Grimes v New South Wales Crime Commission

[2021] NSWCA 238

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Grimes v New South Wales Crime Commission [2021] NSWCA 238

Hearing dates:

14 September 2021

Date of orders:

1 October 2021

Decision date:

01 October 2021

Before:

Meagher JA; Simpson AJA

Decision:

(1) Dispense with Uniform Civil Procedure Rules 2005 (NSW), r 7.14 with respect to the commencement and carrying on by the applicant of his application for leave to appeal.

(2)  Grant leave to appeal from the consent orders made on 28 October 2020.

(3)  Dispense with the need for the applicant to file any notice of appeal and allow the appeal.

(4)  Set aside the orders made on 28 October 2020 except for order 7.

(5)  Remit the summons to the Common Law Division to be reheard, and direct that at the outset, the parties raise for the  Court’s determination the validity of the existing tutor’s appointment.

(6)  Set aside the writ of possession issued on 27 July 2021 in respect of the Kareela property.

(7)  Dismiss the applicant’s notice of motion filed 13 July 2021 and notice of motion dated 13 September 2021.

(8)  Direct that the referral for assistance made by the Court on 14 September 2021 be taken to be a referral for legal assistance in the Common Law Division.

Legislation Cited:

Civil Procedure Act 2005 (NSW), s3

Civil Procedure Regulation 2017 (NSW), cl 12(2)(b)

Criminal Assets Recovery Act 1990 (NSW), s 27

NSW Trustee and Guardian Act 2009 (NSW), s 41

Uniform Civil Procedure Rules 2005 (NSW), rr 7.14, 7.18, 7.36

Category:

Principal judgment

Parties:

Gerard Kevin Grimes (Applicant)
New South Wales Crime Commission (Respondent)

Representation:

Counsel:
R Bhalla (Respondent)

Solicitors:
Applicant (in person)
Alexandra Bishop (Respondent)

File Number(s):

2021/115316

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Common Law

Date of Decision:

28 October 2020

Before:

Bellew J

File Number(s):

2014/67123

Judgment

1. THE COURT: By summons filed in the Common Law Division of the Supreme Court on 4 March 2014, the NSW Crime Commission sought, under the Criminal Assets Recovery Act 1990 (NSW), s 27, an order that Mr Gerard Grimes (the applicant) pay to the Treasurer an amount assessed by the Court as the value of the proceeds derived by him from illegal activities with respect to the cultivation of cannabis and manufacture of cannabis oil. On 28 October 2020 those proceedings were resolved by orders to which consent was given by Mr Peter Thompson, who had been appointed as Mr Grimes’ tutor under Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 7.18.

2. The consent orders resolving the underlying proceedings were made in chambers by Bellew J. They provided for a payment to the Treasurer of $170,000 which was to be made from the proceeds of sale of Mr Grimes’ residential property at Kareela. To give effect to the requirement for sale of that property, Mr Thompson was also appointed as manager of Mr Grimes’ real property and legal and financial affairs pursuant to NSW Trustee and Guardian Act 2009 (NSW), s 41. The consent orders did not include any declaration by the Court that Mr Grimes was incapable of managing his affairs (s 41(1)(a)). As Mr Grimes’ brother, Trent, claimed to have provided an unsecured loan for the purchase of that property, he was joined as a party to the underlying proceedings (by order 7), presumably to secure his agreement to the terms on which the Kareela property was to be sold. The consent orders also noted at the outset (by para. 4) that Mr Thompson had been appointed as Mr Grimes’ tutor in relation to the proceedings.

3. By summons filed in this Court on 26 April 2021, Mr Grimes seeks leave to appeal against the 28 October 2020 orders. On 14 September 2021 the hearing of that application commenced but did not proceed very far before the difficulties with the underlying consent orders became apparent. At that hearing Mr Grimes also moved on two notices of motion. The first, filed on 13 July 2021, sought an order that “the tutor, who was appointed without my knowledge, be dispensed with”. Although that order was sought in the proceeding in this Court, it was no doubt directed to the appointment of Mr Thompson in June 2020 in the underlying proceedings. The second motion, dated 13 September 2021, sought a stay of execution of a writ of possession issued on 27 July 2021, on the application of Mr Thompson, in respect of the Kareela property.

4. The difficulties with the consent orders started with the appointment of Mr Thompson as Mr Grimes’ tutor on 15 June 2020. Mr Thompson consented to the 28 October orders. Those orders included his appointment as a financial manager. The power to make that order depended on the Court having been satisfied that Mr Grimes was “incapable of managing his affairs”. On the face of it, no evidentiary material was provided to the Court to enable it to be satisfied of that state of affairs and no declaration was made as required by s 41(1)(a).

5. Mr Thompson, who is Mr Grimes’ brother-in-law, was appointed following an application made to the Registrar in the Common Law Division on 15 June 2020. The application for his appointment was made by a notice of motion filed on 17 June 2019. Although the application was made by the solicitors on the record for Mr Grimes, it was opposed by him, as was undoubtedly disclosed to the Court. Notwithstanding his stated opposition to the appointment of a tutor, Mr Grimes was nominated in the notice of motion as “Person Seeking Orders”. In a letter to the Registrar dated 1 May 2020 with respect to the further listing of the proceedings for directions, Ms Byrne, the solicitor having carriage of the matter for Mr Grimes, recorded that the proceeding had been “adjourned on previous occasions as the Defendant has refused to give us instructions or terminate our retainer” and stated that the solicitors were seeking to “progress his family’s application to take over conduct of the Defendant’s affairs, including in these proceedings”.

6. The hearing of the application proceeded before the Registrar on 15 June 2020. At that time Mr Grimes was in custody. Affidavits of Mr Thompson, Mr Grimes and Ms Byrne were read. Ms Byrne’s affidavit recorded that, following the filing of the motion in June 2019, Mr Grimes had attended one or more of the directions hearings and stated that he did not want Mr Thompson to be appointed as his tutor. The transcript records the Registrar noting, following short submissions by Ms Byrne:

It’s certainly clear to me that there’s no instructions being provided at the moment and the matter is unable to progress unless the tutor is appointed. It’s also clear to me from a quick review of the documents and the exhibits and in particular even though they are quite aged, the reports that certainly Mr Grimes has a history of psychiatric condition, including a depressive disorder, and has a substance abuse history. So I don’t believe there is anything that should prevent a tutor from being appointed … so I don’t have any difficulty in making those orders.

7. By UCPR, r 7.18(1) the court may appoint a tutor in any proceedings in which a party is or becomes a person under a legal incapacity. “A person under a legal incapacity” is defined in s 3 of the Civil Procedure Act 2005 (NSW) in a manner that does not include Mr Grimes, but is extended in r 7.13 to include a person who is “incapable of managing his or her affairs”. The transcript of the proceedings on 15 June 2020 does not suggest that the Registrar addressed this question.

8. By r 7.14 a person under a legal incapacity may not commence or carry on proceedings except by his or her tutor. The appointment of Mr Thompson as tutor therefore deprived Mr Grimes of the ability to make decisions concerning the litigation. The appointment of Mr Thompson as tutor meant that any proposed compromise or settlement of the claim against Mr Grimes required the approval of the Court (Civil Procedure Act, ss 75, 76). That requirement appears to have been overlooked in the making of the consent orders, as the Commission conceded.

9. Our concern with respect to the appointment of the tutor does not necessarily cast any doubt upon the correctness of the outcome. Rather, we are troubled by the process and whether there was evidence available which justified the conclusion that Mr Grimes was relevantly a “person under legal incapacity” because he was (and remains) incapable of managing his financial and legal affairs.

10. Returning to the hearing before us on 14 September 2021, after discussion which touched on most of the matters referred to above, we were satisfied that the further hearing of Mr Grimes’ application and notices of motion should be stood over to the Registrar’s list at 9am on 27 September 2021 to enable further discussions to occur between the interested parties. At the same time, an order was made under UCPR, r 7.36 referring Mr Grimes to the Registrar for referral to a barrister or solicitor on the Pro Bono Panel for legal assistance.

11. We understand that, when the matter came before the Registrar on 27 September 2021, the parties indicated agreement to the making of the following orders:

1.   To the extent that a tutor is necessary for this leave application, dispense with the need for a tutor in the appellate proceedings.

2.   Grant leave to appeal.

3.   Appeal allowed and dispense with the need to file a notice of appeal.

4.   Set aside the orders made on 28 October 2020 except for order 7.

5.   Remit the summons to the Division to be reheard.

6.   The referral for assistance made by the Court of 14 September 2021 is taken to be a referral in the Common Law Division.

12. Addressing those orders, the first raises the general question concerning the appointment of the tutor. Having regard to the exchanges between the Court and Mr Grimes on 14 September 2021, we are satisfied that he then understood that what was likely to be proposed by the other parties was that orders be made granting him leave to appeal and allowing the appeal; and that he then indicated his consent to that course of events. On that basis, we propose to make an order dispensing with r 7.14 with respect to his commencement and conduct of the proceedings in this Court. That rule would otherwise have required, if Mr Grimes is “under legal incapacity”, that he not commence or carry on those proceedings other than by a tutor. Accordingly, we propose to vary draft order 1 to read:

1. Dispense with Uniform Civil Procedure Rules 2005 (NSW), r 7.14 with respect to the commencement and carrying on by the applicant of his application for leave to appeal.

13. To address our concerns with respect to the appointment of the tutor and to accommodate the substance of Mr Grimes’ motion in this Court to set aside that appointment, we propose to vary draft order 5 to read:

5.    Remit the summons to the Common Law Division to be reheard, and direct that at the outset, the parties raise for the Court’s determination the validity of the existing tutor’s appointment.

14. An order should also be made setting aside the writ of possession issued on 27 July 2021 in respect of Mr Grimes’ property at Kareela.

15. Finally, as orders or directions are to be made which address the substance of Mr Grimes’ motions before this Court, an order should be made that each of those motions be dismissed.

16. In the result, we make the following orders on the basis that they give effect to the consent orders proposed by the parties:

1. Dispense with Uniform Civil Procedure Rules 2005 (NSW), r 7.14 with respect to the commencement and carrying on by the applicant of his application for leave to appeal.

2. Grant leave to appeal from the consent orders made on 28 October 2020.

3. Dispense with the need for the applicant to file any notice of appeal and allow the appeal.

4. Set aside the orders made on 28 October 2020 except for order 7.

5. Remit the summons to the Common Law Division to be reheard, and direct that at the outset, the parties raise for the Court’s determination the validity of the existing tutor’s appointment.

6. Set aside the writ of possession issued on 27 July 2021 in respect of the Kareela property.

7. Dismiss the applicant’s notice of motion filed 13 July 2021 and notice of motion dated 13 September 2021.

8. Direct that the referral for assistance made by the Court on 14 September 2021 be taken to be a referral for legal assistance in the Common Law Division.

17. The parties have not provided for any order for costs. As Mr Grimes is self-represented and will not incur any filing fees (because they will either not be payable, or if paid will be remitted, under Civil Procedure Regulation 2017 (NSW), cl 12(2)(b)), we have made no order as to the costs of his application for leave to appeal and notices of motion.

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Decision last updated: 01 October 2021