SUPREME COURT OF WESTERN AUSTRALIA IN CHAMBERS
RE IAN STEVEN TOLLI; EX PARTE TOLLI [2023] WASC 71
REGISTRAR FATHARLY ON THE PAPERS
9 MARCH 2023 CIV 1524 of 2021
Rule 34 Non-contentious Probate Rules 1967 (WA) The Estate of Ian Steven Tolli
EXPARTE
ANN ARGENT
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 : Gregson & Associates
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
Re Paul Charlton Millachip; Ex Parte Millachip [2022] WASC 346
REGISTRAR FATHARLY:
Leave to Swear to death
The Crime Stoppers Western Australia m1ssmg persons information I at the date of these reasons for the open case of Ian Steven Tolli states:
On 15 December 2020, Ian Tolli left his home address to go kayaking at Point Peron, Western Australia.
Ian was last observed paddling out in his kayak. When he failed to return home as expected he was reported missing by his housemate. A marine search was conducted in the vicinity and a kayak and paddle were located separately at sea, however Ian has not been seen since.
Anyone with information which may assist in locating the whereabouts of Ian are asked to call Crime Stoppers on 1800 333 000 or make a report online at www.crimestopperswa.com.au
Reports to Crime Stoppers can be made anonymously.
2 Following an extensive air, sea and land search, Ian’s orange kayak and the paddle were reportedly found about 300m from the coast near Kwinana Beach but Ian has never been found.
3 Upon Ian’s disappearance, Ian’s silver 1996 Mitsubishi Lancer remained abandoned in the car park at Point Peron near where he had been seen entering the water with his kayak. No valuables were in the vehicle, such as a mobile phone or wallet, only rubbish, a Hawaiian shirt and a pair of thongs.
4 Ian’s sister Ann Argent has applied for leave to swear to Ian’s death so that she can apply to administer his estate according to law, she being his next of kin. She has sworn to her belief that Ian has disappeared and is dead.
s For ease of reference, with no intended disrespect, each family member will be referred to by their first name.
1 Crime Stoppers WA website: MISSING PERSON – IAN STEVEN TOLLI – POINT PERON WA – Crime Stoppers Western Australia (crimestopperswa.com.au).
Satisfaction as to the fact of death
6 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).
7 In my recent decision Re Paul Charlton Millachip; Ex Parte Millachip [2022] WASC 346 at [7] I made reference to the legal framework for an application for leave to swear to the death as being set out in 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 being the distinction drawn 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.
s I also referred, at [9], to the decisions of EM Heenan Jin 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 which 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 ofby those who could be expected to have heard, he or she will be presumed to have died sometime during that absence unless there is proof to the contrary that the person is alive.
9 No such declaration is sought or to be made in this case and Ian has not been absent for seven years. This application is for leave to swear to the death not for a declaration of presumption of death.
1o 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. Ann should be granted leave if I am satisfied that Ian has died.
The facts as known on or about 15 and 16 December 2020
11 Ann swore affidavits filed on 14 June 2021 and 18 February 2022 in support of the motion for leave to swear to Ian’s death filed 14 June 2021.
12 The facts stated below in relation to 15 and 16 December 2020 and since then are taken from Ann’s 14 June 2021 affidavit.
13 Ann resides outside Western Australia.
14 On or around 17 December 2021 Ann received a telephone call from a Detective Sergeant from Rockingham Police Station informing her:
(a) Ian was reported missing by his housemates on 16 December 2020 after he did not return from kayaking at Point Peron;
(b) Ian was last seen by witnesses entering the water at Point Peron with his kayak;
(c) several marine rescue crews, Water Police and the Police Air Wing were involved in searching for Ian in and around Point Peron;
(d) Ian’s vehicle was located in the carpark at Point Peron where he went missing.
15 Ann’s 14 June 2021 affidavit had attached copies of seven different news reports of 16 December 2020.
16 The news reports, by way of summary, refer to:
(a) a large scale search being underway for an inexperienced kayaker missing of Point Peron since Tuesday afternoon, 15 December 2020 around 1.30 pm;
(b) Ian’s orange kayak was reportedly found about 300m from the coast, near Kwinana Beach. It was reported to be old but in reasonable condition;
(c) in recent years there have been regular shark sightings around Point Peron;
(d) Ian was believed to have a life jacket with him which was old and light brown or grey in colour;
(e) a description of Ian, some with a photograph of Ian and his kayak;
(f) two men having been rescued off Point Peron on the afternoon of Wednesday 16 December 2020 after their 4.2m aluminium
boat sank when it was hit by a large wave. They had life jackets, emergency position EPIRB radio transmitter and flares aboard and were rescued by crews searching for Ian, however they were not Ian;
(g) the search for Ian carried on for two days with marine, air, SES and volunteer marine rescue resources involving 50 to 60 people. Marine rescue crews were involved from Rockingham, Mandurah, Cockburn and Fremantle as part of the search together with Water Police, Police Air Wing and Surf Life Saving WA. Shoreline patrols were carried out in the area including by the Police;
(h) Ian was believed to be wearing a Hawaiian shirt and shorts when he disappeared.
17 On 17 December 2020 Ann was also emailed by the Detective to advise that Ian’s vehicle, still at Point Peron in the carpark, may be towed from that location. It was arranged to be towed to Ann’s niece, Janine Argent’s, house for safe keeping.
1s As at 4 January 2021, by letter sent from a Detective in the Western Australia Police (WAPOL) Missing Person Team, a file reference was provided to Ann and it was expressed in that letter that WAPOL held significant concerns for Ian’s welfare. At that time, it stated, despite significant investigation, they had been unable to locate Ian or confirm his welfare with no confirmed contact since 15 December 2020. The letter stated that Ian was last sighted kayaking near Point Peron, Western Australia, and a significant marine and land search and rescue was conducted.
19 By an email from another officer of the Missing Person Team on 19 January 2021, it was stated that WAPOL were not treating Ian’s disappearance as suspicious at that time but as an unfortunate accident, and that there were multiple witnesses placing Ian at the foreshore in his car with his kayak and getting into the water. There were further witnesses stating that they saw a male who appeared to be struggling on his kayak and the conditions were not ideal. That email further stated that:
… as his kayak is recovered from the ocean and his car is still in the car park it is presumed he came off his kayak.
20 The WAPOL correspondence expressly stated that there was no suggestion of any criminality in the disappearance, there being a number of eyewitness accounts at the location of the disappearance.
21 On 3 March 2021 Ann provided a DNA sample at her local police station.
22 In or around late April 2021 the Missing Person Unit advised Ann that a bone had been located in or around the area Ian disappeared and its DNA was compared to Ann’s DNA. The DNA was not a positive match to Ann’s DNA and they did not believe the bone belonged to Ian.
23 The late April 2021 communication was the last Missing Persons Unit update to Ann prior to her 14 June 2021 affidavit.
24 As to Ian’s bank accounts, in late December 2020 Ann attended a bank branch near where she lives to close Ian’s accounts, producing the 4 January 2021 WAPOL letter to them. She was informed the accounts were closed and, to the date of the 14 June 2021 affidavit, had not received further correspondence from them regarding any attempt to access the accounts.
2s As at the date of the 14 June 2021 affidavit, through ongoing correspondence with WAPOL in relation to Ian’s disappearance, Ann was made aware of Ian’s status as a missing person and since December 2020 Ann had had contact with various WAPOL officers in relation to the ongoing investigation of Ian’s disappearance.
26 Much of the information provided in the affidavits in support of Ann’s application is from other sources relied upon by Ann. There was one letter, one email and one phone call from WAPOL as well as seven online news reports.
21 Ann believes that Ian is missing and that he is deceased but she relies for that belief and for this application upon what she has been told by others or seen reported as to the fact of Ian’s disappearance and likely death.
2s Much of what she has stated is essentially hearsay. The difficulty arising is that the object of the evidence given by Ann is to establish the truth of what she has been told orally or in writing not merely the fact that that is what she was told or provided in writing.
29 Following the filing of Ann’s first affidavit I held a directions hearing with respect of the matter given the application was being made for leave to swear to the death within six months of the disappearance with Ian remaining a missing person and there being concerns about the nature and extent of the evidence filed in support of the application.
30 On 19 August 2021 further and updated information was ordered in support prior to determination of the application. Two further affidavits were filed.
31 A further directions hearing was held 14 June 2022 to determine whether further evidence was available or to be provided. No further affidavit has been made available since.
Ann’s 18 February 2022 affidavit
32 In Ann’s affidavit filed 18 February 2022 she set out Ian’s family and personal circumstances, confirmed Ian’s status still as a missing person and provided updated information. The additional information is set out below.
33 On 22 September 2021 WAPOL provided a memorandum to Ann’s solicitors stating:
On 15 December 2020 Ian TOLLI was reported missing to police.
It is believed that Ian TOLLI was lost at sea after coming off his kayak.
An extensive search was conducted; however, Ian TOLLI was not located and to today is still classed as a missing person by the definition of the Western Australian Police:
Any person who is reported missing to Police whose whereabouts are unknown and there is a genuine and serious concern for their welfare and safety.
Routine proof of life checks has [sic] been conducted since Ian TOLLI was reported missing all with a negative result.
34 To the extent of personal circumstances they are relevantly set out below.
35 Ann’s intention is to apply for a grant of letters of administration by an Australian legal practitioner located within the jurisdiction as an attorney under s 34 Administration Act 1903. That form of application for a grant is appropriate with respect to Ian’s intestate estate if I am
satisfied that leave should be granted to swear to the death. A draft application for a grant was attached to Ann’s affidavit.
Affidavit of Janine Argent
36 On 22 March 2022 Ann’s solicitors filed an affidavit of Janine Argent sworn 24 November 2021. The following is set out in her affidavit.
37 Janine’s uncle Ken is married to Ann, however she has never met Ian nor had contact with him. She is not related to Ian other than by Ann’s marriage to her uncle.
38 On 16 December 2020 Janine received a call from Ann telling her that:
(a) Ian had gone m1ssmg after kayaking at Point Peron on 15 December 2020;
(b) WAPOL had suspected Ian had drowned and they were still looking for him;
(c) Ian’s vehicle was left at the car park at Point Peron and WAPOL had given permission to tow the vehicle from the car park to another location for safe keeping.
39 On 17 December 2020 Ann called her again asking her to assist with moving Ian’s vehicle from the carpark. Once WAPOL had finished the examination she was given permission to have it removed. Ann asked if she could assist with moving the vehicle.
40 On 18 December 2020 Janine arranged for her friend to bring his car trailer to Point Peron to collect Ian’s silver 1996 Mitsubishi Lancer to store it at a property, it being a difficult process as there was no key.
41 Janine stated that there were no valuables left in the vehicle, such as a mobile phone or wallet, only rubbish, a Hawaiian shirt and a pair of thongs.
42 After receiving a key for the vehicle it was driven back to Janine’s garage for storage. It remains at her property.
43 Janine was given access to Ian’s property to collect any valuables on 17 December 2020. Based upon that access:
(a) Janine believed Ian’s house was being occupied by three people and there was one person living on the property in a caravan;
(b) the occupants of the house would not give her access to Ian’s house. They gave her access to the shed which is where they claimed Ian was living prior to his disappearance;
(c) while in the shed she took several photographs and collected some paperwork to be sent to Ann, copies of which photographs were attached to her affidavit;
(d) she found a calendar on which the days that had passed had been crossed off but not on or after 16 December 2020. A copy of the photographs she took of the calendar page for December 2020 was attached to the affidavit;
(e) she did not see Ian at the property.
44 Within the photographs of the shed attached to Janine’s affidavit it appeared that:
(a) the person who occupied the shed lived very modestly;
(b) the December 2020 calendar page made reference to ‘SEND ANN A CHRISSY CARD AND MONEY INSIDE KEN AND HER’;
(c) There was reference on the calendar page for December 2020 on dates after 15 December to future matters including hoping to have the house back and to what appears to be reference to the boarders leaving the house. There was hope for a better 2021 than 2020.
45 On 30 April 2021 she drove past Ian’s property:
(a) she could not see Ian at the property;
(b) the property appeared to be inhabited by the same four people as were there during her visit in December 2020.
46 As at the date of the affidavit she had not been contacted by Ian or seen him at his property.
Ian’s circumstances
47 Ian’s personal circumstances are taken from a combination of Ann’s affidavits.
48 Ann is Ian’s next of kin and has one other sister Kathryn surviving him. There are no other half-brothers or sisters surviving him.
49 Ian was predeceased by his father, his mother, and his older brother.
50 Ian does not have any children, any spouse or de facto partner.
51 Ian was born in 1966 and was 54 at the date of his disappearance.
52 Ian owned his own home and had tenants living with him at the property.
53 In or around 2019 Ian informed Ann during a telephone conversation that he had been diagnosed with thyroid cancer. That cancer caused significant dental and jaw issues for Ian as a result of which he had jaw surgery and his back teeth removed. Subsequently his jaw broke requiring further surgery.
54 Ian had had ongoing health issues since 2018 apart from his cancer, including problems with his hip. Those issues prevented him from being unable to participate in several activities such as work and travelling. In December 2018 Ian wrote a letter to Ann, a copy of which she attached to her application, stating that he was too unwell to fly interstate to attend their mother’s funeral. Within that letter Ian stated, without providing details, that, ‘as my health isn’t good at all I cannot be flying in from Perth’.
55 In or around 2019, Ian informed Ann that he was due to have hip replacement surgery in 2020 but it was rescheduled to 2021.
56 Ian was unemployed at the date of his disappearance as his declining health meant it was difficult for him to meet the physical demands of his trade as a carpenter.
57 Prior to his disappearance, approximately once per month, Ian and Ann would post each other letters to communicate. In one of those he informed Ann that his goal in 2021 was to ask his tenants to leave so that he could renovate the property and sell it. After selling it he had stated his intention to live in Margaret River.
58 Occasionally Ann would speak with Ian on the telephone, particularly when Ian’s cancer was upsetting him.
59 The last contact Ann had with Ian was by telephone on 14 December 2020 when she received a call from Ian. He asked her if she received his Christmas present, being a card and a cup. Copies of that card and a previous undated letter from Ian to Ann were attached to her affidavit filed 18 February 2022.
60 The context of the letter, while undated, could be ascertained from the content referring to having two operations coming up, one on his throat and one on his hip, and having cut back on pain killers. Reference was made to ‘hacking up what is left of my reconstructed jaw’.
61 Ian had not been working since in or about 2012 and Ann is unaware of any previous employer who may be aware of whether Ian had any superannuation or life insurance policies. Without a death certificate and grant of letters of administration making such inquiries has proved difficult.
Consideration of evidence in support of application
62 There was nothing within the Christmas card, the letter, or elsewhere within the application to suggest that Ian was suffering from depression, was struggling to cope with his circumstances or life or he was in any way feeling suicidal. There was no form of suicide note or any suggestion that Ian would not be returning home as usual after kayaking.
63 The content of the calendar in the shed was consistent with statements Ian made to Ann and Ian’s actions in that:
(a) the reference on the calendar to sending a Christmas card to Ann and Ken was consistent with Ian having done so, although he did not send money. Ken was referred to in the calendar and the letter Ian had written to Ann;
(b) the reference on the calendar to boarders leaving and having the house back was consistent with what Ian told Ann, so that he could renovate and sell the house;
(c) the writing on the calendar was similar in style to that in the letter to Ann;
(d) there was, relevantly, discussion between Ian and Ann about the future and future events. Items marked on the calendar made no suggestion that Ian was suicidal or there was any reason that he would not return to the house after kayaking;
(e) clearly, given Ian’s health circumstances and cancer treatment, his surgeries and need for further surgery, and his unemployment, Ian had good reason to hope for a better year in 2021 than he had had in 2020 as mentioned on the calendar but there is no suggestion he had given up on life.
64 There is a distinction to be drawn between this case and the circumstances of swearing to the death in the case of Re Paul Charlton Millachip; Ex Parte Millachip. In that case there was a quick and brutal shark attack upon a swimmer which was witnessed and of which there was some video evidence, the description of the attacked victim matching that of the missing Paul Millachip, and his goggles were found although his body was not found. The search had begun within IO minutes of a call to emergency services. I was satisfied that Paul died as a result of the shark attack and that leave should be granted to swear to the death.
65 It is true that much of the information relied upon by Paul’s wife in that case was what she had been told by others and therefore hearsay, although:
(a) she had been with Paul immediately before he was swimming, she knew exactly where he was to swim and his routine;
(b) she was there when he did not return and the search was being undertaken;
(c) she personally attended with WAPOL;
(d) ultimately there was no other reason or explanation other than by reason of the shark attack proving fatal to Paul that Paul had not returned home with her as usual.
66 While there was much additional correspondence and media reports provided with that application, Paul was not in fact considered a missing person but one who had died that day although a significant recovery search took place.
67 What differs in this case, based upon the evidence provided, is that:
(a) Ann was at no time with Ian at any time immediately prior to his going missing and has not provided evidence of having been in Perth since, so much of the information relied upon is what others have told her. Paul’s wife had provided firsthand evidence of her involvement on and about the day and subsequently.
(b) Witnesses apparently told WAPOL that they had seen Ian in the car park or entering the water or kayaking or perhaps struggling in the conditions. Those reports were obtained by WAPOL who in tum summarised them and provided that information by way of brief correspondence or telephone relied upon by Ann, who swore her affidavits. While there is no reason not to believe what WAPOL have reported to Ann, this is by no means a firsthand account of events.
(c) Ian was and is still treated as a missing person suggesting the possibility of him being alive. There is no positive evidence of a death having occurred. It is possible Ian was able to make it back to shore. It is also possible he drowned or was swept out further into the ocean and subsequently died.
(d) Other than in a media report, there is no suggestion or speculation in the evidence that Ian was attacked by a shark although that cannot be ruled out as a possibility given that it is well known that sharks are frequently sighted or located by receivers along the coastal areas of Perth and at times within the Swan River.
68 What is known from the affidavits by way of summary, accepting the truth of the content, is that:
(a) Ian’s housemates were aware that he had gone kayaking and reported to WAPOL the next day, 16 December 2020, that he had not returned home;
(b) Ian’s health was generally poor and he had need for hip surgery, suffered from pain and had been undergoing treatment and surgeries for thyroid cancer;
(c) WAPOL reported that Ian was seen at Point Peron entering the water with his kayak after parking there;
(d) Ian was known not to be an experienced kayaker;
(e) WAPOL reported that a man was seen on a kayak struggling in the conditions. It is not known whether that was Ian. Even if it was not, it supports the statement that conditions were difficult;
(f) WAPOL and other authorities and volunteers undertook an extensive air, sea and land search in an effort to locate Ian;
(g) At some stage Ian must have come off his kayak as the kayak was found approximately 300m from Kwinana Beach and the paddle was also found;
(h) The search did not locate Ian but did locate 2 other men on 16 December 2020 whose boat had been capsized in the general area by a large wave in the conditions causing it to sink;
(i) There was extensive media coverage on 16 December 2020 of the fact of Ian’s disappearance and extensive search underway. Had there been any sighting of Ian, a photograph of Ian was in the media coverage;
(i) Ian had no apparent reason not to return home after kayaking;
(k) Ian’s car was left abandoned in the car park until removed on 17 December 2020 for safe keeping;
(1) Ian has not contacted anyone since the day he went missing;
(m) Ian is not known to have been home since he went missing;
(n) Ian has not contacted WAPOL to report his car missing;
(o) Ian has not accessed his bank accounts or attempted to do so;
(p) Neither Ian nor his remains have been found;
(q) Ian remains listed as a missing person by Crime Stoppers on their website.
69 If, as reported, Ian went kayaking at 1.30 pm on 15 December 2020, it is also well known to residents of Perth and surrounding areas that there is usually a strong wind which blows from the south west
each day from the early afternoon in the summer which can make conditions rough and while there is no specific evidence about the conditions that day other than being difficult, it may be a factor given that Point Peron is the end of a small peninsula extending from Rockingham Beach.
70 So far as information is provided by third parties I rely upon information provided by WAPOL rather than media reports. However the media reports are relevant to explaining the nature of the wide scale search undertaken and the considerable media coverage at the time with photos of Ian included. Had Ian made it back to shore or been located it is likely that:
(a) he would have been recognised and WAPOL or Crime Stoppers notified that he had been found;
(b) he would have contacted his family;
(c) he would have contacted his housemates and returned home;
(d) he would have tried to find his kayak;
(e) he would have tried to retrieve his car or take steps to find it when moved, such as reporting it missing to WAPOL;
(f) he would have tried to access his bank accounts.
71 None of those things have occurred.
72 While an 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, no inquest has occurred at this time so far as the Court is aware.
73 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.
Conclusion
74 Based upon the matters set out above, and despite the fact that Ian is still listed as a missing person, I am satisfied that:
(a) Ian has died at or about the time he went missing on 15 or 16 December 2020;
(b) Ann should be given leave to swear to Ian’s death.