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 is required because no death certificate has been issued and the body has never been recovered so Ms Harris must prove to the Court on the balance of probabilities that Mr Bennett is dead.

Unsurprisingly she does not wish to rely on the common law presumption of death after the lapse of seven years. That presumption was described by Dixon J in Axon v Axon (1937) 59 CLR 395 at 405 as follows:

"If, at the time when the issue of 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 communication 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."

If, however, there is evidence before the Court from which the Court can safely infer that the person has died it is not necessary to wait the seven years for the Court to infer death.

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 In Re Purton (1943) QWN 33, and Re Parker (1995) 2 QdR 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.

Section 6(2) of the Succession Act 1981 confers jurisdiction on this Court in its discretion to grant probate of a Will or Letters of Administration of the estate of a deceased person notwithstanding that the deceased person left no estate in Queensland or elsewhere.

Mr Bennett was domiciled in Queensland and has an estate in Queensland and it is appropriate that this Court grant the leave to Ms Harris, his de facto partner, to swear to his death and it is also appropriate that Letters of Administration upon intestacy be granted to Gabrielle Louise Harris subject to the formal requirements of the Registrar.

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