Petroulias v Commissioner of Taxation

Appointing a litigation representative 1 Mr Petroulias seeks to have Ms Luk appointed as his litigation representative in these proceedings. Since Mr Petroulias had filed no application to that effect, I ordered him to file such application by close of business today. However, I will proceed to deal with the matter on the assumption that Mr Petroulias will comply with that order. 2 A litigation representative is appointed under Pt 9 of the Federal Court Rules 2011 (the Rules). In particular, Div 9.6 deals with persons under a legal incapacity. Rule 9.62 provides that a person (other than a person excluded by Rule 9.62(1)) may consent to being appointed a litigation representative. In this case, Ms Luk has consented to being appointed a litigation representative for Mr Petroulias. She is not excluded by any of the subparagraphs of Rule 9.62(1). 3 The criteria for the appointment of a litigation representative for a person are set out in Rule 9.63. In essence, it must be established that the person concerned is a "person under a legal incapacity" as defined in the dictionary to the Rules. That expression is there defined to mean either "… a minor; … or a mentally disabled person". Mr Petroulias is obviously not a minor. The other expression: "mentally disabled person", is defined in the dictionary to mean "a person who, because of a mental disability or illness, is not capable of managing the person's own affairs in a proceeding". 4 On this application, I do not need to consider in any detail the complex debate between the various doctors - Dr Lee on the respondent's part, and Dr Hampshire and others on Mr Petroulias' part - as to whether Mr Petroulias is suffering from a mental disability or illness. The evidence of his treating psychiatrist, Dr Hampshire, is that he is suffering from Asperger's syndrome and that he has a bipolar disorder. For the purposes of this interlocutory application, I consider I should accept this evidence from his treating doctor. However, that does not meet the whole of the criteria set out in the definition of the expression "mentally disabled person". The balance of that definition requires proof that because of his mental disability or illness, Mr Petroulias is not capable of managing his own affairs in these proceedings. 5 At the conclusion of Dr Hampshire's oral evidence [about Mr Petroulias' Asperger's condition and his bipolar disorder which he had earlier described as two co-morbid chronic conditions], I asked Dr Hampshire's opinion as to the: "… effect, if any, [those two conditions had] on [Mr Petroulias'] capacity to manage his affairs in these proceedings". 6 Dr Hampshire replied: In my opinion, having Asperger's syndrome will make it extremely difficult for him to comprehend all the subtleties that are involved in court appearances, and I think, whilst he might have a single-minded capacity, you know, of some - of intelligence in an area, it is a very narrow area, and I think that the nuances required to represent well or present his legal arguments well are going to be very diminished. 7 I then asked Dr Hampshire whether Mr Petroulias was in a position where he considered he was unable to manage his affairs in these proceedings. Dr Hampshire replied: I don't think he requires a tutor. He will get through without a tutor if that's the decision. It's just my view that it would be helpful to him, useful to him to have a tutor But I'm not implying that he's so psychiatrically unwell that he could not run his own defence. 8 Accepting Dr Hampshire's opinion (which I do), while Mr Petroulias has a mental disability or illness that is causing him some distress and requires treatment, I do not think that his condition is such that he meets the definition of a "mentally disabled person" as defined in the dictionary to the Rules. In particular, he is not so affected by his condition that he is not capable of managing his own affairs in these proceedings. For these reasons, I dismiss Mr Petroulias' application to appoint a litigation representative. 9 I would add this however. In some of the affidavit material, Ms Luk's appointment is referred to as the appointment of a "legal" representative, rather than a "litigation" representative. This may be a mere slip, but if it is not, it is apt to observe that Mr Petroulias does not require an order of this Court to appoint a legal representative. He can do that by simply filing a notice of appointment of a lawyer under Rule 4.03. There is therefore no impediment to Mr Petroulias doing that immediately if he wants Ms Luk to act as his lawyer in these proceedings.