New South Wales Crime Commission v Grimes

HIS HONOUR: On 1 October 2021, the Court of Appeal made the following orders (Grimes v New South Wales Crime Commission [2021] NSWCA 238):

On 24 February 2022, the proceedings came before me in accordance with Order 5 above.

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:

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.

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.

UCPR 7.18 provides as follows:

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.

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.

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.

In my opinion, the following orders should be made: