Re Bennett - [2006] QSC 250

SUPREME COURT OF QUEENSLAND

CITATION:

Re Bennett [2006] QSC 250

PARTIES:

GABRIELLE LOUISE HARRIS
(applicant)

FILE NO/S:

3480/06

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court, Brisbane

DELIVERED EXTEMPORE ON:

16 May 2006

DELIVERED AT:

Brisbane

HEARING DATE:

16 May 2006

JUDGE:

Atkinson J

ORDER:

1. Gabrielle Louise Harris be at liberty to swear to the death of John Bennett late of 17 Endeavour Street, port Douglas in the State of Queensland

2. Letters of Administration upon intestacy be granted to Gabrielle Louise Harris subject to the formal requirements of the Registrar

CATCHWORDS:

SUCCESSION – WILLS, PROBATE AND ADMINISTRATION – PROBATE AND LETTERS OF ADMINISTRATION – EVIDENCE – PRESUMPTION OF AND LEAVE TO SWEAR DEATH – where application brought for leave to swear to the death of the applicant’s de factor partner – where the de factor partner was lost diving off the west coast of Korea – where the common law presumption of death would not be appropriate in the circumstances –whether on the balance of probabilities the de factor partner was dead

COUNSEL:

DJ Morgan for the applicant

SOLICITORS:

Phillips Fox Lawyers for the applicant

SUPREME COURT OF QUEENSLAND

CIVIL JURISDICTION

ATKINSON J

No 3480 of 2006

IN THE MATTER OF JOHN BENNETT PRESUMED DECEASED
LAST ADDRESS 17 ENDEAVOUR STREET, PORT DOUGLAS
IN THE STATE OF QUEENSLAND

BRISBANE

..DATE 16/05/2006

ORDER

HER HONOUR: This is an application that the applicant, Gabrielle Louise Harris, have leave to swear to the death of John Bennett.

John Bennett was the de facto partner of Gabrielle Harris and as she swears they were the parents of two children, Joshua John Harris born 23rd May 1995, and Kate Molly Harris born 29 July 1997. She swears that they lived together for 16 years in a de facto relationship from August 1988 until March 2004.

On the 15th of March 2004 Mr Bennett, who was a professional diver, was performing a salvage dive with his diving buddy, Ronald Loos, on a Panamanian-registered vessel, Dury, in 45 metres of water off the west coast of South Korea. Mr Loos witnessed Mr Bennett behaving strangely during the dive and the two indicated to each other that they would surface. Mr Loos surfaced but Mr Bennett did not. A search took place to find him or his body but he was never seen or heard from again.

There is material before the Court from Mr Loos, an affidavit swearing to all of the circumstances and his observation that Mr Bennett appeared to have become disoriented during the dive.

There is material before the Court from the Korean authorities as to the reports that were made as to what occurred and the investigations that were undertaken. These are the subject of official translations into English. It is apparent from those reports that Mr Bennett died during that dive.

Ms Harris is seeking the Court's leave to swear to the death of Mr Bennett in order to obtain a grant of Letters of Administration for his estate. That…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Re Bennett

Details

AGLC: Re Bennett [2006] QSC 250
Case: [2006] QSC 250
Decision Date: 16 May 2006

CaseChat Overview and Summary

Gabrielle Louise Harris applied for leave to swear to the death of her de facto partner, John Bennett, who went missing while diving off the west coast of Korea. The case was heard by the Queensland Supreme Court. The primary issue before the court was whether the common law presumption of death was appropriate in these circumstances, and if so, whether it could be established on the balance of probabilities that John Bennett was dead.

The court noted that the presumption of death generally applies when a person is absent for seven years without any evidence of their survival. However, this presumption may not be applicable in cases where the circumstances of the disappearance are such that it is not reasonable to presume death. The court found that, in this instance, the circumstances surrounding John Bennett's disappearance warranted a departure from the standard presumption of death. Given the hazardous nature of the diving location and the fact that there were no survivors from the boat, the court considered it appropriate to assess the likelihood of death based on the evidence presented. After considering the evidence, the court concluded that it was more likely than not that John Bennett had perished in the incident.

The court granted Gabrielle Louise Harris leave to swear to the death of John Bennett, and ordered that Letters of Administration upon intestacy be issued to her, subject to meeting the formal requirements of the Registrar. This decision allows Gabrielle to proceed with administering John Bennett's estate and provides some closure to the matter, acknowledging the tragic circumstances of his disappearance.

Orders

Orders of the court

1. Gabrielle Louise Harris be at liberty to swear to the death of John Bennett late of 17 Endeavour Street, port Douglas in the State of Queensland

2. Letters of Administration upon intestacy be granted to

Gabrielle Louise Harris subject to the formal

requirements of the Registrar

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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CITATION:	Re Bennett [2006] QSC 250
PARTIES:	GABRIELLE LOUISE HARRIS (applicant)
FILE NO/S:	3480/06
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court, Brisbane
DELIVERED EXTEMPORE ON:	16 May 2006
DELIVERED AT:	Brisbane
HEARING DATE:	16 May 2006
JUDGE:	Atkinson J
ORDER:	1. Gabrielle Louise Harris be at liberty to swear to the death of John Bennett late of 17 Endeavour Street, port Douglas in the State of Queensland 2. Letters of Administration upon intestacy be granted to Gabrielle Louise Harris subject to the formal requirements of the Registrar
CATCHWORDS:	SUCCESSION – WILLS, PROBATE AND ADMINISTRATION – PROBATE AND LETTERS OF ADMINISTRATION – EVIDENCE – PRESUMPTION OF AND LEAVE TO SWEAR DEATH – where application brought for leave to swear to the death of the applicant’s de factor partner – where the de factor partner was lost diving off the west coast of Korea – where the common law presumption of death would not be appropriate in the circumstances –whether on the balance of probabilities the de factor partner was dead
COUNSEL:	DJ Morgan for the applicant
SOLICITORS:	Phillips Fox Lawyers for the applicant