Felons (Civil Proceedings) Act 1981

The Act’s primary subjects are natural persons who are “in custody as a result of having been convicted of, or found to have committed, a serious indictable offence” (s 4). “In custody” is not defined in the Act and takes its ordinary meaning: imprisonment following sentence, or detention following a finding of guilt in the Children’s Court where the offence would have been a serious indictable offence if committed by an adult. The phrase “found to have committed” captures persons found not guilty by reason of mental illness or those subject to forensic orders under the Mental Health (Forensic Provisions) Act 1990, provided the underlying offence meets the seriousness threshold.

The leave requirement applies whether the person is serving a sentence in a correctional centre, on home detention, or subject to an extended supervision order that includes custodial elements. It does not apply once the person is no longer “in custody as a result of” the conviction; release on parole, completion of sentence, or a successful appeal that quashes the conviction removes the disability.

The prospective defendants are any persons or entities the prisoner wishes to sue: government departments, correctional officers, private contractors, media outlets, former business partners, or family members. Section 7(b) gives the prospective defendant the right to be heard on the leave application only if the court so orders, reflecting a legislative preference for ex parte or limited-contest hearings at the leave stage.

Courts themselves are affected: every court in New South Wales (Supreme Court, District Court, Local Court, NCAT in its civil jurisdiction, and even federal courts exercising State jurisdiction under Jurisdiction of Courts (Cross-vesting) Act 1987) must apply the leave filter when a qualifying person seeks to commence proceedings. The Court of Appeal is additionally engaged as the gatekeeper for second-tier appeals.

Legal practitioners advising prisoners must be alive to the Act. A solicitor who files originating process without leave risks the proceeding being struck out as a nullity and potential personal costs orders. Conversely, practitioners acting for proposed defendants may use the Act as a low-cost mechanism to dispose of unmeritorious claims before discovery or pleadings.

Duties imposed on prisoner-litigants

• Duty to obtain leave before instituting proceedings (s 4). Filing without leave renders the proceeding a nullity (Fernance v Nominal Defendant (1987) 17 NSWLR 710).
• Duty to place before the court sufficient material to satisfy the twin tests in s 5: absence of abuse of process and existence of prima facie ground. Affidavits must address both limbs; a mere assertion is insufficient.
• Duty to accept the statutory appearance restrictions in s 7 unless the court grants leave to appear in person.

Rights conferred

• Right to apply for leave. The application is not discretionary in the sense of being withholdable; once made, the court must determine it according to the statutory criteria.
• Right to appeal a refusal “as if” it were a decision on a point of law (s 6(1)). This has been construed as permitting an appeal on any ground that would be available on a point-of-law appeal, including House v The King errors in the exercise of discretion (House v The King (1936) 55 CLR 499 principles applied in M v Director-General of Family and Community Services [2010] NSWCA 20).
• Right to seek leave of the Court of Appeal to bring a further appeal (s 6(2)).
• Preservation of pre-1999 rights via the transitional provisions in s 9.

Rights and duties of prospective defendants

• Right to apply for dismissal of any proceeding commenced without leave.
• Right to be heard on the leave application only by leave of the court (s 7(b)), reflecting the legislative intent to keep the hearing summary.

Duties imposed on the court

• Positive obligation not to grant leave unless satisfied on both statutory criteria (s 5). The onus remains on the applicant throughout.
• Obligation to give reasons sufficient to permit appellate review, particularly where the “abuse of process” or “prima facie ground” assessment involves evaluative judgment.

The Act creates no criminal offences or monetary penalties. Enforcement is achieved through civil procedural consequences. Proceedings commenced without leave are liable to be struck out or permanently stayed as an abuse of process. Costs orders may be made against the prisoner, and repeated unmeritorious applications can found a vexatious proceedings order under the Vexatious Proceedings Act 2008.

Section 7’s appearance restrictions are enforced by the court refusing to hear the prisoner in person or the defendant unless leave is first obtained. Breach of these restrictions does not invalidate the leave hearing but may found an application to set aside any grant of leave obtained in breach of natural justice.

Contempt sanctions remain available for prisoners who institute proceedings in deliberate defiance of a refusal of leave, although reported cases are rare. The principal sanction is practical: the proceeding is a nullity and any judgment obtained without leave is liable to be set aside ex debito justitiae.

The Act operates alongside, and is modified by, the Civil Procedure Act 2005 (CPA). Section 4 of the Felons Act is not displaced by the CPA’s overriding purpose (s 56); rather, the leave requirement is a statutory precondition to the court’s power to hear the matter. Practice Note SC Gen 4 (Supreme Court) and District Court rules expressly require compliance with the Felons Act before any matter is listed.

The Vexatious Proceedings Act 2008 complements the Felons Act. A prisoner who makes repeated unsuccessful leave applications may be declared vexatious, triggering even stricter controls. Conversely, a grant of leave under the Felons Act does not preclude a later application to dismiss the proceeding as frivolous under CPA s 67 or UCPR r 13.4.

Interaction with federal law is more complex. Where a prisoner seeks to commence proceedings in the Federal Court of Australia relying on State causes of action (for example, under cross-vesting legislation), the Federal Court must apply the Felons Act as a law governing the “manner of commencing” the proceeding (Re Wakim; Ex parte McNally (1999) 198 CLR 511 principles). The High Court confirmed in Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 that State laws imposing procedural disabilities on prisoners do not necessarily infringe Chapter III of the Constitution provided they do not compromise the institutional integrity of the court.

The Act also intersects with the Defamation Act 2005. Prisoners frequently wish to sue for defamation concerning statements made in correctional centre reports. Section 5 of the Felons Act requires the court to form a preliminary view that the matter complained of is capable of conveying defamatory imputations and that the defences (truth, honest opinion, qualified privilege) do not overwhelmingly defeat the claim at the prima facie stage.

Finally, the Crimes (Administration of Sentences) Act 1999 and Crimes (Sentencing Procedure) Act 1999 supply the underlying custodial status that triggers the Felons Act. The 1999 sentencing reforms that replaced the old felony/misdemeanour distinction necessitated the transitional provisions now found in s 9.

The most significant amendments occurred in 1999 via Schedule 4.111 of the Crimes Legislation Amendment (Sentencing) Act 1999. That Act abolished the common-law distinction between felony and misdemeanour, replacing it with the modern classification of summary, table, and indictable offences. The Felons Act was updated to refer to “serious indictable offence” (defined by reference to maximum penalty of five years or more) so that the leave requirement would continue to apply to the same cohort of serious offenders.

Section 3, which had contained an outdated definition of “felony”, was repealed. The new s 9 was inserted to preserve the operation of the Act for historic convictions. These changes were not policy-driven expansions but technical housekeeping to maintain the original 1981 mischief—preventing prisoners from using civil litigation as a collateral means of challenging their incarceration or harassing correctional staff.

No substantive amendments have been made since 1999. Minor updates to cross-references have occurred when other Acts have been renamed, but the statutory text remains essentially that settled at the turn of the century. The absence of further reform suggests that the Act continues to achieve its purpose without generating significant stakeholder complaint.

The leading authority remains Ferns v Director of Public Prosecutions (1993) 32 NSWLR 77, in which the Court of Appeal held that the leave requirement is a jurisdictional precondition. Kirby P (as his Honour then was) emphasised that the test in s 5 is not a full merits assessment but a “low threshold” designed to filter only the most hopeless claims. Subsequent decisions have refined the meaning of “abuse of process” in the prison context: collateral attacks on conviction while appeals are pending (R v Kirby; Ex parte Boilermakers’ Society of Australia principles applied), repetitive claims against the same defendant, and proceedings that would require the prisoner to be absent from custody for extended periods without justification.

In M v Director-General of Family and Community Services [2010] NSWCA 20 the Court of Appeal clarified that an appeal under s 6(1) attracts the principles in House v The King. Refusal of leave will not be disturbed unless the primary judge acted on a wrong principle, took into account irrelevant matters, failed to take into account relevant matters, or reached a conclusion that was plainly unreasonable.

Controversy has occasionally arisen around the s 7 appearance restrictions. Critics argue that preventing a prisoner from appearing in person on a leave application may breach procedural fairness, particularly where credibility is in issue. Courts have responded by granting leave to appear via video link in appropriate cases, treating the statutory bar as directory rather than absolute when technology can achieve the same protective purpose.

The interaction with the Uniform Civil Procedure Rules has also generated litigation. In Haley v Commissioner of Corrective Services [2013] NSWSC 178 the Supreme Court held that an application for leave must itself be commenced by summons and supported by an affidavit that squarely addresses the s 5 criteria; a bare notice of motion is insufficient.

Constitutional challenges have been rare and uniformly unsuccessful. Arguments that the Act infringes the implied freedom of political communication or the right to a fair hearing under Chapter III have failed because the leave filter is rationally connected to the legitimate end of preventing abuse of process by a captive population with strong incentives to litigate.

Most practitioners miss that the leave requirement survives even if the prisoner is only in custody for a short period or is serving a sentence for an unrelated offence. The statutory trigger is “in custody as a result of having been convicted of … a serious indictable offence”. If the current custodial status flows from such a conviction, the disability applies even if the prisoner has subsequent non-qualifying convictions.

Another trap is the interaction with bankruptcy. A prisoner who becomes bankrupt may wish to sue for personal injury. The Felons Act leave requirement is additional to, and not displaced by, the Bankruptcy Act 1966 (Cth) s 60. The trustee in bankruptcy must still obtain Felons Act leave before commencing the proceeding in the bankrupt’s name.

Section 7’s bar on the defendant’s appearance is frequently overlooked. Defendants’ solicitors sometimes file submitting appearances or affidavits at the leave stage, only to be told the material cannot be received without leave. This can lead to costs orders against the defendant for unnecessary attendance.

The “prima facie ground” test is not the same as the General Steel test for summary dismissal. It is lower. An applicant need only show an arguable case on the pleadings and evidence filed; the court is not required to resolve contested factual issues or make credit findings at the leave stage. Many judges nevertheless import a higher threshold, creating an appealable error that is frequently exploited on s 6 appeals.

Finally, the transitional provisions in s 9 are not merely historical. A prisoner convicted of what was a felony in 1985 but who remains in custody in 2025 is still governed by the pre-1999 version of ss 4–7. Subtle differences in wording between the current and saved versions can affect the precise test to be applied.

For prisoner-litigants and their advisers

1. Identify whether the applicant is “in custody as a result of” a qualifying conviction. Obtain the criminal history and sentence calculation.
2. Prepare a summons seeking leave under the Felons Act, supported by an affidavit that:
   • annexes the proposed statement of claim;
   • addresses each element of the cause of action with admissible evidence;
   • explains why the claim is not an abuse of process (no collateral attack, no repetition, proportionate to the custodial status);
   • demonstrates a prima facie case (witness statements, documents, legal submissions).
3. File in the court in which the substantive proceeding would be brought. Pay the applicable filing fee or obtain a fee waiver.
4. Serve the application on the proposed defendant only if directed by the court; most leave applications proceed ex parte.
5. If leave is refused, consider an appeal under s 6 within 28 days, framing grounds as errors of law or House v The King discretionary errors. Seek leave to appeal to the Court of Appeal if the matter is in that forum.
6. If leave is granted, commence the substantive proceeding within any time limit imposed by the court; the grant of leave does not stop time running under the Limitation Act 1969.

For defendants and correction authorities

1. Monitor the court list for leave applications by current or former inmates.
2. Appear at the leave hearing only if the court grants leave under s 7(b). File a short submitting appearance if in doubt.
3. If proceedings are commenced without leave, move immediately under UCPR r 13.4 or inherent jurisdiction to have them dismissed as a nullity. Seek costs on an indemnity basis.
4. Consider whether repeated applications justify an application under the Vexatious Proceedings Act 2008.

For courts

1. List Felons Act applications promptly and usually in chambers.
2. Ensure the applicant has been given a reasonable opportunity to place all relevant material before the court, but do not permit oral argument on the merits of the substantive claim.
3. Give brief but sufficient reasons addressing both limbs of s 5.
4. Consider video-link appearances to balance s 7 restrictions with procedural fairness.

Compliance is straightforward once the gatekeeping nature of the legislation is recognised. The Act is not designed to deny justice but to ensure that the justice system is not used as an extension of the prison yard. Practitioners who treat the leave application as a miniature trial of the substantive claim both waste costs and invite appellate correction. Those who understand the modest threshold set by s 5 and the procedural straitjacket of s 7 are best placed to advise clients on either side of the bar table.