Re Paul Charlton Millachip - [2022] WASC 346

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   RE PAUL CHARLTON MILLACHIP; EX PARTE MILLACHIP [2022] WASC 346
CORAM:   REGISTRAR FATHARLY
HEARD:   ON THE PAPERS
DELIVERED          :   21 OCTOBER 2022
PUBLISHED           :   21 OCTOBER 2022
FILE NO/S:   PRO 2111 of 2022
MATTER: Rule 34 Non-contentious Probate Rules 1967 (WA)
The Estate of Paul Charlton Millachip
EX PARTE

THIRL MILLACHIP
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:

Non-contentious Probate Rules 1967 (WA) r 34

Result:

Leave granted to swear to death

Category: B

Representation:

Counsel:

Applicant

No appearance

Solicitors:

Applicant

Culshaw Miller Lawyers

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

Lashko v Lashko [2011] WASC 214
Re Application for Grant of Presumption of Death; Ex Parte Craig Charles Park [2022] WASC 230
Re Paul Allan Weeks; Ex Parte Weeks [2016] WASC 25

REGISTRAR FATHARLY:

Leave to swear to death

Port Beach in North Fremantle is a popular beach at which to swim and exercise. On the morning of Saturday 6 November 2021, Paul Charlton Millachip and his wife Thirl attended Port Beach together to run and swim as they typically did several times a week at that time.
After running, Paul changed into his Speedo swim briefs and black Speedo goggles and told Thirl he intended to swim 500 metres out towards the sea wall at one end of the beach then back towards the change rooms. He swam about 30 metres out from, then parallel to, the shore. He was wearing his electronic sports fitness watch with a bright orange wrist band.
Soon after Paul commenced swimming that day there was a notorious shark attack upon a swimmer at Port Beach, apparently quick, brutal and not survivable. The attack upon a swimmer wearing an orange watch strap was witnessed and there was some video evidence.
Paul has never been seen since and his body never found, only his goggles.
Thirl Millachip has applied for leave to swear to Paul's death so that she may apply for a grant of probate as executor of his will. I am satisfied that that leave should be given.

Satisfaction as to the fact of death

An application for leave to swear to the death of a person may be made to a registrar under r 34 of the Non-contentious Probate Rules 1967 (WA).
The legal framework for an application for leave to swear to the death of a person need not be repeated here. It is set out in detail in the decision of Re Paul Allan Weeks; Ex Parte Weeks [2016] WASC 25, (Registrar C Boyle) at [4] ‑ [13]. Of particular relevance is the distinction referred to at [6] ‑ [7]:
(a)the purpose 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;
(b)that is to be…

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 Charlton Millachip

Details

AGLC: Re Paul Charlton Millachip [2022] WASC 346
Case: [2022] WASC 346
Decision Date

CaseChat Overview and Summary

Thirl Millachip has applied for leave to swear to the death of Paul Charlton Millachip, who went missing after a shark attack at Port Beach in North Fremantle on 6 November 2021. Thirl seeks leave to swear to Paul's death to facilitate her application for a grant of probate as executor of his will. The court must determine whether Thirl can be granted leave to swear to Paul's death under Rule 34 of the Non-contentious Probate Rules 1967 (WA).

The court distinguishes between leave to swear to death under Rule 34 and a declaration of presumed death, noting that the former is a question of fact and the latter a matter of law. Thirl's application is for leave to swear to death, not a declaration of presumed death. The court examines the evidence provided by Thirl, including witness statements, video evidence, and the recovery of Paul's goggles, which were found and matched his DNA. The police confirmed that the search for Paul had been called off as they were confident that if he were to be found, he would have been found by then.

The court concludes that Thirl has provided sufficient evidence to satisfy it that Paul died as a result of the shark attack on 6 November 2021, and there is no apparent reason for him not to have returned home with Thirl. Given the circumstances and the distress caused by the inability to obtain a death certificate, the court grants Thirl leave to swear to Paul's death.

The court orders that Thirl Millachip be granted leave to swear to the death of Paul Charlton Millachip.

Orders