Lashko v Lashko

[2011] WASC 214

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION:   LASHKO -v- LASHKO [2011] WASC 214

CORAM:   EM HEENAN J

HEARD:   2 MARCH & 27 JULY 2011

DELIVERED          :   27 JULY 2011

PUBLISHED           :  24 AUGUST 2011

FILE NO/S:   CIV 1143 of 2011

MATTER                :In the matter of an Application Pursuant to Rule 34 of the Non-Contentious Probate Rules 1967 (WA)

and

In the matter of an Application for Leave to Swear to the Death of MARKIJAN LASHKO born 30 October 1912

BETWEEN:   PAUL LASHKO

Plaintiff

AND

MARKIJAN LASHKO
Defendant

Catchwords:

Probate - Leave to swear to death - Presumption of death after disappearance for seven years or longer - Relevant factors - Relief to be granted

Legislation:

Non-Contentious Probate Rules 1967 (WA)

Result:

Leave granted to swear to the death of Markijan Lashko between 1968 and the present

Category:    A

Representation:

Counsel:

Plaintiff:     Mr D Jones

Defendant:     No appearance

Solicitors:

Plaintiff:     Young & Young

Defendant:     No appearance

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

Axon v Axon (1937) 59 CLR 395

Chard v Chard (Otherwise Northcott) [1956] P 259

In the Goods of Matthews [1898] P 17

In the Goods of Winstone [1898] P 143

Re Aldersey; Gibson v Hall [1905] 2 Ch 181

Re Benjamin; Neville v Benjamin [1902] 1 Ch 723

Re Bennett [2006] QSC 250

Re Heynatz [2006] QSC 173

Re Margarete Maria White [2001] TASSC 7

Re The Estate of Peter Dale Hills [2009] SASC 176

Wilson v Hodges (1802) 2 East 312; 102 ER 388

1. EM HEENAN J:  At some time, which cannot be identified any more precisely than about mid‑1968, Markijan Lashko disappeared from his home at 41 Roberts Street, Collie, in this State, where he had been living alone.  He has not been seen or heard of in the 43 years which have passed.  He had been born on 20 October 1912 and, therefore, was aged about 55 years at the time of his disappearance.  If he were alive today he would, therefore, be over the age of 98 years.  There is no record of his death in Western Australia or in any other Australian State or Territory.

2. Mr Lashko had made a will in regular form on 22 November 1958 appointing the Public Trustee as his executor and leaving the whole of his estate to his son, Paul Lashko, the plaintiff in this action.  His only known assets of any significance were the land, house and contents at 41 Roberts Street, Collie, and a small farm known as the Hobby Farm at Lot 7 Preston Road, Collie, and, perhaps, a small bank account with the Commonwealth Bank of Australia, Collie branch.  In about 1972 the Shire of Collie, acting under statutory powers, sold the house and land at 41 Roberts Street for non‑payment of rates and, as far as it is now possible to ascertain, there was no surplus from the proceeds of the sale due to Mr Markijan Lashko or to any person entitled to the proceeds claiming through him.  The farming property at Lot 7 Preston Road remains registered in his name and the rates for this over the ensuing years have been kept up by his son.

3. In these circumstances, Paul Lashko has applied by originating motion dated 24 January 2011, pursuant to r 34 of the Non‑Contentious Probate Rules 1967 (WA) for a declaration that Markijan Lashko is presumed to be dead and for the court to give such further directions as may be necessary to effectuate that declaration.

4. Non‑Contentious Probate r 34 provides:

   34.     Application for leave to swear to death

   An application for leave to swear to the death of a person shall be made to the Registrar by originating motion and shall be supported by an affidavit setting out the grounds of the application and particulars of all policies of insurance on the life of the person the subject of the application.

5. In the present case, because the motion sought a declaration that Markijan Lashko is presumed to be deceased, rather than the more conventional application for leave to swear to his death, the originating motion was listed for hearing before a judge.

Presumption of death

1. In this instance the plaintiff invokes 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 the period of that person's absence unless there is proof to the contrary that the person is still alive.  Seven years' absence giving rise to that presumption is not the only basis for obtaining leave to swear to death as the authorities to be examined demonstrate.  However, that principle is of relevance in this case. 

2. One statement of the principle is to be found in Phipson On Evidence (16th ed, 2005) 6 ‑ 26 where the learned authors write (omitting footnotes):

   A person who has not been heard of for seven years by those who, if he had been alive, would be likely to have heard of him is presumed to be dead.  There is no presumption as to the time during the seven years at which he died, and the onus of proving death on any particular date rests with the person to whose title that fact is essential.  In cases involving probate, death is frequently proved as a matter of fact and not of law, before the seven years.

3. Similarly, in Halsbury's Laws of England, 5th ed, vol 11, par 1100 there is the passage (again omitting footnotes):

   1100Presumptions of life and death

   There is generally no presumption of law by which the fact that a person was alive or dead on a given date can be established, for the question must be decided on the facts of the particular case.

   Certain exceptions to this general rule are provided by statute, and, in addition, where there is no acceptable affirmative evidence that a person was alive at some time during a continuous period of seven years or more and it is proved that there are persons who would be likely to have heard of him over that period, that those persons have not heard of him, and that all due inquiries have been made appropriate to the circumstances, there arises a rebuttable presumption of law that he died sometime within that period.

   and:

   1101Proof of life or death at a particular time

   He who asserts that a person was alive on a given date, or dead on that date, must prove the fact by evidence, since there is no presumption of continuance of life, and, generally, no presumption of death at a particular time.  Where there is insufficient evidence in support of the fact alleged, the party bearing the burden of proof will fail.

   Where the presumption of death after seven years' absence applies, the person will be presumed to have died by the end of that period; where the presumption does not apply, or is displaced by evidence, the issue will be decided on the facts of the particular case.

4. The authors in Halsbury observe that certain old cases speak of a presumption of continuance of life as if it were a presumption of law but that these are not consistent with the modern authorities ‑ compare Wilson v Hodges (1802) 2 East 312; 102 ER 388 with Chard v Chard (Otherwise Northcott) [1956] P 259. Whether in Australia it is right to adopt and apply the observations that reference in the older cases to a presumption of continuance of life is not consistent with modern authorities is open to question. If what is meant by that observation is that there is no presumption of law to that effect, then it may be accepted. However, as the general course of life reveals and the Australian authorities illustrate, any inference about the continuance of life for an individual person will inevitably be a matter of fact according to the particular features of the case and normal reasonable expectations. If the observations by the learned authors of Halsbury mean to suggest that there is no presumption or inference of fact of continuation of life in any given case, then that would appear to be contrary to the expectations of general experience in an individual case such as, for example, a migrant who has left his family to settle in another country at a young age. I consider that I should adopt the approach that there is, according to the exigencies of any particular case, an inference available that a person otherwise in good health and of young or middle age can be expected to be alive unless there is reason to suggest otherwise. A long absence without communication with those who could be expected to hear from the missing person provides a reason, in many such cases, to conclude otherwise.

5. In Axon v Axon (1937) 59 CLR 395 Dixon J summarised the presumption as to survivorship of a person at 404 ‑ 405 as follows:

   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 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.

6. Re Bennett [2006] QSC 250 involved an application for leave to swear to the death of one John Bennett together with an application for letters of administration of his estate upon an intestacy to be granted to his de facto partner. Mr Bennett, a professional diver, had in March 2004 been working deep underwater on a salvage dive off the west coast of South Korea. He got into difficulties and signalled to his diving companion that he intended to surface but his body was never found, nor was he seen or heard from again. The application to the Supreme Court of Queensland was made in 2006, that is less than seven years after the disappearance. The court granted leave to swear to death and, following that, letters of administration, observing that it was unnecessary to wait for the passing of seven years to infer death in such a case. Atkinson J said:

   In Re Mayne (1858) 1 SW & TR 11 ; 164 ER 606, the Court held that the death of Mr Mayne was presumed in the circumstances. He was the master and part owner of the ship Brevett which sailed from Liverpool on 27 January 1857 on a voyage to Valparaiso. The ship did not arrive at the destination and had never been seen, heard of or spoken to and neither had anybody who had been on board that ship been seen or heard of since after it left Liverpool. The voyage in ordinary circumstances should have been made in 10 weeks. In those circumstances the Court was prepared to presume that Mr Mayne had died and that he had died intestate well before the seven years had elapsed.

   Similarly, in Mackay v Mackay (1901) 18 WN (NSW) 266, the Supreme Court of New South Wales presumed that a man who had been on a ship which was wrecked on a voyage to Brisbane who had not been heard of or seen again had died in that shipwreck.

   Counsel for the applicant, Mr Morgan, pointed to a number of cases where this Court has been prepared to grant leave to swear to the death of a person before the expiration of seven years where the evidence rebutted the presumption which would otherwise apply that life had continued.  The cases to which he referred are InRe Purton (1943) QWN 33, and Re Parker (1995) 2 Qd R 617.

   In the former the pilot of a Qantas flying boat which left Java in 1942 fleeing the impending Japanese invasion never arrived at his destination and no trace was ever found.  In the latter case a father and son fishing from rocks were washed into the sea in 1992.  They became separated and only the son made it back to shore.

7. Further, leave to swear to the death of a testator three years after his disappearance was granted In the Goods of Matthews [1898] P 17. James Matthews, then 73, disappeared from his home in London and was not afterwards heard of. He had been living with his late wife's sister and her husband, and relatives had made a search in the neighbourhood without result, advertisements had been published in five newspapers, and the local police contacted. Despite the short period since his disappearance, leave to swear to death was granted. Similarly, In the Goods of Winstone [1898] P 143 leave to swear to death was given in respect of a person who had simply disappeared, but it was ordered that the ensuing grant of administration should remain in the registry until the expiry of seven years from the date of his disappearance. See also Re Benjamin; Neville v Benjamin [1902] 1 Ch 723 and Re Aldersey; Gibson v Hall [1905] 2 Ch 181 which endorse the proposition that there is no presumption of law in favour of continuance of life.

8. An example of a case in which leave was granted to swear to the death of a married man who disappeared of his own volition at the age of 38 years in somewhat ambiguous circumstances is provided by Re Margarete Maria White [2001] TASSC 7. Another example is that of a man who was an experienced sailor and owned a 12‑metre yacht sailing out of South Africa in June 1998 which could not afterwards be found despite extensive maritime and military searches of the area. Nothing more was heard of him for more than seven years, and his bank accounts had not been touched in that period: Re Heynatz [2006] QSC 173.

9. In the recent case of Re The Estate of Peter Dale Hills [2009] SASC 176 leave to swear to death was granted where the presumed deceased had been missing for 13 years without any contact with his family. In that case, Gray J reviewed the authorities and then observed at [7] and [8]:

   An automatic presumption of fact does not arise even if seven years have elapsed without any sign of the person in question.  As Legoe J noted In  re Westover (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.'

   In Westover, Legoe J followed the recommendations set out in Mortimer on Probate Law and Practice, as to the practice to be followed in these matters.  According to this practice, the applicant wishing to displace the presumption of continuance of life and seeking a finding that the presumed deceased is dead, should provide evidence including the description, age and circumstances of the presumed deceased and the circumstances of disappearance or departure.  The evidence should depose to the applicant’s belief in the death of the presumed deceased, and the basis of that belief, including any evidence of persons relevant to a finding of death.  The applicant should demonstrate that advertisements seeking information concerning the presumed deceased have been inserted in newspapers, identifying the newspapers utilised, and the result of those advertisements.  The evidence should include whether any letters have been received from the presumed deceased since their disappearance or departure and, if not, the last date of communication.  It should further be established what other enquiries have been made, and any other facts that render the presumed deceased’s death probable, such as an awareness of an entitlement to a fund without any claim being made.  Whether the presumed deceased was insured should be established.  Further matters to be established include whether the presumed deceased died intestate or testate.  If intestate, the application should state the names of the next of kin and of the potential heir at law, and if testate, the will should be filed.  Particulars of the value and nature of the estate of the presumed deceased should be ascertained.  The requirement to establish these matters is not definitive.  Other matters of relevance may also be deposed, and a failure to establish any of these matters will not necessarily defeat the application.

Evidence

1. Markijan Lashko was born in Uhniv, Ukraine, on 20 October 1912 and was of Ukrainian nationality prior to naturalisation as an Australian citizen on 14 May 1958 and taking the oath of allegiance to Her Majesty and swearing to observe the laws of Australia.  The application is brought by his son, apparently his only child, Paul Lashko, who was born on 4 July 1946 in Hanover, Germany, in a displaced persons camp.  He is now living in the Australian Capital Territory and is a retired former sailor of the Royal Australian Navy.  He came to Australia with his father in 1950 and was naturalised as an Australian citizen in Collie on 24 October 1963.  He has no recollections of his mother but when he was a young schoolboy in Australia his father explained that he and his mother had broken up in the displaced persons camp in Hanover in Germany and that his mother had remained behind in Europe when the father and young son migrated to Australia.  Paul Lashko has no brothers or sisters and is unaware of whether his father had any uncles or aunts.  He has no knowledge of any cousins.

2. In the evidence there are some discrepancies about the address at which Markijan Lashko and his son, Paul Lashko, lived at Collie.  Initially, in the early affidavits, Paul Lashko referred to that address as 43 Roberts Street, Collie, but, in a later affidavit sworn 20 April 2011, he corrected this, saying that 43 Roberts Street, Collie, turned out to be the address of the Lauries which he had treated as his Collie home following his father's disappearance.  His later inquiries confirmed that he and his father had lived at 41 Roberts Street, Collie, as, indeed, is confirmed by the address recorded on the former certificate of title to that property.

3. On the certificate of title to Lot 7 Preston Road, Collie, a block of land comprising a little over five acres and transferred to Markijan Lashko on 20 February 1952, his occupation is recorded as a railway worker. A copy of the former certificate of title to 41 Roberts Road, Collie, shows that the property was transferred to Markijan Lashko of 41 Roberts Street, Collie, labourer, on 4 September 1959. That and a subsequent transfer dated 23 July 1971 shows that the Roberts Street property was sold by the Shire of Collie pursuant to a power of sale conferred by subdivision C of division 6 of Part XXV of the Local Government Act 1960 (WA) (for non‑payment of rates) to third parties for $350.

4. Although there is no direct evidence of this, I infer that Paul Lashko lived with his father in Collie from shortly after their arrival in Australia, grew up there and attended school there.  In 1967 Paul was called up for national service and then had the option of joining the Royal Australian Navy as an alternative to doing national service in the Royal Australian Army.  As he had been previously interested in joining the navy, he chose that option, beginning his naval training at HMAS Cerberus in Westernport, Victoria.  His first two years in the navy, from 1967 on, involved much training at many naval bases in Sydney and much sea time in different RAN ships based at Sydney.  He now recollects that he was serving aboard HMAS Sydney (based in Sydney) in 1968 when he first found out that, unexpectedly, his father had disappeared.  According to Paul, he and his father used to correspond with each other irregularly by letter.  He remembers that some time in about 1968 a letter which he had sent to his father was returned to him, having been opened by the Collie post office to discover his current address, with the advice that the letter was being returned because his father no longer lived at the Roberts Street address.

1. According to Paul Lashko, this news came as a huge shock because he had expected his father to remain living in the family home.  He had heard nothing from his father at all to indicate that the father was going away permanently.  Consequently, Paul wrote to some friends and neighbours in Collie, Mick and Vi Laurie ('the Lauries') who lived at 43 Roberts Street, Collie, to ask if they knew what had happened to his father.

2. According to Paul Lashko, the Lauries knew his father very well because they had been good neighbours for about 10 or 11 years, ever since Paul and his father had moved into Collie from Preston Road.  The Lauries were also very good friends of Paul and, aware that he led a fairly hard life, would occasionally take him away with them to the coast, camping and fishing, for a week at a time, and included Paul in their local driving and fishing.  When Paul wrote and asked the Lauries if they knew what had happened to his father, he received a reply that his father had simply left home one day without telling them where he was going or what he was doing.  After Markijan Lashko's disappearance the Lauries became Paul Lashko's de facto family and he went and stayed with them during his various leaves from the navy.  That practice continued until Paul married in March 1974.  According to Paul, the Lauries treated him like a son and provided a warm and caring home.  He came home on leave from the navy usually once or twice a year and stayed with them.  According to him, the Lauries became his family for navy purposes and were 'officially recognised as my next of kin by the RAN'.  According to Paul, the Lauries were older than his father and they each died some 20 years ago.

3. It was not until about six months after he learned of his father's apparent disappearance that Paul Lashko was able to go home to Collie on leave.  He stayed with the Lauries and discussed his father's disappearance.  According to him, the Lauries did not have any additional information and were still at a loss as to where and why his father had gone.  According to Paul, the Lauries were still very surprised by his 'out of character' disappearance.  They informed Paul that his father had started drinking heavily again, although he had 'made a big effort to pull himself together' before Paul had come home again on his previous navy leave.  This was a matter of large concern to Paul, who says that he knew his father could be a very heavy drinker, who would binge drink for several days until all the wines and spirits in the house were gone, but would then stop for several months, until he could find another occasion to repeat the cycle.

4. On this first visit, the Lauries told Paul Lashko that they had not seen his father depart and had no word from him that he was going.  They told Paul that it may have been some days or even weeks before they realised that Markijan Lashko was no longer at home.  Paul's own impression was that 'it looked as if he had just abandoned his home'.

5. As part of Paul Lashko's continuing search for his father during that first navy leave in Collie, he visited a friend of his father's named Vasil, who was at the time living at Mount Hawthorn in Perth.  Vasil had become a friend of Markijan Lashko because he was one of the families the Lashkos had come to know during their voyage to Australia in 1950 and during their shared time in the migrant hostel at Northam.  Vasil was a man about his father's age.  During this visit Paul asked Vasil if 'he had any news about my dad' and 'what might have happened to him'.  Vasil told Paul that he had no idea where his father was or why he had disappeared and that he too was surprised by his father's disappearance.

6. In a supplementary affidavit sworn 20 April 2011 Paul Lashko described what he found at Collie when he returned on his first leave from the navy after his father's disappearance, saying that this was some five or six months later.  According to Paul, when he returned home everything appeared to be in place.  All his father's papers, such as naturalisation certificates, title deeds for the house and hobby farm, and his last will, were still at the premises at 41 Roberts Street, Collie.  His father's bed was made up and it looked like most of his clothes were still at the house.  At that stage, Markijan Lashko did not own a refrigerator or keep a pantry so Paul was unable to work out when the house was last occupied.  He was unable to remember seeing a suitcase or any evidence that his father had packed up and left the premises. 

7. In this affidavit Paul Lashko said that his father owned a mid‑50s BSA 500 Green Star motorbike, and a late 40s Ford 10 single seat van, both of which had been bought second-hand.  The car did not have a starter motor, so his father would have to crank start it whenever he wanted to use it, which was seldom because it took so much effort to start.  The van was used mainly in driving to the farm or to the bush to collect firewood and his father was not a very experienced car driver.  He was better with the motorbike, which he used principally to commute to work or to the hobby farm.  To Paul's knowledge, his father never drove further than the hobby farm on the motorbike or in the van.  According to Paul, when his father was travelling further, for example, to Perth, he always took public transport.  Both vehicles were still at the house when Paul first went home after his father's disappearance.  He does not know what happened to them since but neither was of any great value.

8. After his father disappeared, Paul Lashko told the Shire of Collie to send the land rates for the Collie house and the hobby farm to him for payment.  He paid both sets of rates for a year but realised that he could not afford to be paying the town rates indefinitely, so he continued to pay only the land rates on the Preston Road property.  He has continued to do that, and to arrange for annual firebreaks over the past 40 years but there is no evidence of how the land has been used over that time as, for example, whether it has been leased or share farmed, but I infer that there must have been some activity on the property to prevent it from growing into a wilderness.  Be that as it may, a rate notice from the Shire of Collie to Markijan Lashko at Paul Lashko's address in Canberra issued on 30 July 2010 shows rates due of $590 and an unimproved valuation for the property of $140,000. 

9. After a few years had elapsed since his father's disappearance, an officer from the Shire of Collie informed Paul Lashko that if the rates on the 41 Roberts Street property were not paid the Shire would have to auction the house.  As noted earlier, that was later done in 1971, but as far as Paul has been able to ascertain, apart from contacting him, the Shire of Collie made no further effort to find his father, although an advertisement publicising the intention to sell the land for non‑payment of rates must have preceded the sale.

10. Again in relation to directions made by this court at the first hearing, the solicitors for Paul Lashko made inquiries in an effort to determine whether there was any surplus money available from the sale of the 41 Roberts Street property by the Shire of Collie for non‑payment of rates in 1971 which would have been distributable to the registered proprietor or to any person claiming through him.  The solicitors made inquiry of the Department of Treasury, unclaimed moneys section, and also of an officer of the Supreme Court, into which the surplus proceeds after the sale of properties for non‑payments of rent are paid.  Neither officer was able to assist without specific details of when or by whom the moneys might have been paid and those inquiries have, therefore, also proved inconclusive.  However, in view of the remarkably low consideration of $350 recorded on the transfer for the sale of that property, it seems improbable that there would have been any surplus, or any significant surplus, money available for distribution to the person or persons so entitled.

11. Paul Lashko has not kept any of the letters written to him by his father during his naval career.  Any letters from Paul which the father might have kept would have gone when the Roberts Street house and contents were auctioned to pay the Shire of Collie rates.

12. According to Paul Lashko, his father did not have a life insurance policy because his father believed that 'they were a waste of time'.  Paul does remember that his father had a Commonwealth Bank account as he accompanied his father to the bank on many occasions when he was young, but he has no knowledge of how much money was in the account or what happened to it.

13. Paul Lashko has not had any news from his father since his disappearance.  He believes that if his father were still alive he would surely have contacted him, if only for some sort of help or support, especially because of his advancing age.

14. By his solicitors, Paul Lashko has caused advertisements to be published in 'The Western Australian' newspaper on two occasions, being 13 October 2010 and 12 November 2010 ‑ in the classified advertisements section ‑ asking anyone who knows the whereabouts of Markijan Lashko, born 1912, formerly of 43 Roberts Street, Collie, to contact him care of his solicitors at the address given in Bunbury, with a corresponding telephone number.  There has been no response to either advertisement.

15. By his solicitors, Paul Lashko has inquired of the Registrar General of each of the Australian States and Territories as to the existence of any record of the registration of the death of Markijan Lashko.  Replies have been received and are annexed to the affidavits, all in the negative.  Originally, Paul only caused searches to be made of the registries of births, deaths and marriages in Western Australia and Queensland because his father had lived in Western Australia and had, as I have already mentioned, another friend by the name of Vasil, who lived in Queensland.  He reasoned that if his father left Western Australia it would be most likely that he would attempt to make contact with this friend, Vasil. 

16. By a later supplementary affidavit, sworn 19 July 2011, and as a result of directions given by the court when this matter was first listed for hearing on 3 March 2011, Paul Lashko deposed that, as far as he was aware, his father was never reported as a missing person to the Western Australian police service.  He did not report his father as a missing person and, as far as he is aware, no other person reported his father as being missing to the Western Australian police.  Again, as a result of directions given by the court, Paul's solicitor contacted the missing persons section of the Western Australian police service on 1 July 2011 to inquire whether Markijan Lashko had ever been reported as a missing person in Western Australia.  The solicitor was advised by a senior constable of the police service that Markijan Lashko was not listed as a missing person in Western Australia and that the officer had been unable to locate any previous files regarding him.

17. Again, at the direction of the court, Paul Lashko, by his solicitors, has caused inquiries to be made at the Commonwealth Bank at Collie relating to any accounts kept in his father's name and, in particular, whether there are any records of dealings on any such accounts and, if so, when.  Initial inquiries by his solicitors directed to the Commonwealth Bank proved inconclusive.  As a consequence, a writ of subpoena to produce bank records was issued to the responsible officer of the Commonwealth Bank to produce to the court any or all records of an account or accounts at any time maintained by Markijan Lashko with the bank at Collie or elsewhere.  That subpoena issued on 12 May 2011.  A compliance officer of the bank responded to the subpoena by letter addressed to the court on 22 June 2011 to advise that the bank had conducted a search of its records for the period mentioned and had failed to locate any accounts in the name of Markijan Lashko.  This was accepted as sufficient compliance with the subpoena.  I consider that I may take judicial notice of the fact that in and about 1968, banks in this country, including the Commonwealth Bank, kept written records of customers' accounts and, in the case of the Commonwealth Bank of Australia, issued paper passbooks showing the transactions on savings accounts.  This was long before the age of computerisation or electronic based records.  It seems very probable that over the long period which has elapsed since 1968 that such paper records have been lost or destroyed or are no longer accessible.  If, as is probable, there had only been a small account, if any, or if the account had been closed by the bank after a period of inactivity, it is not surprising that, having regard to the long passage of time, records of this are no longer available.  I reach this conclusion notwithstanding that I accept the evidence of Paul Lashko that, at least in his childhood, Markijan Lashko made frequent visits to the Commonwealth Bank in Collie where, presumably, he maintained an account or accounts.

18. No other lines of inquiry have been suggested nor do any appear to be open.

Conclusion

1. Markijan Lashko has now been missing without any trace for near to 43 years.  He appears to have had a hard and difficult life and to have had few friends, acquaintances or relatives.  He was on good terms with his only son who, at the time of disappearance, had been away from their home in Collie for about a year or so, serving in the Royal Australian Navy, based initially in Melbourne and then in Sydney.  Father and son corresponded intermittently by letter but there has been no such correspondence since the disappearance of the father in or about mid‑1968.  Markijan Lashko was also on good terms with his neighbours, Mr and Mrs Laurie, and in frequent contact with them.  They are now both dead but, shortly after his disappearance in 1968, they informed Paul Lashko that his father had not given them any intimation that he was leaving.  They were unaware of any reason for his unexplained departure.  His only other known friend, Vasil, a fellow migrant, who travelled with the Lashkos to Australia in 1950 and who seems to have kept in touch occasionally, had no knowledge of Markijan Lashko's disappearance and was at a loss to offer any possible explanation for it. 

2. Markijan Lashko's body has never been found.

3. It is known that Markijan Lashko was prone to occasional heavy bouts of drinking and may well have felt troubled.  When his son eventually returned to the home at 41 Roberts Street, Collie, about five or six months after his father's disappearance, the house was intact, and items of his father's personal property and clothes were all in place, as were the only two dilapidated motor vehicles which the father owned or used.  It is extremely unlikely that, were he alive, Mr Lashko would not have communicated with his son, whose whereabouts as a serving member of the navy could readily be ascertained, or with his neighbours, Mr and Mrs Laurie, or taken steps to protect and preserve his house and property at 41 Roberts Street, Collie. 

4. All the circumstances suggest that he probably died shortly after his disappearance.  With more than seven years having elapsed since then, I am satisfied that the court should declare that Markijan Lashko is presumed to have died and that Paul Lashko should now have leave to swear to his death and proceed to obtain a grant of probate of his father's last will.

5. Accordingly, I consider that the court should order and declare:

   •for the purpose of enabling Paul Lashko to apply for a grant of probate of the will of Markijan Lashko, leave is granted to swear that the said Markijan Lashko died on an unknown date in or about 1968 or since;

   •that Markijan Lashko is presumed to have died at some time between 1968 and the date of this order;

   •there be liberty to apply;

   •no order as to costs.