PETER DALE HILLS - [2009] SASC 176

SUPREME COURT OF SOUTH AUSTRALIA
(Testamentary Causes Jurisdiction: Application)
In the Estate of PETER DALE HILLS
[2009] SASC 176
Judgment of The Honourable Justice Gray
16 June 2009
EVIDENCE - BURDEN OF PROOF, PRESUMPTIONS, AND WEIGHT AND SUFFICIENCY OF EVIDENCE - PRESUMPTIONS - DEATH, SURVIVORSHIP AND ISSUE
SUCCESSION - WILLS, PROBATE AND ADMINISTRATION - PROBATE AND LETTERS OF ADMINISTRATION - EVIDENCE - PRESUMPTION OF AND LEAVE TO SWEAR DEATH
Application for leave to swear death - presumed deceased missing for 13 years without any contact with family - whether presumption of continuance of life displaced - whether presumption of death arises - whether fact of death to be inferred from evidence.
Held: application granted - evidence allows inference of death to be drawn - death of presumed deceased may be sworn to have occurred on or since 4 December 1996.
Probate Rules 2004 (SA) r 67 and r 77, referred to.
Axon v Axon (1937) 59 CLR 395; In re Westover (1987) 139 LSJS 115; Hickman v Peacey [1945] AC 304; Chard v Chard [1956] P 259; Watson v England (1844) 60 ER 266; Estate of Howard (1996) 39 NSWLR 409, considered.

In the Estate of PETER DALE HILLS
[2009] SASC 176
Testamentary Causes Jurisdiction
GRAY J

This is a referral of an application for leave to swear death in circumstances where a person is missing, believed dead.
The application is made to the Court pursuant to Rule 67 of the Probate Rules 2004 (SA) with respect to Peter Dale Hills, the presumed deceased. The Registrar has referred the application to a Judge of this Court pursuant to Rule 77 of the Probate Rules.
Where a court is unable to draw an inference of death from facts given in evidence, it may have resort to what has been described as “the presumption of death”. It has been suggested that the presumption of death is more accurately described as the displacement of the presumption of continuance of life.[1] These presumptions were discussed in Axon v Axon,[2] where Dixon J observed:
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 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.
[1] In re Westover (1987) 139 LSJS 115 at 117 (Legoe J).
[2] Axon v Axon (1937) 59 CLR 395 at 404-405.
Latham CJ in Axon explained the limitations of the presumption of death:[3]
…the application of the rule does not establish death at any particular time. It only produces the result that, if a person had 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.
…
…the rule only applies where it is shown that persons who might have been expected to hear of the continued existence of the person whose death is in question have failed to hear of him. It is clear, as a matter of common sense, that no presumption as to the death of a particular person can arise from the fact that he has not been heard of by persons who had no connection or association with him, or between whom and himself no mutual interest had existed.
[3] Axon v Axon (1937) 59 CLR 395 at 401.
Axon lays down the principle that there is no presumption that death occurred at any particular time before the proceedings, even if the proceedings take place long after the seven year period has expired. The presumption is only to the effect that, at the time of the proceedings in question, the person is presumed to be dead. The failure of the presumption to determine the point of death has been criticised.[4] On occasion the courts have departed from authority and fixed the time of death at the end of the seventh year of absence.[5] However the precise time of death does not affect the outcome in the present proceedings, and the determination of such will not be embarked upon.
[4] See eg Hickman v Peacey [1945] AC 304.
[5] Re Westbrook’s Trusts (1873) WN 167; Chipchase v Chipchase [1939] P 391.
Dixon J’s statement above summarises the relevant common law principles[6] to be applied in circumstances of an individual’s disappearance. The authorities make it clear that there are four essential matters that must be found on the balance of probabilities.[7] There must be an absence for seven years; it must be demonstrated that the missing person has not been heard of in that time; that those who might be expected to have heard of the person have not done so and finally that due enquiries have been made and no response received. These four requirements were outlined in Chard v Chard as follows:[8]
That presumption in its modern shape takes effect (without examining its terms too exactly) substantially as follows. Where as regards “A.B.” there is no acceptable affirmative evidence that he was alive at some time during a continuous period of seven years or more, then if it can be proved first, that there are persons who would be likely to have heard of him over that period, secondly that those persons have not heard of him, and thirdly that all due inquiries have been made appropriate to the circumstances, “A.B.” will be presumed to have died at some time within that period.
Any presumption of death that the court makes is rebuttable if evidence later shows the person to be alive, or likely to be alive.
[6]    Axon v Axon (1937) 59 CLR 395 at 401.
[7]    For a historical analysis of those authorities see D Stone, ‘The Presumption of Death: A Redundant Concept?’ (1981) 44 The Modern Law Review 516.
[8]    Chard v Chard [1956] P 259 at 272 (Sachs J).
An automatic presumption of fact does not arise even if seven years have elapsed without any sign of the person in question.[9] As Legoe J noted in In re Westover:[10]
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.
[9] In re Westover (1987) 139 LSJS 115 at 117 (Legoe J).
[10] In re Westover (1987) 139 LSJS 115 at 117.
In Westover,[11] 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.
[11] In re Westover (1987) 139 LSJS 115 at 117-118 (Legoe J).
The application seeks an order that the death of Mr Hills may be sworn to have occurred on or since 4 December 1996. The Public Trustee, the applicant, has deposed that Mr Hills died intestate. All the evidence adduced to support the application is by affidavit. As there are some unusual features about the disappearance of Mr Hills I propose to discuss the evidence in some detail.
Mr Hills was born on 10 May 1976. He was reported missing in South Australia on 28 October 1996. His motor vehicle was subsequently located in Queensland on 5 December 1996. Following this discovery, Mr Hills was listed as a missing person in Queensland on 9 December 1996. An officer with the missing persons bureau of the State Crime Operation branch in Queensland has provided a statement in which she has detailed the inquiries made to assist in the investigation of the whereabouts of Mr Hills. Those inquiries have included conversations with the father and de facto of Mr Hills, inquiries of the police in each State and Territory of Australia, inquiries of Births, Deaths and Marriage Registrars throughout Australia, inquiries with the Department of Immigration and Multicultural Affairs, of the Health Insurance Commission, of Centrelink, of the Commonwealth Bank of Australia, of all other financial institutions throughout Australia, the Red Cross and the Queensland Electricity Board and from a Supreme Court Deed Poll search for record of any name change. None of these inquiries have revealed information about the whereabouts of Mr Hills.
Use of both print and electronic media was used during the initial investigation, with articles relating to Mr Hills’ disappearance appearing in local newspapers and television coverage on “Australia’s Most Wanted”. This coverage failed to produce any information as to his likely whereabouts.
The officer at the Missing Persons Bureau caused photographs of Mr Hills to be placed within the Queensland Police Service computer system available to police on a statewide basis. Copies of the photographs were also sent to the National Missing Persons Unit in Canberra for publication on their national missing persons poster of November 1997. This unit has an Australia wide exposure. A search of the Australian Electoral Rolls has proven negative, as did all inquiries conducted with Missing Persons Bureaus. The Townsville Blood Bank had a record of Mr Hills attending on 4 December 1996.
As earlier observed, on 5 December 1996, Mr Hills’ vehicle was located at Mosquito Creek Rollingstone, north of Townsville. A male of a similar description to Mr Hills was seen sleeping in the vehicle on both that night and the following night. A police officer from the Rollingstone Station attended the vehicle on 7 December 1996 and found the vehicle to be locked and secure, with clothing on the back seat. The officer conducted a search of the area and spoke with locals but could not locate Mr Hills. On 8 December 1996 the officer again attended the vehicle and noted there was no sign of Mr Hills, and on 9 December 1996 after again noting the vehicle to be still in the location, the officer contacted the father of Mr Hills, Edward Hills, and made arrangements to transport the vehicle to Ingham.
The officer of the Missing Persons Bureau has maintained contact with the South Australian Missing Persons Unit who have advised her that they have conducted numerous inquiries with negative results.
The Public Trustee has deposed that based upon all of the information, documents and correspondence received from officers of the department, the belief is held that Mr Hills has died. The Public Trustee also deposes to the estate of Mr Hills consisting of a superannuation entitlement, an entitlement to income benefits under a National Mutual Retirement Fund, a superannuation policy for death cover and an interest in the estate of his mother. Mr Hills had no liabilities at the time of his disappearance in 1996.
The Public Trustee has deposed that Mr Hills operated a Commonwealth Bank account with a credit balance of more than $2,000 on 2 December 1996. The only dealings with that account since that date have been a deposit by a third party and debits that have taken place as the result of a direct debit facility with respect to a sickness and accident policy.
The solicitor for the Public Trustee has deposed to the lodging of advertisements in newspapers in South Australia and Queensland seeking information as to the whereabouts of the Mr Hills. There has been no response to any of the advertisements.
A neighbour of the family of Mr Hills saw him on 28 October 1996. He came to her home and requested a loan of money. The neighbour lent Mr Hills $25.00. He only stayed at her home for a few minutes and then drove away in his car. He said he would repay the money. She told him to keep in touch and he replied “I will Aunty Margaret”. The neighbour has not seen or heard from Mr Hills since that time. He appeared to be normal that day as he left her home. She recounted that Mr Hills’ mother had committed suicide by burning herself to death in the back shed of their home when he was about 16 years of age. He found her on fire. According to the neighbour, Mr Hills did not get on well with his father.
Edward Hills, the father of Mr Hills, described him as being fairly quiet and family orientated. Edward Hills and his wife separated in 1982 and Mr Hills continued living with his mother and other siblings. In 1998 he came to live with his father but only stayed a few months before heading back to live with his mother. In 1992, Mr Hills was diagnosed with schizophrenia and was prescribed medication. At times when he stopped taking his medication he would be admitted to hospital, usually for 2 or 3 days. Edward Hills was contacted by the de facto of his son, Kelly Owbridge, on 28 October 1996. She informed him that his son was missing. Edward Hills has deposed that it is his belief that because his son has not contacted anybody since his disappearance he is not alive.
Kelly Lianne Owbridge has deposed that she first met Mr Hills in April 1996. At that time, he was living in a housing trust unit in Swift Street Northfield. She took up a de facto relationship with him in May 1996 with her daughter of her previous relationship. She lived with him until his disappearance in October 1996. Ms Owbridge became pregnant to Mr Hills and has, since his disappearance, given birth to a daughter as a result of that pregnancy. According to Ms Owbridge, on 26 October 1996 Mr Hills indicated that he was going to the shop. Ms Owbridge saw him leave in his car. At that time she was outside the home. On returning inside she realised that he had taken clothing with him. Later that day she found his medication spilt over the back lawn. She has not heard from him since that day.
Ms Owbridge’s mother, Gwenda Joyce Owbridge, described Mr Hills as a gentle and supportive person. He appeared to be in good health with his only evident illness being schizophrenia. He formed a good relationship with Brianna, the daughter of his de facto partner. She has had no contact with him since the time of his disappearance.
David Wright acted as medical practitioner for Mr Hills between 18 July 1986 and 5 June 1995. By letter dated 24 March 2009, Dr Wright outlined that in the early 1990s Mr Hills was being treated at Woodleigh House for schizophrenia. At that time, he was prescribed Haloperidol, 5mg daily and Cogentin, 1mg at night. Dr Wright expressed the opinion that it was likely that Mr Hills could have become suicidal or had suicidal tendencies if he ceased taking his medication. The mother of Mr Hills had attempted suicide in the past, and on 2 January 1993, he informed Dr Wright that his mother had succeeded in suicide several months previously. Following this, Mr Hills described symptoms of depression. As a consequence of the anxiety and agitation displayed by Mr Hills, Dr Wright referred him to Woodleigh House for treatment. Dr Wright noted that when seen on 10 April 1995, Mr Hills displayed side effects of anti-psychotic medication. Dr Wright last saw Mr Hills on 5 June 1995 when he prescribed an antibiotic for the symptoms of a chest infection.
Conclusion
Mr Hills disappeared, has not been heard of in almost 13 years and all reasonable enquiries and searches have been carried out without any indication that he is still alive. Investigations by police have yielded no information. Mr Hills’ close family or friends have not heard from him in the intervening years. None of the depositions provided indicate that there was any reason for him not to communicate with those persons.[12] No part of his estate, including any insurance or superannuation policies, has been accessed by him. The evidence indicates that Mr Hills could not function without his medication for schizophrenia. The medical evidence suggests that he was likely to have been suicidal without that medication. Mr Hills’ car was found abandoned and advertisements were placed in a variety of newspapers without any communication from any person in response to those advertisements.
[12] cf: Watson v England (1844) 60 ER 266; Estate of Howard (1996) 39 NSWLR 409 at 414 (Cohen J).
Having regard to the foregoing, I am satisfied that the presumption of continuance of life has been displaced. I further consider that the evidence gives rise to a presumption of death. Having regard to that presumption and to the nature and quality of the evidence before the Court, I am prepared to infer that Mr Hills died on or since 4 December 1996.
I order that the death of Peter Dale Hills may be sworn to have occurred on or since 4 December 1996.