IN THE ESTATE OF CHAMBERS - [2023] SASC 34

Supreme Court of South Australia
(Testamentary Causes Jurisdiction)
IN THE ESTATE OF CHAMBERS
[2023] SASC 34
Judgment of the Honourable Justice Bampton
10 March 2023
SUCCESSION - PROBATE AND LETTERS OF ADMINISTRATION - EVIDENCE - PRESUMPTION OF AND LEAVE TO SWEAR DEATH
Application pursuant to r 68 of the Probate Rules 2015 (SA) to swear the death of a missing person in respect of whose estate a grant is sought – where missing person has not been seen or heard of since 24 August 2005.
Held (granting the application):
(1)Pursuant to rule 68 of the Probate Rules 2015 (SA), the death of Ryan Anthony Chambers, last seen alive in India on 24 August 2005, whose body has not been located, and whose death is presumed, may be sworn to have occurred on or since 24 August 2005.
(2)Pursuant to section 35 of the Births, Deaths and Marriages Registration Act 1996 (SA), the Registrar of Births, Deaths and Marriages is directed to Register the death of Ryan Anthony Chambers born on 20 March 1984 as having occurred on or since 24 August 2005, the cause and place of death being unknown.
(3)Upon Geoffrey Maxwell Chambers and/or Dianne Coral Chambers making an application for a grant of letters of administration in in a form acceptable to the Registrar of Probates, the Registrar is directed to issue the grant.

Probate Rules 2015 (SA) r 68; Births, Deaths and Marriages Registration Act 1996 (SA) s 35, referred to.
In Re Westover (1987) 139 LSJS 115; Axon v Axon (1937) 59 CLR 395; In the Goods of Matthews [1898] P 17, considered.

IN THE ESTATE OF CHAMBERS
[2023] SASC 34
Testamentary Causes Jurisdiction

BAMPTON J: Ryan Anthony Chambers (“Ryan”) at the age of 21 travelled to India with his friend John William Booker (“John”) in June 2005. Ryan and John arrived at Rishikesh, a city in India’s northern state of Uttarakhand, in the Himalayan foothills, on 18 August 2005. They stayed in the Ved Niketan Ashram (“the Ashram”), a yoga and meditation retreat on the banks of the Ganges. After the evening meal on 23 August 2005, Ryan told John he was going to bed and went to his room in the Ashram adjacent to John’s room.
As John had not seen Ryan by about 11:00 am the next morning, John went to Ryan’s room to look for him. Ryan was not in his room, but John found Ryan’s wallet, passport, and other personal items he usually carried on his person. John then travelled into Rishikesh looking for Ryan, attending all the places they would visit together. As his search was in vain, around 5:00 pm, John rang Ryan’s mother, Dianne Coral Chambers (“Di”), to let her know he could not find Ryan.
John, together with staff at the Ashram, then notified the Laxman Jhulla police station that Ryan was missing. The Laxman Jhulla police commenced enquires in the district to find Ryan. By reference to an entry in Laxman Jhulla police station daily diary, an employee of the Ashram provided a report written in Hindu dated 25 August 2005 regarding Ryan’s disappearance. A translation of the written report appears to state that Ryan was last seen leaving the Ashram at about 5:00 am on 24 August 2005 wearing only dark blue shorts. The translation refers to searches being conducted by Ashram personnel and John in Rishikesh and surrounding districts.[1]
[1] Exhibit GMC-3.
Di reported Ryan’s disappearance to the Department of Foreign Affairs and Trade (“DFAT”) on 25 August 2005 and the following day Ryan’s father, Geoffrey Maxwell Chambers (“Jock”), travelled to Rishikesh to assist with search efforts to locate Ryan. On about 4 September 2005, Ryan’s brother, Jarrad Chambers (“Jarrad”), and John’s father, Stewart Booker (“Stewart”), arrived in India to assist with the search.
Despite the Chambers family searching extensively over many years, Ryan has not been seen or heard of since 24 August 2005.
Application for permission to swear death
Jock makes application, supported by his affidavit sworn 27 October 2022 and an affidavit sworn by John on 4 September 2020, for the Court’s permission to swear the death of Ryan pursuant to r 68 of the Probate Rules 2015 (SA).
Ryan’s disappearance
Ryan, who was born in Darwin on 20 March 1984, met John at primary school in Mount Gambier. Upon completing high school, Ryan and John left Adelaide on 19 June 2005 and travelled to India together. While abroad, Ryan and John were in each other’s company every day, staying in the same accommodations, sharing meals, and exploring India together.
Jock deposed in his affidavit that during the evening of 23 August 2005, Ryan telephoned him in Australia, saying that he had “learned all he wanted in India, had spent enough time away from home and wanted to come home right away”.[2]
[2] FDN 1, [7].
In his affidavit, John deposed that approximately a week prior to 24 August 2005, Ryan told him that he wished to return to Australia. John said he initially thought this was a reaction by Ryan to being over tired.[3]
[3] FDN 5
John was aware Ryan had not slept for approximately three or four days when he last saw Ryan on 23 August 2005. John stated that over the course of those few days, Ryan was having “quite marked mood swings” where he would be acting erratically, with high energy one moment and then very withdrawn and sombre in the next.[4]
[4] FDN 5, [11]-[14].
John deposed that none of his and Ryan’s mutual friends or acquaintances have had any contact from Ryan since his disappearance. John stated that he does not believe Ryan would have been able to obtain any kind of employment in the Rishikesh area and would have had difficulty obtaining food, clothing, and accommodation without accessing his bank account.
Jock deposed Ryan was a cherished member of a close knit and happy family and has no reason to believe that Ryan would deliberately or voluntarily sever all contact with his family. Jock said Ryan had been in contact with him at least weekly whilst in India via emails, text messages and telephone calls. Jock stated Ryan was not in any financial trouble, nor did he have any enemies and he is unaware of any threats having been made towards Ryan. Jock said Ryan had no trade or language skills that would have allowed him to live independently in India with ease. Jock stated no one in Ryan’s family or friendship circles have had any contact with Ryan since 24 August 2005 and Ryan’s bank account has not been accessed by Ryan since this date.
Investigation into Ryan’s disappearance
For a period of two and a half weeks, Jock, Jarrad, John, and Stewart, alongside the Indian police and officers from the Australian High Commission in New Delhi, searched the Rishikesh Neelkanth area, around the Ganges River, and the Rishikesh forest reserves.
The Indian police widely circulated missing person posters depicting Ryan throughout the states of Uttaranchal, Haryana, Punjub, Himachal, Pradesh, and Rajasthan. The Coca Cola company attached missing person posters depicting Ryan on their delivery trucks and crates throughout Uttaranchal.
Following Jock, Jarrad, and Stewart’s return to Australia, John remained in India and continued looking for Ryan for approximately two months. John hired a motor bike to extend the area he was able to search and continued circulating missing person notices to shops, Ashrams, accommodation sites, and public places in the Rishikesh area, but to no avail.
Jock returned to India on 19 November 2005 with his son, Aaron Chambers. Jock engaged private detectives who conducted searches south from Rishikesh down the River Ganges through Haridwar, Dehradun Muzaffarnager, and as far as Agra until 30 November 2005. There remained no sign of Ryan.
A press release was circulated throughout Uttaranchal on 23 November 2005 following which no information was elicited relating to Ryan’s whereabouts.
Jock returned to Australia on 30 November 2005.
Exhibited to Jock’s affidavit is a copy of a report to the Pauri Garhwal Superintendent of Police detailing the police search efforts to find Ryan up to 22 February 2006.
Jock deposed that the Australian High Commission in New Delhi has actively worked with the Indian police to locate Ryan since his disappearance. A copy of a report dated 8 August 2006 from a DFAT employee to Jock and Di detailing the search efforts is exhibited to Jock’s affidavit.
A copy of the Pauri Garhwal Superintendent of Police’s report to the Australian High Commission dated 31 August 2007 and a copy of a report from the Inspector General of Police, Garhwal Range, Dehradun, to the Australian High Commission detailing the search efforts are also exhibited to Jock’s affidavit.
On 16 November 2007, the Australian High Commission in New Dehli communicated with the Pauri Garhwal Superintendent of Police requesting that missing person posters of Ryan be distributed to all police stations falling under the Superintendent’s jurisdiction.
In August 2011, Jock and Di travelled to India to carry out further searches. They were accompanied by a film crew to document the search. Tragically, they did not find any sign of Ryan.
On 24 August 2011, Jock was present at a well-attended press conference conducted by the Deputy General of Police Dehradun JS Pandey who announced the search for Ryan would be reopened and a special task force established for that purpose.
Despite missing persons posters in English and Hindi being widely circulated throughout the states of Uttaranchal, Haryana, Punjab, Himachal, Pradesh, and Rajasthan, no information about Ryan was received.
On 12 December 2018, Claire McCornish, Assistant Secretary Consular Operations Branch of DFAT, wrote to Jock’s solicitor stating that the Australian government, including the Federal Police, had provided extensive assistance supporting the Chambers family in their efforts to locate Ryan. Ms McCornish stated DFAT will continue to work with the Chambers family for as long as they request assistance. Ms McCornish concluded the letter advising that as the investigation in relation to Ryan’s disappearance remains open in India, the Indian authorities are unable to issue a death certificate for him.
Jock described in his affidavit that the Red Cross had also attempted to locate Ryan and, on 9 December 2009, informed him its efforts had ceased. By report dated 20 July 2020, the Pauri Garhwal Superintendent of Police reported to the Australian High Commission, which has been monitoring the ongoing investigation into Ryan’s disappearance, that there has been no success in the attempts to find Ryan.
Jock deposed that Ryan’s disappearance has received wide publicity throughout Australia and that Crime Stoppers widely distributed a missing person notice detailing Ryan’s disappearance.
Displacement of the presumption of continuance of life
The circumstances in this matter are such that the Court is unable to make a finding that Ryan has died. In In Re Westover, Legoe J articulated that:[5]
[5] (1987) 139 LSJS 115 at 117.
The mere fact that a person has not been heard of for seven years does not of itself raise any presumption of fact. But if circumstances exist such that a particular person should have been heard of within that time then the presumption of continuance of life which is the only presumption which the law makes in such circumstances may be displaced.
It is therefore necessary to determine whether the presumption of the continuance of Ryan’s life has been displaced. Displacement of the presumption of continuance of life gives rise to the presumption of death. Presumption of death arises at common law after seven years have elapsed since the missing person was last seen or heard of,[6] but may arise earlier if it appears from the evidence relied upon the person has died.[7]
The common law principles to be applied in circumstances involving the disappearance of a person, summarised by Dixon J in Axon v Axon,[8] are also relevant to the question of whether the presumption of continuance of life has been displaced. Justice Dixon stated:[9]
When it is proved that a human being exists at a specified time the proof will support the inference that he was alive at a later time to which, having regard to the circumstances, it is reasonably likely that in the ordinary course of affairs he would survive. It is not a rigid presumption of law. The greater the length of time the weaker the support for the inference. If it appears that there were circumstances of danger to the life in question, such as illness, enlistment for active service or participation in a perilous enterprise, the presumption will be overturned, at all events when reasonable inquiries have been made into the man’s fate or whereabouts and without result. The presumption of life is but a deduction from probabilities and must always depend on the accompanying facts.
…
If, at the time when the issue whether a man is alive or dead must be judicially determined, at least seven years have elapsed since he was last seen or heard of by those who in the circumstances of the case would according to the common course of affairs be likely to have received communications from him or to have learned of his whereabouts, were he living, then, in the absence of evidence to the contrary, it should be found that he is dead. But the presumption authorizes no finding that he died at or before a given date. It is limited to a presumptive conclusion that at the time of the proceedings the man no longer lives.
Chief Justice Latham also explained in Axon v Axon that:[10]
… the application of the rule does not establish death at any particular time (In re Phené’s Trusts). It only produces the result that, if a person has not been heard of by persons who might have been expected to hear of him for a period of not less than seven years, he may be presumed to be dead at the time when the question arises in legal proceedings. The rule does not bring about the result that the person is deemed to be dead at the end of a seven‑years’ period (cases cited in Halsbury’s Laws of England, 2nd ed., vol. 13, pp. 630, 631).
(Footnote omitted)
[6] Axon v Axon (1937) 59 CLR 395.
[7] In the Goods of Matthews [1898] P 17.
[8] (1937) 59 CLR 395.
[9] (1937) 59 CLR 395 at 404-405.
[10] (1937) 59 CLR 395 at 401.
In In re Westover,[11] Legoe J referred to the matters required to be proved in determining whether the presumption of the continuation of life has been displaced as set out by Mortimer in Probate Law and Practice.[12] Of those matters, I am satisfied that Jock has established:
[11] (1987) 139 LSJS 115 at 117.
[12] Mortimer, HC, The Law and Practice of the Probate Division of the High Court of Justice (Sweet & Maxwell, 1^st ed, 1911) at 555-556. The updated commentary is now contained within Williams, Mortimer and Sunnucks, Executors, Administrators and Probate (Sweet & Maxwell, 21^st ed, 2018) at [21.33].
(1)Ryan’s description, age, and circumstances surrounding his disappearance.
(2)His belief that Ryan is dead and the basis of his belief, including evidence relevant to the question of whether the presumption has been displaced.
(3)That extensive searches have been undertaken looking for Ryan with no result.
(4)Extensive enquiries have been made seeking information regarding Ryan’s whereabouts and no response has been received.
(5)That persons who would expect to receive communication from Ryan have had no contact with Ryan since his disappearance.
(6)That investigations and enquiries have been made by Indian police, monitored by DFAT, resulting in Ryan being listed as a missing person.
(7)There is no evidence Ryan made a will.
(8)Ryan’s estate consists of musical instruments, personal effects, under $2,000 in a bank account, and a modest superannuation account with life cover.
Conclusion
Ryan has not been seen or heard of since 24 August 2005.
Extensive enquiries and searches have been carried out, with no indication that Ryan is still alive. Investigations by Ryan’s family, the Indian police, and DFAT have provided no information regarding Ryan’s disappearance. Ryan’s bank account has remained untouched since his disappearance. Having regard to the evidence before me, I am satisfied that the presumption of continuance of Ryan’s life has been displaced and gives rise to the presumption of his death. Having regard to that presumption and to the evidence, I infer Ryan died on or since 24 August 2005.
Orders
The evidence relied on in support of Geoffrey Maxwell Chambers’ application satisfies me that the presumption of continuance of Ryan Anthony Chambers’ life has been displaced and gives rise to the presumption of his death.
I make the following orders:
(1)Pursuant to rule 68 of the Probate Rules 2015 (SA), the death of Ryan Anthony Chambers, last seen alive in India on 24 August 2005, whose body has not been located, and whose death is presumed, may be sworn to have occurred on or since 24 August 2005.
(2)Pursuant to section 35 of the Births, Deaths and Marriages Registration Act 1996 (SA), the Registrar of Births, Deaths and Marriages is directed to Register the death of Ryan Anthony Chambers born on 20 March 1984 as having occurred on or since 24 August 2005, the cause and place of death being unknown.
(3)Upon Geoffrey Maxwell Chambers and/or Dianne Coral Chambers making an application for a grant of letters of administration in in a form acceptable to the Registrar of Probates, the Registrar is directed to issue the grant.