IN THE ESTATE OF PALOMBO; IN THE ESTATE OF SCARFO - [2021] SASC 112

SUPREME COURT OF SOUTH AUSTRALIA
(Testamentary Causes Jurisdiction)
IN THE ESTATE OF PALOMBO; IN THE ESTATE OF SCARFO
[2021] SASC 112
Judgment of the Honourable Justice Bampton
23 September 2021
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 two missing persons in respect of whose estates grants are sought – where missing persons disappeared on 16 February 2014 and have not been seen since nor their bodies located.
Held (granting the applications):
1.Pursuant to r 68 of the Probate Rules 2015 (SA), the deaths of Luigi Palombo and Vincenzo Scarfo may be sworn to have occurred on 16 February 2014.
2.Pursuant to s 35 of the Births, Deaths and Marriages Registration Act 1996 (SA), the Registrar of Births, Deaths and Marriages is directed to Register the deaths of Luigi Palombo and Vincenzo Scarfo as having occurred on 16 February 2014 by accidental drowning.
3.That probate of the will of Luigi Palombo dated 2 August 1993 be granted to Caterina Palombo, the executor named in the will.
4.Upon Caterina Palombo making an application for a grant of probate in a form acceptable to the Registrar of Probates, the Registrar is directed to issue the grant.
5.Upon Francesca Scarfo making an application for a grant of letters of administration 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 THE ESTATE OF PALOMBO; IN THE ESTATE OF SCARFO
[2021] SASC 112
Testamentary Causes Jurisdiction

BAMPTON J: Luigi Palombo (“Luigi”) and Vincenzo Scarfo (“Vincenzo”) were experienced recreational fishermen who went fishing whenever they could. Luigi was married to Caterina Palombo (“Caterina”) and Vincenzo was married to Caterina’s sister Francesca Scarfo (“Franca”). On 16 February 2014, as Vincenzo had just sold his 4.6m Haines Hunter motorboat (“the boat”), Luigi and Vincenzo decided to go fishing “one last time” in the boat. By all accounts they intended to fish for snapper at The Pages. The Pages consists of two islands and a reef located in Backstairs Passage between the south coast of Fleurieu Peninsula and the eastern tip of Kangaroo Island.
Luigi and Vincenzo set off
At about 9.00 am on 16 February 2014, Caterina went into the kitchen of the home she shared with Luigi and their four children and saw Luigi making some sandwiches. He explained he and Vincenzo were going fishing “for one last time” in Vincenzo’s boat. Caterina farewelled Luigi and heard his Nissan Navara utility (“Luigi’s Nissan utility”) start up and drive off. Caterina messaged Luigi at 5.20 pm and 7.30pm asking what time he would be home for dinner. She became worried when there was no reply and contacted her sister, Franca, asking if she had any contact with Vincenzo.
Vincenzo had told Franca before he left the home he shared with Franca and their two children on 16 February 2014 he would go out on the second tide later in the day and be back home at about 8.00 pm. Franca did not specifically ask Vincenzo where he was planning to fish. She assumed he would be going to Cape Jervis as he usually did when fishing with Luigi. After Luigi’s arrival, Vincenzo and Luigi left in Luigi’s Nissan towing the boat on Vincenzo’s boat trailer. When Vincenzo had not arrived home by 9.00 pm that evening, Franca attempted to call his mobile, but it appeared to be switched off.
Caterina and Franca reported Luigi and Vincenzo missing to the police at 9.30 pm that night.
Luigi’s Nissan and Vincenzo’s boat trailer were found later that evening on 16 February 2014 at the Cape Jervis boat ramp. Extensive sea searches and along the coastline were conducted by police and volunteers in the days following Luigi and Vincenzo’s disappearance but to no avail.
Caterina’s and Franca’s applications for permission to swear death
As Luigi has not been seen or heard of since 16 February 2014, Caterina makes application, supported by her affidavit affirmed 18 May 2021, for the Court’s permission to swear the death of Luigi pursuant to r 68 of the Probate Rules 2015 (SA).
As Vincenzo has not been seen or heard of since 16 February 2014, Franca, similarly, makes application, supported by her affidavit sworn 25 June 2021, for the Court’s permission to swear the death of Vincenzo pursuant to r 68 of the Probate Rules 2015 (SA).
Caterina deposes in her affidavit that she and Luigi married on 17 May 1986 and their four adult children are Giuseppina born 21 January 1989, Mattea born 14 November 1990, and twins Michael and Pascale born 12 July 1995. Caterina says she and Luigi had a happy marriage, he was a good father and provider for his family. Luigi was aged 48 at the time of his disappearance, a workaholic, and their main family activity was eating dinner together every night at 6.30 pm. Caterina states she and Luigi did not have any financial problems. Caterina says no one has had any contact with Luigi since his disappearance and none of their joint accounts or accounts Luigi held in his own name have been accessed by Luigi since his disappearance. Caterina states Luigi had no reason to disappear and she does not believe his disappearance is suspicious in any way.
Franca deposes in her affidavit that she and Vincenzo were married on 17 August 1991, their son Anthony was born on 12 December 1998, and their second son Joel was born on 26 April 2001. Franca stated that Vincenzo was aged 44 at the time of his disappearance, they had been happily married for 23 years and they ate together as a family every night. Franca says they had no marital problems, and to her knowledge Vincenzo had no other family problems or financial problems. She states there have been no unexplained withdrawals from Vincenzo’s personal or business accounts, either immediately before or since 16 February 2014. Franca deposes that to her knowledge Vincenzo had no enemies and no threats had been made against him. He was in good health and had no major health or medical problems.
On 4 September 2014, Franca identified a blue and white seat cushion and seat that she believed had come from Vincenzo’s boat.
The investigation into the disappearance
Exhibited to each of Caterina’s and Franca’s affidavits is a copy of the statement of Detective Brevet Sergeant Vincent Alan Gray, the investigating officer in relation to the disappearance and suspected deaths of Luigi and Vincenzo. Detective Gray details the extensive and coordinated search that was conducted and which failed to find the men and the boat.
Detective Gray’s investigations revealed that Luigi and Vincenzo, neither of whom could swim, were by all accounts, experience recreational fisherman.
Vincenzo’s brother-in-law Frank Depretis told police that Luigi and Vincenzo frequently fished at The Pages. Mr Depretis said Vincenzo always looked after his boat and made sure it was running correctly before taking it out on the water. Mr Depretis confirmed that Luigi and Vincenzo could not swim and, whilst the boat had lifejackets, neither of them would wear them while on board. Mr Depretis stated the EPIRB on board was very old and purchased by Vincenzo from eBay.
Franca informed police that Vincenzo had sold the boat and was looking for a newer bigger boat.
David Crouch confirmed that he was the purchaser of the boat from Vincenzo and had paid a $500 deposit following his inspection of it on 15 February 2014. Mr Crouch took photos of the boat on his inspection and considered it was extremely well looked after. He described the interior of the boat as immaculate, with blue and white cushioned seats. Mr Crouch noted four yellow lifejackets with thick foam panels stored under the seats and an EPIRB fixed in position by a bracket behind the steering wheel area. Mr Crouch also noted two red heavy-duty plastic 22 litre fuel tanks positioned at the rear of the boat, under the engine well. He stated the fuel hose leading from the fuel tanks to the motor appeared to be relatively new and in good condition. He also noted other items of interest on the boat, for example, a yellow dolphin torch, thick white rope, and white buoys 15 to 20 cm in diameter.
Mr Crouch reported that Vincenzo had told him he had been fishing in Backstairs Passage for years and knew these waters well. Vincenzo also told him that he was hoping to go fishing on 16 February 2014 as snapper was being caught around The Pages. As Mr Crouch was aware of dangerous waters in and around Backstairs Passage, he asked Vincenzo how the boat handled in those waters. Vincenzo advised him he had never had a problem and that they never took chances or went out on the water when the forecast was 15 knots or more. Vincenzo invited Mr Crouch to join him and Luigi on their fishing trip on 16 February 2014, however, due to prior commitments Mr Crouch declined.
Luigi’s brother-in-law, George Mitrotasio, informed police Luigi had rung him on 16 February 2014 and said that he and Vincenzo were going fishing at Cape Jervis for snapper. Mr Mitrotasios knew Luigi and Vincenzo normally fished for snapper at The Pages.
Mignon Chapman, a service station attendant at Normanville Service Station, stated that at about 10.40 am on 16 February 2014 a dark coloured utility towing a boat pulled into the service station. Two men from the utility came into the station and bought a bag of ice and some fuel. Ms Chapman recalled that one of the males said they had come from Willunga. The following day Ms Chapman saw news coverage of the two missing men off Cape Jervis and recognised the photograph of Luigi and Vincenzo as the two men that had been into the service station.
At 10.44 am on 16 February 2014, Vincenzo’s boat trailer was photographed travelling on Main South Road, Normanville at 79 kmph in a 60 kmph zone by a speed camera.
Phillip Dodd, the owner and manager of the Cape Jervis Hotel on Main South Road, Cape Jervis, reviewed his hotel’s CCTV footage and identified a blue coloured utility towing a boat drive south past the front of his hotel at about 11.10 am on 16 February 2014. Detective Gray reports that this is the direction of the Cape Jervis boat ramp and the vehicle and boat seen on the footage are consistent with Luigi’s Nissan and Vincenzo’s boat trailer.
At 10.35 pm, Senior Sergeant Vickers of Normanville police located Luigi’s Nissan and Vincenzo’s boat trailer at the Cape Jervis boat ramp. Senior Constable Vickers liaised with Senior Constable Romeo of the Police Water Operations Unit, who advised there had been no known reports of marine flare sightings and no EPIRB activations or distress calls heard over marine radio. Senior Constable Vickers attempted to visibly check the immediate coast and waters off Cape Jervis with binoculars from an elevated position but did not see any vessel with lights.
Senior Constable Romeo contacted other boat operators and the Volunteer Marine Radio base at American River on Kangaroo Island and requested that they initiate a communication search on the marine radio to raise the overdue boat.
At 6.00 am on 17 February 2014, Sergeant Kevin Doecke of the Water Operations Unit commenced the coordination of the search proper. Sergeant Doecke was relieved on 17 February 2014 at about 3.30 pm by Brevet Sergeant Mark Jacobs, who continued with the coordination and management of the search. Both Sergeant Doecke and Brevet Sergeant Jacobs worked together in coordinating and managing the search effort over the next few days. They have provided comprehensive statements detailing the extent and thoroughness of the search. Fixed wing aircraft, helicopters, and sea vessels were engaged in the search in addition to SAPOL’s Water Operation Unit police launch.
The last of the coordinated boat searches concluded at about 7.23 pm on Tuesday 18 February 2014. The decision to terminate was made by Police Forward Commander, Inspector Sickerdick, in consultation with Brevet Sergeant Jacobs. The decision was based on:
1An extensive and coordinated search being conducted by boats and aerial assets over the previous two days without locating the missing boat or its passengers. Smaller objects were located within the search area and Brevet Sergeant Jacobs was confident that if either the boat or Luigi or Vincenzo were on the water surface they would have been found.
2The assessment made by Doctor Paul Luckin, who has provided advice on survivability for search and rescue authorities in Australia for over 30 years, of the time frame for survivability of Luigi and Vincenzo in the water. Dr Luckin assessed survival time in the water as 48 hours, taking survival time to the end of Tuesday 18 February 2014, and the chance of surviving overnight on 18 February was “vanishingly small”.
3The impending weather conditions for the following day.
A further aerial search was conducted by helicopter on Wednesday 19 February 2014 without success.
On 22 February 2014, a surf lifesaving helicopter located a blue and white pedestal pivot seat on the coastline near Cape Jervis which was subsequently retrieved.
During the various searches an amount of debris was located, including a red plastic fuel tank, a yellow Dolphin torch, a length of white rope, a blue and white seat cover. The blue and white seat cover and blue and white pivot seat were identified by Franca and are believed to come from Vincenzo’s boat. The fuel tank, torch, and rope are similar to items that were stored on Vincenzo’s boat and photographed by Mr Crouch on his inspection of the boat on 15 February 2014.
On Wednesday 19 February 2014, Brevet Sergeant Jacobs received the results of mobile phone triangulation relating to the mobile phone numbers assigned to Luigi and Vincenzo. Brevet Sergeant Jacobs reported this information indicates that Luigi and Vincenzo were accessing the phone tower at Penneshaw at about 11.05 am on Sunday 16 February 2014 and continued to access either the Penneshaw or Delamere phone towers until about 3.25 pm that day. After this time the mobile phones no longer accessed any phone tower, indicating that this may have been the time when the boat had taken on water and sunk.
Detective Gray says there were no ships traversing Backstairs Passage or The Pages on 16 February 2014, and the boat was, therefore, unlikely to have been struck by another vessel causing it to sink.
Detective Gray details enquiries made of local fishing charter operators and fisherman regarding the seas where Luigi and Vincenzo were thought to have disappeared as follows.
Paul Kerin is a fishing charter operator at Cape Jervis, who has fished the local waters for about 40 years. Mr Kerin described the sea conditions on 16 February 2014 as terrible, the seas were rough with large swells coming from the south with a height on top of the swell of approximately one to 1.5 m. The tide was 2.2 m and running out in the morning with a tide change expected at about 1.00 pm. He stated the wind was about 20 knots all day from the south and southwest and visibility was not good at all because of the sea mist. Mr Kerin stated that the seas flattened a little at tide change at about 1.00 pm, but it was still very rough with a similar swell. Mr Kerin stated that he did not fish The Pages on that day due to the sea conditions being too rough.
Mr Kerin stated that Backstairs Passage has dangerous seas and that Yalata Shoal, situated in the middle and towards the bottom end of Backstairs Passage, is fairly shallow and when the tide is out it comes up to about 20 m, which can cause a confused sea over the top of the shoal and a boating hazard for small craft. Mr Kerin stated that a small boat could flip over in those conditions. He said that he would not have recommended anyone go out to Backstairs Passage due to the sea conditions on 16 February 2014. He also stated that he did not see another boat on the water that day.
Scott Weaver is a charter boat operator from Cape Jervis. On 16 February 2014, he launched from Wirrina and took a charter to the eastern end of Backstairs Passage. Mr Weaver stated that the sea conditions in Backstairs Passage in the morning was a south wind, about 20 knots with a big run off tide. He stated that the wave and swell height would have been about three metres which consisted of about two metres of swell with a wave action on top of that of about a metre to a metre and a half. He said that these conditions made the sea steep and that it would have been very uncomfortable for smaller boats. Mr Weaver did not see any other vessels that day.
Gary Lloyd is also a fishing charter operator from Cape Jervis who was not on the water on 16 February 2014. Mr Lloyd did have two boats on the water skippered by other operators. He described the sea conditions on that morning as moderate but improving during the afternoon. He stated that neither of his boats ventured south of The Pages due to the sea conditions being too rough. Mr Lloyd described the Backstairs Passage as very tidal and operators need to know the wind and tide conditions for safety in that area. He stated that the tide runs high when running out of the gulf and this makes the seas very turbulent and the waves stand up. Mr Lloyd said that there are several large, submerged rocks that sometimes create an extremely large freak wave at The Pages, capable of capsizing a much larger vessel than 4.6 m. He stated that these freak waves have been known to occur without warning and are capable of capsizing even his 40 ft boat.
Detective Gray concluded there is no evidence as to the exact location of Vincenzo’s boat but, at about 3.25 pm on 16 February 2014, a terrible accident occurred, the cause of which is unknown, and the boat took on water and sank. He is of the view that the accident was such that it occurred very quickly and did not allow time for either Luigi or Vincenzo to access their mobile phones, marine radio, flares, or EPIRB. Detective Gray is of the opinion that they both drowned, as neither could swim and did not wear lifejackets while operating the boat. He also noted that the EPIRB was out of date and not registered with AUSSAR and may not have been monitored.
Detective Gray stated that there are no suspicious circumstances to the disappearance and presumed deaths of Luigi and Vincenzo for the following reasons:
1neither man had apparent financial issues;
2neither man had known serious medical or psychological conditions;
3neither man had apparent relationship issues;
4neither man had known business issues or problems;
5neither man had known enemies or received threats;
6Vincenzo intended to purchase another larger boat;
7Vincenzo had invited Mr Crouch to accompany him and Luigi on their fishing trip on 16 February 2014;
8Luigi and Vincenzo’s conversations with their respective wives and relatives relating to their intention to fish on 16 February 2014; and
9Luigi’s Nissan and Vincenzo’s boat trailer being located at Cape Jervis indicating that their boat had launched from the boat ramp at that location.
Conclusion and court orders
Neither Luigi or Vincenzo have been seen or heard of since 16 February 2014. Their bodies have not been recovered.
Caterina’s solicitors have been informed by the Manager of the Coroner’s Court by letter dated 14 May 2015 that the State Coroner had not been able to determine a finding into the death of Luigi as his body had not been found.

Franca’s solicitors have also been informed by the Acting Manager of the Coroner’s Court by letter dated 17 February 2021 that as Vincenzo’s body had never been located, the Coroner cannot determine a cause of death as required by the Coroners Act 2003 (SA). The Acting Manager concluded his letter stating that the State Coroner had considered the matter and advised that the next course of action was to “obtain a declaration of death from the Supreme Court”.
Luigi Palombo’s estate
Luigi executed a will dated 2 August 1993, naming Caterina his executor.
The evidence relied on in support of Caterina’s application satisfies me that Luigi accidentally drowned at sea in or about Backstairs Passage on 16 February 2014.
I make the following orders:
1Pursuant to r 68 of the Probate Rules 2015 (SA), the death of Luigi Palombo may be sworn to have occurred on 16 February 2014.
2Pursuant to s 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 Luigi Palombo born on 25 September 1965 as having occurred on 16 February 2014 by accidental drowning.
3That probate of the will of Luigi Palombo dated 2 August 1993 be granted to Caterina Palombo, the executor named in the will.
4Upon Caterina Palombo making an application for a grant of probate in a form acceptable to the Registrar of Probates, the Registrar is directed to issue the grant.
Vincenzo Scarfo’s estate
Vincenzo did not have a will.
The evidence relied on in support of Franca’s application satisfies me that Vincenzo accidentally drowned at sea in or about Backstairs Passage on 16 February 2014.
I make the following orders:
1Pursuant to r 68 of the Probate Rules 2015 (SA), the death of Vincenzo Scarfo may be sworn to have occurred on 16 February 2014.
2Pursuant to s 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 Vincenzo Scarfo born on 6 May 1969 as having occurred on 16 February 2014 by accidental drowning.
3Upon Francesca Scarfo making an application for a grant of letters of administration in a form acceptable to the Registrar of Probates, the Registrar is directed to issue the grant.