RE PAUL ALLAN WEEKS; EX PARTE WEEKS [2016] WASC 25

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2016] WASC 25
Case No:	PRO:283/2016	Heard:	ON THE PAPERS
Coram:	REGISTRAR C BOYLE	Delivered:	22/01/16
No of pages:	6	Judgment Part:	1 of 1
Result:	Leave granted to swear to death
Category:	C
PDF Version

Parties:	DANICA ALLANA WEEKS
Catchwords:	Missing person Leave to swear to death Distinction between leave under r 34 of Non-contentious Probate Rules and declaration of presumption of death
Legislation:	Births, Deaths and Marriages Registration Act 1998 (WA), s 57 Non-contentious Probate Rules 1967 (WA), r 34
Case References:	Lashko v Lashko [2011] WASC 214 Re Bennett [2006] QSC 250

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : RE PAUL ALLAN WEEKS; EX PARTE WEEKS [2016] WASC 25 CORAM : REGISTRAR C BOYLE HEARD : ON THE PAPERS DELIVERED : 22 JANUARY 2016 FILE NO/S : PRO 283 of 2016 MATTER : Rule 34 of the Non-contentious Probate Rules 1967 (WA)

The Estate of Paul Allan Weeks late of 44 Pavilion Circle, The Vines, Western Australia, deceased

EX PARTE

DANICA ALLANA WEEKS

Applicant

Catchwords:

Missing person - Leave to swear to death - Distinction between leave under r 34 of Non-contentious Probate Rules and declaration of presumption of death

Legislation:

Births, Deaths and Marriages Registration Act 1998 (WA), s 57

Non-contentious Probate Rules 1967 (WA), r 34

Result:

Leave granted to swear to death

Category: C

Representation:

Counsel:

Applicant : No appearance

Solicitors:

Applicant : CGL Legal

Case(s) referred to in judgment(s):

Lashko v Lashko [2011] WASC 214
Re Bennett [2006] QSC 250

1 REGISTRAR C BOYLE: On 7 March 2014 the applicant Danica Allana Weeks drove her husband Paul Allan Weeks to Perth International Airport where he boarded a flight to Kuala Lumpur. Mr Weeks was an engineer who was travelling to a new job in Mongolia via Kuala Lumpur and Beijing.

2 Evidence to which I refer later in these reasons satisfies me that Mr Weeks reached Kuala Lumpur and further that he then boarded Malaysia Airlines flight MH370 to Beijing. As is both a notorious fact and is the subject of evidence before me, that flight disappeared. There has been no trace since of either Mr Weeks or any other person on board that aircraft.

3 Mrs Weeks applies for leave to swear to the death of her husband so that she can apply for letters of administration. There is an urgency about the circumstances, the details of which are not presently relevant. But it is why an application filed only on Monday of this week is being dealt with today.

The legal framework

4 Rule 34 of the Non-contentious Probate Rules 1967 (WA) provides:

34. Application for leave to swear to death

An application for leave to swear to the death of a person shall be made to the Registrar by originating motion and shall be supported by an affidavit setting out the grounds of the application and particulars…

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.

Continue reading Re Paul Allan Weeks

Details

AGLC: Re Paul Allan Weeks [2016] WASC 25
Case: [2016] WASC 25
Decision Date: 22 JANUARY 2016

CaseChat Overview and Summary

The parties involved in the case of Re Paul Allan Weeks were the applicants who sought leave to swear to death of Paul Allan Weeks, a missing person. The dispute centred on the legal procedures required to declare a person dead in the absence of a body or any other evidence of death. The case was heard in the Supreme Court of Victoria. The applicants argued that they had sufficient grounds to presume that Paul Allan Weeks had died, despite the lack of direct evidence, and requested that they be granted leave to swear to death.

The primary legal issue the court had to address was whether the applicants had provided enough evidence to justify granting leave to swear to death, and whether this process was distinct from the declaration of a presumption of death under relevant legislation. The applicants needed to demonstrate that Paul Allan Weeks had been missing for a substantial period and that there was no evidence to suggest he was alive. The court had to determine if the Non-contentious Probate Rules allowed for this kind of declaration under rule 34, and if it was separate from statutory presumption of death provisions.

The court found that the applicants had provided sufficient evidence to support the presumption that Paul Allan Weeks had died. The court acknowledged the distinction between the leave to swear to death under rule 34 of the Non-contentious Probate Rules and the statutory declaration of a presumption of death. It was concluded that the leave under rule 34 was an administrative procedure within the court's jurisdiction, distinct from the statutory declaration, which required a different standard of proof. The court granted leave to the applicants to swear to death, recognising the compelling circumstances and the lack of evidence to the contrary. The final orders were made accordingly, allowing the applicants to proceed with the necessary formalities to declare Paul Allan Weeks legally dead.

Orders

Orders of the court

Leave granted to swear to death

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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