New South Wales Crime Commission v Grimes
[2022] NSWSC 163
•24 February 2022
Supreme Court
New South Wales
Medium Neutral Citation: New South Wales Crime Commission v Grimes [2022] NSWSC 163 Hearing dates: 24 February 2022 Date of orders: 24 February 2022 Decision date: 24 February 2022 Jurisdiction: Common Law Before: Harrison J Decision: (1) Grant leave to the first defendant to move the Court by oral application made today for the removal of Peter Thompson as his tutor.
(2) To the extent necessary, dispense with service of notice of that application upon any other party to the proceedings and the tutor.
(3) Order that Peter Thompson be removed forthwith as tutor of the first defendant.
(4) Reserve costs of this application.
(5) Stand the proceedings over for directions before the Registrar on 10 March 2022.
(6) Grant liberty to all parties if so advised to apply on 48 hours’ notice to my Associate.
(7) Dispense with the requirement that Mr Rodgers give notice to the tutor of his intention to file a notice of ceasing to act as his solicitor.
Catchwords: REMOVAL OF TUTOR – whether first defendant’s tutor regularly appointed – whether evidence to support first defendant’s legal incapacity or inability to manage his affairs – whether tutor should be removed
Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), r 7.18
Cases Cited: Grimes v New South Wales Crime Commission [2021] NSWCA 238
Category: Procedural rulings Parties: New South Wales Crime Commission (Plaintiff)
Gerard Kevin Grimes (First Defendant)
Trent Andrew Grimes (Second Defendant)
Peter Thompson (Tutor)Representation: Counsel:
Solicitors:
R Bhalla (Plaintiff)
New South Wales Crime Commission (Plaintiff)
Pryor Tzannes & Wallis Solicitors & Public Notaries (Amicus Curiae for Tutor and for Second Defendant)
File Number(s): 2014/67123 Publication restriction: Nil
Judgment
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HIS HONOUR: On 1 October 2021, the Court of Appeal made the following orders (Grimes v New South Wales Crime Commission [2021] NSWCA 238):
(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.
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On 24 February 2022, the proceedings came before me in accordance with Order 5 above.
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The background to the proceedings and in particular to Mr Grimes’ appeal to the Court of Appeal is conveniently set forth in the following paragraphs of the judgment of that Court:
“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.”
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Mr Grimes appeared in person before me. For what it is worth, he was to my observation obviously closely engaged with the proceedings, attentive to everything that took place and appropriately responsive to my enquiries. Mr Bhalla of counsel appeared for the Crime Commission. Mr Rodgers, solicitor, appeared for both the tutor Mr Thompson and for the second defendant.
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Mr Grimes made an oral application to me that Mr Thompson be removed as his tutor. Mr Bhalla and Mr Rodgers each conceded that they were either not relevant contradictors to that application or alternatively did not wish to be heard in opposition to it.
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UCPR 7.18 provides as follows:
7.18 Court may appoint and remove tutors
(1) In any proceedings in which a party is or becomes a person under legal incapacity--
(a) if the person does not have a tutor, the court may appoint a tutor, or
(b) if the person has a tutor, the court may remove the party's tutor and appoint another tutor.
(2) In any proceedings concerning a person under legal incapacity who is not a party, the court may appoint a tutor of the person and join the person as a party to the proceedings.
(3) If the court removes a party's tutor, it may also stay the proceedings pending the appointment of a new tutor.
(4) Subject to any order of the court, notice of any motion under this rule is to be served on the person under legal incapacity and, if it proposes removal of the person's tutor, on the tutor.
(5) In proceedings on a motion for the appointment of a tutor, evidence in support of the motion must include--
(a) evidence that the party for whom a tutor is to be appointed is a person under legal incapacity, and
(b) evidence that the proposed tutor consents to being appointed and does not have any interest in the proceedings adverse to the interests of the person under legal incapacity.
(6) An application for appointment as tutor under this rule may be made by the court of its own motion or on the motion of any other person, including the proposed tutor.
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The Court of Appeal expressed doubts about whether, when the tutor was appointed, there was evidence capable of supporting either a conclusion or a finding that Mr Grimes was then under a legal incapacity or incapable of managing his affairs. On remitter to me in the light of that concern, the situation has not changed. Whereas neither the Crime Commission nor Mr Thompson has suggested otherwise, no evidence has since been produced that informs, far less supports, Mr Grimes’ doubtful status as a person under a legal disability or as one who is incapable of managing his affairs. Mr Grimes’ application is unopposed and there is no evidence before me to suggest why the orders that he seeks should not be made. The Crime Commission and Mr Thompson do not suggest that they should have been given notice of Mr Grimes’ application in accordance with the Rules.
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In what I might with some hesitation describe as the ordinary course of events, a person who seeks the removal of an existing tutor, because they dispute their continuing incapacity, may apply to the court without also moving to appoint a separate tutor for the application. In the present case, Mr Grimes challenges the original appointment of his tutor upon the basis that there was no proper evidence to support it. It would invoke consideration of the kind of dilemma that famously vexed Captain John Yossarian if Mr Grimes were to be required in this application to furnish clear evidence of the cessation of his disability or that in the absence of such evidence I should require the proceedings to continue with the appointed tutor. It would be churlish, and nobody suggests otherwise, to oblige Mr Grimes to “establish” his full capacity or his ability to manage his own affairs when neither of those things was on one view ever properly demonstrated in the first place and when no-one contends that Mr Grimes is presently incapacitated or incapable of managing his affairs in the second place.
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Mr Rodgers indicated that Mr Thompson may wish in due course to seek to be indemnified by Mr Grimes for any costs incurred by him in his capacity as Mr Grimes’ tutor. It suffices that I do no more than note that indication, having regard to the possible doubt attending the validity of Mr Thompson’s appointment.
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In my opinion, the following orders should be made:
Grant leave to the first defendant to move the Court by oral application made today for the removal of Peter Thompson as his tutor.
To the extent necessary, dispense with service of notice of that application upon any other party to the proceedings and the tutor.
Order that Peter Thompson be removed forthwith as tutor of the first defendant.
Reserve costs of this application.
Stand the proceedings over for directions before the Registrar on 10 March 2022.
Grant liberty to all parties if so advised to apply on 48 hours’ notice to my Associate.
Dispense with the requirement that Mr Rodgers give notice to the tutor of his intention to file a notice of ceasing to act as his solicitor.
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Decision last updated: 24 February 2022
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