Re Alexander Prus-Grzybowski v Paul Anthony Edward Everingham; Peter George Howard; Peter John Butler Tiffin [1983] FCA 11; (1983) 67 FLR 132 (8 February 1983)

FEDERAL COURT OF AUSTRALIA

Re: ALEXANDER PRUS-GRZYBOWSKI
And: PAUL ANTHONY EDWARD EVERINGHAM; PETER GEORGE HOWARD; PETER JOHN BUTLER
TIFFIN [1983] FCA 11; (1983) 67 FLR 132
No. NTG 1 of 1981
Legal Incapacity - Criminal Law - Statutes

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Franki(1), Toohey(2) and Fisher(2) JJ.

CATCHWORDS

Legal Incapacity - Whether felon convicted of non-capital offence able to maintain action for civil wrong - Effect of Treason and Felony Forfeiture Act 1874 (S.A.) - Meaning of "damage".

Treason and Felony Forfeiture Act 1874 (S.A.) ss.8, 9

Criminal Law - Legal incapacity - Whether felon convicted of non-capital offence able to maintain action for civil wrong - "Damage" - Effect of Treason and Felony Forfeiture Act 1874 (S.A.), ss 8, 9.

Statutes - Interpretation - "Damage" - Treason and Felony Forfeiture Act 1874 (S.A.), s. 8. The appellant sued the defendants, who carried on a legal practice in partnership, for damages for negligence arising out of professional services rendered by them during 1973. Prior to the action being commenced in 1978 the appellant had pleaded guilty to a criminal charge and was sentenced to imprisonment, the term of which had not expired (though he had been released on licence pursuant to the Removal of Prisoners (Territories) Act 1923 (Cth).

The Treason and Felony Forfeiture Act 1874, in s. 8, provides: "No action at law . . . for the recovery of any . . . damage whatsoever, shall be brought by any convict against any person during the time while he shall be subject to the operation of this Act . . . . "

The defendants, in 1980, sought and obtained leave to amend their defence to plead the section. The trial judge heard the argument as to the effect of the section as a preliminary point and ruled in favour of the defendants, dismissing the action . From that decision the appeal was lodged.

Held: (1) Per Toohey and Fisher JJ. - Section 8 of the Treason and Felony Forfeiture Act 1874 is restricted in its operation to the subject matter of the Act, namely the property which earlier had been forfeited and was now to be vested in a curator pursuant to s. 9 of the Act.

Dugan v. Mirror Newspapers Ltd [1978] HCA 54; (1978) 142 CLR 583, followed.

Brown v. Teare (1903) 22 NZLR 155, applied.

(2) Per Toohey and Fisher JJ. - The word "damage" in s. 8 of the Act is to be construed as being limited to damage to the property of the convict; the convict retains the right to sue upon causes of action which are not based upon or related to recovering his property and which generally would be in respect of damage to his person.

Milera v. Wilson (1980) 23 SASR 485, distinguished.

Per Franki J. - The word "damage" in s. 8 of the Act should be construed as limited either to damage to property or to physical damage to a person; an action for negligence in providing professional advice does not fall within either construction.

Smith v. Brown (1871) LR 6 QB 729; Nagrint v. The Ship Regis [1939] HCA 6; (1939) 61 CLR 688, applied.

Union Steamship Co. of New Zealand Ltd v. Ferguson [1969] HCA 73; (1969) 119 CLR 191; Nippon Yusen Kaisha v. Acme Shipping Corporation (1972) 1 WLR 74, referred to.

(3) Per curiam - Section 9 of the Act should be read so as not to make provision for the vesting of any rights in the curator unless those rights are denied to the convict by s. 8 of the Act.

(4) A right of action in tort for damages for negligent advice is not a chose in action within the meaning of that term in s. 9 of the Act.

Brown v. Teare (1903) 22 NZLR 155, referred to.

(5) The appeal should be allowed, the decision dismissing the appellant's action be reversed, and the matter remitted to the trial judge for further hearing.

HEARING

1982, September 24, 27; 1983, February 8. 8:2:1983
APPEAL.

The facts appear fully in the judgments.

M. Ward, for the appellant.

D. Maurice, for the first and second respondents.

The third respondent in person.

Cur. adv. vult.

Solicitors for the appellant: McCormack & Co.

Solicitors for the first and second respondents: Masters Reeves.
P.H.M.

ORDER

1. The appeal be allowed with costs.

2. The judgment of the learned trial Judge dismissing the appellant's claim be set aside.

3. The matter be remitted to the learned trial Judge for further hearing.

4. The costs of the hearing of the preliminary issue be reserved to the trial Judge.

DECISION

The appellant, Mr. Alexander Prus-Grzybowski sued the three respondents, who at the material time were carrying on a legal practice in partnership, for damages for negligence arising out of legal work carried out by the partnership at Alice Springs in 1978.

The writ was issued in November 1978. On 27 August 1975 the plaintiff was convicted upon his plea of guilty of a charge of wounding with intent. On 29 August 1975 he was sentenced to 8 years imprisonment with hard labour. A period of 4 years was fixed before he became eligible for parole.

On 28 May 1980 the plaintiff was released on licence pursuant to the Removal of Prisoners (Territories) Act 1923. It was agreed before the learned trial Judge that the sentence imposed on the prisoner did not expire until 28 August 1983.

On 31 October 1980 an order was made by a Judge of the Supreme Court of the Northern Territory in chambers permitting the delivery of an amended defence alleging that the appellant was a convict within the meaning of the South Australian Treason and Felony Forfeiture Act 1874, ("the Act"), serving a term of imprisonment with hard labour, and that he was therefore incapable of bringing and maintaining an action.

The plaintiff instituted an appeal but before the hearing the trial Judge ordered that there be tried, as a preliminary point of law, the question "whether or not s.8 of the Treason and Felony Forfeiture Act 1874 of the State of South Australia constituted a full defence to the plaintiff's claim". It was conceded that the Act was part of the law of the Northern Territory at the relevant time.

The learned trial Judge answered the question he had posed: "Yes", and ordered that the appellant's claim should be dismissed with costs. The appellant has appealed to this Court against the order of the learned trial Judge which, if it stands, had the effect of terminating the appellant's action.

The learned trial Judge's order was based upon the view that s.8 of the Act applied and the appellant was unable to bring an action ". . . for the recovery of any property, debt, or damage whatsoever . . .". He considered that to limit the word "damage" to damage to property would make little or no grammatical or other sense. It was common ground that the appellant fell within the definition of "convict" in s.6 of the Act.

I set out sections 6, 7, 8 and 9 of the Act.
"6. The expression 'convict,' as herein used, shall be deemed to mean any

person against whom, after the passing of this Act, judgment of death, or of imprisonment with hard labour, shall have been pronounced or recorded by any Court of competent jurisdiction in the said Province, upon any charge of treason or felony.
7. When any convict shall die or be adjudicated insolvent, or shall have suffered any punishment to which sentence of death if pronounced or recorded against him may be lawfully commuted, or shall have undergone the full term of imprisonment with hard labor, for which judgment shall have been pronounced or recorded against him, or such other punishment as may by competent authority have been substituted for such full term, or shall have received from Her Majesty, or the Governor on behalf of Her Majesty, a pardon for the treason or felony of which he may have been convicted, he shall thenceforth, so far as relates to the provisions hereinafter contained, cease to be subject to the operation of this Act.
8. No action at law or suit in equity for the recovery of any property, debt, or damage whatsoever, shall be brought by any convict against any person during the time while he shall be subject to the operation of this Act; and every convict shall be incapable, during such time as aforesaid, of alienating or charging any property, or of making any contract, save as hereinafter provided.
9. It shall be lawful for the Governor, either generally or with reference to any particular case, to commit the custody and management of the property of any convict during the Governor's pleasure to a Curator, to be by writing appointed in that behalf, and every such appointment may be revoked by the same or the like authority by which it is made, and upon any determination thereof, either by revocation thereof or by the death of any such Curator, a new Curator may be appointed by the same or the like authority from time to time, and every such new Curator shall upon his appointment be and be deemed to be the successor in law of the former Curator; and all property vested in, and all powers given to such former Curator by virtue of this Act, shall thereupon devolve to and become vested in such successor, who shall be bound by all acts lawfully done by such former Curator during the continuance of his office; and the provisions hereinafter contained with reference to any Curator shall, in the case of the appointment of more than one person, apply to such Curators jointly; and upon the appointment of any such Curator in manner aforesaid, all the real and personal property, including choses in actions to which the convict named in such appointment was at the time of his conviction, or shall afterwards while he shall continue subject to the operations of this Act, become or be entitled, shall be vested in such Curator for all the estate and interest of such convict therein, and all deeds, conveyances, and assignments of such convict's property which would but for this Act be void against the Crown shall be void against such Curator, save as hereinafter provided."

The appeal can best be considered by examining three questions.

Question 1. Is a person convicted of a felony, not involving attainder, unable to bring any civil action in respect of damages?

Question 2. Does s.8 of the Act by its use of the words "No action at law or suit in equity for the recovery of any property, debt, or damage whatsoever shall be brought by any convict against any person during the time while he shall be subject to the operation of this Act. . ." prevent a person convicted of a felony, not involving attainder, from bringing a civil action in respect of damage, other than to property, or physical damage to the person.

Question 3. Do the words ". . . including choses in actions (sic) . . ." in s.9 of the Act have the effect of vesting in any curator appointed pursuant to that section any rights of action for negligent professional advice?

Question 1.

This question was considered in Dugan v. Mirror Newspapers Ltd. [1978] HCA 54; (1978) 142 C.L.R. 583 by Jacobs J., with whose judgment Mason and Aickin JJ. agreed, and Barwick C.J. at p.587 and Gibbs J., (as he then was), at p.588, expressed substantial agreement.

At p.603 Jacobs J. said:
"However, on such an important question of civil right, authority or

principle would need to be found to support such a supposed rule when it cannot be based on attainder. I have not been able to find such authority or any principle from which it could be deduced. I would therefore expressly leave the question open."

Dugan's case is, however, an authority for the proposition that a felon, whilst attainted cannot maintain an action in New South Wales for a civil wrong.

There is substantial support in the works of many leading text writers for the proposition that the right to sue for personal injury was not affected by every conviction for a felony. Examples are to be found in Salmond's Law of Torts 10th edn. at p.69, Winfield The Law of Tort 4th edn. at pp. 110-111, Comyns Digest of the Laws of England Vol IV p. 398, Gatley Libel and Slander 3rd edn. pp. 426-427 and Clerk and Lindsell Law of Torts 9th edn. p.42. A more guarded view was expressed in Odgers The Common Law of England (1911) Vol. II p.1418. Most of the latest editions of these works do not deal with this question.

In my opinion we should proceed upon the basis that a person convicted of a felony, not involving attainder, can bring certain civil actions for damages.

Questions 2 and 3.

These questions turn upon the meaning of the word "damage" in s.8. The learned trial Judge took the view that the word "damage" and "damages" were interchangeable and in the light of this view he read s.8 as preventing an action for the recovery of damages for negligent advice or indeed any action for damages. It may be helpful to pay some regard to s.9 of the Act. The Act is entitled : "An Act to abolish Forfeitures for Treason and Felony and to otherwise amend the Law relating thereto". Section 1 provided, in substance, that no conviction for any treason or felony committed within South Australia ". . . shall cause any attainder or any forfeiture or escheat".

This Act is obviously one of a remedial nature and should not be construed in a way detrimental to a convict if another construction is reasonably open. Section 9 makes provision for the vesting in a curator of ". . . all the real and personal property, including choses in actions (sic) to which the convict . . . was at the time of his conviction . . . entitled . . .". A curator might be appointed generally or with reference to a particular case.

Sections 8 and 9 have the effect that at least certain rights of action are denied to the convict under s.8 but that some rights may be vested in the curator under s.9. By s.13, upon the completion of the sentence, pardon or death, property vested in the curator, and not otherwise used for one of the purposes provided in the Act, reverts to the convict or his legal personal representative.

It appears that the issue raised by question 2 was dealt with only superficially before the learned trial Judge but we have had the benefit of very detailed and thorough arguments by counsel for the appellant, counsel for the first and second defendants and by the third defendant who appeared personally.

Counsel for the appellant placed in the forefront of his argument the judgment of the divisional court in Smith v. Brown (1871) 6 Q.B. 729. In that case Cockburn C.J., and Hannen J. held that personal injury caused by the collision of two vessels did not come within the term "damage" which appeared in s.7 of 24 Vict. c. 10 (the Admiralty Court Act) which gave jurisdiction to the High Court of Admiralty "over any claim for damage done by any ship". A question arose whether the jurisdiction of the Court of Admiralty extended to the claim under consideration.

The claim was by the widows of certain persons who were drowned by the sinking of a vessel which was run down in a collision with a vessel owned by the defendants. The view expressed by the majority in that case appears to be the view existing at the time when the English Act of 1870 abolishing forfeiture for treason and felony was passed. Cockburn C.J. and Hannen J., in a joint judgment said, at p.732:
"Now, the words used are, undoubtedly, very extensive; but it is to be observed that neither in common parlance nor in legal phraseology is the word 'damage' used as applicable to injuries done to the person, but solely as applicable to mischief done to property. Still less is this term applicable to loss of life, or injury resulting therefrom to a widow or surviving relative. We speak, indeed, of damages as compensation for injury done to the person; but the term 'damage' is not employed interchangeably with the term 'injury' with reference to mischief wrongfully occasioned to the person".

In Nagrint v. The Regis [1939] HCA 6; (1939) 61 C.L.R. 688 and Union Steamship Co. of New Zealand Ltd. v. Ferguson [1969] HCA 73; (1969) 119 C.L.R. 191 the High Court considered the meaning of the same words and adopted a somewhat different approach. The High Court decided those cases by determining whether the ship, as an active agent, was the direct cause of the harm in the sense that it was the noxious instrument rather than by limiting the meaning of the word "damage" to damage to property. In Nagrint v. The Regis, supra, Dixon J. as he then was, at p.695 cited the following passage from the judgment of Brett M.R. in The Vera Cruz (No. 2) (1884) 9 P.D. 96 in relation to s.7 of the Admiralty Court Act:
"I do not say that damage need be confined to damage to property, it may be damage to person, as if a man were injured by the bowsprit of a ship. But the section does not apply to a case when physical injury is not done by a ship."

Reliance was also placed on the words "any" and "whatsoever" in s.8 of the Act and we were referred to Nippon v. Acme Shipping Corporation (1972) 1 All E.R. 35. However the meaning to be attributed to those words must depend on the context.

In my opinion the question before us is to be determined by a consideration of the nature of the Act. Whilst the question is a difficult one I consider that, on balance, the word "damage" in s.8 should be construed as limited either to damage to property (as in Smith v. Brown, supra) or to physical damage to a person (as in Nagrint v. The Regis, supra). An action for negligence in providing professional advice does not fall within either construction. The Act, being one to improve the position of "convicts", could not be expected to reduce any existing rights which would only be reduced by clear words. Provision was made in s.9 for "real and personal property, including choses in actions" (sic) to vest in the Curator. The question arises whether an action for damages for negligent advice falls within the words "choses in actions" (sic). This is the third question which I have posed. Sections 8 and 9 seem, so far as is relevant, to be complementary. I consider that s.9 should be read so as not to make provision for the vesting of any rights in the Curator unless those rights are denied to the convict by s.8. In my opinion this is a permissible and the proper construction of the Act. We were not referred to any clear authority on what is included within the words "choses in action" but it seems probable that a right of action for negligent professional advice is not a chose in action within s.9. (See generally Brown v. Teare (1903) 22 N.Z.L.R. 155 at pp.157-158).

I would allow the appeal with costs, set aside the judgment of the learned trial Judge dismissing the appellant's claim and remit the further hearing of the matter to the learned trial Judge. I would order that the appellant's costs of the proceedings on the preliminary point of law before the trial Judge be paid by the respondents.

This is an appeal from a ruling of the Chief Justice of the Northern Territory on the trial of a preliminary point of law raised by the respondents in an action against them by the appellant. On 31 October 1980 a Judge of that Court gave leave to the respondents to file an amended defence in the action adding the following paragraph:
"4. At the time of the commencement of this action, at all material times thereafter, and at the present time, the plaintiff was and is a convict within the meaning of the South Australian Treason and Felony Forfeiture Act 1874, serving a term of imprisonment of hard labour, and the plaintiff was, and is, therefore subject to the operation of the said Act and precluded thereby from bringing and maintaining this action."
The crucial section of the Treason and Felony Act 1874 is s.8 which is in the following terms:
"8. No action at law or suit in equity for the recovery of any property, debt or damage whatsoever, shall be brought by any convict against any person during the time while he shall be subject to the operation of this Act; and every convict shall be incapable, during such time as aforesaid, of alienating or charging any property, or of making any contract, save as hereinafter provided."

As the fact of imprisonment and the applicability at the relevant time of the South Australian Legislation to the Northern Territory were conceded, the learned Chief Justice ordered that a preliminary question of law be tried, namely "whether or not s.8 of the Treason and Felony Forfeiture Act 1874 of the State of South Australia constitutes a full defence to the plaintiff's claim". After hearing argument he gave an affirmative answer to this question thereby leading him to order that the appellant's claim be dismissed with costs. From that judgment an appeal was taken to this Court.

The appellant had sued the three respondents, who at all material times were carrying on legal practice in partnership, for damages for negligence arising out of professional services rendered by them in Alice Springs during 1973. The writ initiating the proceedings was issued out of the Supreme Court of the Northern Territory on 16 November 1978. Prior to that date however the appellant had pleaded guilty to and been convicted of a charge of wounding with intent. The sentence imposed on 29 August 1975 upon him was that of eight years imprisonment with hard labour with a non-parole period of four years. This sentence of imprisonment for relevant purposes will not expire until 28 August 1983, although he has been released on licence pursuant to the Removal of Prisoners (Territories Act) 1923.

The Treason and Felony Act 1874 of the State of South Australia ("the Act") was at the time of enactment part of the law of the Northern Territory, the Territory having been annexed to that State by an Order in Council dated 6 July 1863 pursuant to s.51 of the Australian Constitutions Act 1842. It remained part of the law of the Northern Territory notwithstanding its repeal in South Australia by the Criminal Law Consolidation Act 1935 of that State. It was recently repealed by the Legislative Assembly of the Northern Territory but only after the limitation period applicable to the appellant's cause of action against the respondents had expired. Section 330 of the Criminal Law Consolidation Act is virtually indistinguishable from s.8 of the Act, which in turn is an exact counterpart of s.8 of the Forfeiture Act (U.K.) 1870.

As the Chief Justice related, by virtue of s.7(1) of the Northern Territory Acceptance Act 1910, s.5 of the Northern Territory Administration Act 1910 and s.57 of the Northern Territory (Self-Government) Act 1978, the Act remained part of the law of the Northern Territory and thus s.8 thereof had application to the circumstances of the appellant. He also set out the provisions of s.6 and s.7 of the Act and there is no need for us to repeat them. We would however draw attention at this stage to the full title of the Act, the preamble thereto and s.1 thereof for they direct consideration to the historical background against which in our opinion it is necessary to interpret the word "damage" in s.8. They are in the following terms:
"An Act to abolish Forfeitures for Treason and Felony, and to otherwise amend the law relating thereto. Whereas it is expedient to abolish the forfeiture of lands and goods for treason and felony, and to otherwise amend the law relating thereto - Be it therefore enacted by the Governor of the Province of South Australia, with the advice and consent of the Legislative Council and House of Assembly of the said Province, in this present Parliament assembled, as follows:
1. From and after the passing of this Act, no confession, verdict, inquest, conviction, or judgment of or for any treason or felony committed within the said Province, shall cause any attainder or any forfeiture or escheat."

The learned Chief Justice, in his reasons for giving an affirmative answer to this preliminary question of law, considered the meaning to attach to the word "damage" in accordance with the somewhat narrow approach put to him by counsel, namely whether it should be construed as meaning damages generally or as limited to damage to property. He appears to have accepted that in certain contexts damage means damages generally and in other circumstances it has been given a more limited meaning. However on the basis that to read the word damage in s.8 of the Act in the latter sense, namely as damage to property, would in his opinion make little or no grammatical or other sense, he decided that the amended pleading was a full answer to the appellant's suit.

On the hearing of the appeal counsel for the appellant drew our attention to a wider question, namely the civil consequences at common law of a criminal conviction and the need to read s.8 and in particular the word damage both in the context of the Act as a whole and against the historical background. Considered in this way the appeal raises squarely the question whether at common law a felon convicted of a non-capital offence was under a legal disability to maintain a civil action, and if so, whether that general disability survived in South Australia the enactment of the 1874 Act, except to the extent that it was by s.8 expressly preserved.

This disability had its historical origins in the Anglo-Saxon penal system of "outlawry", whereby the criminal not only risked or lost his life but was deprived of all his civil and proprietary rights (Pollock & Maitland, The History of English Law Vol.11 p.447). The concept developed during Norman times and thereafter into a procedure denoted as "attainder" whereby the criminal was declared to be "attainted". In consequence he suffered a number of disabilities, in particular deprivation of his property and his civil rights.
"When sentence of death, the most terrible, and highest judgment in the laws of England, is pronounced, the immediate inseparable consequence from the common law is attainder. For when it is now clear beyond all dispute that the criminal is no longer fit to live upon the earth, but is to be exterminated as a monster and a bane to human society, the law sets a note of infamy upon him, puts him out of its protection, and takes no further care of him than barely to see him executed. He is then called attaint, attinctus, stained or blackened. He is no longer of any credit or reputation; he cannot be a witness in any Court; neither is he capable of performing the functions of another man for by an anticipation of his punishment, he is already dead in law." (4 Blackstone Commentaries 380).
As a result of this loss of proprietary and civil rights, including escheat, forfeiture of personal property, corruption of blood (which affected as well the family of the criminal), loss of the right to public office, and deprivation of the right to sue in the courts, the criminal was regarded as suffering "civil death"; he was "civiliter mortuus". This civil death and its attendant disabilities were the consequence of the criminal conduct of the convict who had been "attainted" and were suffered so long as the attainder endured. Civil death and attainder were synonymous and were imposed upon a criminal convicted of the offence of treason or felony. Treason and almost all felonies were capital offences and carried the death penalty, and attainder followed as a matter of course. As Jacobs J. said in Dugan v Mirror Newspapers Ltd. [1978] HCA 54; (1978) 142 C.L.R. 583 at p.602:
"Attainder was the consequence of a capital sentence; see Chitty's Criminal Law, 1st ed. (1816) vol. 1, pp.723-5; thus no attainder followed judgment upon conviction for petit larceny, the only felony which at common law did not carry a judgment of death."

Thus to the extent that a person convicted of a felony was disabled from suing in the courts, this was the consequence of attainder. For present purposes therefore it is most significant that the South Australian legislature expressly abolished attainder for treason or felony committed within the province. By so doing it went further than the legislature in New South Wales, as Stephen J. acknowledged in Dugan v Mirror Newspapers Ltd. at p.601 when he said
"Having concluded that the Criminal Law Amendment Act of 1883 did not, by its mere silence, affect any change in the law concerning attainder and its consequences, I also regard the provisions of the Crimes Act, 1900 as leaving this position unchanged."
Section 465 of the Crimes Act 1900 (N.S.W.) provided;
"465 (1). No inquest, conviction, or judgment, in respect of any felony shall cause any escheat or forfeiture of land or goods."
By way of contrast s.1 of the South Australian Act provided;
"1. From and after the passing of this Act, no confession, verdict, inquest, conviction, or judgment of or for any treason or felony committed within the said Province, shall cause any attainder or any forfeiture or escheat." (emphasis added).

Counsel for the respondents contended that at common law persons convicted of any felony, whether or not carrying sentence of death and whether or not they were suffering attainder, were incapable of suing in the Courts. However there seems to be little if any authority for a principle of such general application. Certainly this was how the matter appeared to Jacobs J. in Dugan v Mirror Newspapers Ltd, with whose reasoning on this point a majority of the Court agreed. At page 602 he said:
"Whether or not it was law (separate from the law of attainder) that a person convicted of a non-capital felony was disabled to bring an action either wholly or until he had endured the punishment to which he was adjudged appears to me uncertain. I can find no clear authority upon the question. Batty v Fay (1795) Ridg. L & S 511, was a case of attainder upon judgment of death. Fleming v Smith (1861) 12 Ir.C.L. 404, was argued as a case of forfeiture upon a conviction for felony. Such a plea was a good plea in bar. It was there held that there was no forfeiture of rights of action for damages in tort. It should be noted that the statute 9 Geo IV, c.32 by s.3 appears to assume that there was some disability until the person had undergone the adjudged punishment but the section may have been dealing only with forfeiture. Dicey in his Parties to an Action states at p.2 that a person convicted of a felony becomes incapable of suing at law or in equity, and remains under this disability until either he has obtained a pardon, or his term of punishment has expired. He first cites Whitaker v Wisbey (1852) 12 C.B.44, but that case dealt only with the question whether goods of a felon bona fide transferred by him prior to conviction were liable to forfeiture. Then he cites Bullock v Dodds (1819) 2 B. & Ald. 258 to which I shall later refer, and then Coke on Littleton, 390b. However Coke there deals only with attainder and forfeiture. He does not state that a person convicted of the non-capital felony, petit larceny, and therefore not attainted could not sue."

His Honour then referred to some Imperial and New South Wales legislation and commented at p.603:
"However, on such an important question of civil right, authority or principle would need to be found to support such a supposed rule when it cannot be based on attainder. I have not been able to find such authority or any principle from which it could be deduced. I would therefore expressly leave the question open."

In his subsequent reference to Bullock v Dodds Jacobs J. noted that it was a matter in which judgment of death had been given. Counsel for the respondents in the present appeal did not cite any additional authority to support his contention that a person convicted of a non-capital offence could not sue at common law.

The Treason and Felony Act 1874 of the State of South Australia was thus enacted at a time when the real and personal property of a convict was forfeited by virtue of his conviction and if he was convicted of a capital offence he was attainted and disabled from bringing an action in the Courts. If his offence was a non-capital felony his capacity to sue was uncertain, there being at least in the words of Jacobs J. already quoted no "authority or any principle from which it can be deduced".

It appears that the South Australian legislature had two objectives in mind, namely to abolish attainder and also forfeiture. It expressly retained, in the case of treason or felony, disqualification for public office, corruption of the blood probably having been abolished earlier by an Imperial Act. However having abolished forfeiture, it did not propose that the convict should retain unrestricted enjoyment of his property. If a Curator was appointed by the Governor, either generally or with reference to a particular convict, all of the real and personal property of the convict including choses in action, might be vested in the Curator (s.9). The property was held by the Curator for the purpose of meeting the liabilities of the convict, whether they be the costs of his prosecution (s.3), compensation to persons injured by the felony (s.4) or the support of his family (s.16). When the convict ceased to be subject to the Act, his property reverted to him and the Curator was obliged to account therefor (s.18).

In our opinion s.8 of the Act should be construed in the light of the fact that the convict has lost control of his property, which control has vested in the Curator. The legislature understandably perceived the necessity to restrain the convict from suing to recover from the Curator or any other person his property which was now under the control of the Curator but which in earlier years would have been forfeited to the Crown. Likewise it was necessary to deny the convict the right to deal in any way with his property. All these matters are the subject of s.8.

It is significant for the purposes of the present appeal that s.9 refers to the property of the convict which vested in the Curator as being "all the real and personal property, including choses in actions (sic) to which the convict. . . was at the time of his conviction, or shall afterwards while he shall continue subject to the operations of this Act, become or be entitled". A question arises whether a cause of action in negligence was, prior to the Act, liable to forfeiture and whether it is properly described as a chose in action.

Counsel for the appellant cited many references in text books almost all of which support the proposition that rights of action for personal torts were not forfeited. He referred in particular to Comyns Digest of the Laws of England 5th ed. p.393, Winfield The Law of Torts 4th ed. pp.110 and 111, Salmond The Law of Torts 10th ed. p.69, Clerk and Lindsell The Law of Torts 9th ed. p.42 and (contra) Gatley Libel and Slander in a Civil Action 3rd ed. pp.426 and 427. Causes of action for personal torts in this event did not need to be dealt with by the Act as they were unaffected, at least in respect of forfeiture, by the conviction. It would be surprising therefore if by vesting choses in action in the Curator the legislature deprived the convict of the benefit of a cause of action which heretofore had not been forfeited.

Moreover there is much authority for the proposition that a right of action in tort is not a chose in action. If this be the case, only those choses in action which are referable to the convict's property and which were earlier forfeited vest in the Curator. We refer to the discussion of this aspect of the matter by Stout C.J. in Brown v Teare (1903) 22 N.Z.L.R. 155 at pp.157-8. His Honour was there dealing with a claim for damages for negligence and assault, which claim he held did not pass to the Curator as a chose in action.

Construing s.8 in the context of the legislation and against the historical background, it would appear to be at least logical to restrict its application to the subject matter of the Act, namely the property which earlier had been forfeited and was now to be vested in a Curator. Such an approach explains why the only action of which a convict is deprived is an action for recovery of property, debt or damage to property which causes of action vested in and were exercisable by the Curator. The fact that such causes of action were capable of being pursued by the Curator would mean that no prejudice would necessarily be suffered under the Statutes of Limitation. It would be otherwise in respect of any cause of action which did not vest in the Curator, for imprisonment was not one of the disabilities which prevented the Statute running.

It is our opinion that s.8 should be construed in a way which restricts the convict in respect only of those of his rights which vest in the Curator. Certainly it would be surprising if the consequence of the section was to impose a restriction upon a person convicted of a non-capital felony which he previously probably did not suffer. Equally it would be surprising if the consequence of the section was that nobody could sue and thus all civil remedies in respect of the alleged negligence were lost. This would be a considerable hardship and as the learned Chief Justice said during argument would produce "quite barbarous" results.

Such an unsatisfactory conclusion is in our opinion properly avoided by construing the word "damage" as being in the context limited to damage to the property of the convict. That property has vested in the Curator and he is the most appropriate person to sue to recover any damage which during his curatorship or prior thereto the property has suffered. The decision of Legoe J. in Milera v Wilson (1980) 23 S.A.S.R. 485 based on s.330 of the South Australian Criminal Law Consolidation Act 1935, that a prisoner was incapable of suing for damages for conversion of a cheque is distinguishable on this ground. The convict retains the right to sue upon causes of action which are not based upon or related to recovering his property and which generally would be in respect of damage to his person. In the present matter, if the consequence of the alleged negligence was to damage the appellant in his property, he is disbarred from suing. He retains the right to sue in respect of damage to his person. In the manner in which the question is framed, the answer must be that s.8 does not constitute "a full defence to the plaintiff's claim". It is possible that at the conclusion of the hearing of the action, the section may constitute a defence to some elements of the appellant's claim.

The appeal should be allowed with costs. The judgment of the learned Chief Justice dismissing the appellant's claim should be set aside and the matter remitted to His Honour for determination in accordance with these reasons. The costs of the hearing of the preliminary issue should be reserved to the trial judge.