McBride v McBride [2025] NSWSC 57 involves the application of family provision laws to a convicted prisoner. The plaintiff, David McBride, and the defendant, Louise McBride, are two of four children of Patricia Mary McBride (the deceased), who passed away on 15 November 2021. The defendant was granted probate of the deceased’s last Will, dated 5 February 2014, along with codicils from 17 June 2014 and 22 October 2018.
On 5 October 2023, the defendant filed a notice of motion claiming that the plaintiff had made a settlement offer in a social media video on 17 August 2023, proposing a resolution for between $1,000 and $10,000. She relied on affidavits from multiple witnesses, including family members, a financial advisor, and a private investigator.
The plaintiff, a former military lawyer facing criminal charges for leaking classified documents in R v McBride [2023] ACTSC 328, was publicly fundraising for his legal defence. His social media video expressed frustration over his financial situation and the estate distribution. During that video post, the plaintiff stated:
My mother died a couple of years ago she left pretty much everything she owned a two-million-dollar apartment to my sister. Now obviously I need money for my case and I’m making a claim as you can do under the law to get some sort of provision, could be as little as $10,000 dollars, could be $1,000 dollars and my sister got the two-million-dollar apartment….Yeah, she wouldn’t pay me a thousand dollars uh for my court case, she’s got a two-million-dollar apartment and not only that she’s trying to get my pension taken away from me and get me charged with another criminal offence or even daring to ask me something now that’s pretty bad. I don’t think you have to be Sigmund Freud to work out what’s driving her.”at [16]
The defendant argued that the offer was inferred from the video’s content rather than specific words. The court rejected the defendant’s s claim that the plaintiff’s social media video contained a settlement offer in their dispute over the deceased’s Will. The defendant argued that an adverse inference is warranted from the plaintiff’s failure to testify, and an offer could be inferred from his statements. However, the court found that contract formation requires an objective assessment, and there was no evidence that the plaintiff’s words constituted an offer.
Key reasons for this conclusion included:
- The video contained no explicit offer.
- The overall message did not suggest a settlement proposal.
- There was no relevant conduct before or after the footage indicating an offer.
- The reference to $1,000 – $10,000 appeared to be a prediction, not an offer.
- No consideration of legal costs was mentioned.
The court dismissed the defendant’s notice of motion and ordered her to pay the plaintiff’s costs.
R v McBride [2023] ACTSC 328
On May 14 2024, the plaintiff was sentenced to five years and eight months in prison for distributing classified military documents to journalists. The plaintiff confessed to three charges, including theft and sharing secret documents with members of the press.
Mossop J dismissed the plaintiff’s argument that he did not believe he was breaking any laws, determining that his high-security clearance, which granted him access to the materials, worsened the crimes; additionally, the plaintiff appeared to have developed an obsession with the accuracy of his own views. Mossop J acknowledged that the plaintiff’s mental health issues, which included PTSD, may have played a minor role in the offences.
McBride v McBride [2025] NSWSC 57
The parties settled the plaintiff’s family provision claim, subject to the Court’s approval. However, one disputed issue remains: whether the currently incarcerated plaintiff has the legal standing to continue the proceedings.
The maximum penalty for theft under s131.1(1) of the Criminal Code (Cth) is a prison term of up to 10 years, whereas the maximum penalty for an indictment offence under section 73F of the Defence Act 1903 can be unlimited, as determined by the sentencing judge’s discretion under section 16A of the Crimes Act 1914 (Cth).
The offences admitted by the plaintiff are classified as “serious indictable offences,” which can lead to imprisonment for life or five years or more, according to s4 of the Crimes Act 1900 (NSW). Neither of these offences is classified as a “capital felony,” a felony punishable by death.
The plaintiff maintains that he was not in custody when he initiated the proceedings and that, following the repeal of s3 of the Felons Act, there is no longer a legal barrier to continuing his claim.
- 1. The defendant contends that the plaintiff lacks standing to pursue the case based on Dugan v Mirror Newspapers Ltd (1978) 142 CLR 583 (Dugan).
- 2. The plaintiff argues that the Felons (Civil Proceedings) Act 1981 (NSW) does not apply to these proceedings.
- 3. The defendant asserts that while the Felons Act allows a convicted felon to initiate new proceedings, it does not permit them to continue proceedings commenced before their conviction.
The defendant, however, argues that even if granted leave to commence new proceedings, s90 of the Succession Act 2006 (NSW) would prevent the plaintiff from receiving provision from any notional estate assets.
Meek J considered the legal arguments and reached the following preliminary conclusions:
- 1. Dugan does not necessarily prevent the plaintiff from having standing.
- 2. No common law principle currently prevents the plaintiff from maintaining the proceedings in light of the Felons Act.
- 3. There is some uncertainty about whether the Felons Act applies in this context.
- 4. The Court can grant leave nunc pro tunc to maintain and finalise the proceedings if required.
- 5. The plaintiff does not need to commence fresh proceedings, and even if he did, section 90 of the Succession Act would not necessarily bar his claim.
Given the prolonged nature of the case and the associated legal and emotional burdens, Meek J decided against further delaying judgment and instead proposed to make orders for provision, resolving the standing issue, and granting leave nunc pro tunc if necessary.
Nunc pro tunc originated from the Court of Chancery in 1388. In 1805, Lord Chancellor Lord Eldon stated,
“The Court will enter a Decree nunc pro tunc, if satisfied from its own official documents, that it is on doing now what it would have done then.”. Donne v Lewis (1805) II Ves Jun 601 at 601; 32 ER 1221 at p. 1222.
Legal and Historical Context
The key legal question is whether a convicted prisoner can maintain and settle family provision proceedings initiated before their conviction, which involves the Court analysing the Felons Act and its interaction with NSW and Commonwealth laws.
Historically, English common law held prisoners retained civil rights unless explicitly removed. However, the doctrine of felony attaint traditionally stripped convicted felons of property rights and legal standing. Cable v. Sinclair [1788] NSWKR 7 established an early form of colonial equality under the law, applicable only to European colonisers. It allowed convicts to access the courts for civil matters and demonstrated that they could succeed in legal cases. However, Courts inconsistently applied this principle in early Australian law. The 1978 Dugan decision reaffirmed the common law rule that a convicted felon could not maintain a civil claim, particularly in cases involving capital felonies.
Felons (Civil Proceedings) Act 1981
The Felons Act was introduced in response to Dugan, allowing convicted felons to initiate civil proceedings with the court’s leave. However, its application to ongoing proceedings remains uncertain. The 1980 case Macari v Mirror Newspapers Ltd suggested that non-capital felons could be barred from initiating proceedings, but this decision did not establish a binding precedent.
The Court determined whether the Felons Act permits the plaintiff to continue his claim and whether leave is required. The broader legal question concerns the evolution of prisoners’ rights and the extent to which historical principles still apply in modern civil law.
Before parliament enacted the Felons Act, common law disqualified convicted felons from initiating civil proceedings. In Burns Philp Trustee Co Ltd v Viney [1981] 2 NSWLR 216, Kearney J applied this principle to a man convicted of a capital felony in 1935, barring him from seeking family provision relief. The Court relied on Dugan v Mirror Newspapers Ltd(1978) 142 CLR 583, which held that a felony conviction resulted in civil death.
The Felons (Civil Proceedings) Bill was introduced in March 1981 to address the harshness of this rule while ensuring that prisoners could not abuse court processes. The Bill required felons in custody to obtain court leave before initiating civil proceedings. Parliament passed the Act in April 1981, commencing on 1 January 1982. It removed the general prohibition on felons suing but maintained restrictions on those in custody.
The Felons Act originally distinguished between felonies and misdemeanours. However, in 1999, the Crimes Legislation Amendment (Sentencing) Act abolished this distinction, replacing references to a felony with a serious indictable offence (punishable by five or more years of imprisonment). This amendment clarified that all convicted persons in custody for serious offences required leave of the Court to commence proceedings.
Subsequent case law examined the application of the Act, including Jol v State of NSW (1998) and Patsalis v State of NSW (2012). In Potier v Attorney General (NSW) (2015), the NSW Court of Appeal affirmed that the leave requirement applied broadly to all prisoners convicted of serious indictable offences, regardless of whether their offence previously led to civil incapacity under common law.
Meek J considered whether a convicted person who had initiated civil proceedings before their conviction required leave to maintain those proceedings under the Felons (Civil Proceedings) Act 1981 (NSW).
The second reading speech and case law provided little guidance on this issue. Still, the Act’s long title ( An Act to provide that a person convicted of, or found to have committed, a felony shall not be incapable of instituting and maintaining civil proceedings in any court) provides that a person convicted of, or found to have committed, a felony shall not be incapable of instituting and maintaining civil proceedings in any court.) suggested an intent to bar both the institution and maintenance of proceedings by convicted felons.
However, the provisions of the Act explicitly referred only to the institution of proceedings, not their maintenance. Similarly, the dictionary definitions of institute and maintain reinforced this distinction.
The decision
Meek J concluded that once leave was granted to institute proceedings; no additional leave was required to maintain them. This interpretation aligned with previous court orders and practice. Furthermore, the basis of historical common law principles disabling felons from suing were outdated concepts of felony and attainder, which parliament had abolished. The case law, including Dugan, was inconclusive on barring non-capital felons from bringing civil claims, and there was no legislative intent to reinstate such disabilities.
Meek J also addressed the issue of the notional estate under the Succession Act 2006 (NSW), which allows for the designation of the property as part of the deceased’s estate even after distribution. While the Act requires exceptional circumstances for such an order in out-of-time claims, no absolute bar exists. The court considered precedent on what constitutes outstanding circumstances but did not make a final determination.
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