The continued existence of the right.
9 In Managing Director, New South Wales Technical & Further Education Commission v Fines (1993) 32 NSWLR 385, Mahoney JA said this: (at 387)
"Where a party to a proceeding dies after the proceeding has been commenced and before it has ended by a decision, at least two questions are apt to rise: (a) whether the right which the proceeding has been brought to enforce continues to exist notwithstanding the death; and (b) (if it does) how the fact of death affects the procedural aspects of the proceeding."
10 Counsel for the late Mr Fletcher submitted that the proceedings should be characterised as being in the nature of criminal proceedings. A conviction had been recorded in respect of various offences. A penalty was about to be imposed when Mr Fletcher died. That penalty should be seen as a "criminal penalty, not a civil penalty". According to counsel, the rule in criminal proceedings was therefore appropriate. At common law in proceedings upon indictment, where an accused person dies, the indictment was noted and the proceedings then abated "unless and until the court, on cause being shown, otherwise orders" (Archbold: Criminal Pleading, Evidence & Practice 2008 - para [3-212]).
11 Counsel for Customs, in response, made the following submission:
"13. The proceedings have been brought in the Supreme Court of NSW in accordance with s134(1) of the Excise Act 1901. By virtue of s136 of the Act, the prosecution may be commenced, prosecuted and proceeded with in accordance with 'the usual practice and procedure' of this court in civil cases. The abatement question is a matter of practice and procedure, and the question should be determined upon the basis of the law that would be applied as to this issue in civil proceedings. This brings the provisions of s2 of the Law Reform (Miscellaneous Provisions) Act 1944 into play as well as the UCP Rules, with the result that the cause of action survives."
12 The issue has been considered in a number of cases: Healey v Williams (1985) 10 FCR 254; 64 ALR 140; NSW TAFE Commission v Fines (supra); Kalejs v Minister for Justice & Customs [2001] FCA 1769; (2001) 111 FCR 442; Halpin v Dept of Gaming & Racing [2007] NSWSC 815. Most cases deal with the transmission of rights from the deceased to his or her legal representative. However, as with the Law Reform (Miscellaneous Provisions) Act, 1944 (NSW) s2(1), the principles equally apply to the transmission of a liability.
13 The common law distinguishes between rights and liabilities or causes of action that are transmissible from the deceased to his or her personal representative and those that are not. Kenny J in Kalejs v Minister for Justice & Customs (supra), said this: (at 446/7)
"15. … Prior to the English Law Reform Miscellaneous Provisions) Act 1934 (the 1934 Act) and to its legislative counterparts in other common law jurisdictions, it was generally accepted that actions in contract sounding in pecuniary damage, or actions on proprietary rights and the like, were transmissible, although generally actions in tort were not. The latter actions were subject to the doctrine expressed in the maxim, actio personalis moratur cum persona (that is, a personal action dies with the person). This meant that a right of action for tort was brought to an end by the death of either party: see, for example, Ryan v Davies Brothers Ltd (1921) 29 CLR 527 at 532; Harris v Lewisham and Guy's Mental Health NHS Trust [2000] 3 All ER 769 at 774. … "
14 However, as Mahoney JA noted in NSW TAFE Commission v Fines (supra), the nature of the right which the late Mr Fines sought to enforce was "a statutory right" (at 387). He had been a teacher at TAFE and had been dismissed. He appealed against that dismissal to a Tribunal established to deal with such matters. The Tribunal heard evidence over several days and adjourned to hear submissions. Mr Fines died before the submissions were made. His executors sought to continue the proceedings in his place. The Tribunal refused. His dismissal, however, had consequences for his estate, in terms of his remuneration and other entitlements, which were greater if his dismissal were invalid. In this context, Mahoney JA said this: (at 388)
"The question whether statutory rights of this kind are to survive death depends upon the intentin of the legislature; there does not appear to be any general or presumptive rule: see Jones v Simes (1890) 43 Ch D 607; Dean v Wiesengrund [1955] 2 QB 120 and the cases there referred to; see the discussion of an analogous question in Mayne v Jaques (1960) 101 CLR 169. Although in terms the right granted to him by the Act may be merely a right of appeal, the grant of that right carried with it the substantive rights, to salary, wages or allowances and the like, referred to in the Act: see, eg, Mayne v Jaques (at 171-172) per Fullagar J."
15 The approach by the full Federal Court in Stephenson v Human Rights and Equal Opportunity Commission (1996) 68 FCR 290, was similar. The Court held that a complaint made to the Commission under the Sex Discrimination Act 1984 (Cth), did not abate upon the complainant's death. That conclusion was reached upon the proper construction of the statute under which the rights arose. Wilcox J (Jenkinson and Einfeld JJ agreeing) said this: (at 296/7)
" … I do not think that common law rules are relevant to this case. Those rules were evolved by judges as necessary ancillaries to substantive common law principles, also evolved by the judges. They are meaningful only in relation to the common law actions to which they relate. Where a right of action is created by statute, guidance must be sought in the statute itself; a Parliament that creates a cause of action may ordain as it pleases in relation to the cause of action's survival on death of a party. And the same principle applies in relation to a statutory entitlement that falls short of constituting a 'cause of action', as lawyers use that term, or a statutory proceeding.
If the common law rules are irrelevant, it follows that s2(1) of the Law Reform (Miscellaneous Provisions) Act 1944 (NSW) is also irrelevant."
16 In Chief Executive Office of Customs v Labrador Liquor Wholesale Pty Limited [2003] HCA 49; (2003) 216 CLR 161, Hayne J (Gleeson CJ at McHugh J agreeing) determined the issue in that case (which concerned the standard of proof in a Customs prosecution) by reference to the statute and the orders sought, rather than attributing a description of "civil" or "criminal" to the proceedings as a whole (para [136]). Counsel for Customs urged the same approach in this matter, which I accept. The question should be determined by reference to the specific terms of the statute.
17 Here, the proceedings were instituted in the Supreme Court in accordance with s134(1) of the Excise Act 1901. By s136(1) they have been conducted in accordance with the usual practice and procedure of the Court in civil cases. The Controller of Customs served a statement of claim, formulating causes of action based upon each element in the section allegedly breached. Monetary penalties were sought in accordance with those sections, as well as reparation by the recovery of the duty evaded (where it could be ascertained) and costs. At the time the prosecution was commenced, the Act only made provision for monetary penalties. Since 7 September 2000, a term of imprisonment may be imposed for certain offences.
18 The Excise Act does not expressly deal with the circumstance that confronts this Court, that is, the death of the person prosecuted after conviction and before penalties have been imposed. What, then was the intention of the legislature? Counsel for Customs pointed to two matters which strongly suggested, it was submitted, that liability was transmissible to the estate of a person who had been prosecuted. First, the Act attaches, or may attach, the penalty to property rather than the person. Section 148 provides that the pecuniary penalty may be levied from the sale of goods belonging to the defendant. Section 151 provides that the conviction of a person for an offence shall have effect as a condemnation of the goods in respect of which the offence was committed. Section 161, whilst not dealing with penalties, provides that excise duties are Crown debts charged upon the goods, payable by the owner of the goods and recoverable at any time.
19 Secondly, the Excise Act 1901 is a revenue statute. It makes provision for the imposition and collection of excise duty. It is unlikely that Parliament would have intended that revenue, otherwise due to the Commonwealth, should be forgiven as a result of the death of the person liable to pay it, in circumstances where the duty had been evaded.
20 I note that Hall J in Halpin v Dept of Gaming & Racing (supra), said this: (para [34])
"34. Where the death of a party to proceedings occurs following a decision or order which effectively determines the proceedings but in which further orders are outstanding, it will, in my opinion, often be the case that the proceedings have not abated or lapsed. … "
21 I accept the argument of Customs. The proceedings have not abated. The liability is transmitted to the estate of Leslie Ronald Fletcher, now represented by Brett Fletcher.