Giller v Procopets [2008] VSCA 236

Giller v Procopets [2008] VSCA 236 - VSCA 2008 case summary — Zoe

[251]

The principles by which an appellate court will be guided in an appeal of this nature are not in doubt. Where it is alleged on appeal that a judge's assessment of damages is manifestly excessive an appellate Court, before it interferes, should be satisfied that the judge has acted on a wrong principle, or has misapprehended the facts or, for these or other reasons, can be seen to have made a wholly erroneous estimate of the damages suffered. It is not enough that the appellate court itself might have awarded a different sum: Per Lord Wright, Davies v Powell Duffryn Associated Collieries Ltd [1942] AC 601 at 616-7; Miller v Jennings [1954] HCA 65; (1954) 92 CLR 190 at 195-6, per Dixon, CJ and Kitto, J. It is apparent from such statements of principle that a trial judge, in assessing damages, is involved in the exercise of a form of discretionary judgment and, as such, that judgment should stand unless the appeal court is clearly satisfied that the judicial function has not been duly performed: Minchin v Public Curator of Queensland [1965] ALR 91, per Kitto, J at pp95-6; Bratovich v Mitchell [1968] VicRp 72; [1968] VR 556 at 557-8).

Notwithstanding the principles to which I have adverted, it remains true that an assessment of damages made by a judge is not as inscrutable as an assessment made by a jury: Precision Plastics Pty Ltd v Demir [1975] HCA 27; (1975) 132 CLR 362 at 369, per Gibbs, J. Unlike the jury, the trial judge is expected to give reasons for the assessment which he makes and, in a case like this where damages are claimed under several heads, it is usually desirable that the reasons should descend to some degree of particularity in respect of each head of damage.

and

The imposition of the requirement upon a trial judge to state his reasons for arriving at his assessments for the various components of damage should not, in my view, be permitted to obscure the fact that the assessment of an appropriate sum in respect of a component of damage such as pain and suffering and loss of amenities is more likely to result from the trial judge's observation of an injured plaintiff and his judgment of the effect which the injuries have upon him than is the assessment of an appropriate sum for loss of earnings or earning capacity which is more likely to be derived from the drawing of inferences from facts proved: see, for example, per Lord Wright, Davies v Powell Duffryn Associated Collienes Ltd, supra, at pp616-7; Moran v McMahon (1985) 3 NSWLR 701 at 723 per Priestley, JA and 726-7 per McHugh, JA.

[264]

(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 [her daughter] 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.

. . .

(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.

[391]

In Roy v Sturgeon,[194] Powell J concluded[195] that it is not open to the court, when dealing with applications under s 20, to have regard to contributions made prior to the commencement of the de facto relationship.

In Foster v Evans[196] however, Bryson J did not follow this approach. His Honour said:

In my respectful view para 20(1)(b) does not contain within its own terms a limitation to the period during which there was a de facto relationship as the period during which any contributions to the welfare of the family might have been made. ... It is inherently unlikely but it is not impossible and contributions of kinds referred to in paras (a) and (b) might be made to the property financial resources of welfare of another [sic - the other] de facto partner after the relationship ended: people sometimes care for former partners. The possibility of a contribution to the welfare of a family including a child of the partners after the de facto relationship itself has ended can be clearly seen. I do not see what purpose would be served by limiting the contributions to family welfare which may be considered so as to exclude contributions made after a separation. There is to my reading no expression in subsection 20(1) of an intention to limit the time at which contributions are to be made.

And concluded:

I respectfully differ from Powell J's obiter dictum about the meaning of para 20(1)(b). In my opinion it is not required that a contribution under para 21(1)(b) [sic - 20(1)(b)] be made during the relationship.

In Griffiths and Brodigan[197] Chisholm J, exercising cross-vested jurisdiction, considered an application for an order under s 20. His Honour also declined to follow Roy v Sturgeon and held that contributions under s 20 could include contributions made before the commencement of the de facto relationship. In Fuller v Taaffe,[198] Rourke J, also exercising cross-vested legislation in an application for relief under s 20, adopted the same approach as Chisholm J in Griffiths and Brodigan and held that contributions made by the parties after the de facto relationship had terminated were relevant to be taken into account under s 20.

McDonald v Stelzer[199] is determinative on the issue as to whether the court may have regard to contributions made before the de facto relationship commenced. At first instance Bergin J referred to Griffiths and Brodigan and said that she would take into account the nature of the relationship of the parties prior to the de facto relationship in reaching her conclusion as to what was just and equitable. The appellant submitted that her Honour had erred in that respect. Sheller JA (with whom Handley JA agreed) upheld the approach of Bergin J, saying:

I am not persuaded that her Honour erred in reaching her decision.

Priestley JA said:

... in the circumstances of the present case, if Bergin J did take into account in reaching her conclusion any circumstances of or related to the relationship between the parties which occurred before April 1994, I would not think that that vitiated her decision.

His Honour concluded that in the particular circumstances Bergin J was entitled to take prior de facto relationship contributions into account provided she treated the financial and non-financial contributions during the de facto relationship as fundamental.

In my opinion, there is no difference in principle between contributions made before the de facto relationship commenced and those made thereafter. The court may have regard to both.[200]

[424]

[51] The legislation does not dictate the employment of any particular method in the formulation of an appropriate order for the adjustment under s 20 of property interests, and it is not desirable to attempt to formulate principles or guidelines designed to constrain judicial discretion within a predetermined framework: compare Norbis v Norbis. Although, in the majority of cases, the global approach is likely to be more convenient than an asset-by-asset approach, the application of the asset-by-asset approach does not of itself amount to an error of law (Mason and Deane JJ). In Norbis, Mason and Deane JJ cited with approval observations of Nygh J in G & G to the effect that it cannot be required of the Family Court that it assesses contributions with mathematical precision with respect to each item, and that while the Family Court was divided between those who favoured the so-called global approach and those who seek to achieve some degree of precision, both approaches were legitimate provided that those who take the global approach heed the warning that the origin and nature of the different assets ought to be considered, and that those who favour the more precise approach do not mistake the trees for the forest and add up their individual items without standing back at the end to review the overall result.

[52] In Lenehan v Lenehan, the Full Court of the Family Court (Fogarty, Maxwell and Gun JJ) said:

The judgments of the High Court in In the Marriage of Norbis demonstrate the very wide discretion which a trial Judge has in the approach that he may adopt under s 79. In particular the judgments in that case discuss the 'global' and the 'asset by asset' approaches, and demonstrate that this is largely a matter for the trial Judge to determine in the exercise of his discretion. However Norbis' case is not a carte blanche to adopt either view irrespective of the circumstances of the individual case. There are cases where one approach or the other is clearly appropriate and a failure by the trial judge to adopt that approach may demonstrate error. We think this is one such case. His Honour's initial approach of treating the parties' contributions to the home as separate from their contributions to the other (largely business) assets was, we think, a proper approach in the circumstances.

[53] To this might be added that, in the necessarily inexact exercise involved in discretionary matrimonial property adjustment, judicial reasoning can be aided by the use in any case of more than one approach, so that one serves as a check method for the result reached by the other.[227]

[468]

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.

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

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

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,[269] 20 October 1996[270] 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.

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.[271]

[512]

[Contributions are] not the only factor which can be taken into account. In my view, if one considers the plaintiff's contributions and nothing else, this cannot conceivably lead to any view on what is just and equitable in the circumstances. However, it seems to me that the other factors can have no independent bearing on what is just and equitable. Their relevance is only by reason of such relevance as they may have to the question: what is just and equitable having regard to the plaintiff's contributions?

In my view, some other factors will be relevant in this way in all cases. One such factor arises from the question whether the contributions of the plaintiff have been sufficiently compensated. The relevance of this question is confirmed by the terms of s 17 of the [the NSW] Act. This in turn requires the court to reach some view of the value of the contributions of the plaintiff, and some view of the value of what the plaintiff has received in return.

In most cases, I think the financial circumstances of the parties will be relevant. Certainly, it is necessary for the court to ascertain what the property of the parties comprises at the time of the hearing, because it is to this that any adjustments of interest have to be made. Further, I think that in most cases the needs and means of the parties will have general relevance, as subsidiary factors, to the question of what is just and equitable having regard to the plaintiff's contributions. However, as indicated earlier, I accept that the needs and means of the parties has no relevance except via its relevance to this question: in particular, the court cannot say that because the defendant has $11 million, and the plaintiff has something less than $50,000, for that reason it is just and equitable to make an adjustment.

Other circumstances which may be relevant include such matters as the length of the relationship, any promises or expectations of marriage, and also I think opportunities lost by the plaintiff by reason of the plaintiff's contributions. This is by no means intended to be exhaustive. I do not think any limit can be set on what circumstances may be relevant, remembering always that the relevance must be to the question, what is just and equitable having regard to the plaintiff's contributions.[320]

[558]

The tapes which were in evidence and viewed by his Honour were not the same tapes as were given to Ms Giller's father or as were shown to Mrs Volkova. Mr Procopets said that the tapes seen by the witnesses did not involve sexual activity, and that the tapes that went into evidence were tapes which Ms Giller had substituted. Alternatively, he suggested, there might have been a conspiracy between Ms Giller and Senior Constable Cain, the investigating policeman. Further, he said, the judge could not have seen the original tapes because their destruction had been ordered by the Magistrates' Court pending the hearing of various criminal charges against him.[348]
The tapes which he had taken or shown to Ms Giller's parents and Mrs Volkova were innocuous, and intended simply to show that Ms Giller was still having a relationship with him after 1993, something she had denied to them.
The interpreter had made an inaccurate translation of the evidence of Mrs Volkova and Ms Drobitsky, and this was because the interpreter was in Ms Giller's camp. The Court should therefore disregard those of his Honour's findings which were based on this evidence and, in particular, on the interpreter's version of Mrs Volkova's evidence that Mr Procopets had shown her a tape of a man and woman having sex.
The audio tapes of phone calls between himself and Ms Giller had been inaccurately translated, again by an interpreter sympathetic to Ms Giller's cause.
Mrs Volkova was not a credible witness, as it had been demonstrated in cross-examination that she lied about whether she had worked in Australia. Ms Drobitsky was also an unreliable witness.
Mr Procopets had not in fact threatened Ms Giller that he would show to her family, friends or employer tapes depicting sexual activity. Alternatively, the threats made by him in the telephone conversations recorded by Ms Giller were made in the heat of the moment, when he was drunk, distressed and 'teased' by Ms Giller, and he had never intended to carry out the threats.
His Honour's adverse findings on Ms Giller's credibility should have led to the conclusion that she had lied about his threats to show the videotapes.

[576]

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 [Ms Giller's] main affidavit in this proceeding. In making his assessment and diagnosis and forming an opinion as to [Ms Giller] 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 [Mr Procopets]. 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 [Mr Procopets] who highlighted all the matters of stress that [Ms Giller] 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 [Ms Giller]. 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 [Ms Giller] pursued her own life independently of [Mr Procopets]. 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. ... 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.[353]

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