McBride v McBride

1. [1]

   HIS HONOUR: This case raises some intriguing questions regarding the application of family provision law to a convicted prisoner. The plaintiff, David McBride, and the defendant, Louise McBride, are two of the four children of the late Patricia Mary McBride (deceased) who died on 15 November 2021. Probate of the deceased’s last will dated 5 February 2014 and codicils dated 17 June 2014 and 22 October 2018 were granted to the defendant on 15 March 2022.

2. [2]

   Very commendably, the parties have been able to reach a settlement of the proceedings subject to the Court’s approval. Subject to one matter which has been disputed, the parties have now agreed to, and I am satisfied of, the other aspects of settlement. The one matter relates to the question of standing, being whether the plaintiff, currently a prisoner, is able to maintain these proceedings. This dispute between the parties is encapsulated in the list of issues provided to the Court pursuant to pre-trial directions, their contentions being:

   1. (1)

      the defendant asserts that the plaintiff has no standing to prosecute the proceedings having regard to the decision in Dugan v Mirror Newspapers Ltd (1978) 142 CLR 583; [1978] HCA 54 (Dugan);

   2. (2)

      the plaintiff asserts the Felons (Civil Proceedings) Act 1981 (NSW) (Felons Act) is not relevant to the proceedings before the Court; and

   3. (3)

      the defendant asserts that the Felons Act would allow the plaintiff to commence new proceedings but does not allow him to maintain the current proceedings and that the common law applies in relation to the current proceedings.

3. [3]

   The plaintiff asserts that at the time of the commencement of the proceedings, the plaintiff was not “in custody” and that he did not need to seek leave for the Court to commence the proceedings. Further, the plaintiff submits that following the repeal of s 3 of the Felons Act, there is no prohibition to the plaintiff now maintaining proceedings commenced by him.

4. [4]

   The defendant contends that the Felons Act would allow the plaintiff to commence new proceedings seeking the same relief, but submits there is no provision in the Felons Act or any other legislation for a felon who has started civil proceedings prior to being found guilty or in custody to continue to prosecute those proceedings, and, accordingly, the common law must still apply to the plaintiff in relation to these proceedings.

5. [5]

   Further, the defendant submits that if the plaintiff was given leave to commence the proceedings, it would be useless as s 90 of the Succession Act 2006 (NSW) (Succession Act) would act as a bar to any provision being made to him from any property designated as notional estate of the deceased.

6. [6]

   The defendant’s counsel submits that in the event that the Court is against her submissions, one solution to resolve what I will call “the standing issue” and the impasse between the parties is for the Court to make the orders as agreed, but that the orders be stayed until such time as the plaintiff completes his sentence.

7. [7]

   The plaintiff’s counsel accepted that if the Court is against her in her submissions regarding the application of the common law or the construction of the Felons Act, that the Court has a discretion to grant leave nunc pro tunc in order to finalise the plaintiff’s claim in the terms agreed between the parties.

8. [8]

   I have considered the submissions of counsel in relation to the matter and formed views, which I enunciated in a provisional form to the parties, regarding their disputed contentions. In summary, those views are:

   1. (1)

      I do not accept that the decision in Dugan necessarily precludes the plaintiff from having standing in these proceedings – nor the decision in Macari v Mirror Newspapers Ltd (Supreme Court (NSW), Cantor J, 4 March 1980, unrep: BC8037973).

   2. (2)

      I do not accept that there is an extant common law principle which, in light of the Felons Act, inhibits or precludes the plaintiff from maintaining the proceedings.

   3. (3)

      I accept that there may be some doubt as to whether the Felons Act applies to the proceedings.

   4. (4)

      In circumstances where there is some doubt as to whether leave is needed, there is authority to the effect that the Court may, nonetheless, grant leave under the Felons Act for the proceedings to be maintained and to be finalised should leave be required, and that that can be done nunc pro tunc.

   5. (5)

      I do not accept that it is necessary for the plaintiff to commence fresh proceedings – and that if he did so, that s 90 of the Succession Act would act as a bar to any provision being made to him from any property designated as the notional estate of the deceased.

9. [9]

   The proceedings were commenced over two years ago by the plaintiff and have had a long and somewhat torturous history, with considerable time invested by the parties and their legal representatives. Significant legal costs have been incurred, and all of that has undoubtedly had a heavy emotional toll on the parties. On one view an application for leave to commence proceedings under the Felons Act is an exercise of the practice and procedure of the Court such that the Court should have regard to the requirements of Pt 6 of the Civil Procedure Act 2005 (NSW) (CPA) and the overriding purpose of the Act and rules in their application to civil proceedings. [1]

10. [10]

    In these circumstances, whilst the above matters are important issues - and, on one view, it might be helpful to delay judgment and research the matter further - I do not think it would be right to prolong the proceedings any further than absolutely necessary. Counsel for the parties were content for me to take that course.

11. [11]

    Accordingly, what I propose to do is to make orders for provision, address the standing issue, provide reasons for my findings and, for more abundant caution, grant leave nunc pro tunc should it be necessary for the proceedings to be maintained and settled.

Issues

1. [12]

   The particular question regarding the standing issue is whether a plaintiff convicted of, and currently serving imprisonment in respect of, serious Commonwealth offences is able to, while still in custody, maintain and settle family provision proceedings that were commenced prior to his conviction. Resolution of that question has a number of complexities including addressing the potential operation of the Felons Act to the claim and the interaction of Commonwealth and New South Wales laws.

2. [13]

   Questions regarding the ability of prisoners to commence and maintain civil proceedings are ancient in law. Understanding the nature and purpose of the Felons Act involves considering some of the legal history bearing upon prisoners’ rights.

3. [14]

   Before setting out some of that history, I will firstly recite some of the uncontroversial facts with respect to the details of the offences of which the defendant was convicted and the findings of Mossop J.

Background facts

1. [15]

   As detailed in Ms Pringle’s outline of submissions, [2] the plaintiff filed a Summons seeking further provision from the deceased’s estate on 9 November 2022. A year later, on 17 November 2023, the plaintiff pleaded guilty to certain offences under the Defence Act 1903 (Cth) (Defence Act) and the Criminal Code Act 1995 (Cth) (Criminal Code), namely:

   1. (1)

      Count 1, theft, contrary to s 131.1(1) of the Criminal Code. The particulars of the charge are that, between about 1 December 2013 and about 26 February 2018, in Griffith and other places in the Australian Capital Territory (ACT) and New South Wales, Mr McBride dishonestly appropriated property belonging to a Commonwealth entity with the intention of permanently depriving the entity of the property. The maximum penalty is 10 years’ imprisonment or a fine of 600 penalty units, or both.

   2. (2)

      Two counts of unlawfully communicating naval, military or air force information, contrary to s 73A(1) of the Defence Act. The particulars of the charges are as follows:

2. [16]

   On 14 May 2024, the plaintiff was gaoled for a maximum term of 34 months. [4]

3. [17]

   Ms Pringle submitted as follows in respect of the penalties for the offences:

Prisoners’ rights

1. [18]

   The rights of a convicted prisoner under English law varied depending upon the nature of the offence and any applicable legislative provisions. The application in Australia of English law principles regarding those convicted of crimes has not always been clear.

2. [19]

   Generally, under English law, a convicted prisoner, in spite of his imprisonment, retains all civil rights which are not taken away expressly or by necessary implication: Raymond v Honey [1983] 1 AC 1 at 10 per Lord Wilberforce. Leeming JA used this as a starting point in Hamzy v Commissioner of Corrective Services NSW (2022) 107 NSWLR 544; [2022] NSWCA 16 (Hamzy) at [167], [6] referring to it as Lord Wilberforce’s general principle.

3. [20]

   While affirming that the principle currently applies in New South Wales, his Honour at [170] qualified that its acceptance was much more recent than in the United Kingdom and Canada.

4. [21]

   In 1788, the first civil action in Australian legal history involved the case of two convicts who successfully sued the master of the loss of their baggage during the voyage [7] . Professor Kercher has commented that, in reaching the decision, the judge-advocate David Collins ignored the English common law rule of felony attaint, whereby those who had been sentenced to death for felony were unable to hold property, give evidence or sue in court. [8]

5. [22]

   As Leeming JA noted in Hamzy at [172]:

6. [23]

   The felony attaint rule begs the question what is a “felony”? There were distinctions between felonies and misdemeanours very broadly according to their heinousness. Felonies were punishable by death or penal servitude, misdemeanours by imprisonment or the imposition of a fine. [9] Penal servitude involved a determinate term of full-time custody often with what is described as hard labour. The distinction between light labour or hard labour related to the form of punishment. [10]

7. [24]

   Historically, a capital felony was punishable by death. The term “capital punishment” is derived from the Latin word “caput” meaning “head”. It originally referred to the type of death sanctioned. [11] A person convicted of a capital felony was attainted. [12] The prisoner was disgraced and his or her rights were stained. As Leeming JA put it: [13]

8. [25]

   In 1955, capital punishment was essentially abolished in the State of New South Wales. [14] Some residual offences related to piracy and treason continued to carry the death penalty but were abolished with the passing of the Crimes (Death Penalty Abolition) Amendment Act 1985 (NSW). [15] Under Commonwealth law, the death penalty was abolished in 1973 by s 4 of the Death Penalty Abolition Act 1973 (Cth).

9. [26]

   In 1978, the High Court confirmed that a person convicted of a felony in respect of which he had been sentenced to death and spared the penalty of death on condition that he be kept in penal servitude could not in New South Wales maintain an action for a civil wrong. [16] This decision in Dugan, a case involving a capital felony, provided the substantive legal context to the passing of the Felons Act in 1981. [17]

10. [27]

    In March 1980, Cantor J in Macari addressed the case of a non-capital felony. The convicted felon (more widely known as the infamous “Mr Brown” of the Qantas Bomb Hoax) was serving the balance of a 15 year sentence with a non-parole period of nine years after being convicted of demanding money with menaces and stealing a van and carrying a grenade. The judgment was given in circumstances of urgency. His Honour made reference to the High Court’s decision in Dugan, as well as to the lower court decisions of Yeldham J and the Court of Appeal in Dugan.

11. [28]

    The issue, and accordingly the submissions in Macari, “centred upon whether the plaintiff, being a convicted felon who has not yet finished serving his sentence is able to bring these or indeed any proceedings in this court”.

12. [29]

    Cantor J stated at 3:

13. [30]

    In 1981, prior to the introduction of the Felons Act, Kearney J in Burns Philp Trustee Co Ltd v Viney [18] (a case heard and determined after the Felons Act had been assented to but before its commencement) [19] considered the application of the common law to a son of a deceased who sought inter alia family provision relief pursuant to the Testator’s Family Maintenance and Guardianship of Infants Act 1916 (NSW). The son was convicted in 1935 of the capital felony of rape and was sentenced to death. The sentence was commuted to life imprisonment in 1936 and he was released from gaol on license in 1945, remaining on licence at the time of the hearing.

14. [31]

    Kearney J noted an argument that the rule in Dugan did not apply to a family provision claim because it was merely a statutory entitlement to seek the favourable exercise of the Court’s discretion to grant some relief and that until such relief is granted there is no right which an applicant could be said to be seeking to enforce. His Honour rejected the submission, observing by reference to the decision of Murphy J in Dugan that the effect of attainder was “civil death” and as such a convicted felon is excluded from access to any court for any relief whatsoever. [20]

15. [32]

    Therefore, the authorities show that at least in respect of capital felony offences prior to 1981, Lord Wilberforce’s principle did not represent the law in New South Wales. [21] Despite the decision in Macari, the position of persons convicted of a non-capital felony was, as Leeming JA notes, unclear.

16. [33]

    On 18 March 1981, the Felons (Civil Proceedings) Bill was introduced in the Legislative Assembly. In his second reading speech on that day, the Honourable Francis John Walker highlighted that the grant of leave was for the purpose of preventing abuse of process, and foreshadowed that the distinction between felonies and misdemeanours “must inevitably be abrogated” though noting that “this bill is not an appropriate vehicle to achieve that end.” [22]

17. [34]

    The Bill was substantively debated in the Legislative Assembly on 8 April 1981. [23]

18. [35]

    On 9 April 1981 the Bill was read first time in the Legislative Council and on 14 April 1981 the second reading speech of the Honourable David Paul Landa and debate on the Bill occurred. [24]

19. [36]

    In June 1981, the Felons Act was assented to, and it commenced on 1 January 1982.

20. [37]

    The long title of the Felons Act was and is:

21. [38]

    The Felons Act in its original form contained eight sections including ss 3 to 5 in the following form:

22. [39]

    Purposes evident from the second reading speech in 1981 of the Attorney General regarding the Felons (Civil Proceedings) Bill included amelioration of the perceived harshness of the doctrine of attainder and to prevent abusive proceedings. [25]

23. [40]

    In 1998, Sheller JA in Jol v State of New South Wales [26] noted that the effect of the Felons Act removed the disqualification and any doubt about the position of persons convicted of non-capital felonies being able to institute and maintain proceedings. The focus on the purpose of the Felons Act preventing abuse of process was also confirmed by his Honour. [27]

24. [41]

    However, as noted by Basten JA in Patsalis: [28]

25. [42]

    His Honour remarked that the answers to these questions had been obscured by later statutory developments. [29]

26. [43]

    In 1999, 18 years after The Honourable Mr Walker had foreshadowed the distinction between felonies and misdemeanours “must inevitably be abrogated” [30] , amending legislation was prepared and introduced into the New South Wales Parliament.

27. [44]

    The Crimes Legislation Amendment (Sentencing) Bill 1999 (NSW) contained an explanatory note which relevantly indicates that the purpose of the amending legislation was to give effect to the abolition of penal servitude and the abolition of the distinction between felonies and misdemeanours arising from proposed ss 580E, 580F, and 580G to be inserted into the Crimes Act 1900 (NSW) (Crimes Act) by Sch 3 at para 68. The second reading speeches also reflect this intention. The Crimes Legislation Amendment (Sentencing) Act 1999 as passed gave effect to this intention.

28. [45]

    The Felons Act was also varied by repealing s 3 and amending s 4 so that it no longer referred to persons convicted of a felony, that concept being replaced by the phrase “serious indictable offence” in 1999. [31]

29. [46]

    Sections 4, 5 and 9 of the Felons Act relevantly and currently provide as follows:

30. [47]

    An “indictment” includes any information presented or filed as provided by law for the prosecution of offences. [32]

31. [48]

    An “indictable offence” was, essentially, an offence triable by judge and jury. Now it relevantly means an offence for which proceedings may be taken on indictment, whether or not proceedings for the offence may also be taken otherwise than on indictment. [33]

32. [49]

    A “serious indictable offence” means an indictable offence that is punishable by imprisonment for life or for a term of five years or more. [34]

33. [50]

    In Patsalis, Basten JA observed that an effect of s 580E of the Crimes Act was to remove “any disability flowing from conviction for a felony, prior to the commencement of the section”. [35] His Honour stated, “That conclusion is consistent with the repeal of s 3 of the Felons Act by the same statute”.

34. [51]

    The precise extent of the meaning of “civil proceedings” has been the subject of comment in various Court decisions. [36]

35. [52]

    However, generally, as observed by Basten JA, the operation of s 3 should be seen in light of the decision in Dugan. His Honour stated:

36. [53]

    In 2015, the Court of Appeal in Potier v Attorney General in and for the State of New South Wales [37] further addressed the scope of the constraint imposed by the Felons Act. Basten JA stated:

37. [54]

    Meagher JA at [31], agreed with Leeming JA, adding a number of remarks.

38. [55]

    Leeming JA, at [55] stated:

39. [56]

    His Honour concluded that the Felons Act means what it says and imposes a requirement for leave upon all persons who are in custody because they have been convicted of or found to have committed a serious indictable offence, irrespective of whether the corresponding felony would have led to any legal incapacity. [38] His Honour’s reasoning is essentially encapsulated in the passage as follows:

40. [57]

    Subsequently, Leeming JA in Hamzy noted that the Felons Act reflects Lord Wilberforce’s principle. [39]

41. [58]

    The defendant’s submissions invoke common law principles as an obstacle to the plaintiff’s standing to bring these proceedings.

42. [59]

    The second reading speeches in 1981 on the introduction of the Felons (Civil Proceedings) Bill do not address the question of whether proceedings which have been regularly commenced by a person prior to conviction are able to be maintained after conviction without a grant of leave.

43. [60]

    There is seemingly little focus in the authorities about whether a person who has “instituted” proceedings and, only subsequently has been convicted (either prior to 1999 of a “felony” or thereafter of a “serious indictable offence”) requires leave to maintain the proceedings.

44. [61]

    The long title to the Felons Act, initially and even now reveals a purpose of a person convicted of a felony being incapable of not merely instituting but also maintaining civil proceedings.

45. [62]

    A long title is intended to describe in a general way the purpose or object of the Act. It has some importance in parliamentary procedure in that it is the long title that forms the basis of the resolution whether the bill for an Act should be given a first or subsequent reading: Pearce, Denis ‘Statutory Interpretation in Australia’ 10ed 2024 (LexisNexis) (Pearce) at [1.52]. Conventionally, it has been called upon by judges as an aid to construction of the relevant Act: Pearce at [4.84].

46. [63]

    However, s 3 of the Felons Act did not in terms impose any requirement regarding maintaining civil proceedings.

47. [64]

    Further, the requirement for leave in s 4 Felons Act on the basis of a grant of leave in s 5 Felons Act has never included reference to “maintaining” civil proceedings. The terminology in those sections is limited to the verb “institute”.

48. [65]

    The definition of the verb “institute” in the Macquarie Dictionary, online ed. includes as the first four choices of meaning:

49. [66]

    The definition of the verb “maintain” in the Macquarie Dictionary, online ed. includes as the first three choices of meaning:

50. [67]

    Once leave is given to “institute” proceedings there is nothing in the Felons Act nor case law which suggest that a second separate grant of leave is required to “maintain” the proceedings. Thus, from its inception, leave that is given under s 5 Felons Act to a person in custody [40] , to “institute” proceedings has the collateral benefit and practical consequence that the proceedings may be “maintained” without the requirement of any further grant of leave.

51. [68]

    Certainly as the Act has been applied in particular in the Common Law Division of this Court that practical reality is reflected in orders made under the Felons Act. Orders are regularly made using the terminology not merely of instituting but maintaining proceedings [41] .

52. [69]

    The distinction between “instituting” civil proceedings and “maintaining” proceedings, was not addressed in the second reading speeches in respect of the Bill leading to the Crimes Legislation Amendment (Sentencing) Act 1999 [42] .

53. [70]

    In the circumstances of this case, it is not necessary to reach a concluded view as to whether the a person who has regularly institute civil proceedings prior to being convicted of a serious indictable offence requires leave to maintain the proceedings after conviction and during the custodial period.

54. [71]

    That is because apart from the construction of the Felons Act, there is a more fundamental difficulty with the argument that disabling common law principles might apply in the circumstances of this case.

55. [72]

    That difficulty is that the alleged disabling common law principles are couched in language of “felony” and “capital” and “non-capital” offences in particular which are not readily translatable and accordingly not readily applicable to the offences for which the defendant was convicted.

56. [73]

    The decision in Dugan relevantly analysed the common law by reference to a “capital felony” and “non-capital felony”. [43] Barwick CJ found it unnecessary to enter upon the question whether a prisoner convicted of a non-capital felony could sue in the courts whilst still serving his sentence, though adding:

57. [74]

    The judgment of Jacobs J (with whom Gibbs J at 588 and Mason J at 601, relevantly agreed) lends no support for the proposition that a person convicted of a non-capital felony was disabled from bringing civil action. His Honour stated at 602:

58. [75]

    His Honour went on to make reference to caselaw, statutory provisions and Dicey in his text ‘Parties to an Action’ at 602-603 and concluded at 603:

59. [76]

    Ms Cohen expressly drew to my attention the decision of Cantor J in Macari. I noted it had been referred to by Leeming JA in Potier. Leeming JA observed how Macari was perceived in the context of the debate in April 1981 on the parliamentary debate of the Felons (Civil Proceedings) Bill. His Honour refrained from addressing whether Macari was correct. Dugan was a case of a capital felony. It is unclear to me how any of the decisions in Dugan’s case (Yeldham J, Court of Appeal and High Court) provides any conclusive support for the proposition that a person convicted of a non-capital felony was relevantly disabled from commencing civil settings. Further, I note that Hunt J in Schneidas v Jackson [1982] 2 NSWLR 969 at 970F-G regarded the finding of Cantor J in Macari regarding a non-capital sentence as obiter.

60. [77]

    The legislative provisions that I have referred to above abolished the distinction between felony and misdemeanours. [45] Certain common law offences by reference to terminology of “felony” were abolished. [46] The common law rule granting immunity to a wife against prosecution as an accessory after the fact to a felony committed by her husband was abolished (though without retrospective operation). [47] Leaving aside the Felons Act, the only continuing references to “felony” in New South Wales statutes are extremely limited, being ostensibly the Piracy Punishment Act 1902 (NSW), [48] the Imperial Acts Application Act 1969 (NSW) [49] and the Criminal Procedure Act. [50]

61. [78]

    Seemingly, the only current Commonwealth Act [51] in which the term “felony” is used is s 22 of the Defence (Special Undertakings) Act 1952 (Cth). [52]

62. [79]

    As noted by Leeming JA in Hamzy, with the abrogation of attainder and forfeiture in New South Wales, there was no basis for common law to create some intermediate position once the Felons Act commenced. [53]

63. [80]

    Relevantly in this case, the language of “felony” is not used in either the offences with which the defendant was charged and convicted nor in the judgment of Mossop J. Accordingly, it is unclear how the disabilities explained in Dugan attaching to capital felony offences applies to the offences with which the defendant was charged and convicted. It is further unclear, given the doubtful state of the law regarding what disabilities attached to non-capital felony offences, how that law, even if it could be stated with certainty, applies to the offences with which the defendant was charged and convicted.

64. [81]

    I detect no legislative purpose that the reforms and amendments brought about by the Crimes (Sentencing Procedure) Act 1999 (NSW) and the Crimes (Administration of Sentences) Act 1999 (NSW) were intended to reintroduce any prior common law disabilities for family provision proceedings standing outside the application of the Felons Act.

65. [82]

    It suffices to say that I am satisfied that subject to the application of the Felons Act, there is no relevant common law principle relating to attainder or felony offences which precludes the defendant’s application in these proceedings.

66. [83]

    It is well settled that, subject to the application of the Felons Act, family provision cases have been able to be commenced and maintained by persons imprisoned at the time of the hearing of such cases. The first example under the Family Provision Act 1982 (NSW) was seemingly the decision of Young J in Hoadley v Hoadley in 1987. [54] The Court of Appeal has not suggested that there are relevant bars other than leave under the Felons Act. [55] Indeed, illegal conduct per se is no bar to a family provision claim. [56]

67. [84]

    Even if one supposes, for the purpose of argument, that the offences with which the defendant was convicted are serious indictable offences “punishable by … a term of five years or more”, there is some doubt as to whether the Felons Act applies to proceedings brought in New South Wales by persons in custody for an offence under the Commonwealth. [57] That is a relatively complicated issue upon which I have raised with the parties, but they have not made and do not seek further opportunity to make detailed submissions.

68. [85]

    In cases of a doubt, the Court has taken the approach that if leave is required under the Felons Act, it may be given. [58]

69. [86]

    The sensibility of making a grant of leave under the Felons Act at the time the matter arises rather than waiting for a further belated application after the release of the defendant from custody is supported by the approach taken by Young J in Smith v Public Trustee (1989) 42 A Crim R 126 at 127. Specifically, even if there is doubt as to the application of the Felons Act to a family provision claim, one approach of the Court is to indicate that if leave is necessary it be given to bring the claim. [59]

70. [87]

    In the above circumstances, I have determined to proceed on the basis that if leave is required under the Felons Act, it is appropriate to address a grant of leave. To the extent necessary, I am satisfied that there is a prima facie ground for the proceedings and that they are not an abuse of process, in accordance with s 5.

Designating notional estate

1. [88]

   Prima facie, a family provision order may not be made in relation to property of an estate that has been distributed by a legal representative in compliance with the requirements s 93 of the Succession Act. [60] . However, that is qualified such that a family provision order may be made in relation to such property if it is designated as notional estate by an order under Pt 3.3, Succession Act. [61] The Court has power to make an order designating property as notional estate if it is satisfied that as a result of a distribution of the deceased’s estate, property (whether or not the subject of the distribution) has relevantly become held by a person [62] .

2. [89]

   There are various jurisdictional and discretionary steps that must be satisfied before a Court can make an order designating property as notional estate for the purposes of a family provision order or a costs order. I addressed these in Clayton v Clayton [2023] NSWSC 399 at [607]-[627]. Further, in circumstances where a family provision application is made out of time, the Court must not make a notional estate order unless it is satisfied that special circumstances exist to justify the making of the notional estate order. [63]

3. [90]

   Section 90 is not an absolute bar to designating property as notional estate subject to satisfaction of other requirements.

4. [91]

   What constitutes special circumstances is not defined in the Succession Act but has been the subject of many decisions. [64] In Stone v Stone [2016] NSWSC 605, Brereton J wrote (omitting footnotes):

5. [92]

   If it be the case (which I do not accept) that the plaintiff is required to commence fresh proceedings instanter, and the matter had to be addressed now, I am satisfied in the circumstances recited above that there is sufficient cause shown to permit an order to be made that the time for the commencement of any fresh proceedings be extended up to and including the current time pursuant to s 58(2) of the Succession Act.

6. [93]

   Further, (on that hypothetical scenario) as to any such requirement to show special circumstances in this case before a designating order is made, I am satisfied that the particular circumstances of this case, including but not limited to issues regarding the plaintiff’s standing, easily satisfy that requirement.

Orders

1. [94]

   The orders of the Court are as follows – The Court:

   1. (1)

      Notes:

   2. (2)

      Reads the affidavits relied upon by the parties as set out in the Settlement Checklist which includes the affidavit of the plaintiff sworn 31 January 2025.

   3. (3)

      Notes the consent of the defendant to these orders.

   4. (4)

      Orders, if leave be required pursuant to the Felons (Civil Proceedings) Act 1981 (NSW) that such leave be granted nunc pro tunc to 9 November 2022 or alternatively from the time that the plaintiff was in custody for the bringing, maintenance and settlement of these proceedings by the plaintiff.

   5. (5)

      Order pursuant to section 59 Succession Act 2006 that, in addition to the provision made for him in clauses 4.1(d) and 6.2 of the Will of the late Patricia Mary McBride (the deceased), the plaintiff is to receive a lump sum of $75,000 from the deceased’s notional estate.

   6. (6)

      Interest is not payable on the lump sum in Order 5 if paid within 28 days of the date of these orders and if not so paid, the unpaid amount shall accrue interest at the rate provided by section 84A(3) Probate & Administration Act 1898 on and from the 29th day until paid in full.

   7. (7)

      Orders, pursuant to section 79 Succession Act 2006 and subject to Order 8, that the property held by the defendant at XX XX, Neutral Bay New South Wales, be designated as notional estate to the extent necessary to satisfy the orders for the lump sum provision and interest.

   8. (8)

      Notes that the defendant is at liberty to personally pay the whole of the lump sum referred to in Order 4 and any interest accrued thereon, in order to satisfy the family provision order, in which case, upon payment of such sum and any interest the designating order shall lapse.

   9. (9)

      Orders that the costs order made by Elkaim AJ on 3 February 2024 in McBride v McBride [2024] NSWSC 45 be discharged.

   10. (10)

       Orders that the provision for the plaintiff be borne by the defendant.

   11. (11)

       Notes the agreement between the parties that in consideration of the settlement of these proceedings the plaintiff has agreed to release the deceased’s estate and any notional estate held by the defendant from any further claim for further provision pursuant to s 59 of the Succession Act.

   12. (12)

       Orders that the release, by the Plaintiff, of his rights to apply for a further family provision order out of the whole, or any part, of the estate or notional estate of the deceased, be approved pursuant to s 95(3) of the Succession Act.

   13. (13)

       Orders that there be no order as to the plaintiff’s costs to the intention that he pays his own costs.

   14. (14)

       Orders that the defendant’s costs, calculated on the indemnity basis, be paid or retained as the case may be from the deceased’s notional estate.

   15. (15)

       Grants liberty to any party to apply, in these proceedings, for consequential and ancillary orders for the purpose of, or with respect to, giving effect to, and implementing, the family provision order made in favour of the plaintiff.

   16. (16)

       Order that the hearings of each of the parties’ motions listed on 31 January 2025 be vacated.

   17. (17)

       Order that the hearing set down on 4-7 and 10 February 2025 be vacated.

   18. (18)

       Notes the agreement of the parties that:

   19. (19)

       Directs the defendant within 28 days of the date of these Orders to lodge in the Probate registry: