Petroulias v Commissioner of Inland Revenue

[2013] NZHC 3086

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2013-442-000044 [2013] NZHC 3086

UNDER  The Tax Administration Act 1994

BETWEEN  NIKYTAS NICHOLAS PETROULIAS Plaintiff

ANDTHE COMMISSIONER OF INLAND REVENUE

Defendant

Hearing:                   21 November 2013 (via Telephone Conference) Counsel:  Plaintiff in person

P H Courtney and N Delamore for Defendant

Judgment:                21 November 2013

JUDGMENT OF COLLINS J

Introduction

[1]      Today I heard the Commissioner’s application to strike out Mr Petroulias’ proceeding because of his consistent failure to comply with timetable orders.  The Commissioner’s application is based on r 7.48 of the High Court Rules.

[2]      This judgment explains why I have now struck out Mr Petroulias’ proceeding.

Background

[3]      On 2 September 2010 the Commissioner assessed Mr Petroulias as being liable to pay a promoter penalty in the sum of $6,326,352.23 pursuant to s 141EB of

the Tax Administration Act 1994.

PETROULIAS v THE COMMISSIONER OF INLAND REVENUE [2013] NZHC 3086 [21 November 2013]

[4]      On 28 January 2013 Mr Petroulias commenced this proceeding in which he

seeks to challenge the Commissioner’s assessment.

Timetable orders

[5]      On 15 March 2013, Associate Judge Matthews ordered: (1)    Both parties give discovery by 19 April 2013.

(2)Any applications for interlocutory orders or for determination of any preliminary issues be filed by 31 May 2013.

[6]      On 3 July 2013 the Commissioner filed an application for an extension of the timetable because Mr Petroulias had failed to comply with the timetable ordered by Associate  Judge  Matthews.     The  Commissioner  also   sought   orders   that   if Mr Petroulias failed to comply with the amended timetable his proceeding would be struck out.

[7]      The Commissioner’s application came before Goddard J on 15 July 2013. Goddard J put in place an amended timetable and made “unless orders” stating that unless  Mr  Petroulias  complied  strictly with  the  timetable  orders  his  proceeding would be struck out.

[8]      Mr Petroulias was required to:

(1)give discovery (comprising the documents referred to in the statement of position and any additional documents supplied to the Adjudication Unit) by 31 July 2013;  and

(2)file  written  statements  of  evidence  in  chief  by  all  witnesses  he intended to call and an index of documents that would be referred to by him and/or other witnesses by 20 September 2013.

[9]      On 31 July 2013 Mr Petroulias filed an affidavit in which he said he was unable to provide discovery.

[10]   On 16 October 2013 the Commissioner applied to have Mr Petroulias’ proceeding struck out because of his failure to comply with the Court’s timetable directions.

Hearing

[11]     Mr Petroulias has still not complied with the orders made by Goddard J.  In an email to the High Court Registry Mr Petroulias explains:

I am simply to[o] ill and do not have the finances to put [i]n evidence [a]

memorandum, therefore I cannot continue with the farce.

[12]     During the hearing before me Mr Petroulias said that he could not comply with the orders for discovery because the Commissioner had all of the relevant documents or they were held by another person.

[13]     Ms Courtney fairly submitted Mr Petroulias has consistently failed to comply with  the  Court’s  timetable  orders  and  the  time  had  now  arrived  when  it  was necessary to strike out Mr Petroulias’ proceeding.

Decision

[14]     Striking out a proceeding is a step of last resort and courts normally take a

benevolent  approach  to  a  party’s  failure  to  comply  with  interlocutory  orders.1

However, Mr Petroulias has commenced this proceeding and in doing so knew he had to comply with all Court orders that are designed to ensure a fair and expeditious hearing  of  the  issues  he  wished  to  raise.     Of  particular  concern  is  the  fact Mr Petroulias has failed to comply with the “unless orders” made by Goddard J on

15 July 2013.

[15]     There can be little point in “unless orders” if courts fail to give effect to them.

[16]     Nothing Mr Petroulias has said to me causes me to doubt the appropriateness of the submissions made by Ms Courtney.  He has simply turned a blind eye to the

Court’s timetable orders and Goddard J’s “unless order”.

1      Lees Trading Co Ltd v Loveday HC Christchurch CP70/86, 3 June 1998.

Conclusion

[17]     I am driven to the conclusion Mr Petroulias’ proceeding must be struck out.

D B Collins J

Solicitors:

Crown Law Office, Wellington for Defendant