ultimately led to the defendant being proceeded against for a breach of an intervention order and he spent some thirty-one days in jail before he was bailed by an order of this Court in late 1997. At the time when the defendant is alleged to have shown the video to Mrs Drobitsky, they were having a relationship. The defendant denied that he showed Mrs Drobitsky the video. Mrs Drobitsky made a statement on 25 October 1997 to the police. However an interpreter was not used. The plaintiff arranged the meeting with the police and was present when Mrs Drobitsky arrived at the police station. In an affidavit sworn on 14 November 1997 she stated that she observed the tape sometime in mid-1997. She also gave evidence that she saw it again on another occasion in front of a friend of hers but the friend refused to look at it after about ten seconds. I do not accept her evidence about the video being shown to one of her friends.

959. She was asked about the intervention order she obtained and the complaint she signed which led to the intervention order being made against the defendant. I am quite satisfied that some of the allegations made in the complaint are untrue. It is also pertinent to observe that her police statement was made without an interpreter. Mrs Giller met her at the police station. The relationship between the two women has the hallmarks of an ongoing saga of hatred against the defendant. Mrs Drobitsky at one point during the course of her evidence indicated that the thirty-one days imprisonment the defendant served was not long enough. She has a deep hatred of the defendant. This would have a lot to do with the fact that he brought the relationship to an end. It is difficult to know where the truth lies. However on balance I find that she was shown the video, admittedly during the course of her relationship with the defendant and in the privacy of his home, but I am not persuaded that he showed it to a friend. The evidence relating to the friend is vague. No other witness was called to say that he or she saw it, although the plaintiff has pleaded in her Statement of Claim that it was shown to a lot of people.

962. The evidence leads me to the conclusion that when the defendant was seeking to show the cassette to others and showed it to Mrs Volkova, he did so with the intention of hurting the plaintiff and to cause her distress, upset and annoyance. In the course of his police interviews in December 1996 and the taped telephone calls made between the plaintiff and himself, he from time to time makes reference to the intervention order and the fact that it should not have been made and that it was a hurtful thing to do. He also produced a translation of a conversation which is recorded on one of the videos between him and the plaintiff which shows that he was very concerned about the intervention order. Of course the video taping of the intimate relationship between the parties would be relevant to any question of any intervention order. It is relevant to the issue that the plaintiff alleges she was fearful of him. However he did not seek to use the video tape in that way in December 1996. He used it in his campaign during the battle between him and the plaintiff during December 1996 when it was apparent that the relationship had finally ceased. He stated in one of his telephone calls that he did have a love-hate attitude to the plaintiff and in one sense he was attempting to try to get her back but on the other hand I am quite satisfied that he set out to cause her as much annoyance, mental distress and harm as he could.

965. However I am not satisfied that when he showed Mrs Drobitsky the video he was intending to cause the plaintiff any mental distress. Once the police became involved on 10 December 1996 the defendant did not show the video to anyone until Mrs Drobitsky in 1997. He showed it to Mrs Drobitsky during their relationship in the privacy of his home. I do not believe he did it for any other purpose than to denigrate the plaintiff in the eyes of Mrs Drobitsky. The plaintiff found out much later and arranged for Mrs Drobitsky to see the police.

968. I am satisfied that the plaintiff has established that the relationship was a confidential one, that she did not authorise him to distribute the video or show it, that his unauthorised distribution was a breach of that confidence and she would be entitled to relief for that breach of confidence.

971. I also find in respect of the threats to show, the distribution and the showing of the tape in December 1996, that the defendant intended to cause the plaintiff mental harm and that in distributing the video the plaintiff was distressed, annoyed and embarrassed.

974. The plaintiff gave evidence that she suffered from severe emotional distress, loss of self esteem and her confidence had been depressed as a result of the distribution of the video. She in fact said that she had been told by a substantial number of people that the defendant had attempted to or did provide copies to them. They are listed in the Statement of Claim but there is no evidence to that effect and I do not accept her evidence. She said that she became embarrassed, annoyed and self conscious when in public and she was aware of the gossip, sniggering and laughing behind her back. She said the stress occasioned by the separation, the constant threats and then the video tape distribution has caused her insomnia, depression, loss of appetite and a sense of shame and disbelief. She said her credit was greatly injured and her character and reputation have been brought into shame, ridicule and contempt.

977. She did not give evidence that she suffered any psychiatric or psychological injury. She did not seek any medical advice. There is no medical evidence that she suffered any physical, psychological or psychiatric injury. If the evidence of Professor Mendelson suggests she did, I do not accept it. Because of her lack of credibility, I approach her evidence as to the effect on her of the threats, distribution, and showing the tape with a degree of reservation. I have considered the tapes of the conversations had around this time over the telephone with the defendant. I have observed the video of the attack upon the defendant at the market by the plaintiff and I have also observed the plaintiff in the witness box and in the Court. She is a determined woman who is not over sensitive. Indeed her complaints about the assaults are exaggerated. She had no reservations about attacking the defendant at the Camberwell Market with a steel rod. In addition one has to analyse precisely what it was that was being distributed. What was being shown is sexual activities between consenting adults. It was known to all those who were shown the video that she and the defendant had had a sexual relationship over many years. The revelation of that to the community was of no consequence and could not have caused her any anguish. No doubt the showing of the intimate relationship to others was a matter of distress, embarrassment, annoyance and upset. However by 10 December it had been nipped in the bud. She had made her complaint with the police, the police had moved in and taken the defendant to the police station where he was interviewed for a substantial number of hours early in the morning about these very incidents. By the end of December statements had been made by the various witnesses to the police. It must have been very apparent to her by the end of December that the defendant's conduct was viewed by others as shameful and that his conduct was condemned by all. There is no evidence that the more intimate details of their sexual activities were shown. Indeed it is very apparent that one has to go a long way into the video to see the more intimate activities of the parties. One cannot overlook the fact that the damages are compensatory and that the question of aggravation and more particularly exemplary damages involve different considerations.

980. Expert evidence was given by Professor George Mendelson, a psychiatrist holding many posts including those in the area of psychological medicine. He saw her on 22 October 2002 for one and a half hours in his consulting rooms. He saw her for psychiatric examination. He was provided with a letter from the solicitors and a draft affidavit which apparently was the plaintiff's main affidavit in this proceeding. In making his assessment and diagnosis and forming an opinion as to the plaintiff he had to rely upon what she told him and what appeared in the affidavit. As he told the Court his opinion was based purely and simply on what she had told him. He was not making any diagnosis or forming any opinion on his observations. He agreed that she was not clinically depressed. He came to the view however that she was suffering from a clinically significant anxiety disorder with indications of autonomic nervous system hyper arousal which, he was of the view, was developed as a consequence of the emotional abuse and physical violence to which she had been exposed during her relationship with the defendant. The Professor frankly conceded in cross examination that on the scale of anxiety, her anxiety was at the minor end. He was also skilfully cross examined by the defendant who highlighted all the matters of stress that the plaintiff was exposed to after she left the Ukraine in 1988. She moved from the depressing situation in the Ukraine to a camp in Italy in circumstances where the family had little money and life was extremely difficult. They hoped to go the United States of America. They were disappointed when this did not happen. They came to a new country which was strange, not understanding the language, culture or way of life of Australia. The break up of her marriage, the difficulties associated with her daughter and the marriage break up, her deception of various bodies to obtain pensions, subsidised rent, subsidised childcare, free education for her daughter Julia, all of which backfired on her and ended up in demands being made for her to reimburse the various suppliers of the financial assistance, all contributed to her anxiety. The Professor frankly conceded that they were all factors which would cause a degree of anxiety to the plaintiff. The Professor suffered from the fact that he only saw her for an hour and a half in October 2002, and he was relying on what she told him. I have already indicated that her credibility is questionable. He was prepared to base his opinion on what she said. He thought that she may be suffering from battered wife syndrome but went on to observe that the Court was in a far better position than he was to make some assessment of her condition based on all the evidence before the Court. I reject any suggestion of battered wife syndrome in this relationship. The relationship effectively ended in July 1993 and thereafter the plaintiff pursued her own life independently of the defendant. The incident in December 1996 I have no doubt was a cause of annoyance and distress to her but I do not accept that it in any way contributed to an anxiety condition that the Professor thought she may be suffering from at the moment. Indeed her deceptions of a variety of suppliers of money and services and the pursuit of her by the various suppliers would cause anxiety in most people. This litigation brought its fair share of anxiety. I formed the opinion in this case that the plaintiff was a very strong willed and determined person who had a deep hatred of the defendant and was determined to make him pay. She spent much of the time in Court when her counsel were cross examining and addressing the Court supplying them with handwritten messages. I do not accept that the incident in December 1996 caused her an anxiety disorder and if she suffers from one I am quite satisfied that the causes were found in areas other than that incident. I refer to the police statements made at the time.

983. In a police statement made 10 December 1996, early in the morning after the incident involving her employer, the plaintiff referred to the threats made concerning the distribution of the tape. She said that in the previous few days the defendant had called at home and told her -

"Unless I withdrew the intervention order he would distribute the tape of us making love to all the places where I work as a Russian interpreter, to other Russian interpreters, colleagues, to all my friends and family, he also told me that he would destroy me as a person. Boris told me he would ruin my reputation completely and I would never work again. He told me he was in possession of information which suggested I was in breach of interpreters' codes of conduct. By this he meant that I was selecting any available men during the course of my work for the purpose of sexual intercourse, which was total nonsense."

987. The plaintiff then referred to the defendant giving a copy of the tape to her family. She described the effect of the defendant's conduct on her in the last paragraph of that statement in the following terms -

"As a result of Boris's conduct I have been very fearful for my life and that of my children. I cannot sleep at night and have not been able to carry on a normal life since Boris hit me back on 10 November 1996. Boris knows every move I make and has admitted watching my every movement with binoculars. I am scared everywhere I go and look over my shoulder all the time. When I think about Boris's behaviour and his violent outbursts I believe that he is more than capable of carrying out his threats. I have suffered much mental anguish as a result of this mans behaviour and constantly I am frightened by the fact that he constantly follows me around, I just want him to stop and leave me alone."

The emphasis is on matters other than the video tape incidents.

992. In a detailed statement on 2 February 1997, the plaintiff referred to the distribution of the tapes and she stated the following -

"In regard to the video tapes that Boris had in his possession of us both engaging in sexual intercourse, Boris stated that he was going to give copies of this video tape to.."

And then set out a number of people. She makes no mention of the effect of his conduct upon her. In considering her evidence as to the alleged effect one has to take into account the statements made at the time.

997. The defendant's conduct was outrageous. It was done in the course of a battle between warring former sexual partners. Each was determined to hurt the other. The plaintiff's campaign, because the defendant would not give her any interest in property, was to have nothing more to do with him. The defendant was upset by that. He waged his campaign. His conduct in the circumstances was outrageous. However fortunately for the plaintiff and indeed the defendant, it was nipped in the bud when the police arrested him on 10 December 1996 and charged him with a number of offences including breaching the intervention order. The plaintiff was extremely annoyed and justifiably so that he approached her employer, she was distressed and justifiably so in that he attempted to blacken her name within the Russian-Jewish community. However the reaction of those whom he approached was one of anger and disgust and when one stands back and analyses the nature of the alleged mental harm, it is annoyance, distress and embarrassment. The only person who saw the video was Mrs Volkova. He left the tape with two other persons and Mrs Drobitsky. He showed Mrs Drobitsky the tape in circumstances which came to the knowledge of the plaintiff when Mrs Drobitsky made contact with her and the two women approached the police and the defendant was dealt with.

1000. I find that the plaintiff has established the elements of the tort of intentionally inflicting mental harm. However the harm was annoyance and distress and is not recoverable. It follows that the plaintiff's claim must fail. However if I am wrong, it is appropriate that I assess the damages. In assessing the amount of damages, I emphasise that it is compensatory and not punishment. The defendant's conduct was outrageous conduct but it was nipped in the bud by 10 December 1996. I assess the compensatory damages at the sum of $5,000. I think the wrong has been aggravated by his conduct in approaching the plaintiff's employer and threatening to show it to the employer and colleagues. I would add $3,000 for aggravation. By the 10 December 1996 the plaintiff knew of the police involvement and was no doubt comforted by that fact.

1003. The plaintiff also claimed exemplary damages. Exemplary damages are not compensatory damages. They are awarded in order to punish a tortfeasor because of the grossness and severity of the wrongful conduct and that the circumstances demand that the tortfeasor be punished. The purpose of exemplary damages is to punish a defendant for his outrageous conduct concerning the plaintiff. The principles of law were discussed by Windeyer J in Uren v John Fairfax and Sons Pty Ltd[119]. The principles were summarised by Brennan J in XL Petroleum (NSW)Pty Ltd v Caltex Oil[120]. His Honour said -

"As an award of exemplary damages is intended to punish the defendant for conduct showing a conscious and contumelious disregard for the plaintiff's rights and to deter him from committing like conduct again, the considerations that enter into the assessment of exemplary damages are quite different from the considerations that govern the assessment of compensatory damages."

1007. The behaviour of the defendant in the circumstances was outrageous and is deserving of an award of exemplary damages. However the law does not permit the awarding of exemplary damages where the tortfeasor has been punished by the criminal law. In Gray v Motor Accident Commission[121], the High Court held that where the criminal law has been brought to bear upon a wrongdoer and substantial punishment inflicted, exemplary damages may not be awarded. The infliction of substantial punishment is a bar to the award.

1010. The defendant has been dealt with by the criminal law and substantial punishment was inflicted upon him because of the distribution of the video tapes. In the Magistrates Court he was convicted of a number of breaches of intervention orders and sentenced to a period of imprisonment. On appeal he was convicted and fined $500 for breach of an intervention order, convicted and fined $1,500 for stalking, he was ordered to pay costs fixed at $3,300 and the orders made were conditional upon "the appellant surrendering all video tapes/copy video tapes of any sexual/offensive acts involving Alla Giller to the Court by 2.30pm that day." It was directed that the video tapes be retained in the Court file. In fact the Court file was sent to this Court and the video tapes had been retained in the Court file. In addition Mrs Drobitsky with the assistance of the plaintiff approached the police in late 1997 and informed the police that she had been shown the video tape and this resulted in the defendant being arrested. He was incarcerated for a period of thirty-one days until he obtained bail in this Court.

1013. There is no doubt that the defendant did receive substantial punishment for his wrongful acts in distributing and showing the videos. Accordingly the plaintiff would not be entitled to recover exemplary damages if she was otherwise entitled to damages.

1017. On 20 May 2003, Redlich J gave leave to the defendant to file a counter claim. On 3 July 2003 the defendant filed a fifteen page document purporting to make a number of claims. The plaintiff in her defence to counter claim pleaded that the counter claim failed to disclose any causes of action and further that if any causes of action were pleaded, they were statute barred by reason of the Limitations of Actions Act 1958.

1020. At the end of the plaintiff's case I ruled on the counter claim and held that the claims set out in paragraphs 1, 2, 3, 4, 7, 14, 17 and 18 did not disclose causes of action. The claims which were arguably made in paragraph 5 and 6 were statute barred, as were the claims in paragraphs 10,11, 12 and 13.

1023. In paragraph 8 the defendant brought a claim against the plaintiff alleging that she unlawfully lodged caveats on her properties and as a result he has suffered damage. I ruled that the claim would be adjourned and would be decided after I had delivered my reasons in the proceeding.

1026. The claim in paragraph 9 I did not strike out or rule was statute barred because it appeared that it was an allegation that the plaintiff had conspired with the police in order to obtain orders against him that should not have been obtained. It was alleged that on 12 November 1996 and on 22 November 1996 the plaintiff obtained intervention orders when it was known that she was not in fear for her safety and life. However late in his evidence the defendant told the Court that the plaintiff did tell the Magistrate on 22 November 1996 that they were indulging in sexual relations. I must say I find the whole situation bizarre. However I am satisfied that if there was a cause of action, which I doubt, I am not persuaded by the evidence that it was established, and further it was statute barred. The defendant fails.

1029. The claim in paragraph 15 is dismissed. It does not involve any cause of action in respect to any claim by the defendant. Indeed it appears to be a claim brought on behalf of others.

1032. The final cause of action is pleaded in paragraph 16 and alleges that the plaintiff conspired with Mrs Drobitsky to encourage her to make a false statement to the Victoria Police which resulted in the defendant being arrested and his bail revoked. This claim was not statute barred. I must say I am concerned about some of the matters that occurred in relation to these events. I am by no means convinced that I have the full story. It would appear however that orders were made against the defendant and he was incarcerated without appearing in Court. I find this hard to believe. Further I have read the statement of Mrs Drobitsky and I find it extraordinary that the circumstances set out demanded the imprisonment of the defendant. If the gaoling was due to the showing of the video to her in the privacy of the defendant's home, I find it extraordinary that he was sent to gaol for some thirty-one days, especially as the plaintiff was involved with Mrs Drobitsky in arranging for her to see the police. However I have found that Mrs Drobitsky was truthful in telling the police that she did see the video and accordingly she did not make a false statement in relation to that. Accordingly the claim is dismissed.

1035. The defendant has failed in all his claims save for the removal of the caveats.

1039. An application was made to the Court by the plaintiff seeking an order that the defendant pay a sum of money to enable her to engage an accountant to prepare her case. A sum of $15,000 was ordered to be paid by way of interim costs on 5 August 2002. Kellam J held that the Court had jurisdiction to make the order sought and that an order should be made to enable the other party to have resources to investigate and prepare the case. The order was sought to enable the plaintiff to engage an accountant to prepare a report of the financial circumstances of the defendant. His Honour made an order that the sum of $15,000 be paid, being $1,500 on account of valuation fees, $1,500 on account of a medical report and $12,000 in relation to a financial investigation. His Honour went on to order that "the sum be taken into account in such manner as the Trial Judge may determine."

1042. The defendant has represented himself in this proceeding and has no legal costs strictly so called. The $12,000 paid for the investigating accountant ended up with a report which I perused. I strongly stated that in my opinion the evidence contained in the report was not expert nor was the report in a form that could be admitted into evidence. In the end the accountant was not called. The only evidence adduced prepared by the accountant was a chart of the liabilities of the defendant during 1990-1993, which evidently formed an appendix to one of his reports. In my opinion the solicitors could have prepared the same chart as it did nothing more than summarise the mortgage position in relation to the four properties. The plaintiff called medical evidence and also valuation evidence and I have no criticism of the money being spent for those purposes.

1045. In my opinion the money must be taken into account in this proceeding. It is a question in which way it should be taken into account. I will hear the parties on this question. My provisional view is that it should be taken into account in respect of costs. The plaintiff has succeeded in some of her claims, and hence would be prima facie entitled to costs in respect of those particular claims. In my opinion the costs orders should be subject to the payment of the $15,000 back to the defendant. It will be necessary to hear the parties on the question.

1049. As the plaintiff has failed in her claim for an interest in property, she has no interest in the defendant's real property to support a caveat. They should be removed.

1053. Subject to submissions by the parties, I propose to make the following orders -

(i) That the claims by the plaintiff for an interest in the defendant's real property brought pursuant to Part IX of the Property Law Act 1958 and the principles of equity are dismissed;

(ii) that the claim in detinue and conversion brought by the plaintiff is dismissed;

(iii) that the plaintiff recover the sum of $4,928 in respect of five causes of action based on assault and that the cause of action of assault alleged to have been committed in June 1996 is dismissed;

(iv) that the causes of action of breach of confidence, breach of privacy and intentionally causing mental harm are dismissed;

(v) that the caveats lodged by the plaintiff on the properties owned by the defendant at 22 Orrong Crescent, Caulfield North and 37 Otira Road, Caulfield North on 17 September 1998 being the properties described in certificates of Title volume 4711 Folio 036 and volume 4170 Folio 919 respectively be removed, otherwise the defendant's counter-claim be dismissed save for the claim for damages for the lodging of the caveats;

(vi) That the defendant's claims for damages caused by the lodging of the caveats be adjourned to a date to be fixed.

1059. I will hear the parties on the questions of interest on damages, and costs.

[1] [1999] HCA 27; (1999) 198 C.L.R. 511

[2] [2002] V.S.C. 305

[3] (1989) 17 N.S.W.L.R. 343

[5] [1986] A.C. 898

[6] see Muschinski v Dodds [1985] HCA 78; [1985] 160 C.L.R. 583; Waltons Stores (Interstate) Ltd v Maher [1985] HCA 78; (1988) 160 C.L.R. 583 and Baumgartner v Baumgartner [1987] HCA 59; (1987) 164 C.L.R. 137

[19] (1956_)_ [1956] HCA 71; 98 C.L.R. 228

[21] See also the observations of Deane J at page 615-6

[24] see Hogben v Hogben [1964] VicRp 58; [1964] V.R. 468 at 471-474

[25] See Haskin v Haskin [1964] VicRp 6; [1964] V.R. 37 and Moore v Moore [1965] VicRp 7; [1965] V.R. 61

[26] [1958] VicRp 14; [1958] V.R. 68

[27] [1961] VicRp 108; [1961] V.R. 693

[28] see Calverley v Green [1984] HCA 81; (1984) 155 C.L.R. 242

[31] see Rimmer v Rimmer [1953] 1 Q.B. 63

[32] see Fribance v Fribance [1957] 1 All E.R. 354

[33] see Pearson v Pearson supra at 701

[35] [1970] UKHL 3; [1971] A.C. 886

[36] [1972] 1 All E.R. 943

[42] see Baumgartner v Baumgartner supra

[44] [1997] NSWSC 331; (1997) 42 N.S.W.L.R. 70

[47] (1986) 11 N.S.W.L.R. 454

[48] (1986) 11 Fam.L.R. 214

[50] (1987) 11 Fam.L.R. 7885 at 792

[59] (1984) 9 FamL.R. 789 at 794

[61] [1984] HCA 21; (1984) 156 C.L.R. 605 at 636

[62] [1997] FamCA 27; (1997) F.L.C. 92-757

[64] (1989) 17 N.S.W.L.R. 343

[65] [1970] UKHL 3; [1971] A.C. 886 at 905

[70] see McClelland v Symons [1951] VicLawRp 21; [1951] V.L.R. 157 at 169

[72] [1984] HCA 73; (1984) 156 C.L.R. 414

[77] [1988] Ch. 449

[80] Argyll v Argyll [1967] Ch. 302

[82] See Prince Albert v Strange (1849) 1 Mac and G 25;[1849] EngR 255; 47 E.R. 1302

[83] [1927] V.LR. 134146

[90] see Campbell v Mirror Group Newspapers Ltd [2002] EWCA Civ 1373; [2003] 1 All E.R. 224

[91] Confidentiality, 1996 Edn., at paras 10-13

[92] Intellectual property, 3rd Edn at 288,paras 8-48

[93] [2003] NSWCA 10; (2003) 44 A.C.S.R. 390

[94] see Gray v Motor Accident Commission (1999) 196 C.L.R. 1

[95] [1897] 2 Q.B. 57

[97] [1999] 2 K.B. 316

[98] Trindade and Cane, 3rd Edn, at 72-3

[100] See Gimson v Victorian Work Cover Authority [1995] VicRp 14; [1995] 1 V.R. 209 - Note this was a pleading summons.

[101] See Khorasandjian v Bush [1993] EWCA Civ 18; [1993] Q.B 727

[103] [2001] EWCA Civ 2081; [2002] Q.B. 1334

[110] [1991] F.S.R. 62

[112] (2001) 208 C.L.R. 199

[114] see the Law of Torts, Flemming 9th Edn at 664 et seq

[115] see reference to dicta by Murphy J and Kirby P in ABC v Lennah Game Meats Pty Ltd supra at 248

[119] [1966] HCA 40; (1966) 117 C.L.R. 118 at 153; see also Lamb v Cotogno [1985] HCA 12; (1985) 155 C.L.R. 448

[121] (1998) 196 C.L.R. 1