Re Bennett

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.