Re Settree Estates; Robinson v Settree

The Forfeiture Act 1995 NSW as First Enacted

1. When it came, the legislative response to Meagher JA's colourful rhetoric favoured the jurisprudential approach of "the equity judges" whose reasoning he rejected.
2. As enacted in 1995, the Forfeiture Act was, in substance, limited to what presently appear as sections 3-8 of the Act as amended in 2005. As first enacted, the Act simply allowed the Court to order that the operation of the forfeiture rule be modified.
3. Under the heading "Overview of Bill", the Explanatory Note to the Parliamentary Bill that became the Forfeiture Act 1995 explained the Bill in the following terms (with emphasis added): "The object of this Bill is to confer a discretion on the Supreme Court to enable it to modify, where justice requires, the operation of the unwritten rule of public policy known as the Forfeiture Rule. The forfeiture rule precludes a person who has unlawfully killed another from acquiring a benefit as a result of the death. In Troja v Troja (1994) NSWLR 269, the New South Wales Court of Appeal held that the application of the rule at common law was not a discretionary matter, but was an inflexible rule of law that the courts had to apply without regard to the particular circumstances of the case. The provisions of the proposed Act (which are based partly on the provisions contained in the Forfeiture Act 1982 of the United Kingdom and the Forfeiture Act 1991 of the Australian Capital Territory) will operate to confer a statutory discretion on the Supreme Court only where the application of the common law forfeiture rule results in injustice. The conferral of the statutory discretion is not intended to prevent the development of the common law towards a more flexible approach to the application of the forfeiture rule."
4. In elaboration of what became sections 5 and 6 of the Forfeiture Act, the Explanatory Note provided as follows: "Clause 5 enables the Supreme Court, on application from any interested person, to order that the forfeiture rule is to have a modified operation in relation to an offender and others affected by the offender's action if the court considers that the justice of the case requires it. Clause 6 enables the court to mould an order modifying the effect of the forfeiture rule (a forfeiture modification order) to suit the circumstances of the case."
5. The second reading speech of the Attorney General for NSW (JW Shaw MLC QC) in support of the Forfeiture Bill (Hansard , Legislative Council, 25 October 1995, pages 2257-2258) provides an important exposition of the legislation (with emphasis added): "The object of [the Forfeiture Bill] is to allow the courts to modify the operation of the rule of public policy called the forfeiture rule. The effect of the forfeiture rule is that a person responsible for the unlawful killing of another is deprived of rights to inherit or administer the victim's estate. A slayer is also deprived of any interest passing by survivorship on the death of the victim. For example, the title to a house in joint names would normally pass to the survivor on the death of one of the parties. The rule prevents the title from passing to the killer. The forfeiture rule is an aspect of the principle that a person should not be permitted to profit from his or her own wrong. The motive of the slayer is irrelevant and the rule applies, prima facie, to every case of unlawful homicide, but may be displaced by the features of the crime. The application of the rule is determined by the court in its civil jurisdiction, usually when determining the distribution of the estate of the deceased person, following the conclusion of criminal proceedings. While it is clear as a matter of principle that a killer should not profit from his or her crime, the operation of the rule may be unduly harsh in some cases of unlawful killing, because the rule may operate regardless of the killer's motive or degree of moral guilt. The bill enables the Supreme Court to modify the operation of the rule provided it is satisfied that the justice of the case requires the rule to be modified. The proposed legislation recognises that there are varying degrees of moral culpability in unlawful killings, and legislation is necessary to give judges sufficient discretion to make orders in deserving cases in the interests of justice. This has been recognised in the United Kingdom and in the Australian Capital Territory, which have enacted legislation in similar terms to that proposed for this State. To illustrate this point it may assist if I set out some examples of cases in which it is envisaged that the proposed legislation might operate to mitigate the effect of the rule. The first example is that of a woman who is found to have killed her partner while suffering from battered woman syndrome. In cases where such women kill their partners, the outcome of criminal proceedings may be acquittal or conviction of manslaughter, although no sentence may be imposed. If the forfeiture rule applied, such a woman would forfeit her interest in her former partner's estate if the killing was premeditated. Even a person who had been acquitted by the criminal courts could forfeit his or her interest in the estate at present because the civil court determines on the balance of probabilities whether he or she committed an unlawful homicide. This is a lower standard than that applied by the criminal courts. A further example is the case of a suicide pact, where two people agree that one will assist the suicide of the other. The rule might operate to prevent the estate of the first person from taking any interest in the other's case. A similar result might follow for a person who assisted suicide. Other cases in which the rule may cause injustice are the application of the rule to involuntary homicide, or causing death by culpable driving. A further objection to the rule is the illogical effect it may have on the interests of persons claiming through the killer. For example, in a case of manslaughter-suicide, the children of the killer might be disentitled although they had no part in the killing of the testator. A person convicted of a unlawful killing, such as a spouse, may have made a significant contribution to the assets of the deceased person's estate, and in some circumstances provision should be made by the Supreme Court to recognise such a contribution. The proposed legislation does not abrogate the forfeiture rule. In particular, it does not enable the Court to mitigate the effect of the forfeiture rule for a person who has been convicted of murder. It does not compel the Court to make provision out of the estate of a deceased person to his or her killer. The legislation does not interfere with the rights of the family of the victim to make submissions to the court as to the distribution of the estate. Indeed, in considering whether the rules should apply, the court must consider the conduct of the offender and of the deceased person, the effect of the application of the rule on the offender and any other person, and any other circumstances which appear to the court to be material. The bill empowers the court to mould orders to fit the circumstances of the case; for example, in some circumstances it may be appropriate to permit a former wife acquitted of manslaughter while suffering battered woman syndrome to inherit the family home, but not personal assets of the deceased person. After an order has been made, the court will be able to revoke or vary it to take account of, for example, the discovery of new information not available at the time of the order or assets not previously thought to be part of the deceased person's estate. The court will also be able to consider the making of an order for the modification of the rule if a conviction of a person is quashed or the convicted person is pardoned by the Governor. This will ensure that justice is done to persons who are found to have been wrongly convicted of a homicide. The proposals have the support of the Chief Justice, the Law Society, the Public Trustee and the Trustee Corporations Association. The forfeiture rule often affects family members, such as spouses, who may be unable to claim the property of the deceased person even though they may have made a substantial contribution to the estate. The relaxation of the rule will enable family members to inherit such property, provided the court considers it just, and both they and their children will benefit from the reforms. I commend the bill."
6. This exposition of the legislation is reminiscent of the reasoning of Young J in Public Trustee v Evans (1985) 2 NSWLR 188 at 192E-193E, where (as the Victorian Court of Appeal recognised in Edwards v State Trustees Limited [2016] VSCA 28 at [166]) his Honour conditioned the operation of the forfeiture rule upon an analysis of the justice of the particular case, in its particular factual setting, having regard to contemporary standards of social behaviour and moral judgement.
7. The reasoning in the Public Trustee v Evans was refined by Kearney J in Public Trustee v Fraser (1987) 9 NSWLR 433 at 444B-C by a more explicit invocation of equitable principles governing unconscionability and restitutionary principles relating to unjust enrichment.
8. In his dissenting judgment in Troja v Troja (1994) 33 NSWLR 269 at 282 et seq, Kirby J drew on the reasoning in Public Trustee v Evans and Public Trustee v Fraser, and the English and ACT legislation ultimately relied upon by the NSW Parliament in enacting the Forfeiture Act. His judgment, no less than those of Young and Kearney JJ, was, in substance, endorsed by the Parliament.
9. In the absence of appellate review, the common law forfeiture rule operative in NSW remains "absolute and inflexible" as found by the majority in Troja v Troja. However, its operation has been substantially qualified by the Forfeiture Act.
10. No Australian State or Territory other than NSW and the ACT presently has a Forfeiture Act, although questions about whether to enact one have been the subject of debate in more than one jurisdiction: eg, Tasmania Law Reform Institute, The Forfeiture Rule (December 2004); Victorian Law Reform Commission, The Forfeiture Rule (September 2014); Pike v Pike [2015] QSC 134 at [25].
11. The Forfeiture Act 1991 ACT provides for forfeiture modification orders, but not forfeiture application orders.

The Forfeiture Act 1995 NSW as Amended in 2005

1. The NSW Parliament's adaptation of the common law forfeiture rule has not been limited to empowerment of the Supreme Court to modify an application of the rule where it applies.
2. An amendment of the Forfeiture Act 1995, to extend the operation of the forfeiture rule to persons found not guilty of murder by reason of mental illness, was effected, somewhat obscurely, by provisions of the Confiscation of Proceeds of Crime Amendment Act 2005 NSW. The amendments to the Forfeiture Act appear, almost as an after thought, in the last schedule (Schedule 4) of the amending Act.
3. The Explanatory Note to the Parliamentary Bill described the object of the Bill to be "to enable the Supreme Court to apply the forfeiture rule (that is, the rule that prevents a person who is found guilty of murder from benefiting from the victim's estate) to persons found not guilty of murder by reason of mental illness."
4. In elaboration of this object, the Explanatory Note made the following observations as a preliminary to a fairly literal reproduction of the text of the sections of the Forfeiture Act presently governing the making of a forfeiture application order (with emphasis added): "The forfeiture rule is a rule at common law that prevents a person who has unlawfully killed another person from acquiring a benefit as a result of the killing. Under the Forfeiture Act 1995 (the principal Act), a person who would otherwise be subject to the forfeiture rule may apply to the Supreme Court to modify the rule to enable the person to acquire a benefit if the court is satisfied that justice requires the effect of the will to be modified. However the principal Act provides that the power to modify the forfeiture rule does not apply to a unlawful killing that constitute murder. Such killings are still subject of the common law. At common law the rule does not apply in the case of a person suffering from mental illness at the time of killing another person, and found not guilty or who would have been found not guilty, because of that illness..."
5. There is in this exposition little fresh insight into the rationale and operation of the common law forfeiture rule as amended or proposed to be adapted by the Forfeiture Act, but it accords with decided cases.
6. The second reading speech of the Confiscation of Proceeds of Crime Amendment Bill was delivered by Graham West MLA (Parliamentary Secretary on behalf of the Attorney General, Bob Debus), as is recorded in Hansard (Legislative Assembly, 21 September 2005).
7. Insofar as it bears directly upon amendment of the Forfeiture Act, it is in the following terms (with emphasis added): "This bill contains important amendments to the Confiscation of Proceeds of Crime Act 1989, the Civil Liability Act 2002, the Crimes Act 1900 and the Forfeiture Act 1995. These amendments will improve the processes involved in confiscating criminal assets, broaden the scope of existing laws, make prosecutions easier, create new offences of money laundering, prevent mentally ill offenders from misusing civil damages paid to them, and prevent mentally ill murderers from profiting from their crime by applying the forfeiture rule… The common law forfeiture rule operates to prevent killers from benefiting financially from their victim's estate. The Forfeiture Act 1995 leaves the common law rule intact but allows the court to modify the effect of the rule if justice demands it. The forfeiture rule currently cannot be applied to people found not guilty of a killing by reason of mental illness. The bill amends the Forfeiture Act 1995 to enable the forfeiture rule to be applied to people found not guilty of murder by reason of mental illness where it would not be just for them to inherit from their victim's estate. Section 11 provides that where an offender has been found not guilty of murder by reason of mental illness, any interested person may apply to the Supreme Court for a forfeiture application order to enable the forfeiture rule to apply as if the offender had been found guilty of murder. The court may make an order applying the forfeiture rule if it is satisfied that justice requires a rule to be applied. In determining whether justice requires the rule to be applied, the court is to have regard to: the conduct of the offender; the conduct of the deceased person; the effect of the application of the rule on the offender or any other person; and any other matter the court considers relevant. Section 12 provides that a forfeiture application order must be sought within six months after the day on which it is determined that the offender was not guilty of murder, although the court may grant leave for a late application. Section 13 makes provision for the court to accept applications for the revocation of a forfeiture application order that has already been made. The Confiscation of Proceeds of Crime Amendment Bill contains important reforms. The reforms will strengthen criminal asset confiscation and money laundering laws in New South Wales and, as such, has the support of the key New South Wales law enforcement and prosecuting authorities. The bill also contains important reforms relating to mentally ill people who commit serious offences. I commend the bill to the House."
8. Lest it be thought that this speech deployed loose language in speaking of "mentally ill murderers" and "mentally ill people who commit serious offences", notice should be taken of direct incorporation of the second reading speech in subsequent debate in the Legislative Council: Hansard, Legislative Council, 18 October 2005.
9. Although the legislative history of the 2005 amendments to the Forfeiture Act provides little elaboration of policy reasons for extension of the operation of the forfeiture rule to persons found not guilty of murder on the ground of mental illness, the terms of the amendments to the Forfeiture Act and the tone of the second reading speech in support of them suggest a reluctance to differentiate between conviction of an offence less than murder and a finding of not guilty on a charge of murder on the ground of mental illness. To quote a passage of the second reading speech not here extracted, the reforms embodied in the amendment bill (including amendments to the Forfeiture Act) were presented as reforms designed to "benefit victims of crime"… for this purpose, accepting that "mentally ill people [may] commit serious offences".
10. Evidence given before Lloyd AJ, summarised in his judgment styled Public Trustee v Fitter [2005] NSWSC 1188 at 52-(m) and [53], suggests that the 2005 amendments were the product of political representations made to the then NSW Attorney General (Bob Debus) on behalf of Homicide Victim Support Groups.
11. In his second reading speech on the Forfeiture Bill 1995, the Attorney-General, correctly, said of the common law forfeiture rule that "the motive of the slayer is irrelevant"… but the interests of justice required that the Court be given a statutory discretion to take into account all the circumstances of a case, including motive.
12. It is not altogether surprising that, in the fullness of time, questions of justice approached a similar point from opposite directions. It is not altogether surprising that "victims of homicide" should call for the justice of a case to be more closely examined notwithstanding that a death was caused by a person found wanting in capacity for the "guilty mind" required to constitute a crime. Although minds might differ about particular forms of order, there is a symmetry between the types of cases dealt with by sections 5 and 11 of the Forfeiture Act. That symmetry depends ultimately upon the Court being able to assess what "justice requires" by reference to particular facts.
13. In a Report styled The Forfeiture Rule published in September 2014, the Victorian Law Reform Commission made a recommendation (not yet the subject of legislation) in favour of a codified form of the common law forfeiture rule, retaining the existing exception to the common law rule for persons found not guilty by reason of mental impairment. In criticising legislation such as Part 3 of the NSW Forfeiture Act, the Commission (in paragraph 3.99) wrote the following (with footnote omitted): "While the Commission recognises the views and concerns of victims, the purpose of the forfeiture rule is not to provide a de facto form of compensation to victims of crime or another avenue to punish an offender when they have been found not to be responsible for an act. Tthe Commission agrees with the views of Victoria Legal Aid that the competing interests of other parties in claiming a benefit from an estate should not form a basis for removing existing protections from a special category of persons that the civil and criminal law treat differently in other ways in recognition of their vulnerability."
14. The Commission (in paragraph 3.101) embraced an underlying public policy objective "that seeks to achieve a therapeutic aim by promoting an increased understanding and tolerance of mental illness that can give rise to a mental impairment", and observed that "[exempting] persons found not guilty of an unlawful killing by reason of their mental impairment from the forfeiture rule is consistent with this policy aim."
15. In discussion of options for development of the law leading to its recommendation against legislation such as Part 3 of the NSW Forfeiture Act, the Commission (in paragraphs 3.91-3.93) gave voice, in the following terms, to criticism of the three NSW judgments on section 11 of the Act then available (omitting footnotes, but with editorial adaptation and emphasis added): [3.91] The forfeiture rule has been applied against a person who has been found not guilty by mental illness on three occasions in New South Wales: Re Fitter [2005] NSWSC 1188; Guler v NSW Trustee and Guardian [2012] NSWSC 1369; and Hill v Hill [2013] NSWSC 524. Consultations undertaken with judges of the NSW Supreme Court, the Elder Law and Succession Committee of the New South Wales Law Society and other New South Wales-based legal professionals suggests that there have been no major issues resulting from the change in the law and that the application of the forfeiture rule in these cases was appropriate. [3.92] However, the rationale for applying the rule to a person who is not morally culpable for the offence was not well articulated in Parliament and has not been made clear in the cases. Factors that have been considered relevant in determining whether to apply the forfeiture rule to a person found not guilty by reason of mental illness in New South Wales have included the offender's prior history of violent behaviour and lack of remorse: Re Fitter and Guler. Such behaviour could be a manifestation of the mental impairment itself. Any outcome in which the forfeiture rule would be applied to a person who has been found not guilty because of a mental impairment on the basis of the symptoms of that mental impairment would be inappropriate. [3.93] The impact of the death of the deceased person on third parties has also been taken into account. In Hill v Hill, where a man was found not guilty of killing his de facto spouse because of mental illness, the Court considered the effect that the application of the forfeiture rule would have on their children. The Commission considers this to be an extension of the rule beyond its purpose in Victoria, which is to prevent an offender from benefiting from their crime rather than to distribute assets to the most deserving beneficiary. Family provision legislation is available to innocent beneficiaries who wish to increase their share of the deceased estate."
16. The Commission's criticism of NSW caselaw is a welcome contribution to development of jurisprudence governing the making of court orders vis a vis the operation of the forfeiture rule. It is, however, predicated on a policy preference for mentally ill "offenders" not to be subject to the forfeiture rule at all. In light of the NSW Parliament's adoption of a contrary policy position, in Part 3 of the Forfeiture Act, the Commission's criticism is deprived of force it might otherwise have in a NSW context. Contrary to the Commission's preferred state of the law, Part 3 is predicated upon an assumption that an absence of criminal responsibility for an unlawful death does not necessarily, upon consideration of what justice requires in a particular case, carry with it an absence of adverse civil law consequences for the "offender". In determining what justice requires the Court is bound by the legislation to consult interests beyond those of the "offender", as well as those of the "offender".

Extracts from the Forfeiture Act 1995 NSW as currently in force

1. As in force on 3 December 2014 (when the parties' parents were killed by the defendant) and as presently in force, the operative provisions of the Forfeiture Act (namely, sections 3-8 and 10-13) are in the following terms (with emphasis added): "PART 1 - PRELIMINARY 1. … 2. … 3 Definitions In this Act: "benefit" includes any interest in property and any entitlement under Chapter 3 of the Succession Act 2006 . "deceased person" means a person who is unlawfully killed. "forfeiture application order" means an order made under section 11. "forfeiture modification order" means an order made under section 5. "forfeiture rule" means the unwritten rule of public policy that in certain circumstances precludes a person who has unlawfully killed another person from acquiring a benefit in consequence of the killing. "interested person" means any of the following persons: (a) an offender, (b) the executor or administrator of the estate of a deceased person, (c) a beneficiary under the will of a deceased person or a person who is entitled to any estate or interest on the intestacy of a deceased person, (d) a person claiming through an offender, (e) any other person who has a special interest in the outcome of an application for a forfeiture modification order. "offender" means a person who has unlawfully killed another person. "unlawful killing" means: (a) any homicide committed in the State that is an offence, and (b) any homicide that would be an offence if committed within the State, and includes aiding, abetting, counselling or procuring such a homicide and unlawfully aiding, abetting, counselling or procuring a suicide. 4 Application of Act (1) This Act applies to the following: (a) an unlawful killing whether occurring within or outside the State, (b) property: (i) located within the State, or (ii) located outside the State, but only to the extent to which courts of the State have jurisdiction to make orders concerning the property. (2) This Act does not apply to the following: (a) an unlawful killing committed in the State that constitutes murder, (b) an unlawful killing that would constitute murder if committed in the State. PART 2 - FORFEITURE MODIFICATION ORDERS 5 Power of Supreme Court to modify effect of forfeiture rule (1) If a person has unlawfully killed another person and is thereby precluded by the forfeiture rule from obtaining a benefit, any interested person may make an application to the Supreme Court for an order modifying the effect of the rule. (2) On any such application, the Court may make an order modifying the effect of the forfeiture rule if it is satisfied that justice requires the effect of the rule to be modified. (3) In determining whether justice requires the effect of the rule to be modified, the Court is to have regard to the following matters: (a) the conduct of the offender, (b) the conduct of the deceased person, (c) the effect of the application of the rule on the offender or any other person, (d) such other matters as appear to the Court to be material. 6 Forfeiture modification orders may be moulded to suit circumstances (1) The Supreme Court may make a forfeiture modification order in such terms and subject to such conditions as the Court thinks fit. (2) For example, the Court may modify the effect of the forfeiture rule in relation to property: (a) in the case of more than one interest in the same property (for instance, a joint tenancy) affected by the rule--by excluding the operation of the rule in relation to any or all of the interests, and (b) in the case of an offender who has an interest in real property (such as a family home) and personal property affected by the rule--by excluding the application of the rule in relation to all the property or some of the property. (3) If the Court makes a forfeiture modification order, the forfeiture rule is to have effect for all purposes (including purposes relating to anything done before the order was made) subject to modifications made by the order. 7 Time for applications for forfeiture modification orders (1) Unless the Supreme Court gives leave for a late application to be made under subsection (2), an application for a forfeiture modification order must be made: (a) if the forfeiture rule operates immediately on the death of a deceased person to prevent the offender from obtaining the benefit concerned--within 12 months from the date of the death of the deceased person, or (b) if the forfeiture rule subsequently prevents the offender from obtaining the benefit--within 12 months from the date on which the forfeiture rule operates to preclude the offender from obtaining the benefit. (2) The Court may give leave for a late application if: (a) the offender concerned is pardoned by the Governor after the expiration of the relevant period, or (b) the offender's conviction is quashed or set aside by a court after the expiration of the relevant period and there are no further avenues of appeal available in respect of the decision to quash or set aside the conviction, or (c) the fact that the offender committed the unlawful killing is discovered after the expiration of the relevant period, or (d) the Court considers it just in all the circumstances to give leave. 8 Revocation and variation of forfeiture modification orders (1) If the Supreme Court has made a forfeiture modification order, an interested person may make an application to the Court for the revocation or variation of the order if: (a) the offender concerned is pardoned by the Governor after the making of the order, or (b) the offender's conviction is quashed or set aside by a court after the making of the order and there are no further avenues of appeal available in respect of the decision to quash or set aside the conviction, or (c) in all other cases--if the Court considers it just in all the circumstances to give leave for such an application to be made. (2) On any such application, the Court may revoke or vary the forfeiture modification order concerned. (3) The provisions of sections 5 (2) and (3) and 6 (1) and (2) apply to the determination of any such application in the same way as they apply to the making of a forfeiture modification order. In determining whether to revoke or vary the forfeiture modification order, the Court is also to have regard to the effect on the offender and other persons of any such revocation or variation. (4) If a forfeiture modification order is revoked or varied, the forfeiture rule is to have effect for all purposes (including purposes relating to anything done before the order was revoked or varied): (a) in the case of a revocation--subject to the terms on which the Court revokes the order, and (b) in the case of a variation--subject to modifications made by the varied order. 9. … PART 3 - FORFEITURE APPLICATION ORDERS 10 Definitions In this Part: "interested person" does not include an offender or a person claiming through an offender. "offender" means a person who has killed another person and been found not guilty of murder by reason of mental illness. 11 Power of Supreme Court to apply forfeiture rule (1) If a person who has killed another person is not subject to the forfeiture rule because the person has been found not guilty of murder by reason of mental illness, any interested person may make an application to the Supreme Court for an order that the rule apply as if the offender had been found guilty of murder. (2) On any such application, the Court may make an order applying the forfeiture rule to the offender if it is satisfied that justice requires the rule to be applied as if the offender had been found guilty of murder. (3) In determining whether justice requires the rule to be applied, the Court is to have regard to the following matters: (a) the conduct of the offender, (b) the conduct of the deceased person, (c) the effect of the application of the rule on the offender or any other person, (d) such other matters as to the Court appear material. (4) If a forfeiture application order is made, the forfeiture rule is to apply in respect of the offender for all purposes (including purposes relating to anything done before the order was made) as if the offender had been found guilty of murder. 12 Time for applications for forfeiture application orders (1) Unless the Supreme Court gives leave for a late application to be made, an application for a forfeiture application order must be made within 6 months after the day on which it is determined that the offender was not guilty of murder. (2) The Court may give leave for a late application if the Court considers it just in all the circumstances to give leave. 13 Revocation of forfeiture application orders (1) If the Supreme Court has made a forfeiture application order, an interested person may make an application to the Court for the revocation of the order if the Court considers it just in all the circumstances to give leave for such an application to be made. (2) On any such application, the Court may revoke the forfeiture application order concerned. (3) Section 11 (2) and (3) apply to the determination of any such application in the same way as they apply to the making of a forfeiture application order. In determining whether to revoke the forfeiture application order, the Court is also to have regard to the effect on the offender and other persons of any such revocation. (4) If a forfeiture application order is revoked, the forfeiture rule has, and is taken to have had, no effect in relation to the offender for all purposes (including purposes relating to anything done before the order was revoked), subject to the terms on which the Court revokes the order."

Interconnection with Family Provision Jurisdiction

1. Introduction. Via the definition of "forfeiture rule" in section 3 of the Forfeiture Act, sections 5 and 11 of the Act incorporate a definition of "benefit" that includes "any [family provision] entitlement under chapter 3 of the Succession Act 2006".
2. The reference to the Succession Act in this definition of "benefit" was inserted upon commencement of the Succession Act in 2008, in substitution for a comparable reference to the Succession Act's predecessor, the Family Provision Act 1982 NSW.
3. Forfeiture Application Cases. None of the reported cases on section 11 of the Forfeiture Act has addressed the implications of a reference to family provision "entitlements" in the statutory definition of "benefit". Their focus has been elsewhere. In the handful of section 11 cases thus far decided, judges have cast an eye over factors (such as voluntary, intentional conduct preceding a death and the absence of remorse) which may bear upon an offender's moral responsibility for his or her actions, taking into account social conditions and personal relationships generally.
4. Forfeiture Modification Cases. Some, but little guidance is available in judgments concerning the making of a forfeiture modification order under section 5 of the Forfeiture Act. More often implicitly than explicitly, the Court appears to have looked for: (a) an explanation for antisocial behaviour of an offender in a finding of diminished criminal responsibility associated with mental illness or abnormal social conditions; (b) an offender's ongoing moral claim on the bounty of the deceased; and (c) an offender's need for material assistance that can be met by restoration of benefits that, but for the forfeiture rule, he or she would enjoy.
5. This mode of reasoning differs from that characteristic of family provision jurisprudence because: first, it does not give primacy to a weighing up of competing needs of beneficiaries or others who have a moral claim on the deceased's bounty; and, secondly, it is channelled through the prism of "justice" of the particular case in the context of consideration of the forfeiture rule, rather than a consideration of adequacy of provision for proper maintenance, education and advancement in life, a touchstone of the family provision jurisdiction.
6. In making a forfeiture modification order in Leneghan-Britton v Taylor [1998] NSWSC 218 Hodgson CJ in Eq analysed the justice of the case (involving manslaughter of a grandmother, with diminished responsibility associated with mental illness) by reference to a range of factors expressed in terms consistent with family provision jurisprudence. His Honour made an order so that the offender could receive a benefit provided for her in her grandmother's will. He took into account the nature of the crime; a lack of premeditation on the part of the offender; an absence of intention on the part of the offender to profit from the crime; the existence of a strong moral claim on the bounty of the deceased, but for the crime; an assessment that the offender had been sufficiently punished by the criminal law; a finding that modification of the forfeiture rule would not provide any incentive to any other person to act as the offender had; and a finding that the making of a forfeiture modification order would not outrage the community. The order was made on the basis that the offender was seeking an indulgence from the Court. A factor implicit in the making of the order, and explicit in the making of costs orders, was that the Court's orders could be made without other beneficiaries being disadvantaged by the relief granted to the offender.
7. Six months earlier, in R v R (Hodgson CJ in Eq, unreported, 14 November 1997) BC 9707619 his Honour made a forfeiture modification order in favour of a teenager who had killed his mother and his sister, pleading guilty to manslaughter. By the Court's order the forfeiture rule was modified so that the young man was not deprived of his interest in his mother's estate. The judge was satisfied that the teenager had been sufficiently punished by the criminal law; that the killings were substantially affected by his mental abnormality and diminished responsibility; that the offender's domestic circumstances contributed to his commission of manslaughter; and that the application for a forfeiture modification order was supported by family members.
8. The idea that, in considering whether to make a forfeiture modification order (and, if so, upon what terms) punishment of an offender can be left to the criminal law - twice embraced by Hodgson CJ in Eq - also finds expression in Gzell J's judgment in Batey v Potts (2004) 61 NSWLR 274 at [43].
9. In Permanent Trustee Company Ltd v Gillett [2004] NSWSC 278; 145 A Crim R 220 Austin J demonstrated a preparedness to make a forfeiture modification order, in combination with a grant of relief under the Family Provision Act 1982 NSW, designed to give effect to an agreement making provision for a family member (arguably responsible for the death of his father) who, by reason of an order made by the Mental Health Review Tribunal pursuant to the Protected Estates Act 1983 NSW, was the subject of a protected estate management regime.
10. In Strede v Eastwood [2003] NSWSC 280 Palmer J made a forfeiture modification order in circumstances in which he held that (unlike an exercise of family provision jurisdiction) needs of other beneficiaries could not be a sole and independent ground for refusing to make a forfeiture modification order. His Honour held that, on an application under the Forfeiture Act, competing needs of beneficiaries are only one of possibly many factors relevant to the question whether any (and, if so, what) modification order should be made: [44].
11. A Common Law Precedent. These judgments, under section 5 of the Forfeiture Act, might be supplemented by reference to a common law case pre-dating the legislation.
12. In Kemperle v Public Trustee (unreported, 20 November 1985) BC 8500411. Powell J, having found that the forfeiture rule did not apply to a person found not guilty of murder on the ground of mental illness (the deceased's husband), granted to interests in competition with the "offender" family provision relief under the Testators Family Maintenance and Guardianship of Infants Act 1916 NSW.
13. In ordering that provision be made for various family members, his Honour moulded orders to ensure that provision was nevertheless made for "the offender". That provision took the form of a lump sum entitlement (upon an intestacy) to a share of the deceased's estate, the rationale for which was explained in the following terms: "So much of the Deceased's husband's future is suspect, that I feel that there should be provided to him some modest amount of capital to assist him, either, by enabling him to acquire such modest luxuries as can be obtained by those in custody, or, to provide for him, when he is released on license, a fund to which he may resort to meet any untoward emergencies to which he may be subject . ...".
14. This measure of the need of a mentally ill person detained for an unlawful killing finds resonance in the current proceedings, although the facts of each case must be independently assessed.
15. General Observations. In considering what "justice requires" in the context of an application under the Forfeiture Act, the Court might draw upon learning acquired in the exercise of family provision jurisdiction. However, to the extent that that may be done in the absence of an application for family provision relief, it is reasoning by analogy only. Attention must remain focused on the nature, scope and purpose of the Forfeiture Act.
16. The statutory definition of "benefit", in the context of the Forfeiture Act as a whole, is directed towards three ends.
17. First, it provides a means to address concerns (expressed before the legislation was enacted) about the availability of family provision relief in a case to which the common law forfeiture rule applies: Troja v Troja (1994) 35 NSWLR 182 (per Master McLaughlan). Those concerns highlight, not only the operation of the forfeiture rule, but also the jurisprudence persistently spoken of in terms of "conduct disentitling": Cf, Price v Roberts [1992] NSWCA 191.
18. Secondly, it brings regulation of a right to apply for family provision relief within the ambit of the jurisdiction to make a forfeiture application order.
19. Thirdly, in combination with the requirement (in section 5(3)(c) and section 11(3)(c)) to have regard to "the effect" of the application of the forfeiture rule "on the offender or any other person", it requires the Court, in the making of a discretionary decision under the Forfeiture Act, to consider any interplay between the Court's family provision jurisdiction (discretionary in character) and the forfeiture rule (at common law, absolute in nature).
20. In this territory, a section 11 application has a potentially unique field of operation, with layers of complexity. That is because it relates to a person who has been found not guilty by reason of mental illness; a person who has killed without lawful justification but, equally, without criminal responsibility.
21. A lack of criminal responsibility, for a death might be accompanied by a lack of: (a) any form of moral culpability; (b) conduct capable of characterisation as "disentitling"; or (c) any estrangement in personal relationships with the deceased. It might also be accompanied by a perception that, however unjustified the killing may have been, a wise and just testator in the position of the deceased might recognise an ongoing obligation to make provision for the education, maintenance and advancement in life of the killer when all surrounding circumstances are taken into account. Another layer of complexity may be found in questions about whether, in the public interest, some part of the ongoing burden of maintenance of a mentally ill family member should be borne by resources of the family rather than the State.
22. These are not easy questions to untangle or resolve. They must be approached through an evaluative judgement about what "justice requires" in all the circumstances of the particular case.

The power to make a forfeiture application order on terms and conditions

1. The absence from the Forfeiture Act of an express power to make a forfeiture application order on terms and conditions, and the contrast with the existence of such a power (in sections 6 (1) of the Act) vis a vis a forfeiture modification power, does not of itself compel a conclusion that a forfeiture application order cannot be made on terms and conditions. Nor is such a conclusion compelled merely by the absence of discussion of orders made on terms and conditions in extrinsic materials evidencing the legislative history of the jurisdiction to make a forfeiture application order.
2. The ordinary meaning of section 86 of the Civil Procedure Act and section 11 of the Forfeiture Act, read together, supports the existence of a jurisdiction to make a forfeiture application order on terms and conditions.
3. To deny the existence of such a jurisdiction, one needs: (a) to elevate beyond the text of the two pieces of legislation an absence of an express power in Part 3 of the Forfeiture Act; (b) to read down section 86 (particularly its reference to "any other Act or otherwise") as confined to "interlocutory orders" upon an assumption that a forfeiture application order is properly characterised, for all purposes, as a "final" order; (c) to ignore Parliament's declared purpose in enacting the Forfeiture Act in the first place, to give the Court sufficient discretion to make orders in deserving cases, in the interests of justice, bearing in mind that there are varying degrees of moral culpability in unlawful killings; (d) possibly, to embrace a view that an unlawful killing by a criminally insane person is more heinous than an unlawful killing by a person to whom the criminal justice system attributes culpability falling short of a conviction for murder; and (e) to ignore a discretionary element in both Parts 2 and 3 of the Forfeiture Act inherent in the Act's definition of "benefit" as including family provision entitlements.
4. In my opinion, a forfeiture application order can be made on terms and conditions. That is because: 1. The operation of the forfeiture rule in the circumstances contemplated by the Part 3 of the Forfeiture Act depends on the making of a court order (a forfeiture application order), unlike the context in which Part 2 of the Act operates. Where the forfeiture rule applies at common law it applies unless a forfeiture modification order is made. 2. A forfeiture application order and a forfeiture modification order are to this extent different. Because the common law forfeiture rule applies without the need of a court order in the case of criminal conduct (such as manslaughter) to which the rule applies, it was necessary for Parliament to explain what it meant by a "modification" order. This it did in section 6(2) of the Forfeiture Act, a necessary foundation for which was express articulation in section 6(1) of the power to make orders on terms and conditions. That same necessity did not attend the making of a forfeiture application order. The Court can make any order on terms and conditions if the nature of the case so requires. And, given the symmetry between the two types of order for which the Forfeiture Act (in sections 5 and 11) provides, nothing more was required as a matter of legislative drafting than the examples for which section 6(2) provides. 1. A problem inherent in the operation of the common law forfeiture rule is working out consequential questions about who is, or may be, incidentally affected by an order - either in the loss of contingent rights or in the acquisition of benefits the subject of a forfeiture. Where the rule applies independently of a court order, the problem of whether its operation should be moulded may present itself differently from questions arising on an application for the rule to apply by force of a court order. Inherent in the making or refusal of a forfeiture application order is a consideration of incidental problems associated with operation of the forfeiture rule. Conferral of a power to make a forfeiture application order necessarily carries with it a power to mould an order, by the imposition of terms and conditions, to address "what justice requires". To make a bare "order that the forfeiture rule apply" is to make an order based upon (sometimes eminently contestable) assumptions about the nature and scope of its operation. Just as the court is empowered to grant such relief as the nature of a case may require (Civil Procedure Act, section 90; Uniform Civil Procedure Rules, rule 36.1) so too is it empowered, by the nature of the case, to set the metes and bounds of the operation of the forfeiture rule via terms and conditions. 1. In conferring jurisdiction on the Supreme Court to make a forfeiture application order, Parliament must be taken to have known that the Court has a general power to make orders on terms and conditions where the nature of a case so requires. 2. Section 86 of the Civil Procedure Act 2005 NSW contains an express power to make orders on terms and conditions. That power was modelled on a similarly expressed power found in section 21 of the Supreme Court Act 1970 NSW; save that section 86 (1) expressly contemplates the imposition of terms or conditions on an order whether the order is made under the Civil Procedure Act "or any other Act or otherwise". 3. Section 86 of the Civil Procedure Act appears in Part 6 of that Act, headed "Case Management and Interlocutory Matters". Part 6 is divided into six Divisions, respectively headed: (1) "Guiding Principles"; (2) "Powers of Court to give Directions"; (3) "Other Powers of Court"; (4) "Persons under Legal Incapacity"; (5) "Interim Payments"; and (6) "Miscellaneous". Section 86 falls within the 6th Division. It is not, in terms, confined to "interlocutory" business. In that respect, it differs from other sections in Part 6 - Division 5, for example. It is entirely consistent with the concept of "case management", which applies to proceedings from their commencement to their conclusion. There is no particular reason why section 86 should have been located in Part 6 ("Case management and interlocutory orders") rather than Part 7 ("Judgments and orders"). It could have been placed in either Part. 1. Although Part 3 of the Forfeiture Act does not otherwise expressly refer to an order being made on terms or conditions, section 13 (4) of the Act does expressly contemplate that a forfeiture application order can be revoked on terms. That involves an implicit acceptance that at least some orders made under Part 3 can be made on terms. 2. There is nothing in the Civil Procedure Act or the Forfeiture Act which requires a determination that a forfeiture application order cannot be made on terms. The "guiding principles" of case management found in Part 6 of the Civil Procedure Act are compatible with both section 86 of that Act and section 11 of the Forfeiture Act. They are all governed by the concept of "justice". 1. A determination that a forfeiture application order cannot be made on terms would be to treat an offender found not guilty of murder by reason of mental illness more harshly, or arbitrarily, than a person found guilty of manslaughter and thereby subjected to the common law forfeiture rule subject to the jurisdiction of the Court to make a forfeiture modification order. This is an unlikely intention to attribute to Parliament in circumstances in which: (i) the former "offender" has no criminal responsibility for a death, but the latter (in criminal law terms, a real offender) has; and (ii) the ordinary meaning of section 86 of the Civil Procedure Act, read in combination with the Forfeiture Act, accommodates the making of a forfeiture application order on terms and conditions. 2. As illustrated by the extrinsic materials attending enactment of the 1995 amending Act (able to be consulted consistently with section 34 of the Interpretation Act 1987 NSW), the object of the Forfeiture Act is to introduce flexibility into the operation of the common law forfeiture rule. That object remains operative vis a vis the Forfeiture Act as a whole notwithstanding the absence of express reference to it in the 2005 extrinsic materials. 3. Section 33 of the Interpretation Act 1987 NSW mandates that the Court prefer a construction of legislation that would promote the purpose or object of the Forfeiture Act over one that would not promote that purpose or object. 4. Section 9(1) of the Interpretation Act 1987 confirms that the word "may" in section 11 (2) of the Forfeiture Act indicates that the power conferred by section 11 of the Court to make a forfeiture application order may be exercised or not, at discretion. That discretion is not at large. It is confined by the subject matter, scope and purpose of the Forfeiture Act: Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492 at 505; O'Sullivan v Farrar (1989) 168 CLR 210 at 216; Pilbara Infrastructure Pty Limited v Australian Competition Tribunal (2012) 246 CLR 379 at [42]. It must be exercised judicially, not arbitrarily. If exercised taking into account considerations irrelevant to the decision to be made, it will be reviewable on appeal: State of Victoria v Davies (2003) 6 VR 245. Upon a consideration whether to make a section 11 order on terms or conditions, regard might be had to the operation of sections 5-6 of the Forfeiture Act, and to caselaw on the moulding of a forfeiture modification order. 1. The discretionary nature of the power for which section 11 (and, for that matter, for which section 5) provides mandates that, in making a decision about an exercise of the power, the Court take into account all facts known at the time of decision which bear upon the decision to be made. This is reinforced by the reference to Chapter 3 of the Succession Act in the section 3 definition of "benefit" because Chapter 3 (in particular, section 59) of the Succession Act requires the same timeframe to be applied in the determination of an application for a family provision order. Adoption of that timeframe means that, in many if not in all cases, facts which have occurred after the fact of an unlawful killing need to be taken into account in determining what "justice requires". As centrally important as the fact of an unlawful killing and the forfeiture rule are, the need for a broader perspective suggests a correlative need for orders to be able to be made, or withheld, on terms and conditions designed to accommodate what justice requires.

Satisfaction that justice requires an order

1. The discretionary power of the Court to make a forfeiture application order, under section 11 (2) of the Forfeiture Act is conditioned upon the Court being "satisfied that justice requires the [forfeiture] rule to be applied as if the offender [defined by section 10 in terms that include the defendant in the present proceedings] had been found guilty of murder".
2. Section 11(3) of the Forfeiture Act directs that, in determining whether justice requires the forfeiture rule to be applied, the Court is to have regard to the conduct of the offender; the conduct of the deceased person(s); the effect of the application of the rule on the offender or any other person; and such other matters as to the Court appear material.
3. One of those "other matters" may be the availability of an exercise of the Court's family provision jurisdiction or a range of factors ordinarily taken into account upon an exercise of family provision jurisdiction. Another might be the availability, or otherwise, of an agreement within a family or other affected interests about what, if any, orders should be made. Yet another might be the availability or otherwise of orders able to be made on terms and conditions.
4. A determination that justice requires that "an order be made applying the [forfeiture] rule" to an offender, of itself, says nothing about the terms or conditions upon which an order should be made in the interests of justice. A forfeiture application order made on terms and conditions that do not negate its operation, but adapt it to the facts of the case, still bears the character of a determination that the rule apply. The words "as if the offender had been found guilty of murder" do not exclude the Court's jurisdiction to make orders on terms and conditions but effect a forfeiture of the type to which the "forfeiture rule" (as defined by section 3 of the Forfeiture Act) provides.
5. If (as I apprehend) a section 11 order can be made on terms, an order can be made on terms that take into account such, if any, entitlements an "offender" might have to apply for a family provision order. That might facilitate a determination of whether any provision for the "offender's" maintenance, education and advancement of life "ought" to be made, out of property entitlements subject to forfeiture, having due regard to well-established, accepted principles.
6. In approaching the legislative criteria for which chapter 3 of the Succession Act provides, the Court must endeavour to place itself in the position of the deceased, and to consider what he or she ought to have done in all the circumstances of the case, treating him or her for that purpose as wise and just, rather than fond and foolish (In re Allen [1922] NZLR 218 at 220-221; Bosch v Perpetual Trustee Co Ltd [1938] 463 at 478-479; Pontifical Society for the Propagation of the Faith v Scales (1962) 17 CLR 9 at 19-20), making due allowance for current social conditions and standards (Goodman v Windeyer (1980) 144 CLR 490 at 502; Andrew v Andrew (2012) 81 NSWLR 656) and, generally, consulting statutory criteria directed towards the same end.
7. This could be of importance in the context, particularly, of an application under section 11 of the Forfeiture Act. That is because the family provision jurisdiction brings into focus particular personal relationships that may have involved a significant history of a family coping with mental illness, stoically recognising ongoing social obligations to a vulnerable member of family in circumstances which, but for family relationships, would have led to a termination of personal contact long before the intervention of a tragic death. Adapting OW Holmes' aphorism (The Common Law, 1881, Lecture I) to a practical (not merely theoretical) engagement with law: The life of the law is not logic, but experience. Family bonds are not entirely, coldly rational.
8. The present case provides an example of this. There is evidence that: 1. the defendant's illness was not diagnosed until after his parents' death, although some form of mental illness was plain, for all in close proximity, to see. 2. the defendant, no less than his parents, wanted his illness to be diagnosed and treated. 3. the defendant's resort to alcohol and drugs may have been a product, rather than a cause, of his mental illness. 4. the defendant's parents, particularly his mother, supported him through thick and thin as he struggled to come to terms with what was recognised as a form of mental illness. 5. members of the defendant's family were aware of his propensity for violence and threats against his parents; but, in common with the parents themselves (or, at least, the mother), they never imagined that his wild, offensive and irrational talk would end, as it did, in the violent deaths of the parents. 6. members of the defendant's family, including the plaintiff and his tutor, have from time to time expressed the view that the defendant's parents, subjectively, would not have wanted the defendant left without provision from their estates, even in light of his causation of their deaths.
9. Another interest liable to be consulted in the family provision context, although less noticed nowadays than it was in the early days of the jurisdiction's development, is the public interest in looking to family assets to satisfy (or, at least, to contribute to satisfaction of) welfare needs of family rather than relying simply upon public expenditure to maintain those left without adequate provision for their maintenance, education or advancement in life.
10. Unless open to adaptation in the interests of justice, the tendency of the common law forfeiture rule is to pass over the nuances of actual experience of family life, emphatically but at a high level of abstraction, as if unnoticed. The criteria which the Forfeiture Act prescribes for decision making require focused attention to be paid to the facts of the particular case.
11. The statutory criteria (for which sections 11(2)-(3) provide) for the making of a forfeiture application rule find a parallel in the criteria (found in sections 5(2) of the Forfeiture Act) for the making of a forfeiture modification order. Similar criteria govern the making of an order revoking or varying a forfeiture modification order (Forfeiture Act, section 8(3)) or the making of an order for revocation of a forfeiture application order (Forfeiture Act, section 13(3)).
12. The criteria for the making of an order turn upon the Court being satisfied that "justice" requires the making of an order. Foundational though the word "justice" is to the law, and society generally, it has an elusive quality. Generally speaking, we speak of "justice", but we more readily recognise "injustice"; an example of that can be found in the language used in the Explanatory Note published in aid of the Forfeiture Bill, 1995 extracted in paragraph 62 above. At a high level of abstraction, true justice may be what awaits us in the afterlife, leaving the highest expression of justice in this life the avoidance or minimisation of injustice. At the lower level of abstraction at which a court must generally operate, philosophical debates about the meaning of "justice" are recognised, but not allowed to paralyse decision-making, by the use of expressions such as "practical justice", "the due administration of justice" or (as appears in the Forfeiture Act) "satisfaction" about what justice "requires" in the particular case.
13. The text of the Forfeiture Act, and its subject matter, compel an assessment by the Court of what "justice requires", mediated by a judicial obligation to inquire whether the Court has the requisite level of satisfaction to make an order having particular effect under the law.
14. An application made under the Forfeiture Act is made in proceedings which are civil, not criminal, in character. Upon an assumption that an applicant for an order bears an onus of proving facts requisite to the making of an order, the onus to be applied is the civil onus of proof "on the balance of probabilities", making due allowance for the gravity of the fact to be proved: Evidence Act 1995 NSW, section 140; Gonzales v Claridades (2003) 58 NSWLR 211 at 213[5]. Cf, Briginshaw v Briginshaw (1938) 60 CLR 336.
15. The object of the jurisdiction conferred by the Forfeiture Act is not punishment of an "offender", but consideration of whether an offender should be denied a benefit consequential upon an unlawful killing. As Attorney-General Shaw noted in his second reading speech on the 1995 legislation, the common law rule may operate regardless of a killer's motive or degree or moral guilt. In one of its dimensions, the common law rule exhibits the cold calculus of cause and effect: an unlawful killing causes a denial of consequential benefits.
16. An assessment of what "justice requires" for the making of an order under the Forfeiture Act must be relative to the facts of the particular case. However, such an assessment will commonly have an absolute dimension because any order made by the Court in disposition of an application under the Act must engage with profound questions about life, death, the capacity to make decisions, the capacity to accept responsibility for conduct, and community attitudes to such questions.
17. Because "justice" has profound but elusive qualities, the Forfeiture Act requires the Court to remain open to the competing narratives and nuances of the particular case, respecting the sanctity of life and rights and obligations arising from living in community.
18. The text of the Forfeiture Act cannot properly be glossed by substitution of different language for the text. Nevertheless, a working definition of the word "justice" in the context of the legislation, and in aid of its exposition, may be the word "fairness". That is at best an approximation, and one that may suffer from a want of the gravitas that the word "justice" conveys: JR Lucas, On Justice (Clarendon Press, Oxford, 1980), pages 1-2. In any event, we speak not of fairness (justice) to one person or interest only, but of justice assessed in the light of considerations of all factors (legal, rational and moral) said, after due consultation of affected interests, to bear upon the decision to be made by the Court. One must look at an unlawful killing not only through the eyes of an "offender" but also through the eyes of the public and persons directly affected: Estate of Raul Novosadek [2016] NSWSC 554 at [66].
19. The legislation points in this direction, and endeavours to accommodate it, by deployment of the word "justice" without a formal definition of its metes and bounds, in the context of a common law rule of public policy open to adaptation, with a non-exhaustive list of statutory criteria, overlaid with a judicial obligation to act only on attainment of "satisfaction" about what "justice requires" and an accompanying discretion governed by the nature and scope of the legislation.
20. There is, in this, no licence for idiosyncratic decision-making. In any Forfeiture Act case, there is a requirement for something akin to what is required upon an exercise of family provision jurisdiction: a decision informed by considerations of wisdom and justice (to use the composite expression deployed in family provision jurisprudence) and contemporary community values.

Introduction

1. As a child of his deceased parents, the defendant at all material times has had standing to apply (under chapter 3 of the Succession Act) for family provision relief from their estates. He has not at any time made such an application. In the course of these proceedings, his counsel expressly disclaimed an intention on his part to do so.
2. An application for family provision relief made now would require a court order granting the defendant an extension of time within which to apply. This is because, absent an extension of time, an application must be made within 12 months of the death of the person in respect of whose estate the application is made. That time has passed. The present proceedings have been litigated upon the basis of an absence of a claim for family provision relief.
3. It is common ground that the defendant is impecunious. Apart from his interest in his parents' estates, he has no significant property.
4. He continues to live in detention, under State care, pursuant to orders made by Campbell J at the conclusion of the criminal proceedings. There is no evidence suggesting that he will be released from detention any time soon. Although there is evidence he does not suffer from any significant cognitive problems, Campbell J's judgment and his continued detention suggest that he remains a danger to the public.
5. During the course of these proceedings, the defendant made an open offer to the effect that he would submit to "forfeiture" of his interest in his parents' estates provided that his share of the estates passed to his sons. Upon an intimation that they proposed to pass to the plaintiff any estate property they receive, the defendant withdrew his offer.
6. The defendant gave no evidence at his criminal trial, and he has given no evidence in these proceedings. He did not, by swearing an affidavit, subject himself to the possibility of cross examination.
7. His case in the current proceedings has been conducted largely on the basis that, because he bears no criminal responsibility for the deaths of his parents, and because there is evidence of mental illness caused otherwise than by personal fault on his part, the Court should not make forfeiture application orders, the effect of which would be to punish him for conduct for which he has been held not to be criminally responsible.
8. That basic case has, however, been supported by evidence of two types of material need of the defendant unlikely to be satisfied otherwise than out of the estates of the deceased parents. First, although in detention, the defendant has opportunities to ameliorate his daily life by the acquisition of modest consumables from private resources. Secondly, if it should be the case, at some future time, that he is released from detention, he has no significant, accumulated assets upon which to draw in establishing a new life.
9. In the course of these proceedings, there has been no explicit expression of remorse on the part of the defendant for the, admittedly sad, deaths of his parents.
10. The deaths of the parties' parents and the trauma of subsequent legal proceedings have profoundly soured personal relationships.
11. The plaintiff lives in fear of the defendant should he be released from detention. She is not quite satisfied with the outcome of the criminal proceedings because of her perception of moral culpability on his part, and a persistent belief that he deserves punishment. She cannot comprehend why her aunt would intervene in her brother's interests as a tutor, and she resents that intervention.
12. The aunt, for her part, complains that she has been forced to bear acrimony and abuse emanating from the plaintiff's side of the family for doing that which she apprehends the deceased parents (her brother and her sister-in-law) would themselves have wanted done for their mentally ill son.

Agreed Facts : Findings of Campbell J

1. The parties' invitation to determine the current proceedings by reference to findings of fact made by Campbell J in R v Settree (No. 2) [2016] NSWSC 1079 carries with it an opportunity to act upon his Honour's findings without repeating them in detail. Particular reference is, however, made to paragraphs 4-5, 7-11, 28, 42-77, 82, 86, 91 and 94-95.
2. At paragraph 5 of his Honour's reasons for judgment, he sets out in full formal admissions made by the defendant pursuant to section 184 of the Evidence Act 1995. It is sufficient, for present purposes, to note that those admissions include an admission that, at the time the defendant fired his loaded shotgun at his mother, it was his intention to kill her; and, at the time he fired the shotgun on two occasions at his father, it was his intention to kill him as well.
3. For an account of the events directly associated with the defendant's killing of his parents, counsel for the plaintiff specifically drew attention to paragraphs 7-11 of Campbell J's judgment: "[7] … Mr Settree [the defendant] shot his mother and then his father in the home he shared with them in Cobar at about 8.30 pm on 3 December 2014. The shootings seem to have been precipitated by a minor domestic disagreement of the type most people would be able to brush off, even allowing for the resentment that can build up in family relationships over grievances perceived to be unaddressed. This disagreement was about Mr Settree drinking a bottle of his father's wine without permission. This domestic offence occurred the previous evening. When his father remonstrated with him about it on the evening of 3 December 2014, Mr Settree became angry, left the house and went to the bank, where he withdrew $40, being the value of the wine, at 8.10 pm. He returned home still clearly angry and said to his father, "there's your $40 stick it up your arse". Mr Settree then started to throttle his father, but promptly released his grip, saying "You're not worth it". Ian (as he preferred) Settree complained to his wife, Margaret Settree, who then told Mr Settree to "get out of my house, go, pack your things and get out". [8] The accused went to his bedroom where he obtained his pump action shotgun from his cupboard. He carried the gun from the bedroom. When he reached the threshold, he saw his mother standing in the lounge room, and shot her in the neck. He later told police that he experience a sensation of relief. He reloaded the weapon by its pump-action and approached his father. Mr Ian Settree screamed and put his hands up, I infer, indicating "don't shoot". But his son raised the gun and shot his father twice, in the chest and head. The accused told investigating police that once again he felt a feeling of relief and release. [9] After the shootings the accused went back to the local hotel where he had been drinking earlier in accordance with his normal routine. He must have arrived not long after 8.30 pm. He sat in a different part of the bar from usual. The publican, Ashleigh Bellotti, a retired police officer, served him a schooner of beer. The accused said to him, "Ash, Ash, I have to tell you something... just done the most stupid thing in my life". After further inquiry by Mr Bellotti, the accused told him that he had shot his parents. Mr Bellotti then noticed bloodstains on the trousers of the accused; he informed him that he was going to call the police and asked him where the weapon was. The accused told him that it was on the kitchen table. [10] While waiting for the police to arrive, the accused told Bellotti how he had used the shotgun: "I walked into my bedroom, pulled the gun out of my closet, walked back into mum and dad, shot mum in the neck and shot dad twice." The accused was subsequently arrested and taken to Cobar Police Station. [11] The police found Margaret Settree on the floor in the lounge room, with a neck wound, and Ian Settree in the hallway on the floor, similarly in a pool of blood. Both were deceased. A pump action shot gun was found on the dining room table."
4. Upon an assessment of the defendant's criminal responsibility (or, more accurately, his lack of criminal responsibility) for the killings, Campbell J found that, at the time the defendant killed his parents, he was labouring under a delusional belief system which was symptomatic of paranoid schizophrenia. This "left him unable to reason about his actions and beliefs with even a moderate degree of sense and composure in the relevant sense because his capacity to do so was overborne by his grievance delusion about his parents' oppression of him": [2016] NSWSC 1079 at [76]-[77]. Although "he may have known that killing his parents was against the law he felt justified in doing it because of what he perceived to be their mistreatment of him [; that] is to say he was at the time of the shooting labouring under an active grievance delusion directed at his parents": [2016] NSWSC 1079 at [72] .
5. Although it was long appreciated that the defendant had a mental health problem (for which illness he sought treatment, which illness contributed to the breakdown of his marriage and which illness left him unable to settle in employment), the precise nature of his illness was not diagnosed until after he was taken into custody; and, even then, the diagnosis was but slowly reached: [2016] NSWSC 1079 at [33] and [73].
6. At the time of his criminal trial, the defendant was aged 48 years: [2016] NSWSC 1079 at [42]. Viewed longitudinally, his undiagnosed illness became manifest at around the age of 30: [2016] NSWSC 1079 at [49]. His delusional thinking may have dated back to when he was 14 years old: [2016] NSWSC 1079 at [74]. Although, as an adult, he had a history of drug taking and excessive alcohol consumption, his schizophrenia may have been "drug exposed rather than drug induced": [2016] NSWSC 1079 at [49].
7. As a product of his mental illness, he had a history of violence towards family members which, for the most part, they patiently endured: [2016] NSWSC 1079 at [44]-[46].
8. In observations which find an echo in supplementary evidence adduced in the current proceedings, Campbell J recorded that evidence of the plaintiff (as she now is) suggested that the defendant (then the accused) had a history of violence and threats to his family, particularly towards his mother; but that, despite this, the mother, by the accounts of close family and friends, was always supportive of her son, procuring references on occasions when he ran foul of the law. His mother did this for him even when he was charged with assaulting her. His father, according to the plaintiff, thought that the mother was too indulgent of the defendant, and wanted him to be more self sufficient. In the weeks prior to his death, the father harboured fears that the defendant would commit suicide: [2016] NSWSC 1079 at [45].

Supplementary Evidence

1. It detracts not at all from the findings made by Campbell J to record that each of the defendant's sons deposed to conversations with their father in which, well before the fateful day of his parents' deaths, the defendant expressed a desire for the death of his parents so that he could have his share of their estates. Neither son appears to have believed that the defendant was seriously capable of doing what he did.
2. In a Victim's Impact Statement placed before Campbell J in the criminal proceedings, and in affidavit evidence in these proceedings, the plaintiff has spoken of the profound, devastating effect of her parents' deaths upon her personally, in her conduct of the family business in which she worked with her parents before their deaths, and in her local community.
3. In a countervailing Victim's Impact Statement, and in affidavit evidence generally, the defendant's aunt (his tutor) provides another narrative about the profound, devastating effect of tragedy flowing from undiagnosed mental illness.
4. In an affidavit sworn on 27 October 2017 the plaintiff, within the context of broader family relationships, deposed to conversations she had with her parents: "[26] Throughout their lifetimes I observed my parents, particularly my mother, to have been loving and generous to the defendant despite his treatment of them, particularly my mother. [27] My parents each told me they "made mortgage payments" for the defendant when he fell into arrears, extended credit to him or "gave him money" , "paid his debts" and borrowed money to purchase motor vehicles and motorcycles "for him to use". He continued to book up credit on their business accounts in Cobar, especially at the Shell service station in Cobar. My parents each said they were "annoyed about this". [28] I saw my mother with bruises on more than one occasion, and with two black eyes on one occasion along with bruises to the side of her face, arms, hip and leg after the defendant beat her for some reason she could not explain to me. [29] My father often said he was "afraid of Scott [the defendant], but it was either put up with him in the house or have no wife" because my mother would not put the defendant out of the family home. On numerous occasions my father said he felt "like a prisoner" in his own home. [30] In or about 2007 or 2008, the defendant posted a number of messages on his Facebook page.… [31] I saw the entry on the defendant's Facebook page which refers to him "trying to work out how to kill his mother and get away with it". I showed my mother what the defendant had written. My mother said: "Scott will never hurt me". [32] In or about November 2008 the defendant was admitted to the Lyndon Rehabilitation Centre at Orange, NSW, for treatment and I paid for his admission costs. … "
5. On 17 November 2008 the defendant's mother wrote a letter to his sons, which she entrusted to their mother (the defendant's former wife) with a discretion as to whether or not the letter should be delivered to the boys. It includes the following: "Dear [boys], I am not sure if your mum has told you that your dad is in hospital in Orange at a place called Lyndon House. He has not been a well person for a very long time but no one could help him until he was ready to admit he needed help. … As you know, I was very worried about him and rang your house several times to see if you boys knew where he was, and if he was okay. When he finally came back to Cobar he would not talk to Grindi [his father] and I, and he slipped further into depression until he finally took himself to a doctor who admitted him to hospital (Cobar). He was there for 8 days until Wendy and Ross [the plaintiff and her husband] took him to Orange to get specialist help, at a hospital that specialises in mental health. He has been in Lyndon House for a week now, and he may be there for a very long time. He wants to get well, and we all want him to get well. We all love him very much. We know that you do as well, and he needs us all to say a prayer for him, light a candle every night for him, and send our love to him.… I love you both very much and in my mind I see your lovely smiling faces all the time. Take care of each other and think of your dad when you can. He will get better, it is just going to take a long time. When he is feeling a bit better, I am sure he will get in touch with you. Just be patient.… "
6. The mother's empathy for the defendant was not hers alone. That is evident in a letter dated 8 December 2008 which the plaintiff wrote to her aunt (the defendant's tutor) at a time when tensions between them had not been aroused by common tragedy: "Dear Libby, Just a little covering letter to fill you in on Scott. He has had a really bad twelve months of not being able to hold a job and has been drinking himself to oblivion and has suffered really really bad depression, to the point where four weeks ago he finally recognised the problem and came to me for help. He was admitted to hospital about four weeks ago and then after lots of pushing, shoving, nagging and calling out for help I got him into Lyndon Rehabilitation Centre in Orange. Ross and I took him down and admitted him. He recently came home, arriving at my place with much surprise and stayed here for a week until he was able to get himself into Lake Macquarie Recovery Centre at Morissett near Newcastle. He left here last Tuesday (week) and was admitted Wednesday morning, where he hopes to be for quite sometime - could be anything up to twelve months, depending on how he goes with treatment. Over the past few years, there has [sic] been threats of suicide. He has said and done some really strange things, his behaviour has been very erratic and he has put Mum and Dad through hell - also getting himself into a lot of debt, where Mum and Dad have finally had to pull the pin and not pull him out of debt anymore. He has not spoken to them for six months or more and has spoken about them terribly (saying really nasty stuff). He made their life miserable and there for a long time they were both not sleeping and were looking like wrecks. However, they are looking a lot better now, knowing that Scott is finally getting help. Dad said only last night, he just wants his son back! In the meantime Mum and Dad have been working themselves into the ground, working day and nights and also weekends getting the renovations and new shop up and running (which is still in the making). They are hoping to move in between Christmas and New Year, which will be a huge task. My brother has put a lot of pressure on them for a long time now and has slowly destroyed his own life. I love him dearly and I just hope he responds to the help given to him and comes out a new man. I feel he is in a good place now. I have been so worried about him for a long time, but couldn't help him until he was ready. Hope is all well with you guys. I think of you often and would love to see you next year. Take care. With love and best wishes always, Wendy"
7. In her affidavit sworn 4 December 2017 the defendant's aunt (tutor), deposes to a conversation she had, inter alia, with the plaintiff at the time of the defendant's criminal trial. She says the plaintiff said to her, and to others then present: "If mum was here she would still be looking after Scott regardless of what has happened."
8. In the same affidavit the aunt (tutor) deposes to the following (here editorially adapted): "[8] I still don't understand how Scott's schizophrenia went undiagnosed and untreated for so many years when he sought help and spent so much time receiving treatment for his mental health. Had he been correctly diagnosed and properly treated his life would have been very different as would the lives of members of his family.… [12] I am upset that Ian and Margaret [the defendant's parents] had been struggling with Scott's mental illness for so many years without telling me about how bad he was. I cared about Scott's welfare and when Margaret and I spoke to each other words to the following effect were usually said: Elizabeth [the defendant's aunt]: 'How is Scott going?' Margaret [the defendant's mother]: 'He is struggling but okay. Thank you for asking after him'… [13] Margaret was very involved in the charity Batyr which helps youth mental illness and instrumental in bringing the program to Cobar. A woman from Batyr spoke at Margaret and Ian's funeral… Recorded on [a monument erected at Cobar Swimming Pool in memory of Margaret and Ian by the residents of Cobar] are the following words: 'Margaret was also a champion for bringing the Batyr mental health programs to Cobar'. [26] I am truly gutted, after reading some of the police reports and [affidavits of the plaintiff and one of the defendant's sons] which record the following: (a) that Scott had a history of mental health problems and [the plaintiff, the son] and other family members knew this; (b) that [the plaintiff, the son] and other family members knew he kept a loaded shotgun under this [sic] bed in the house; (c) that Scott had said on a number of occasions including in 2013 that he wanted to kill Ian and Margaret; (d) that nothing was done to prevent this from happening although family who were close to Margaret, Ian and Scott were aware of the struggles they all had as a result of Scott's serious mental illness over a long period of time. … [27] I believe that Ian and Margaret would not have wanted Scott's interests in each of their estates to be forfeited as they made no changes to their Last Wills and Testaments dated 23 February 1993 despite having to deal with the difficulty of Scott's mental illness for so many years".

THE STATUTORY CRITERIA

1. An assessment of "whether justice requires that the forfeiture rule be applied to the defendant as if he had been found guilty of murder" requires the Court to have regard to the several criteria specified in section 11(3)(a)-(c) of the Forfeiture Act and, as provided for in section 11(3)(d), such other matters as to the Court appear material .
2. A convenient starting point is an acknowledgement of the character of, and rationale for, the common law forfeiture rule. Having noted the observations of Mahoney and Meagher JJA in Troja v Troja (1994)33 NSWLR 269 at 294-295, 297 and 299 (extracted in paragraphs 53-55 above), it is sufficient to focus upon the declaration in Gonzales v Claridades (2003) 58 NSWLR 211 at 220[42] extracted in paragraph 50 above. The forfeiture rule is a rule of public policy. It is an aspect of the maxim that a person not be permitted to profit from his or her own wrong. It seeks to deter serious wrongdoing by precluding the unjust enrichment of a wrongdoer and those claiming through the wrongdoer.
3. In determining whether "justice requires" the making of a forfeiture application order, the Court can, and should, take into account the defendant's lack of criminal responsibility for the unlawful killings of his parents.
4. However, by its enactment of Part 3 of the Forfeiture Act, Parliament has determined that a lack of criminal responsibility may not be enough, in a particular case, to exempt an "offender" from civil consequences of his or her conduct. A finding of not guilty of murder by reason of mental illness is the jurisdictional foundation for a section 11 application. It is not, of itself, an exculpatory fact.
5. The Court needs to consult the interests of persons affected by the conduct of an "offender" (including, but not limited to, the "offender") and the public interest.
6. This must be done bearing in mind the public policy character of the forfeiture rule, its reflection of the maxim that a person should not be permitted to profit from his or her own wrong, the deterrent object of the rule, and the associated object of precluding unjust enrichment.
7. The Court should be slow to impose civil consequences upon a person found not to have been criminally responsible for unlawful killings recognising, however, that the interests of justice are broader than the criminal law.
8. As required by section 11(3) of the Forfeiture Act, I have regard specifically to the following matters, all of which are set in the context of this judgement, read as a whole: 1. The conduct of the "offender". On his own admission, the defendant intended to kill his parents, although, for the purposes of the criminal law, he has been found to have killed them in circumstances in which his judgement was impaired by mental illness. Impaired though his judgement was, there was an element of premeditation and design in what he did: he knowingly kept a shotgun close at hand; he harboured unjustified resentments against his parents; and he contemplated their deaths in terms of benefit to himself. In shooting them without mercy and, allowing them no opportunity to defend themselves, he exhibited callous disregard for his parents, causing them undeserved, violent deaths shocking to the conscience of a right-thinking person. Apart from owning up to what he did, he has demonstrated no real remorse for what he did. A history of domestic violence, drug taking and heavy drinking (in part, at least, a product of undiagnosed, untreated mental illness) must be weighed in the balance as an explanation for the defendant's conduct, but not as a justification for tolerance without consequences. 1. The conduct of the deceased parents. No blame can be fairly attributed to the defendant's parents in analysis of the cause, manner or timing of their deaths. A minor domestic argument with the defendant's father, giving rise to an assault of the father, the mother's direction that the defendant leave the home, and the defendant's fatal resort to his shotgun cannot be seen as an occasion for attribution of blame to the parents. Their deaths were neither provoked nor justified. Despite the defendant's delusionary thoughts to the contrary, they were consistently loving, supportive and patient parents to him. 2. The effect of an application of the forfeiture rule on the defendant. An application of the forfeiture rule to the defendant will deprive him of the half share of each parent's estate which he would otherwise have under their wills. This will leave him almost totally dependent upon the State for all his material needs. 3. The effect of an application of the forfeiture rule on other persons. The practical effect of an unconditional forfeiture application order, in combination with the defendant's sons' disclaimer of any interest in the estates of their grandparents, is that the whole of both estates will pass to the plaintiff as her parents' sole beneficiary. If and to the extent that a forfeiture application order is made upon terms or conditions for the purpose of making provision for the maintenance, education and advancement in life of the defendant, such provision as may be made for him will be made, in practical terms, at the expense of the plaintiff. Even then, however, she will acquire a substantial portion of what, but for the operation of the forfeiture rule, would have been the defendant's inheritance. 4. Other material matters. With full acknowledgement of the defendant's mental illness, the Court is bound to recognise public revulsion in the defendant's callous, violent, unprovoked, unjustified killing of his loving, supportive and patient parents. Recognising support given to the defendant by the paternal aunt who has served as his tutor in these proceedings, an eloquent statement of family attitudes to the defendant's conduct is found in his sons' repudiation of him. The opinions of family members (especially those with a financial interest in the making, or otherwise, of an order under the Forfeiture Act) can be highly material (at least if made against interest), as it is in this case: R v R (Hodgson CJ in Equity, unreported, 14 November 1997) BC 9707619; Jans v Public Trustee [2002] NSWSC 628 at [8]. The compassionate support of the defendant by his aunt (his tutor) has manifested itself in emphasis on his incapacity despite the nature of his conduct. It is perhaps a demonstration of that same pity, in the form of resigned forbearance, that may explain the patient endurance of the defendant's aberrant conduct by his long suffering parents over the several years they allowed him to live at home after the breakdown of his marriage. Isolated though he appears to be from most members of his family, he appears, in detention under State care, to have no unmet, basic material needs. This is an assessment reinforced by, possibly: (i) the absence of any claim for family provision relief from the deceased parents' estates; (ii) the defendant's opposition to a forfeiture application order being made, or withheld, on terms and conditions; and (iii) his passing offer to allow his inheritance to pass to his sons rather than himself. Nevertheless, he cannot fairly be said to be without material needs. He lacks access to consumables which, for most people, add enjoyment, if not meaning, to ordinary life. He lacks a fund to protect him against the ordinary contingencies of life.

Application of the Forfeiture Rule

1. Taking these various matters into account, in all the circumstances of the case, I am satisfied that justice requires that the forfeiture rule, in some form, be applied to the defendant as if he had been found guilty of murder attending the deaths of his parents. Allowing for the defendant's experience of mental illness, and the absence of criminal responsibility for the deaths of his parents, a primary factor telling in favour of an order of any type being made is the pre-meditated, violent and merciless character of the killings, reinforced by a lack of remorse. To adapt Young AJ's observations in Novosadek (as quoted in paragraph 37 above), a factor to be taken into account is public revulsion that a person who has engaged in such conduct should reap a substantial benefit from it.

The form of the Court's Forfeiture Application Order

1. Drawing support from the analogous example of Kemperle v Public Trustee (explained in paragraphs 99-101 above), I nevertheless conclude that an allowance of some provision in favour of the defendant, within parameters such as those described by Powell J, is consistent with contemporary community standards of justice focussed on dealing with mental illness in a family context.
2. The form of forfeiture application orders that justice requires is one conditioned upon modest provision being made in favour of the defendant (administered via a trust or managed via protected estate orders), with terms requiring provision to be made, for his maintenance, education and advancement in life taking into account all the circumstances of the case, as now known.
3. Particular factors which, in my opinion, tell in favour of conditional forfeiture application orders are those listed in paragraphs 120-122 above. At the time he killed his parents the defendant suffered from an undiagnosed form of mental illness which he, in common with his parents, had endeavoured to have identified and treated. There is evidence that his resort to alcohol and drugs in the several years before his parents' death may have been a product, rather than a cause, of his mental illness. The parents themselves, particularly his mother, supported the defendant through thick and thin as he struggled to come to terms with his illness. Members of the family, generally, were aware of his propensity for violence and threats against his parents but, in common with the parents (or, at least, the mother), they never imagined that he was capable of doing what he did. Members of the family, including the plaintiff and the defendant's tutor, have from time to time expressed the view that the defendant's parents, subjectively, would not have wanted the defendant left without provision from their estates, even in light of his role in their deaths. There is a public interest element in looking to family assets for a contribution towards the defendant's ongoing maintenance, education and advancement in life.
4. If, as I propose, forfeiture application orders are to be made predicated upon provision being made for the defendant's maintenance, education and advancement in life, then, subject to any further order of the Court, that provision should be administered, or managed, by the NSW Trustee or another professional trustee/manager able to stand apart from members of the defendant's family. The family should be able to conduct their lives (including any contact they may voluntarily have with the defendant) uncomplicated by ongoing monetary ties.
5. The amount of provision made for the defendant should, in these circumstances, include an allowance for fees which, in the ordinary course of business, might reasonably be chargeable by the NSW Trustee or another professional trustee/manager.
6. If, as I propose, the form of provision made for the defendant is to be administered through a trust, the defendant's beneficial entitlement to trust property should be subject to a condition that he not terminate the trust without the leave of the Court, and ancillary terms. This is necessary to cater for the possibility that the defendant might, at some future time, contend that he is entitled, under that "the rule in Saunders v Vautier" (authoritatively stated in CPT Custodian Pty Limited v Commissioner of State Revenue (Vic (2005) 224 CLR 98 at 119[47]), to terminate the trust because no longer incapacitated by mental illness.
7. The object of the proposed condition, and ancillary terms, is not to keep the defendant out of property to which he may be entitled, but to provide a mechanism to enable any entitlement to terminate the trust, or to deal with trust property, to be dealt with in an orderly fashion. But for a need to provide a regulatory mechanism, the defendant's entitlement to the provision to be made for him should be regarded as absolute. Any unconsumed balance of property still held on trust at the time of the defendant's death should pass to those persons who may be entitled to his deceased estate.
8. The absence of any application by the defendant for a family provision order under chapter 3 of the Succession Act should not be held against him in moulding an analogous form of relief as a condition imposed on the making of forfeiture application orders. But for the making of discretionary decisions under section 11 of the Forfeiture Act, the defendant stands to inherit property valued at about $1 million - an inheritance unlikely to be supplemented by a grant of family provision relief. The absence of an application for family provision relief is sufficiently explained by that practical reality. Within the context of an exercise of jurisdiction under the Forfeiture Act, relief granted against the unconditional operation of forfeiture application orders is a function of the Court's determination to make such orders upon the exercise of a discretionary Forfeiture Act jurisdiction rather than a function of an exercise of family provision jurisdiction. Relief allowed to the defendant in the form of conditions imposed on the making of forfeiture application orders affects no interests in the estates of the parties' deceased parents beyond those which, but for the making of the Court's orders, would have been the defendant's entitlement to inherit.

The rationale of the Forfeiture Rule, and the Forfeiture Act, kept in view

1. In determining that justice requires conditional forfeiture application orders as here described, I have kept in mind: (a) the rationale of the forfeiture rule found in the description of the rule in Gonzales v Claridades, extracted in paragraph 50 above; and (b) the nature, scope and purpose of the Forfeiture Act, predicated upon adaptation of the forfeiture rule to accommodate what justice requires on the facts of the particular case.
2. The fact that the defendant was found not guilty of murder on the ground of mental illness (and, so, relieved of criminal responsibility) is not inconsistent with characterisation of the deaths of his parents as unlawful or, in the interests of justice, denying him civil benefits flowing from conduct which was plainly wrong.
3. A refusal to make a forfeiture application order would be an unjust determination of these proceedings insofar as a consequence would be that the defendant would obtain a benefit (of the order of $1 million) from conduct which, although not viewed as a crime, would generally be regarded by fair-minded members of the community as profoundly wrong.
4. The Court cannot assume that the making of a forfeiture application order in respect of a mentally ill person will have no deterrent effect on others similarly ill, lacking insight. It may well do, and that possibility presents itself as an element of what "justice requires" in the making of an order.
5. In any event, the making of a forfeiture application order may have a more broadly based deterrent effect. A reasoned application of the forfeiture rule in the case of a person found not guilty on the ground of mental illness may serve as a deterrent in the general community - involving, as it does, reinforcement of the law's abhorrence of an unlawful killing, and affirmation of the truth that conduct has consequences even if not criminal in character. A mental illness defence to a charge of murder is no sure means of avoiding the operation of the forfeiture rule, in the interests of justice.
6. The making of a forfeiture application order is not a vehicle for punishment of a person found not guilty of murder on the ground of mental illness, or for compensation of his or her victim: Rasmanis v Jurewitsch (1968) 88 WN (Pt 1) (NSW) 59 at 63-64, affirmed on appeal (1969) 70 SR (NSW) 407. Nor is it (as the report of the Victorian Law Reform Commission apprehended) a vehicle for denigration of such a verdict. It is a means by which, in the interests of justice, in civil proceedings, a person may be denied benefits flowing from his or her wrongful conduct.
7. Community support for the mentally ill (in the criminal justice system, in therapeutic treatment and in everyday life) need not extend to tolerance of wrongful conduct without civil consequences. The fact that a mentally ill "offender" lacks insight to recognise a wrong does not oblige the community to be blind to the wrong, or to acquiesce in the "offender" receiving consequential benefits.
8. The legislative history of the Forfeiture Act, as enacted in 1995, manifests a determination on the part of the Parliament to bring to the law a regard for justice responsive to the facts of the particular case. The amendments to the Act effected in 2005 are, in true perspective, an extension of that same determination.

COSTS

1. At the time this judgment was reserved for consideration, the parties made submissions about orders for the costs of the proceedings.
2. Prima facie (by reference to section 98 of the Civil Procedure Act, 2005 NSW and rule 42.1 of the Uniform Civil Procedure Rules 2005 NSW), the costs of the proceedings should follow the event.
3. However, the parties agreed that, whatever the outcome of the proceedings, the costs of the plaintiff (as her parents' executrix) should be paid out of the estates on the indemnity basis.
4. The plaintiff also recognised, early in the proceedings, that a reasonable allowance should be made out of estate assets for the defendant (as an incapacitated person, necessarily to be represented by a tutor) to have the benefit of legal advice and legal representation: Guler v NSW Trustee and Guardian [2012] NSWLR 1369 at [3]; Smith v NRMA Insurance Ltd [2016] NSWCA 250.
5. In making an order for the defendant's costs to be paid out of his parents estates, I am conscious that he was a necessary contradictor to the plaintiff's application for forfeiture application orders; that, because he is an incapacitated person, it was necessary for the proceedings to be conducted on his behalf by a tutor; and that, by analogy with protective proceedings, the Court should have regard to what is a proper order for costs (CCR v PS (No. 2) (1986) 6 NSWLR 622 at 640E), not merely the rule that the costs of adversarial proceedings ordinarily follow the event.
6. I acknowledge that at least some part of the legal work undertaken on behalf of the defendant was undertaken (to paraphrase Clyne v NSW Bar Association (1960) 104 CLR 186 at 203-205) on a "speculative" basis; but that fact does not bear upon my decision-making in the absence of any suggestion of a fee uplift contingent upon success.
7. In my assessment, the defendant (and his tutor) should have the benefit of an order for the payment of costs out of the estates of the deceased parents, assessed on the ordinary basis, not the indemnity basis. This accords with the practice of the Court in family provision cases, in which an executor is ordinarily allowed his, her or its costs out of an estate on the indemnity basis, and an applicant for family provision relief is ordinarily allowed costs out of the estate on the ordinary basis.
8. In ordering that the defendant's costs be paid out of the deceased parents' estates, I am not to be taken as having approved the rates of fees charged by the defendant's lawyers to his tutor or particular items of work undertaken by them pursuant to their retainer by the tutor. During interlocutory processes leading to the final hearing of the proceedings, and during the final hearing itself, I expressed concerns about the course of the proceedings on the defendant's side of the record before, late in the piece, senior counsel was retained to appear for the defendant. Senior counsel's involvement in the proceedings brought to the defendant's case a discipline not earlier apparent.
9. Having determined that the defendant should have the benefit of a costs order (charged, effectively, against what would have been his share of his parents' estates had it not been for the operation of the forfeiture rule), in the absence of any agreement between the parties as to what costs should be allowed the interests of justice are best served by my leaving to a costs assessor questions about the reasonableness, or otherwise, of work done, fees charged and costs recoverable.
10. I do not order that costs of the defendant payable out of estate assets be capped (Civil Procedure Act 2005, section 98; Uniform Civil Procedure Rules 2005, rule 42.4), lest an injustice is inadvertently done to the defendant's tutor. Nobody has invoked the Court's general jurisdiction to regulate the quantum of professional charges (Woolf v Snipe (1933) 48 CLR 677 at 678-679) or to make a personal costs order against a practitioner (Civil Procedure Act, section 99).

PROPOSED ORDERS

1. Subject to allowing the parties to be heard as to the form of the orders to be made, and securing the consent of the NSW Trustee or another suitable person to act as trustee of a fund established as a vehicle for provision being made for the defendant, I propose to make orders to the following effect: 1. On condition that: (a) the defendant be allowed (on the terms set forth in order 5 of these orders) provision for his maintenance, education and advancement in life in the sum of $50,000 (together with any interest accruing thereon pursuant to these orders) out of the estate of the deceased; and (b) no person be at liberty, during the lifetime of the defendant, to terminate the trust for which order 5 provides without the leave of the Court, ORDER, pursuant to section 11 of the Forfeiture Act 1995 NSW, that the forfeiture rule apply to the defendant as if he had been found guilty of the murder of Margaret Catherine Settree. 2. On condition that: (a) the defendant be allowed (on the terms set forth in order 5 of these orders) provision for his maintenance, education and advancement in life in the sum of $50,000 (together with any interest accruing thereon pursuant to these orders) out of the estate of the deceased; and (b) no person be at liberty, during the lifetime of the defendant, to terminate the trust for which order 5 provides without the leave of the Court, ORDER, pursuant to section 11 of the Forfeiture Act 1995, that the forfeiture rule apply to the defendant as if he had been guilty of the murder of Donald Ian Settree. 3. ORDER that the sums of $50,000 referred to in orders 1 and 2 of these orders be paid by the plaintiff (as the legal personal representative of the deceased), out of the deceased estates of Margaret Katherine Settree and Donald Ian Settree respectively, within three months of the date of these orders or such other time as the Court might allow. 4. DECLARE that, by reason of the operation of the forfeiture rule, the defendant has no right, title or interest in or in respect of the respective deceased estates of Margaret Catherine Settree and Donald Ian Settree other than the provision for him referred to in orders 1 and 2 of these orders. 5. ORDER that, as the legal personal representative of the late Margaret Catherine Settree and the late Donald Ian Settree, the plaintiff would be justified in administration of each estate upon the footing that, upon allowing for the provision made for the defendant in orders 1 and 2 of these orders, she (the plaintiff) is the only person beneficially entitled to the estate. 6. ORDER that the provision to be made for the defendant (totalling $100,000) set forth in orders 1 and 2 of these orders, be paid to the NSW Trustee, and be held by the NSW Trustee, on trust for the defendant with power to make payments (out of capital and interest) for the maintenance, education and advancement in life of the defendant. 7. ORDER that the defendant by himself, his servants and agents be restrained from terminating the trust (or assigning, charging or otherwise dealing with his interest in the trust) without the leave of the Court. 8. ORDER that no interest accrue on the sums of $50,000 referred to in orders 1 and 2 of these orders if those sums are paid to the NSW Trustee (pursuant to order 5 of these orders) within 28 days of the making of these orders, with the intent that interest (calculated in accordance with section 84A of the Probate and Administration Act 1898 NSW) is to accrue thereafter upon any amount unpaid. 9. ORDER that the plaintiff's costs of the proceedings be paid out of the estates of Margaret Catherine Settree and Donald Ian Settree on the indemnity basis. 10. ORDER that the defendant's costs of the proceedings, assessed on the ordinary basis, be paid out of the estates of Margaret Catherine Settree and Donald Ian Settree. 11. RESERVE to the parties liberty to apply in the working out of these orders.
2. If the NSW Trustee does not consent to act as trustee of the proposed trust fund, I will consider the making of (partial) protected estate management orders under sections 40-41 of the NSW Trustee and Guardian Act 2009, committing management of the defendant's beneficial interest in the fund to the NSW Trustee.
3. The practice of the Court, and the NSW Trustee, is that the NSW Trustee's consent is not required as a condition of management of a protected estate being committed to the NSW Trustee: Ability One Financial Management Pty Ltd and Anor v JB by his tutor AB [2014] NSWSC 245 at [155] and [181].
4. If the NSW Trustee recommends protected estate management orders as better suited to the facts of the case than establishment of a trust I will, in consultation with the parties, consider that recommendation before making orders in disposition of the proceedings.

Amendments 03 October 2018 - Paragraph 85 - Reference to "Part 2" amended to refer to "Part 3". Paragraph 179 - The word "paraphrased" replaced by "extracted". 26 July 2019 - Paragraph 52 - Deletion of the remainder of the sentence after the reference to Edwards v State Trustees Limited [2016] VSCA 28. 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: 26 July 2019