FEDERAL COURT OF AUSTRALIA Felson v Commissioner of Taxation [2013] FCA 113 Citation: Felson v Commissioner of Taxation [2013] FCA 113 Parties: MICHAEL NICHOLAS FELSON (formerly NIKYTAS NICHOLAS PETROULIAS) v COMMISSIONER OF TAXATION, MICHAEL GERARD O'NEILL and PAUL CHEETHAM File number: QUD 495 of 2010 Judge: JACOBSON J Date of judgment: 14 February 2013 Cases cited: Adam P Brown Male Fashions v Phillip Morris Inc (1981) 148 CLR 170 Petroulias v Commissioner of Taxation [2012] FCA 919 Petroulias v Commissioner of Taxation (No 2) [2012] FCA 950 Date of hearing: 14 February 2013 Place: Sydney Division: GENERAL DIVISION Category: No catchwords Number of paragraphs: 16 Counsel for the Applicant: The applicant appeared in person. Counsel for the Respondents: Mr J Hmelnitsky Solicitor for the Respondents: Australian Government Solicitor IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION QUD 495 of 2010 BETWEEN: MICHAEL NICHOLAS FELSON (formerly NIKYTAS NICHOLAS PETROULIAS) Applicant AND: COMMISSIONER OF TAXATION First Respondent MICHAEL GERARD O'NEILL Second Respondent PAUL CHEETHAM Third Respondent JUDGE: JACOBSON J DATE OF ORDER: 14 FEBRUARY 2013 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The interlocutory application filed by the applicant on 12 February 2013 be dismissed. 2. The applicant pay the respondents' costs of the interlocutory application. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION QUD 495 of 2010 BETWEEN: MICHAEL NICHOLAS FELSON (formerly NIKYTAS NICHOLAS PETROULIAS) Applicant AND: COMMISSIONER OF TAXATION First Respondent MICHAEL GERARD O'NEILL Second Respondent PAUL CHEETHAM Third Respondent JUDGE: JACOBSON J DATE: 14 FEBRUARY 2013 PLACE: SYDNEY REASONS FOR JUDGMENT 1 The applicant, Mr Michael Nicholas Felson (formerly known as Nikytas Nicholas Petroulias), applies by an interlocutory application filed on 12 February 2013, for a stay of these proceedings and for an order that my orders of 1 November 2012 be varied accordingly. 2 The orders which I made on 1 November included a direction that, by 7 February 2013, Mr Felson file and serve the affidavit evidence on which he relies and that the matter be listed for further directions before me today. 3 Mr Felson has filed in support of his application four affidavits, all sworn on 12 February 2013, namely an affidavit sworn by him; an affidavit of a medical practitioner, Dr John Robert Lamont; an affidavit of a solicitor, Ms Rosita Luk, and an affidavit of Mr Steven Flaws. The evidence on which Mr Felson relies is unsatisfactory in form and content. It is sufficient to say that, in substance, the effect of it is to assert that: Mr Felson has evidence in support of the matters pleaded in the most recent version of his statement of claim. The material is voluminous and that the respondents have made it difficult, if not impossible, for him to assemble it. His physical and mental condition has "deteriorated" as a result of the demands of this litigation. He is facing criminal charges due to be heard on 10 June 2013 which makes it difficult for him to prepare for the present proceeding due to the overlap with the criminal proceeding. 4 Mr Felson handed up written submissions in which he addressed the matters referred to above. He also addressed me orally. He submitted in support of the application for a stay that: He is required to represent himself in the criminal trial which is set for hearing on 10 June 2013 and that the requirements for preparation of that case involves considerable work. Preparation of the present case involves overlapping facts and issues which are before the Court in proceedings brought by Professional Administration Service Centres (PASC). If PASC is successful in the other proceedings, funds will be available to enable him to obtain legal representation and assistance with preparation of these proceedings. He has evidence of deterioration in his mental and physical condition that reduces his ability to prepare for the proceedings. 5 A brief history of the proceedings is to be found in the judgment of Reeves J in Petroulias v Commissioner of Taxation [2012] FCA 919 at [7] to [11], and Petroulias v Commissioner of Taxation (No 2) [2012] FCA 950 at [11] to [22]. 6 The essence of the proceedings was summarised by Reeves J in Petroulias (No 2) at [13]. As his Honour there observed, the proceedings make claims against the Commissioner of Taxation and several individual officers of the department which are, on their face, very serious. The claims include allegations of misfeasance in public office and challenge default tax assessments issued against Mr Petroulias and various companies with which he is apparently connected. 7 Importantly in his Honour's judgment and orders in Petroulias (No 2), Reeves J dismissed a notice of motion filed by Mr Petroulias on 5 September 2011 seeking, inter alia, orders that the proceedings be stayed pending the completion of his criminal appeal proceeding, the provision of legal assistance and the restoration of his mental and physical health. 8 The relief which Mr Felson now seeks in his interlocutory application is substantially the same as that which was refused by Reeves J in his Honour's orders of 23 February 2012. A court will not ordinarily depart from earlier interlocutory orders in the absence of changed circumstances: see Adam P Brown Male Fashions v Phillip Morris Inc (1981) 148 CLR 170 at 178. 9 There are only two matters to which Mr Petroulias has pointed that could possibly amount to changed circumstances. The first is his physical and mental condition. That is a matter which was addressed by Reeves J in Petroulias (No 2) at [7] to [8]. His Honour found, upon the basis of psychiatric evidence, that Mr Petroulias: …is not so affected by his condition that he is not capable of managing his own affairs in these proceedings. 10 The evidence of Dr Lamont, on which Mr Felson now relies, is not that of a psychiatrist. It does not demonstrate any changed circumstances in relation to Mr Felson's mental condition. As to his physical condition, Dr Lamont's evidence is merely that Mr Felson was incapacitated for most of November 2012, but that he has functioned well, albeit at a reduced capacity, since that time. 11 I reject the submission made by Mr Felson that a distinction is to be drawn between his mental and physical health in relation to the conduct of a defence of a case and the bringing of his own case. 12 The second possible changed circumstance is the criminal trial. However, the indictment shows that Mr Felson was charged with passport offences. The criminal proceeding, therefore, has no relationship with the present case and is likely to be heard before this case comes on for hearing. 13 The other submissions made by Mr Felson are without substance. The alleged overlap with the other proceedings is not to the point. Reeves J refused to consolidate this case with the other matter some time ago and the present claim must continue as a discrete proceeding. 14 Moreover, the evidence which Mr Felson tendered in the present case demonstrates that he obtained legal advice in relation to the present proceedings some 10 years ago and that he then obtained what amounted to an advice on evidence from senior counsel. Notwithstanding that, the present proceeding was not commenced until 2010. It has been pleaded and repleaded on several occasions since then. The evidence of Ms Luk is largely inadmissible and is not sufficient to demonstrate the length of time needed to prepare Mr Felson's case in the present proceeding. 15 There are no changed circumstances to warrant departure from the order made by Reeves J refusing the stay, nor does the evidence satisfactorily explain Mr Felson's failure to comply with my orders of 1 November 2012. The proceeding is one that Mr Felson has chosen to bring. It is incumbent upon him to pursue it, if he wishes to do so, and to comply with the orders of the Court for the preparation of the proceedings to hearing. 16 For these reasons, the application is dismissed with costs. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson. Associate: Dated: 14 February 2013