McBride v McBride

Historical summary of legal position

1. The rights of a convicted prisoner under English law varied depending upon the nature of the offence and any applicable legislative provisions. The application in Australia of English law principles regarding those convicted of crimes has not always been clear.
2. Generally, under English law, a convicted prisoner, in spite of his imprisonment, retains all civil rights which are not taken away expressly or by necessary implication: Raymond v Honey [1983] 1 AC 1 at 10 per Lord Wilberforce. Leeming JA used this as a starting point in Hamzy v Commissioner of Corrective Services NSW (2022) 107 NSWLR 544; [2022] NSWCA 16 (Hamzy) at [167], [6] referring to it as Lord Wilberforce's general principle.
3. While affirming that the principle currently applies in New South Wales, his Honour at [170] qualified that its acceptance was much more recent than in the United Kingdom and Canada.
4. In 1788, the first civil action in Australian legal history involved the case of two convicts who successfully sued the master of the loss of their baggage during the voyage [7] . Professor Kercher has commented that, in reaching the decision, the judge-advocate David Collins ignored the English common law rule of felony attaint, whereby those who had been sentenced to death for felony were unable to hold property, give evidence or sue in court. [8]
5. As Leeming JA noted in Hamzy at [172]: [the rule of felony attaint] caused difficulty in New South Wales where convicts who had been convicted of felonies but whose capital sentences had been remitted were numerous. Very early decisions of the Supreme Court under Forbes CJ held that they did not apply, or else erected evidentiary obstacles to their application.
6. The felony attaint rule begs the question what is a "felony"? There were distinctions between felonies and misdemeanours very broadly according to their heinousness. Felonies were punishable by death or penal servitude, misdemeanours by imprisonment or the imposition of a fine. [9] Penal servitude involved a determinate term of full-time custody often with what is described as hard labour. The distinction between light labour or hard labour related to the form of punishment. [10]
7. Historically, a capital felony was punishable by death. The term "capital punishment" is derived from the Latin word "caput" meaning "head". It originally referred to the type of death sanctioned. [11] A person convicted of a capital felony was attainted. [12] The prisoner was disgraced and his or her rights were stained. As Leeming JA put it: [13] The state of being attainted might apply for many years, as for example, when a felon was spared the death penalty on condition that he or she be kept in penal servitude. The position of persons convicted of a non-capital felony was unclear.
8. In 1955, capital punishment was essentially abolished in the State of New South Wales. [14] Some residual offences related to piracy and treason continued to carry the death penalty but were abolished with the passing of the Crimes (Death Penalty Abolition) Amendment Act 1985 (NSW). [15] Under Commonwealth law, the death penalty was abolished in 1973 by s 4 of the Death Penalty Abolition Act 1973 (Cth).
9. In 1978, the High Court confirmed that a person convicted of a felony in respect of which he had been sentenced to death and spared the penalty of death on condition that he be kept in penal servitude could not in New South Wales maintain an action for a civil wrong. [16] This decision in Dugan, a case involving a capital felony, provided the substantive legal context to the passing of the Felons Act in 1981. [17]
10. In March 1980, Cantor J in Macari addressed the case of a non-capital felony. The convicted felon (more widely known as the infamous "Mr Brown" of the Qantas Bomb Hoax) was serving the balance of a 15 year sentence with a non-parole period of nine years after being convicted of demanding money with menaces and stealing a van and carrying a grenade. The judgment was given in circumstances of urgency. His Honour made reference to the High Court's decision in Dugan, as well as to the lower court decisions of Yeldham J and the Court of Appeal in Dugan.
11. The issue, and accordingly the submissions in Macari, "centred upon whether the plaintiff, being a convicted felon who has not yet finished serving his sentence is able to bring these or indeed any proceedings in this court".
12. Cantor J stated at 3: …If the plaintiff were convicted of a capital felony then there would be no room for debate and he would be barred from bringing these proceedings. Yeldham J equated the position of a person convicted of any felony with a person convicted of a capital felony regarding them both as disqualified from bringing proceedings. As I have indicated the court of Appeal upheld both the orders and reasons given by Yeldham J. In the High Court the Chief Justice said that the conclusion reached by the Supreme Court both at first instance and on appeal was, in his view, plainly right. He went on to say that it was unnecessary to consider the position of a non-capital felon who is still serving his sentence. Gibbs J agreed with the conclusions reached by Jacobs J and in general with the reasons advanced by Jacobs J. Stephens J agreed with the majority of the court but did not deal with the situation of a non-capital felon. Jacobs J stated that he would expressly leave the question open with regard to non-capital felons. He expressed the opinion that the situation there was uncertain and he had found no clear authority on the topic. With this inadequate and brief resume of the state of the authorities on this topic I feel that the situation is sufficiently covered by the judgment of Yeldham J and the Judges of the court of Appeal to enable me to hold that there is no jurisdiction in this court to entertain the application by this convicted felon. I would add that, prior to the decision of Yeldham J. (sic) Dugan's case came before me in respect of the same point when I was Master of this court and, again in a rushed overnight decision I came to the same conclusions as did Yeldham J.
13. In 1981, prior to the introduction of the Felons Act, Kearney J in Burns Philp Trustee Co Ltd v Viney [18] (a case heard and determined after the Felons Act had been assented to but before its commencement) [19] considered the application of the common law to a son of a deceased who sought inter alia family provision relief pursuant to the Testator's Family Maintenance and Guardianship of Infants Act 1916 (NSW). The son was convicted in 1935 of the capital felony of rape and was sentenced to death. The sentence was commuted to life imprisonment in 1936 and he was released from gaol on license in 1945, remaining on licence at the time of the hearing.
14. Kearney J noted an argument that the rule in Dugan did not apply to a family provision claim because it was merely a statutory entitlement to seek the favourable exercise of the Court's discretion to grant some relief and that until such relief is granted there is no right which an applicant could be said to be seeking to enforce. His Honour rejected the submission, observing by reference to the decision of Murphy J in Dugan that the effect of attainder was "civil death" and as such a convicted felon is excluded from access to any court for any relief whatsoever. [20]
15. Therefore, the authorities show that at least in respect of capital felony offences prior to 1981, Lord Wilberforce's principle did not represent the law in New South Wales. [21] Despite the decision in Macari, the position of persons convicted of a non-capital felony was, as Leeming JA notes, unclear.
16. On 18 March 1981, the Felons (Civil Proceedings) Bill was introduced in the Legislative Assembly. In his second reading speech on that day, the Honourable Francis John Walker highlighted that the grant of leave was for the purpose of preventing abuse of process, and foreshadowed that the distinction between felonies and misdemeanours "must inevitably be abrogated" though noting that "this bill is not an appropriate vehicle to achieve that end." [22] When honourable members have had the opportunity to peruse the bill, they will observe that clauses 4, 5, 6, and 7 place some restraint on the commencement of civil proceedings by felons in custody. They provide that no such proceedings should be commenced unless the leave of the court has &st been obtained. The only reasons for refusal of the grant of leave will be that the court is not satisfied that the proceedings are not an abuse of court process, and that there is a prima facie ground for the proceedings. This aspect of the measure is designed simply to prevent persons in custody, having been convicted of a felony, from attempting to institute vexatious or frivolous actions. Naturally the Government is concerned that in the interests of the proper administration of justice and for the protection of the welfare of the community as a whole, efforts should be made to ensure that prisoners are not able to take advantage of the removal of their legal disability to attempt to disrupt the due processes of the law. What the prospects of such behaviour from prisoners may be no one can say, but I am confident the House will agree that if attempts are to be made to prevent convicted felons from initiating irresponsible actions, it is important that the task of considering whether a prisoner is to be given the opportunity to come to court should be vested in the court itself and not in an anonymous official within the prisons system. Finally, I emphasize that the bill does nothing to affect or limit the rights of persons in custody after having been convicted of misdemeanours. It would not be just for the Government to limit such prisoners' rights while legislating for the restoration of the rights of another class of prisoner. Of course the position will be anomalous, but no more so than the position that obtains due to the continuing historical distinction between felonies and misdemeanours. That distinction must inevitably be abrogated but honourable members will understand that this bill is not an appropriate vehicle to achieve that end. The bill will remove an archaic hangover from medieval law and ensure that the full consequences of sentences of penal servitude are apparent when handed down. The covert application of the doctrine of attainder of felony will no longer be allowed to subsist as a hidden punishment following conviction for felony. I commend the bill to the House. I table short explanatory material detailing its provisions.
17. The Bill was substantively debated in the Legislative Assembly on 8 April 1981. [23]
18. On 9 April 1981 the Bill was read first time in the Legislative Council and on 14 April 1981 the second reading speech of the Honourable David Paul Landa and debate on the Bill occurred. [24]
19. In June 1981, the Felons Act was assented to, and it commenced on 1 January 1982.
20. The long title of the Felons Act was and is: "an Act to provide that a person convicted of, or found to have committed, a felony shall not be incapable of instituting and maintaining civil proceedings in any court".
21. The Felons Act in its original form contained eight sections including ss 3 to 5 in the following form: Felon may sue. 3. Subject to this Act, a person shall not, by reason of his having been convicted of, or found to have committed, a felony, be incapable of instituting and maintaining any civil proceedings in any court. Leave required in certain cases. 4. A person who is in custody as a result of his having been convicted of, or found to have committed, a felony may not institute any civil proceedings in any court except by the leave of that court granted on his application. Grant of leave. 5. A court shall not, under section 4, grant leave to a person to institute proceedings unless the court is satisfied that the proceedings are not an abuse of process and that there is prima facie ground for the proceedings.
22. Purposes evident from the second reading speech in 1981 of the Attorney General regarding the Felons (Civil Proceedings) Bill included amelioration of the perceived harshness of the doctrine of attainder and to prevent abusive proceedings. [25]
23. In 1998, Sheller JA in Jol v State of New South Wales [26] noted that the effect of the Felons Act removed the disqualification and any doubt about the position of persons convicted of non-capital felonies being able to institute and maintain proceedings. The focus on the purpose of the Felons Act preventing abuse of process was also confirmed by his Honour. [27]
24. However, as noted by Basten JA in Patsalis: [28] The simplicity of the statutory scheme concealed a difficulty: did s 3 operate only in respect of persons who would otherwise have been incapable of instituting and maintaining civil proceedings? If so, was the leave requirement in s 4 also limited to such persons?
25. His Honour remarked that the answers to these questions had been obscured by later statutory developments. [29]
26. In 1999, 18 years after The Honourable Mr Walker had foreshadowed the distinction between felonies and misdemeanours "must inevitably be abrogated" [30] , amending legislation was prepared and introduced into the New South Wales Parliament.
27. The Crimes Legislation Amendment (Sentencing) Bill 1999 (NSW) contained an explanatory note which relevantly indicates that the purpose of the amending legislation was to give effect to the abolition of penal servitude and the abolition of the distinction between felonies and misdemeanours arising from proposed ss 580E, 580F, and 580G to be inserted into the Crimes Act 1900 (NSW) (Crimes Act) by Sch 3 at para 68. The second reading speeches also reflect this intention. The Crimes Legislation Amendment (Sentencing) Act 1999 as passed gave effect to this intention.
28. The Felons Act was also varied by repealing s 3 and amending s 4 so that it no longer referred to persons convicted of a felony, that concept being replaced by the phrase "serious indictable offence" in 1999. [31]
29. Sections 4, 5 and 9 of the Felons Act relevantly and currently provide as follows: 4 Leave to sue required for persons convicted of serious indictable offences A person who is in custody as a result of having been convicted of, or found to have committed, a serious indictable offence may not institute any civil proceedings in any court except by the leave of that court granted on application. 5 Grant of leave A court shall not, under section 4, grant leave to a person to institute proceedings unless the court is satisfied that the proceedings are not an abuse of process and that there is prima facie ground for the proceedings. 9 Provisions consequent on enactment of Crimes Legislation Amendment (Sentencing) Act 1999 (1) Section 3, as in force immediately before its repeal by the 1999 amending Act, continues to have effect in relation to any person who was convicted of a felony before the repeal of that section. (2) Sections 4- 7, as in force immediately before their amendment by the 1999 amending Act, apply to a person who was convicted of a felony before their amendment as if the person had been convicted of a serious indictable offence. (3) In this section, 1999 amending Act means the Crimes Legislation Amendment (Sentencing) Act 1999.
30. An "indictment" includes any information presented or filed as provided by law for the prosecution of offences. [32]
31. An "indictable offence" was, essentially, an offence triable by judge and jury. Now it relevantly means an offence for which proceedings may be taken on indictment, whether or not proceedings for the offence may also be taken otherwise than on indictment. [33]
32. A "serious indictable offence" means an indictable offence that is punishable by imprisonment for life or for a term of five years or more. [34]
33. In Patsalis, Basten JA observed that an effect of s 580E of the Crimes Act was to remove "any disability flowing from conviction for a felony, prior to the commencement of the section". [35] His Honour stated, "That conclusion is consistent with the repeal of s 3 of the Felons Act by the same statute".
34. The precise extent of the meaning of "civil proceedings" has been the subject of comment in various Court decisions. [36]
35. However, generally, as observed by Basten JA, the operation of s 3 should be seen in light of the decision in Dugan. His Honour stated: 40. In considering the operation of s 3, reference may be had to three propositions derived from the judgment of Jacobs J in Dugan v Mirror Newspapers at 602-603: (a) attainder was the consequence of a capital sentence; (b) the result of attainder was to disable a person from bringing a civil action, and (c) there was no clear authority as to whether a person convicted of a non-capital felony was disabled from bringing a civil action. 41. In these circumstances, s 3 should have been understood as operating broadly to remove the disability imposed by the general law against the bringing of any civil action. It did so on condition that the person thus enabled obtained leave from the court for such proceedings. The apparent purpose of s 4, read in its original statutory context, was to condition the removal of the disability on the need to obtain leave; there was no indication that it had any wider purpose, namely of imposing a leave requirement where there had been no disability. 42. However, it is not necessary to reach a firm conclusion as to this point of construction because no party contended that the section did not apply to all persons who were, at the time they wished to institute civil proceedings, in custody as a result of conviction for a serious indictable offence. (It is not necessary for present purposes to consider persons found to have committed such an offence, but who had not been convicted for it.) The issue was whether the reference to "civil proceedings" included proceedings by way of judicial review in the supervisory jurisdiction of the Supreme Court. However, the history remains apposite to the construction of the term "civil proceedings" in s 4.
36. In 2015, the Court of Appeal in Potier v Attorney General in and for the State of New South Wales [37] further addressed the scope of the constraint imposed by the Felons Act. Basten JA stated: 28. This case raises squarely (for the first time) the question as to the scope of the constraint imposed by the Felons Act. As originally enacted, the Felons Act had two purposes. The first (dealt with in s 3, since repealed) was to abolish the disability under the general law of a felon with respect to instituting and maintaining civil proceedings in a court. The second purpose was to impose a leave requirement (s 4). The question was whether the latter purpose was restricted to the scope of the first. 29. The scope of the general law disability was uncertain. In Patsalis v State of New South Wales [2012] NSWCA 307; 81 NSWLR 742 at [41] I noted the arguments in favour of a restrictive understanding of the disability and hence the scope of s 3; again adopting a restrained approach, s 4 could be seen to require leave in those situations where the abolished general disability had operated. I did not reach a final conclusion (see [42]); other members of the Court expressly reserved their positions with respect to that issue: see Allsop P at [7], Sackville AJA at [113]. The issue has now been fully addressed by Leeming JA and I agree with his conclusion that s 4 should not be read down in the manner proposed. The broader scope, giving the language of s 4 its ordinary meaning, is the preferable reading of the statute.
37. Meagher JA at [31], agreed with Leeming JA, adding a number of remarks.
38. Leeming JA, at [55] stated: Section 3 of the Felons Act as originally enacted provided that a person who had been found to have committed a felony was not for that reason incapable of commencing and maintaining any civil proceedings in any court. This overturned an inability to sue at common law which extended at least to felons convicted of capital offences: Dugan v Mirror Newspapers Ltd (1978) 142 CLR 583. Section 3 was long ago repealed, but s 9 provides that it continues to apply to persons convicted of felonies before the abolition of all distinctions between felony and misdemeanour and the extension of the law and practice applicable to misdemeanours to all offences with effect from 1 January 2000 (see Crimes Act 1900 (NSW), s 580E).
39. His Honour concluded that the Felons Act means what it says and imposes a requirement for leave upon all persons who are in custody because they have been convicted of or found to have committed a serious indictable offence, irrespective of whether the corresponding felony would have led to any legal incapacity. [38] His Honour's reasoning is essentially encapsulated in the passage as follows: 59. In Dugan, Jacobs J said that there was no clear authority as to whether a person convicted of a non-capital felony was disabled from bringing a civil action (at 602). That gives rise to a question whether ss 3 and 4, as originally enacted, had the narrower effect of replacing an incapacity on the part of persons convicted of capital felonies with a capacity to sue subject to a grant of leave, or had the potentially broader effect of qualifying the right to bring civil proceedings of all persons convicted of felonies. Basten JA and Sackville AJA both raised that possibility in Patsalis at [41]-[42] and [113]. Both of their Honours expressly qualified their views as preliminary ("not necessary to reach a firm conclusion" and "much to be said for the proposition") because the point was not the subject of argument and not necessary to the result. At least one commentator is broadly supportive of that result: see J Donnelly, "Judicial Review for the Convicted Felon in Australia - a Consideration of Statutory Context and the Doctrine of Attainder" (2012) 16(1) UWSLR 137, 146-154. 60. Although I acknowledge the attraction of that view, I have concluded that the Felons Act means what it says, and imposes a requirement of leave upon all persons who are in custody because they have been convicted of, or found to have committed, a serious indictable offence, irrespective of whether the corresponding felony would have led to any legal incapacity. I reach that conclusion not only because of the ordinary meaning of the language of ss 4-7 of the Felons Act, but also because of the force of s 9(2), which was inserted when s 3 was repealed by the Crimes Legislation Amendment (Sentencing) Act 1999 (NSW) (this was defined as the "1999 amending Act"). Section 9(2) provides that: "Sections 4-7, as in force immediately before their amendment by the 1999 amending Act, apply to a person who was convicted of a felony before their amendment as if the person had been convicted of a serious indictable offence." 61. Subsection (2) leaves no room to argue that there were persons convicted of felonies to whom, because they may not have been - nearly two decades previously - subject to a legal incapacity to bring civil proceedings, ss 4-7 did not apply. To the contrary, subs (2) confirms that the requirement of leave applied to all persons convicted of felonies. 62. That being the position for all persons convicted of felonies prior to 2000, it follows that ss 4-7 apply to all persons convicted of, or found to have committed, serious indictable offences after 2000. It could not be the case that the Felons Act applied to all persons convicted of felonies prior to 2000, but only to some persons convicted of serious indictable offences which would have previously corresponded to felonies after 2000. 63. For completeness, I note that my conclusion accords with what was said during the second reading speech by the Minister with carriage of the Felons (Civil Proceedings) Bill, (New South Wales Legislative Council, Parliamentary Debates (Hansard), 14 April 1981 at 5800, the Hon D P Landa): 46 "Though it was not clear whether [Dugan v Mirror Newspapers Ltd] applied to felons other than capital felons, the later case of Macari v Mirror Newspapers in the New South Wales Supreme Court confirmed that all felons suffer the disability until their sentences expire." Macari v Mirror Newspapers Ltd is an unreported decision of Cantor J in the Supreme Court of New South Wales, delivered 4 March 1980. During the subsequent debate, it was said that Dugan and Macari "showed beyond doubt that the New South Wales law still applied to all felonies" (New South Wales Legislative Council, Parliamentary Debates (Hansard), 14 April 1981 at 5801, the Hon L A Solomons). There was no suggestion to the contrary. That tells against the possibility that s 3 amounted to legislative overkill, such that ss 4-7 should be read down. (Whether or not that aspect of Macari - an urgent decision on an interlocutory injunction in proceedings commenced shortly before 5pm on the preceding day - is correct is not something that I express a view about; it suffices for present purposes to note how the effect of Macari was perceived.)
40. Subsequently, Leeming JA in Hamzy noted that the Felons Act reflects Lord Wilberforce's principle. [39]

Determination

1. The defendant's submissions invoke common law principles as an obstacle to the plaintiff's standing to bring these proceedings.
2. The second reading speeches in 1981 on the introduction of the Felons (Civil Proceedings) Bill do not address the question of whether proceedings which have been regularly commenced by a person prior to conviction are able to be maintained after conviction without a grant of leave.
3. There is seemingly little focus in the authorities about whether a person who has "instituted" proceedings and, only subsequently has been convicted (either prior to 1999 of a "felony" or thereafter of a "serious indictable offence") requires leave to maintain the proceedings.
4. The long title to the Felons Act, initially and even now reveals a purpose of a person convicted of a felony being incapable of not merely instituting but also maintaining civil proceedings.
5. A long title is intended to describe in a general way the purpose or object of the Act. It has some importance in parliamentary procedure in that it is the long title that forms the basis of the resolution whether the bill for an Act should be given a first or subsequent reading: Pearce, Denis 'Statutory Interpretation in Australia' 10ed 2024 (LexisNexis) (Pearce) at [1.52]. Conventionally, it has been called upon by judges as an aid to construction of the relevant Act: Pearce at [4.84].
6. However, s 3 of the Felons Act did not in terms impose any requirement regarding maintaining civil proceedings.
7. Further, the requirement for leave in s 4 Felons Act on the basis of a grant of leave in s 5 Felons Act has never included reference to "maintaining" civil proceedings. The terminology in those sections is limited to the verb "institute".
8. The definition of the verb "institute" in the Macquarie Dictionary, online ed. includes as the first four choices of meaning: verb (t) (instituted, instituting) 1. to set up or establish: to institute a government. 2. to inaugurate; initiate: to institute a new course. 3. to set in operation: to institute a lawsuit. 4. to bring into use or practice: to institute laws.
9. The definition of the verb "maintain" in the Macquarie Dictionary, online ed. includes as the first three choices of meaning: verb (t) 1. to keep in existence or continuance; preserve; retain: to maintain good relations with New Zealand. 2. to keep in due condition, operation, or force; keep unimpaired: to maintain order; maintain public highways. 3. to keep in a specified state, position, etc.
10. Once leave is given to "institute" proceedings there is nothing in the Felons Act nor case law which suggest that a second separate grant of leave is required to "maintain" the proceedings. Thus, from its inception, leave that is given under s 5 Felons Act to a person in custody [40] , to "institute" proceedings has the collateral benefit and practical consequence that the proceedings may be "maintained" without the requirement of any further grant of leave.
11. Certainly as the Act has been applied in particular in the Common Law Division of this Court that practical reality is reflected in orders made under the Felons Act. Orders are regularly made using the terminology not merely of instituting but maintaining proceedings [41] .
12. The distinction between "instituting" civil proceedings and "maintaining" proceedings, was not addressed in the second reading speeches in respect of the Bill leading to the Crimes Legislation Amendment (Sentencing) Act 1999 [42] .
13. In the circumstances of this case, it is not necessary to reach a concluded view as to whether the a person who has regularly institute civil proceedings prior to being convicted of a serious indictable offence requires leave to maintain the proceedings after conviction and during the custodial period.
14. That is because apart from the construction of the Felons Act, there is a more fundamental difficulty with the argument that disabling common law principles might apply in the circumstances of this case.
15. That difficulty is that the alleged disabling common law principles are couched in language of "felony" and "capital" and "non-capital" offences in particular which are not readily translatable and accordingly not readily applicable to the offences for which the defendant was convicted.
16. The decision in Dugan relevantly analysed the common law by reference to a "capital felony" and "non-capital felony". [43] Barwick CJ found it unnecessary to enter upon the question whether a prisoner convicted of a non-capital felony could sue in the courts whilst still serving his sentence, though adding: …that seems to have been the assumption both of the Imperial legislature and of the New South Wales legislature in enacting 5 Geo. IV c. 84 s. 26, 46 Vict. No. 17, ss. 418 and 420, and the Crimes Act, 1900, ss. 467 and 469 [44] .
17. The judgment of Jacobs J (with whom Gibbs J at 588 and Mason J at 601, relevantly agreed) lends no support for the proposition that a person convicted of a non-capital felony was disabled from bringing civil action. His Honour stated at 602: Whether or not it was law (separate from the law of attainder) that a person convicted of a non-capital felony was disabled to bring an action either wholly or until he had endured the punishment to which he was adjudged appears to me uncertain. I can find no clear authority upon the question.
18. His Honour went on to make reference to caselaw, statutory provisions and Dicey in his text 'Parties to an Action' at 602-603 and concluded at 603: However, on such an important question of civil right, authority or principle would need to be found to support such a supposed rule when it cannot be based on attainder. I have not been able to find such authority or any principle from which it could be deduced. I would therefore expressly leave the question open.
19. Ms Cohen expressly drew to my attention the decision of Cantor J in Macari. I noted it had been referred to by Leeming JA in Potier. Leeming JA observed how Macari was perceived in the context of the debate in April 1981 on the parliamentary debate of the Felons (Civil Proceedings) Bill. His Honour refrained from addressing whether Macari was correct. Dugan was a case of a capital felony. It is unclear to me how any of the decisions in Dugan's case (Yeldham J, Court of Appeal and High Court) provides any conclusive support for the proposition that a person convicted of a non-capital felony was relevantly disabled from commencing civil settings. Further, I note that Hunt J in Schneidas v Jackson [1982] 2 NSWLR 969 at 970F-G regarded the finding of Cantor J in Macari regarding a non-capital sentence as obiter.
20. The legislative provisions that I have referred to above abolished the distinction between felony and misdemeanours. [45] Certain common law offences by reference to terminology of "felony" were abolished. [46] The common law rule granting immunity to a wife against prosecution as an accessory after the fact to a felony committed by her husband was abolished (though without retrospective operation). [47] Leaving aside the Felons Act, the only continuing references to "felony" in New South Wales statutes are extremely limited, being ostensibly the Piracy Punishment Act 1902 (NSW), [48] the Imperial Acts Application Act 1969 (NSW) [49] and the Criminal Procedure Act. [50]
21. Seemingly, the only current Commonwealth Act [51] in which the term "felony" is used is s 22 of the Defence (Special Undertakings) Act 1952 (Cth). [52]
22. As noted by Leeming JA in Hamzy, with the abrogation of attainder and forfeiture in New South Wales, there was no basis for common law to create some intermediate position once the Felons Act commenced. [53]
23. Relevantly in this case, the language of "felony" is not used in either the offences with which the defendant was charged and convicted nor in the judgment of Mossop J. Accordingly, it is unclear how the disabilities explained in Dugan attaching to capital felony offences applies to the offences with which the defendant was charged and convicted. It is further unclear, given the doubtful state of the law regarding what disabilities attached to non-capital felony offences, how that law, even if it could be stated with certainty, applies to the offences with which the defendant was charged and convicted.
24. I detect no legislative purpose that the reforms and amendments brought about by the Crimes (Sentencing Procedure) Act 1999 (NSW) and the Crimes (Administration of Sentences) Act 1999 (NSW) were intended to reintroduce any prior common law disabilities for family provision proceedings standing outside the application of the Felons Act.
25. It suffices to say that I am satisfied that subject to the application of the Felons Act, there is no relevant common law principle relating to attainder or felony offences which precludes the defendant's application in these proceedings.
26. It is well settled that, subject to the application of the Felons Act, family provision cases have been able to be commenced and maintained by persons imprisoned at the time of the hearing of such cases. The first example under the Family Provision Act 1982 (NSW) was seemingly the decision of Young J in Hoadley v Hoadley in 1987. [54] The Court of Appeal has not suggested that there are relevant bars other than leave under the Felons Act. [55] Indeed, illegal conduct per se is no bar to a family provision claim. [56]
27. Even if one supposes, for the purpose of argument, that the offences with which the defendant was convicted are serious indictable offences "punishable by … a term of five years or more", there is some doubt as to whether the Felons Act applies to proceedings brought in New South Wales by persons in custody for an offence under the Commonwealth. [57] That is a relatively complicated issue upon which I have raised with the parties, but they have not made and do not seek further opportunity to make detailed submissions.
28. In cases of a doubt, the Court has taken the approach that if leave is required under the Felons Act, it may be given. [58]
29. The sensibility of making a grant of leave under the Felons Act at the time the matter arises rather than waiting for a further belated application after the release of the defendant from custody is supported by the approach taken by Young J in Smith v Public Trustee (1989) 42 A Crim R 126 at 127. Specifically, even if there is doubt as to the application of the Felons Act to a family provision claim, one approach of the Court is to indicate that if leave is necessary it be given to bring the claim. [59]
30. In the above circumstances, I have determined to proceed on the basis that if leave is required under the Felons Act, it is appropriate to address a grant of leave. To the extent necessary, I am satisfied that there is a prima facie ground for the proceedings and that they are not an abuse of process, in accordance with s 5.

Designating notional estate

1. Prima facie, a family provision order may not be made in relation to property of an estate that has been distributed by a legal representative in compliance with the requirements s 93 of the Succession Act. [60] . However, that is qualified such that a family provision order may be made in relation to such property if it is designated as notional estate by an order under Pt 3.3, Succession Act. [61] The Court has power to make an order designating property as notional estate if it is satisfied that as a result of a distribution of the deceased's estate, property (whether or not the subject of the distribution) has relevantly become held by a person [62] .
2. There are various jurisdictional and discretionary steps that must be satisfied before a Court can make an order designating property as notional estate for the purposes of a family provision order or a costs order. I addressed these in Clayton v Clayton [2023] NSWSC 399 at [607]-[627]. Further, in circumstances where a family provision application is made out of time, the Court must not make a notional estate order unless it is satisfied that special circumstances exist to justify the making of the notional estate order. [63]
3. Section 90 is not an absolute bar to designating property as notional estate subject to satisfaction of other requirements.
4. What constitutes special circumstances is not defined in the Succession Act but has been the subject of many decisions. [64] In Stone v Stone [2016] NSWSC 605, Brereton J wrote (omitting footnotes): 70 Succession Act, s 90 (Restrictions on out of time or additional applications), provides: 6(1) This section applies to proceedings where: (a) an application for a family provision order is made later than 12 months after the date of the death of the deceased person, or (b) an application for a family provision order is made in relation to an estate that has been previously the subject of a family provision order. (2) The Court must not make a notional estate order in the proceedings unless: (a) it is satisfied that: (i) the property to be designated as notional estate is property that was the subject of a relevant property transaction or of a distribution from the estate of a deceased person or from the estate of a deceased transferee, and (ii) the person who holds the property holds it as a result of the relevant property transaction or distribution as trustee only, and (iii) the property is not vested in interest in any beneficiary under the trust, or (b) it is satisfied that there are other special circumstances that justify the making of the notional estate order. 71. The use of the formula "special circumstances" reflects an intention that judicial discretion not be confined by a list of relevant factors, by capturing circumstances of potential relevance which are so various as to defy precise definition. Circumstances are special if they are unusual, uncommon or exceptional in character, quality or degree; if they differ from the ordinary or the usual; or if they are particular or individual; but they need not be unique. Circumstances may be special by reason of their weight as well as their quality, and because of a combination of factors. The terms of s 90(2) indicate that property not vesting in interest, incapacity, and circumstances analogous thereto, may constitute special circumstances; but special circumstances are not limited to those suggested by the terms of the section or closely analogous to them. Factors that contribute to a decision to extend time under Family Provision Act, s 16, can also contribute to a finding of "special circumstances", although more is required to establish special circumstances under Succession Act, s 90(2), than to justify an extension of time under Succession Act, s 58(2). 72. Factors that have contributed to findings of special circumstances have included incapacity as a result of infancy, the fact that it was no fault of the applicant that application was not made within time, the strength on the merits of an applicant's claim, the absence of prejudice (such as the fact that there has been no significant dealing with the notional estate in the meantime), and the belated falsification, after time for bringing an application for provision had expired, of a reasonable expectation that if fulfilled would have made an application unnecessary.
5. If it be the case (which I do not accept) that the plaintiff is required to commence fresh proceedings instanter, and the matter had to be addressed now, I am satisfied in the circumstances recited above that there is sufficient cause shown to permit an order to be made that the time for the commencement of any fresh proceedings be extended up to and including the current time pursuant to s 58(2) of the Succession Act.
6. Further, (on that hypothetical scenario) as to any such requirement to show special circumstances in this case before a designating order is made, I am satisfied that the particular circumstances of this case, including but not limited to issues regarding the plaintiff's standing, easily satisfy that requirement.

Orders

1. The orders of the Court are as follows - The Court: 1. Notes: 1. the summons filed on 9 November 2022; and 2. the written submissions of counsel for the parties. 1. Reads the affidavits relied upon by the parties as set out in the Settlement Checklist which includes the affidavit of the plaintiff sworn 31 January 2025. 2. Notes the consent of the defendant to these orders. 3. Orders, if leave be required pursuant to the Felons (Civil Proceedings) Act 1981 (NSW) that such leave be granted nunc pro tunc to 9 November 2022 or alternatively from the time that the plaintiff was in custody for the bringing, maintenance and settlement of these proceedings by the plaintiff. 4. Order pursuant to section 59 Succession Act 2006 that, in addition to the provision made for him in clauses 4.1(d) and 6.2 of the Will of the late Patricia Mary McBride (the deceased), the plaintiff is to receive a lump sum of $75,000 from the deceased's notional estate. 5. Interest is not payable on the lump sum in Order 5 if paid within 28 days of the date of these orders and if not so paid, the unpaid amount shall accrue interest at the rate provided by section 84A(3) Probate & Administration Act 1898 on and from the 29th day until paid in full. 6. Orders, pursuant to section 79 Succession Act 2006 and subject to Order 8, that the property held by the defendant at XX XX, Neutral Bay New South Wales, be designated as notional estate to the extent necessary to satisfy the orders for the lump sum provision and interest. 7. Notes that the defendant is at liberty to personally pay the whole of the lump sum referred to in Order 4 and any interest accrued thereon, in order to satisfy the family provision order, in which case, upon payment of such sum and any interest the designating order shall lapse. 8. Orders that the costs order made by Elkaim AJ on 3 February 2024 in McBride v McBride [2024] NSWSC 45 be discharged. 9. Orders that the provision for the plaintiff be borne by the defendant. 10. Notes the agreement between the parties that in consideration of the settlement of these proceedings the plaintiff has agreed to release the deceased's estate and any notional estate held by the defendant from any further claim for further provision pursuant to s 59 of the Succession Act. 11. Orders that the release, by the Plaintiff, of his rights to apply for a further family provision order out of the whole, or any part, of the estate or notional estate of the deceased, be approved pursuant to s 95(3) of the Succession Act. 12. Orders that there be no order as to the plaintiff's costs to the intention that he pays his own costs. 13. Orders that the defendant's costs, calculated on the indemnity basis, be paid or retained as the case may be from the deceased's notional estate. 14. Grants liberty to any party to apply, in these proceedings, for consequential and ancillary orders for the purpose of, or with respect to, giving effect to, and implementing, the family provision order made in favour of the plaintiff. 15. Order that the hearings of each of the parties' motions listed on 31 January 2025 be vacated. 16. Order that the hearing set down on 4-7 and 10 February 2025 be vacated. 17. Notes the agreement of the parties that: 1. the plaintiff is an eligible person. 2. the plaintiff has served a notice identifying all other eligible persons on the executor at the time of serving the summons. 3. the executor has filed: 1. the executor's affidavit required by SCR Schedule J; and 2. the affidavit of service of notice of the plaintiff's claim on any person who is, or may be, an eligible person as well as upon any person beneficially entitled to the distributable estate, and any person holding property as a result of a distribution from the estate, as trustee or otherwise. 1. the executor has filed an Appearance. 1. Directs the defendant within 28 days of the date of these Orders to lodge in the Probate registry: 1. the original grant of probate; and 1. two copies of these orders.

Endnotes

1. Farrow v Nationwide News Pty Ltd (2017) 95 NSWLR 612; [2017] NSWCA 246 per Basten JA at [4].
2. See [7]-[12].
3. R v McBride (No 4) [2024] ACTSC 147 at [1], [2].
4. R v McBride (No 4) [2024] ACTSC 147 at [250].
5. "Notwithstanding the introduction of the Death Penalty Abolition Act 1973 (Cth) by which the death penalty was abolished in Australia".
6. See also Leeming JA at [168], and [173].
7. See Cable v Sinclair [1788] NSW KR 7.
8. Bruce Kercher and Brent Salter, The Kercher Reports: Decisions of the New south Wales Superior Courts, 1788 to 1827 (2009, Francis Forbes Society for Australian legal History) at 15-6; see also "The speech of T F Bathurst AC KC on the launch of Enduring Courts in Changing Times (New South Wales and Tasmania) 16 July 2024" (2024) 55 Australian Bar Review 10 at 11-2.
9. See the former ss 9 and 10 of the Crimes Ac 1900 (Crimes Act); see also New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 28 October 1999 at 2329 per Mr Debus; New South Wales Legislative Council; Parliamentary Debates (Hansard) 30 November 1999 at 3809 per Mr Macdonald.
10. New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 28 October 1999 at 2329-30 per Mr Debus.
11. Ivan Potus and John Walker, "Trends & Issues in Crime and Criminal Justice No 3" (1987) Australian Institute of Criminology (Potus and Walker) at p 1.
12. Hamzy at [171] per Leeming JA.
13. Hamzy at [171].
14. Patsalis v State of New South Wales (2012) 81 NSWLR 742; [2012] NSWCA 307 (Patsalis) at [30] per Basten JA; Potus and Walker at 1.
15. Potus and Walker at 2.
16. Dugan at 602-6 per Jacobs J, Mason and Aickin JJ agreeing at 601 and 616 respectively. See also Barwick CJ at 587, Gibbs J at 588, Stephen J at 592.
17. Patsalis at [2] per Allsop P.
18. [1981] 2 NSWLR 216.
19. Ibid at 226C-D.
20. At 220C-E.
21. Hamzy at [173] per Leeming JA.
22. New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 18 March 1981 at 4814
23. New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 8 April 1981 at 5584-5595
24. New South Wales Legislative Council, Parliamentary Debates (Hansard), 14 April 1981 at 5799-5803
25. New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 18 March 1981 at 4814; New South Wales Legislative Council, Parliamentary Debates (Hansard), 14 April 1981 at 5799-5801; Patsalis at [4] per Allsop P.
26. (1998) 45 NSWLR 283; (1998) 104 A Crim R 516 (Jol) at 285F, Beazley J and Sheppard AJA agreeing at 290F.
27. Jol at 290C.
28. Patsalis at [32].
29. Patsalis at [33].
30. New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 18 March 1981 at 4814
31. Crimes Legislation Amendment (Sentencing) Act 1999 sch 4 cl 4.111[1]-[2].
32. Crimes Act s 4.
33. Interpretation Act 1987 (NSW) (Interpretation Act) Sch 4. See also Criminal Procedure Act 1986 (NSW) (Criminal Procedure Act) ss 3, 8.
34. Interpretation Act s 4; see also Crimes Act s 4.
35. At [37].
36. See e.g. Patsalis per Allsop P at [5]-[7].
37. (2015) 89 NSWLR 284; [2015] NSWCA 129.
38. At [60].
39. At [179].
40. As a result of having been convicted of, or found to have committed "a felony" (up to 1999) or "a serious indictable offence" (thereafter)
41. For example see Taipa v Trustees of the Roman Catholic Church for the Diocese of Broken Bay [2022] NSWSC 691 per Hamill J at [7]; Butler v State of New South Wales [2023] NSWSC 118 per Davies J at [9]; Cooper v State of New South Wales [2023] NSWSC 189 per Davies J at [10]; Hoskin v Trustees of the Marist Brothers [2023] NSWSC 739 per Davies J at [16]; GP1 v State of New South Wales [2023] NSWSC 1042 per Garling J at [8]; Sullivan v State of New South Wales [2024] NSWSC 467 per Hamill J at [11].
42. See the speeches of the Honourable Mr Debus in the New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 28 October 1999 at 2324-2330 and the Honourable Mr Macdonald in New South Wales Legislative Council, Parliamentary Debates (Hansard) 30 November 1999 at 3806-9.
43. Barwick CJ at 585, 586; Stephen J at 592; Jacobs at 602.
44. At 587.
45. Crimes Act s 580E(1)
46. Crimes Act s 341, namely the offences of misprision of felony and compounding a felony.
47. Crimes Act s 347A.
48. See s 6 and Schedule.
49. See Third Schedule.
50. Section 267(4B)(b) and s 268(2A)(b)
51. Leaving aside s 70(3) of the Norfolk Island Partition Ordinance 1931-1964 which states "In particular and without prejudice to the generality of any other provision of this section, the Court may make an order for the appointment of a new trustee in substitution for a trustee who is convicted of felony, or is a bankrupt, or being a corporation is in liquidation or is dissolved."
52. The section states "A person who is found committing an offence against this Act, or is reasonably suspected of having committed, or of having attempted to commit or of being about to commit, such an offence, may be arrested without warrant by a constable or person in the same manner as a person who is found committing a felony may, at common law, be arrested by a constable or person".
53. At [181].
54. Supreme Court (NSW), Young J, 17 February 1987, unrep: BC8701583.
55. See e.g. Ford v Simes [2009] NSWCA 351.
56. Hampson v Hampson [2010] NSWCA 359 at [94] per Campbell JA, Giles JA and Handley AJA agreeing at [1] and [117] respectively.
57. Dickson v Commissioner, Australian Federal Police [2020] NSWCA 125 (Dickson (No1)); (2020) 381 ALR 364 at [9]-[17] per the Court constituted by Basten and Meagher JJA.
58. See Dickson (No 1) at [17]; see also Dickson v Commonwealth Director of Public Prosecutions [2023] NSWCA 175 at [4] per the Court constituted by Ward P and Kirk JA.
59. See Maddrell v Public Trustee (NSW) (1986) 86 A Crim R 46 per Simos J at 48.
60. See Succession Act s 63(3).
61. See Succession Act s 63(3), (5).
62. See Succession Act s 79.
63. Under either s 90(2)(a) or (b).
64. For example, see recently Boatswain v Boatswain [2023] NSWSC 763 at [263]-[267] per Hallen J. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 February 2025