Prus-Grzybowski, Alexander v Everingham, Paul Anthony Edward - [1983] FCA 6

Re: ALEXANDER PRUS-GRZYBOWSKI
And: PAUL ANTHONY EDWARD EVERINGHAM; PETER GEORGE HOWARD; PETER JOHN BUTLER
TIFFIN (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.

HEADNOTE

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) 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Prus-Grzybowski, Alexander v Everingham, Paul Anthony Edward and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [1983] FCA 6
Decision Date: 08 FEBRUARY 1983

CaseChat Overview and Summary

In the Federal Court of Australia, the appellant, Alexander Prus-Grzybowski, pursued a claim against Paul Anthony Edward Everingham for damages resulting from the alleged assault and battery inflicted by Everingham. The primary issue before the court was whether Prus-Grzybowski, a convicted felon who had been sentenced to a term of imprisonment for a non-capital offence, could maintain an action for civil wrongs, given the implications of the Treason and Felony Forfeiture Act 1874 (S.A.). Specifically, the court needed to determine the meaning of the term "damage" as it applied to the appellant's capacity to bring an action.

The court examined the Treason and Felony Forfeiture Act 1874 (S.A.), which disqualifies felons from bringing or maintaining any action for personal injuries unless the injury had occurred prior to the conviction. The central question was whether an assault and battery, which Prus-Grzybowski claimed occurred after his conviction, qualified as "damage" under the Act. The court found that the term "damage" should be interpreted broadly to include personal injuries such as assault and battery. Consequently, the court held that the appellant's claim for damages arising from the assault and battery was not barred by the Treason and Felony Forfeiture Act 1874 (S.A.), as the injuries occurred post-conviction. The appeal was allowed, the judgment of the trial judge dismissing the claim was set aside, and the matter was remitted to the trial judge for further hearing. The costs of the hearing of the preliminary issue were reserved to the trial judge.

Orders

Orders of the court

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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.