Re Application for Grant of Presumption of Death; Ex Parte Craig Charles Park
[2022] WASC 230
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION: RE APPLICATION FOR GRANT OF PRESUMPTION OF DEATH; EX PARTE CRAIG CHARLES PARK [2022] WASC 230
CORAM: SMITH J
HEARD: 18 JULY 2022
DELIVERED : 18 JULY 2022
PUBLISHED : 19 JULY 2022
FILE NO/S: CIV 1609 of 2022
EX PARTE
CRAIG CHARLES PARK
Applicant
Catchwords:
Probate - Leave to swear a death - Presumption of death after disappearance
Legislation:
Non-contentious Probate Rules 1967 (WA), r 34
Result:
Declaration made and order granting leave
Category: B
Representation:
Counsel:
| Applicant | : | Ms C McKenzie |
Solicitors:
| Applicant | : | McKenzie & McKenzie |
Cases referred to in decision:
Lashko v Lashko [2011] WASC 214
Puddy v Puddy [2012] WASC 233
Re Application for Grant of Presumption of Death; Ex parte Jenkins [2008] WASC 49
SMITH J:
The application
Without intending any disrespect after they are introduced, the applicant and his father will be referred to by their first names.
This is an application by Craig Charles Park, the son of Charles Athol Stan Park:
(a)seeking a declaration that Charles, born 2 August 1945 is presumed to have died on or about 3 January 2012; and
(b)for leave to swear the death, pursuant to r 34 of the Non-Contentious Probate Rules1967 (WA), for the purposes of an application for administration of the estate of Charles.
Background - The surrounding circumstances of the disappearance of Charles Athol Stan Park
In support of the application, Craig filed an affidavit sworn by him on 31 May 2022, in which he deposes of relevant facts and matters, and annexes relevant documentary evidence relating to enquiries made by the police and the family of Charles about the circumstances of his disappearance. Craig also annexes to his affidavit correspondence from the Australian Taxation Office (ATO).
From the affidavit material the following relevant factual findings can be made.
Charles was last seen in Kalgoorlie at the Recreational Hotel on the corner of Burt and Lane streets in Boulder at about 10.00 pm on 3 January 2012. At the time of his disappearance, he was 66 years old and on leave from his employment having just returned from a holiday in Sydney in New South Wales.[1]
[1] Affidavit of Craig Charles Park sworn on 31 May 2022, pars 4 - 6.
Charles was a fitter and was at the time of his disappearance employed by a Mr Woodcook who had a rubber lining business. Charles owned a house in Boulder and is still the registered proprietor of this property. Although there is a mortgage registered on the property to United Credit Union, the amount owing had been paid in full prior to Charles's disappearance.[2]
[2] Affidavit of Craig Charles Park sworn on 31 May 2022, pars 25 - 27.
Charles was not known to be in a relationship at the time of his disappearance. He shared his house with a female occupant who was a close friend but who had gone to stay with another friend at the time of his disappearance. When she returned home on 6 January 2012, she found that the house was open, Charles's much-loved collie dog had been badly injured, and one of the council wheelie bins was missing. His friend noted that his passport was still at home together with all of his other possessions.[3]
[3] Affidavit of Craig Charles Park sworn on 31 May 2022, Annexure CP3, 19.
A report was made to the police that Charles was missing on 6 January 2012. Kalgoorlie Detectives and the Major Crime Squad investigated his disappearance.[4]
[4] Affidavit of Craig Charles Park sworn on 31 May 2022, Annexure CP1, 7.
In a letter dated 9 April 2020 to the applicant's solicitors, Detective Senior Sergeant David Gorton from the Homicide Squad of the State Crime Major Crime Division stated that:[5]
(a)the investigation remains inconclusive, and remains open;
(b)there is no evidence that Charles has been seen, or otherwise identified, since 3 January 2012;
(c)the police have no knowledge of Charles's current whereabouts;
(d)the investigation to date revealed the possibility that Charles may be deceased, however, there is presently no conclusive proof in that regard.
[5] Affidavit of Craig Charles Park sworn on 31 May 2022, Annexure CP1, 7.
Charles had been married twice. He was married to Craig's mother, Carol Anne Gregory, but they separated in 1972. Craig is the only child of that relationship, and was born on 4 June 1970. Charles married Lesley Anne Park in or about 1978 or 1979. They had two children: Kylie Marie Penn born 26 February 1978 and Kristy Anne Park born 5 August 1980.[6]
[6] Affidavit of Craig Charles park sworn on 31 May 2022, pars 7 - 10.
At the time of his disappearance, Charles had been estranged from Kristy for about seven years but had a good relationship with Craig and Kylie.[7]
[7] Affidavit of Craig Charles park sworn on 31 May 2022, pars 11.
There has been no coronial investigation.
The disappearance of Charles has attracted a lot of media attention.[8] Media reports have been published in the Kalgoorlie Miner newspaper which circulates throughout the Goldfields. There have also been reports published about his disappearance by the ABC and in Western Australia newspapers. His disappearance has also been recorded on a dedicated Facebook page with a URL reading 'Missing - Person - Please - Help - Find - Charlie - Park'.
[8] Affidavit of Craig Charles Park sworn on 31 May 2022 par 20.
Annexed to Craig's affidavit are copies of some media reports about the disappearance of Charles, including statements made by police officers who investigated Charles's disappearance.[9] The sample of reports record that Charles's children, grandchildren and other relatives over the years have regularly made pleas to the public for information about the whereabouts of Charles.
[9] Affidavit of Craig Charles Park sworn on 31 May 2022, Annexure CP3, 8 - 20.
Despite the enquiries made by the police and the pleas to the public by Charles's family, no reports of his whereabouts or contact made by him has been reported by any person since 3 January 2012.[10]
[10] Affidavit of Craig Charles Park sworn on 31 May 2022, par 19.
At the time of Charles's disappearance, he had no unusual debts, and he was not insured. Since his disappearance no transactions have been made on any of Charles's bank accounts, with Beyond Bank (formerly known as United Credit Union). He also has undrawn superannuation entitlements.[11]
[11] Affidavit of Craig Charles Park sworn on 31 May 2022 pars 22 - 24, 28.
On 18 February 2020, the ATO forwarded a cheque to Charles's accountant payable to Charles Park in the sum of $77,713.81, being a refund of superannuation, and on 7 April 2020 the ATO forwarded a second cheque payable to Charles Park in the sum of $11,941.78, being also a refund of superannuation entitlements. Both cheques have been paid into the applicant's lawyers trust fund account.[12]
[12] Affidavit of Craig Charles Park sworn on 31 May 2022, Annexures CP4 - CP5, 22 - 25.
The legal framework
Craig has applied by originating motion, pursuant to r 34 of the Non-Contentious Probate Rules for a declaration that Charles is presumed to be dead, and for leave to swear to his death, so as to enable Craig to make an application for a grant of administration of the estate of Charles.
Because the originating motion seeks a declaration that Charles is presumed to be deceased, the motion was listed for hearing before a judge.
Craig seeks to invoke the principle that there is a rebuttable presumption of fact that if a person has been absent for seven years, and not heard of by those who could be expected to have heard, he or she will be presumed to have died some time during the period of that person's absence unless there is proof to the contrary that the person is still alive. The starting point is the presumption, and the court is to look at all of the evidence to see whether that evidence is consistent with the presumption.[13]
[13] Lashko v Lashko [2011] WASC 214 (EM Heenan J) [6]; Puddy v Puddy [2012] WASC 233 (Sanderson M) [4].
The effect of the presumption is to give rise to a conclusion that at the time of the proceedings the person who has not been heard of for at least seven years is no longer alive. There is no presumption as to when that person died. In particular, it is not presumed the death occurred on any particular date after the last contact with that person.[14]
[14] Re Application for Grant of Presumption of Death; Ex parte Jenkins [2008] WASC 49 [21] (Beech J).
Conclusion
All of the circumstances suggest that Charles died shortly after his disappearance.
If Charles was still alive it is to be expected that he would have been in contact with at least his son Craig and his daughter Kylie and other members of his family and friends.
There is no reason, financial or otherwise, for Charles to have wished not to be heard of, or seen, for the last 10 years. Although this is not a case where I can make any determination as to what happened to Charles, from the circumstances of his disappearance it can be inferred that:
(a)he had no reason to leave Boulder and cease contact with anyone. He was close to two of his children, he was employed, and he had friends and a dog that he was devoted to;
(b)he was not under financial stress, had money in the bank (which funds have not been accessed since his disappearance) and in effect owned an unencumbered property; and
(c)from the fact that his home was found to be open, his dog badly injured, and his possessions in his house intact (other than a missing wheelie bin);
Charles is no longer alive.
With more than seven years having elapsed since Charles was last seen on 3 January 2012, I am satisfied that the court should declare that Charles is presumed to have died, and that Craig should now have leave to swear to the death of Charles and proceed to obtain a grant of administration of his father's estate.
Accordingly, after hearing counsel for Craig, I made the following declaration and orders:
(1)Charles Athol Stan Park is presumed to have died at some time on or after 3 January 2012 and before 18 July 2022;
(2)for the purpose of enabling Craig Charles Park to apply for a grant of administration of the estate of Charles Athol Stan Park, leave is granted to swear that Charles Athol Stan Park died at some time on or after 3 January 2012 and before 18 July 2022;
(3)there be liberty to apply; and
(4)there be no order as to costs.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
TS
Associate to the Honourable Justice Smith
19 JULY 2022
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