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 distinguished from the power of the court, beyond the jurisdiction of a registrar, to declare that the person is presumed to be dead.
Leave is to be given to swear to the death if the court is satisfied that the person has died. That is a question of fact.
The decisions of EM Heenan J in Lashko v Lashko [2011] WASC 214 and Smith J in Re Application for Grant of Presumption of Death; Ex Parte Craig Charles Park [2022] WASC 230 involved applications for declaratory relief, seeking 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 that absence unless there is proof to the contrary that the person is alive. No such declaration is sought or to be made in this case.

The facts as known on 6 and 7 November 2021

Thirl Millachip has sworn an affidavit dated 26 May 2022 in support of a motion for leave to swear to Paul's death. The facts stated below of 6 and 7 November 2021 and since then are taken from the affidavit. For ease of reference, with no intended disrespect, each family member will be referred to by their first name.
Paul was born on 28 January 1964. He was 57 years old in 2021. He and Thirl married on 18 August 1989. They had therefore been married over 32 years. They had two children, Adam born in 1996 and Gena born in 1998.
On the morning of Saturday 6 November 2021, Paul and Thirl travelled together by car to Port Beach, North Fremantle for a run and swim. They had done so together several times every week between late September and 6 November 2021.
After arriving at the beach, Paul and Thirl ran in separate directions, then met again at their car, collected their bags and headed to the change rooms. Thirl left her bag on the rocks, briefly went into the ocean in her running clothes then got out again as it was cool. Paul at that point was coming down from the change rooms and passed her as he headed into the water.
Paul was seen by Thirl to be wearing his Speedo swim briefs, black Speedo goggles, and his GPS‑enabled sports watch with a bright orange wrist band.
After Paul had explained to Thirl where he intended to swim, he swam out 30 metres from shore and parallel to it. Thirl then walked up the sand to collect her bag, noting that Paul's bag had been placed next to hers, went to the change rooms herself to shower and change, then placed her bag in the car and returned.
Thirl walked back to the sand near the change rooms at about 10.00 am. At that time:
(a)no one could be seen in the water and she noticed a commotion going on;
(b)she walked back down the beach and noticed Paul's bag still there. She thought that strange and estimated that Paul should be just about finishing his swim by that time;
(c)she could not see Paul anywhere; and
(d)she ran along the sand towards the sea wall where there were quite a few people gathered including police, surf lifesavers and boats in the water.
Thirl told one of the police officers that she could not see her husband. She was told by an officer that there had been a reported shark attack. A separate officer took an initial statement from her and at least one officer remained with her from that point.
Thirl contacted Adam and Gena who drove to the beach by about 10.45 am.
There were many people around including members of the press, a number of boats and jet skis in the water and a helicopter searching from overhead.
A police officer walked with Thirl to collect Paul's bag, which contained amongst other things his clothes and glasses.
Thirl was asked by one police officer for a description of Paul and what he was wearing, which she provided, including as to his black Speedo goggles and sports watch with an orange band. The officer relayed that information to another person by radio, then informed Thirl that a pair of goggles matching the description had been found and were on board the police boat.
Thirl, Adam and Gena were accompanied by police to the Fremantle Surf Lifesaving Club annex at Port Beach and remained there until 1.00 pm before returning home.
That afternoon, Thirl reviewed Paul's mobile phone and the location tracking data of Paul's watch. The location was not shown, however information about the watch tracking was provided to the police.
At around 3.00 pm Thirl and Adam returned to the beach, climbing onto the sea wall. They could see around six boats and a number of jet skis moving together in a grid pattern searching the water.
At about 3.10 pm two police officers met with Thirl and Adam. They told Thirl that the police had reviewed witness statements and video evidence and it was their view that the shark attack was quick, brutal and not survivable. They told Thirl that they had formed the view that there was very strong evidence that the victim was Paul.
The two officers took Thirl and Adam to WA Water Police Headquarters where they met with Acting Inspector Troy Douglas who explained to Thirl:
(a)what had been done so far including gathering witness statements and video evidence, and collection of the goggles;
(b)the fact that the search was ongoing;
(c)four teenage boys in two boats were present and had witnessed the shark attack. There was some video footage provided by the boys and the description of the swimmer attacked by the shark matched her description of Paul, including details of his orange watch strap;
(d)Thirl's description of the goggles matched those that had been found;
(e)the attack was believed to be quick, vicious and not survivable, and that Paul's body likely disappeared quickly;
(f)the search had begun 10 minutes after the first call to emergency services;
(g)because of the evidence gathered so far in the investigation, the search and rescue operation was now a recovery operation, with the hope that Paul's body or part of it could be found.
Thirl spoke with the Water Police and was shown the monitors tracking the search. She was advised that there was a Department of Fisheries boat with sonar being utilised as part of the search, which, she was advised, would be able to detect any anomalies on the seabed whereas the other boats and helicopters would check the surface.
Thirl stated that at dusk the boats and jet skis returned to their bases and shore patrols continued through the night. She and Adam returned home at about 5.00 pm.
On the morning of 7 November 2021, Thirl, Adam and Gena returned to Port Beach and watched the recovery operation continue in the water. Early that afternoon she again met with Acting Inspector Douglas and was told the search area had been widened.
Acting Inspector Douglas told Thirl that afternoon that the Water Police had reviewed all data available and were confident that if anything was to be found they would have found it by that time. For that reason Acting Inspector Douglas told Thirl that a decision had been made to call off the search at 4.00 pm on 7 November 2021 and reiterated to Thirl that as Paul was not considered a missing person, there would be no need for her to file a missing person report.
Thirl and Acting Inspector Douglas participated in a press conference on the afternoon of 7 November 2021 to thank those involved including the boys who had bravely warned others of the danger and gave detailed statements which helped in identifying Paul. Paul was named as the swimmer attacked by the shark.
Attached to Thirl's affidavit are news reports which included an ABC News report on 7 November 2021: 'WA shark bite victim named as search is called off at Fremantle's Port Beach'. That article commenced:
The wife of a man killed after being bitten by a shark at Port Beach in Western Australia has thanked authorities for their efforts as the search is wound down.
The article included:
The incident was witnessed by a group of young people on a boat nearby who alerted emergency services straight away. They were also praised for urging others to get out of the water. Acting Inspector Troy Douglas said the boys were in a dinghy nearby and witnessed the incident. 'They…provided police with information on what they saw and heard', he said.

Facts as known since 7 November 2021

Days after 7 November 2021, a Senior Constable of the Coronial Investigation Squad was appointed in charge of the investigation into Paul's death who took a detailed statement from Thirl and a sample of Paul's DNA for comparison to the goggles found.
On about 17 November 2021, Thirl met with Acting Inspector Douglas again with the boys who witnessed the attack from their boats.
Paul's family held a memorial service for him on 29 November 2021.
To the best of Thirl's knowledge, Paul's goggles were the only piece of evidence found by emergency services.
During one of her many telephone conversations with the Senior Constable, Thirl was told that the goggles had been forensically examined and matched with the DNA sample supplied.
On 6 December 2021 the Coroner's Court issued a notice of investigation into Paul's suspected death. That notice stated that he is suspected to have died on 6 November 2021 as the result of a shark attack whilst swimming in the Indian Ocean off Port Beach, and that to date his body had not been found. At the time the coroner was awaiting a police investigation report before holding an inquest and if satisfied beyond all reasonable doubt, the coroner must inquire into how the death occurred and the cause of death.
Since November 2017, Thirl has regularly followed up with the police and the Coronial Investigation Team seeking details of the investigation and an update on the inquest.

Paul's circumstances

The affidavit filed makes clear that:
(a)Thirl has no doubt that Paul was killed as a result of a shark attack on 6 November 2021, for which there is evidence from police investigations, searches, and news reports and videos as to circumstances;
(b)Paul was a very fit person, a strong swimmer, had competed in the Rottnest Channel swim, participated in a number of half and full ironman triathlons as well as numerous bike events and ultramarathons;
(c)Paul was survived by his wife and two adult children, friends in Western Australia and his family and friends in the United Kingdom, but no person had come forward to advise Thirl of any contact from Paul since 6 November 2021;
(d)Paul and Thirl had joint bank accounts which he has not accessed;
(e)Paul has not accessed any email or social media accounts;
(f)Thirl has Paul's mobile phone and Paul has not contacted that number;
(g)Paul did not, to the best of Thirl's knowledge, hold any life insurance policies solely or jointly with any person.
There is no evidence before me of any reason why Paul would not have gone home with Thirl that day as he had done on every other occasion unless he was unable to do so.

Conclusion

It is clear from the affidavit filed that Thirl herself did not witness the attack. Much of the information relied upon for the circumstances of 6 and 7 November 2021 is what she has been told by others and is therefore hearsay. Nonetheless:
(a)her affidavit set out her own detailed involvement on those dates and since, including as to the fact of not having seen or heard from Paul since he was entering the water on 6 November 2021;
(b)what she has been told and relies upon for circumstances has been stated to her by identified police officers;
(c)the fact and circumstances of the attack were matters of significant media publicity at the time including the press conference by Thirl and Acting Inspector Douglas, at which statements were made publicly by the Acting Inspector about boys witnessing a person being attacked by a shark;
(d)while an attack upon a swimmer was witnessed, there was no person other than Paul considered by police to have been the victim of the attack;
(e)Paul's goggles were found;
(f)despite an extensive air and sea search Paul was not found;
(g)there is no apparent reason or explanation, other than by reason of the notorious shark attack on 6 November 2021 proving to be fatal to Paul, that Paul would not have returned home with Thirl as usual.
While the inquest would lead to the evidence being provided directly to the Coroner's Court from those involved and that evidence would be tested, with determinations by the coroner which may then lead to a death certificate being issued, this Court was advised on 17 October 2022 that the inquest, while tentatively listed, is still to occur.
The ongoing inability to obtain a death certificate and need to administer assets creates ongoing distress which adds to the trauma of what has happened. There is an imperative to determine this application in the circumstances.
I am satisfied that Paul died as a result of a shark attack at Port Beach on 6 November 2021 and that Thirl should be granted leave to swear to the death of her husband Paul.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
LH
Associate to Registrar Fatharly
21 OCTOBER 2022