Proceedings struck out for failing to comply with unless orders
2013 case note – High Court struck out proceedings for failing to comply with 'unless orders'.
The proceedings were struck out by the court for failing to comply with unless orders.
Impact of decision
While a strike-out is a step of last resort the Court has confirmed that there can be little point in making "unless orders" if the courts fail to give effect to them.
The Commissioner of Inland Revenue ("the Commissioner") has assessed Mr Petroulias (jointly and severally with another taxpayer) under section 141EB of the Tax Administration Act 1994 for promoter penalties amounting to $6,326,352.23. Mr Petroulias challenged the application of the penalty.
Timetable orders, made by the High Court on 15 March 2013, included the provision of discovery by both parties. Mr Petroulias failed to provide discovery by the required date.
The Commissioner sought an extension to the timetable and obtained an "unless order" from the Court on 15 July 2013, requiring Mr Petroulias to provide discovery by 31 July 2013 and briefs of evidence by 20 September 2013.
Mr Petroulias did not comply with the timetable orders.
Collins J considered that nothing Mr Petroulias had submitted caused any doubt as to the appropriateness of the Commissioner's submissions, noting that Mr Petroulias had simply turned a blind eye to the timetable orders and "unless order".
His Honour noted that a strike-out is a step of last resort but stated that there can be little point in making "unless orders" if the courts fail to give effect to them. Accordingly, the Court decided the proceeding should be struck out.
High Court Rules