Re Paul Allan Weeks
[2016] WASC 25
•22 JANUARY 2016
RE PAUL ALLAN WEEKS; EX PARTE WEEKS [2016] WASC 25
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WASC 25 | |
| Case No: | PRO:283/2016 | ON THE PAPERS | |
| Coram: | REGISTRAR C BOYLE | 22/01/16 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Leave granted to swear to death | ||
| 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
The Estate of Paul Allan Weeks late of 44 Pavilion Circle, The Vines, Western Australia, deceased
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 of all policies of insurance on the life of the person the subject of the application.
6 In other cases, even where no certificate issued by a relevant authority is available, it may be possible for the applicant to swear to the fact of death of his or her own knowledge, or to adduce other admissible evidence of death. But there are circumstances such as the present where no such evidence is available. The function of r 34 is to empower a registrar to grant leave to an applicant to swear to the fact of death for the purposes of obtaining a grant of representation.
7 That is to be distinguished from the power in the court to declare that a person is presumed to be dead. The latter form of order is of broader import and not within the jurisdiction of a registrar: Lashko v Lashko [2011] WASC 214 [5]. It is a declaratory judgment, with all that implies.
8 The scope and nature of an application for leave to swear to death is summarised in Tristram and Coote's Probate Practice (27th ed) at page 534 - 535:
Where the applicant for a grant cannot swear in his oath to the death of the deceased, and there is no direct evidence of his being dead, but only evidence from which his death may be presumed to have taken place, application must be made for an order giving him leave to swear to the death. Such a presumption may arise: (1) from the disappearance of the presumed deceased at or after a given time, and from the circumstances attending such disappearance, or from his not having been heard of for a prolonged period by those with whom he might reasonably have been expected to communicate; or (2) from his having been on board a ship, which, from its non-arrival in port within a reasonable time, from the absence of tidings of any of those on board, and from other circumstances, is supposed to have been lost at sea; and similarly in the case of a missing or totally destroyed aeroplane.
9 One of the footnotes to that passage reads:
13 It must always be remembered in these cases that the court does not presume the death of the deceased; it merely gives the applicant leave to swear the death (Re Jackson's Goods (1902) 87 LT 747).
10 Leave is to be given to swear to death if, and only if, the court is satisfied to the requisite standard that the person in question has died. Particularly in circumstances such as these, that is a question of fact.
11 There is some question in the authorities about whether there ever was, or still is, a presumption of continuing life. That is alluded to in Lashko at [9]. But even if there were such a presumption it would be overwhelmed by the facts of this case.
12 In Re Bennett [2006] QSC 250, Atkinson J dealt with the disappearance of a professional diver off the coast of Korea a little over two years before the date of hearing. After referring to the presumption of death after seven years, Her Honour observed:
If, however, there is evidence before the Court from which the Court can safely infer that the person has died it is not necessary to wait the seven years for the Court to infer death.
13 That decision and others were referred to with approval by Heenan J in Lashko at [11] - [14].
The evidence
14 The applicant has sworn an affidavit in support dated 14 January. She deposes that she and Mr Weeks were married on 17 November 2007 in Christchurch, New Zealand. There are two sons of the marriage, Lincoln born 4 September 2010 and Jack born 9 April 2013. One reason those facts are relevant is that they establish, together with certain other matters sworn to in another affidavit the applicant has sworn in support of her foreshadowed application for letters of administration, that if Mr Weeks is dead then it is she who is entitled to apply for letters of administration and accordingly has standing to seek leave to swear to the fact of death.
15 There is no reason to doubt the applicant's evidence that she drove her husband to the airport and that he boarded the flight to Kuala Lumpur. He had a ticket for onward legs to Beijing on Malaysia Airlines MH370 and thence to Ulaanbaatar by Mongolian Airlines.
16 Mrs Weeks further deposes that she subsequently received an email from her husband. It is attached to her affidavit. It comes from him in Kuala Lumpur and speaks of his onward trip. It is dated 7 March 2014 at 10:53:04pm AWST.
17 The affidavit further deposes that the applicant was shown by the Australian Federal Police photographs taken from CCTV footage at the Kuala Lumpur International Airport screening point adjacent to the boarding lounge for MH370. She identified her husband in those photographs and they indicate he was in the airport prior to boarding the aircraft.
18 I am satisfied that Mr Weeks did board MH370 at Kuala Lumpur International Airport around midnight on 7-8 March 2014.
19 There is additional material in the affidavit swearing to attachments that are various advices from Malaysia Airlines, the Malaysian Government, and the Australian Government, all to the general effect that (bar one aircraft component found months later on La Réunion) nothing has since been found of the aircraft or its occupants. On a strict analysis much of that material might be hearsay but as I alluded to earlier, I find that it is a fact so notorious that as a judicial officer sitting in Western Australia I can take note of it, that MH370 disappeared and there is now no hope of survivors. All those aboard must be presumed to be dead.
20 It follows that the applicant should have leave to swear to the death of her husband. The date of death may be taken to be 8 March 2014.
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