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[2001] TASSC 7
plaintiff. Margarete White was granted leave to swear to Robin Geoffrey White’s death upon filing a supplementary affidavit stating her belief that he died on or after 9 April 1992.
The Court was asked to let Margarete White swear that her husband had died, so she could seek probate of his will. Master Holt found that Mr White had been missing for more than seven years, that his close family would likely have heard from or of him if he were alive, and that extensive enquiries had found no reliable sign of him. The Master gave no weight to a vague report of a possible sighting. Leave was granted, but only if Mrs White filed an affidavit stating her belief that Mr White died on or after 9 April 1992. The decision did not fix a date of death or decide any claim under the life-insurance policy.
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In In re Margarete Maria White [2001] TASSC 7, Master Holt of the Supreme Court of Tasmania considered an application for leave to swear to the death of Robin Geoffrey White. Margarete White, his wife and named executrix and trustee under his will, needed to provide an affidavit of death to obtain a grant of probate. She did not know that he was dead, so she applied for the Court’s leave to swear to it [1]–[2].
1 cited instrument linked from this judgment.
The application was filed on 23 September 1999. It originally sought four orders, including leave to swear to death, liberty to presume death, registration of death, and costs [1]. Zurich, which had insured Mr White’s life under a policy for $225,000 plus a consumer price index increase, was joined as a respondent [4]. At the hearing, Zurich challenged the proposed orders concerning a presumption and registration. The applicant did not persist with those orders, leaving only the question of leave to swear to death [5].
Mr White had disappeared on 9 April 1992. Before that, he and Mrs White had experienced financial pressure after buying a takeaway business, and they had argued about money the day before he disappeared. His van was found four days later on a bush track. Police and volunteers conducted extensive searches, including a grid search of the surrounding area, but found no trace of him [12]. A farewell note addressed to his wife and daughters was found in his briefcase. It expressed affection and referred to his inability to continue as before, but did not establish what happened to him [12].
The evidence included extensive police enquiries into Mr White’s whereabouts. Searches of relevant records across Australian States and Territories returned negative results. The judgment also records that checks revealed no health insurance activity, passenger movement, or change of name after his disappearance [14]. Family members and friends gave evidence or provided letters saying they had not heard from him [17].
Zurich relied on circumstances said to support an intentional disappearance rather than death, including financial and personal pressures, his past disappearance as a young man, evidence of past infidelity, the absence of a body, and the location of the van near a possible route towards a ferry terminal [13]. The Master assessed those matters against the lack of reliable evidence of contact or activity over the following years. A report of a possible sighting in Queensland, recounted second-hand and without an identified source, was considered too vague and remote to carry weight [11].
The application succeeded. At [18], the Master found that Mr White had not been seen or heard from for more than seven years, that his wife and daughter Emma would likely have heard from or of him if he were alive, that they had not, and that appropriate enquiries had found no acceptable evidence he was alive. Leave was granted on condition that Mrs White file a supplementary affidavit stating her belief that Mr White died on or after 9 April 1992 [8], [18].
The judgment distinguishes between a court deciding that a missing person is presumed dead and a court giving an applicant leave to swear to death. The Master explained that, in this type of proceeding, the Court does not itself presume death by making the requested order. Rather, it grants leave to the applicant to swear, in the applicant’s belief, that the person is dead. The applicant must then make the necessary oath [7]. The procedure protects an executor who cannot truthfully swear to death without leave, as the judgment explains through its discussion of Re Smith [2].
The legal test was expressed through the principles in Axon v Axon and Chard v Chard. The judgment sets out the relevant conditions at [9]–[10]. A period of at least seven years must have passed since the person was last seen or heard from by people who would, in the ordinary course of events, likely have heard from or of that person if alive. Those people must not have heard from or of the missing person, appropriate enquiries must have been made, and there must be no acceptable affirmative evidence that the person was alive at some point during the period.
The Master applied the test to the actual relationships and circumstances, rather than treating the passage of seven years alone as decisive. Mrs White and daughter Emma were found to be people likely to hear from or of Mr White. The judgment notes that he had been living with them when he disappeared and that his note showed affection for his family. The Master considered that information about any contact with relatives or family friends would, in the common course of affairs, likely have reached his wife and children [17].
The Court also considered whether the lack of contact could be explained by intentional desertion. Zurich’s submission was that the evidence made it less likely that Mr White would contact family or friends even if he were alive [13]. The Master weighed this against the extensive enquiries, the absence of any record of Mr White after 1992, and the absence of reliable evidence of a sighting. The judgment stated that the negative records were more consistent with death than with him simply living apart from family and friends [14]. It also found that even an assumption that he had deserted his family would not account for the absence of records after 1992 [16].
The supplementary affidavit requirement was a separate procedural condition. Mrs White’s affidavits had not stated her belief that Mr White had died. Relying on Re Hurlston’s Goods, the Master required her to file a supplementary affidavit expressing the belief that death occurred on or after the disappearance date [8]. The order was therefore not unconditional.
The Court deliberately did not determine a date of death. It had not been asked to do so, and the possible date was not in issue in this proceeding [7]. The Master explained that the presumption only places death at some point within the seven-year period. A person whose claim depends on a particular date must prove that date by evidence [6]. The decision therefore addressed the evidentiary threshold for leave, not the timing of death for any insurance or other claim.
The judgment presents the seven-year presumption as an established rule developed through judicial statements, rather than as a rule that automatically follows whenever a person has been missing for seven years. In the passage from Chard v Chard set out at [10], Sachs J described the presumption as applying in certain cases of seven years’ absence, subject to proof that likely contacts have not heard from the person and that appropriate enquiries have been made. Master Holt relied on that formulation in assessing the evidence.
The judgment also clarifies the limited legal effect of leave to swear to death. The leave does not itself establish the exact date of death. Re How’s Goods and Lal Chand Marwari are cited for the distinction between a presumption that death occurred at some time in the period and evidence needed to establish a specific date [6]. That distinction matters because the purpose of the application was probate, while a date could matter separately to an insurance claim if the policy had not remained in force throughout the period [7].
The “before” state visible in the judgment is therefore a procedural problem for executors: without knowing that the testator is dead, an executor may be unable to make the ordinary affidavit needed for probate. The practice of seeking leave addresses that difficulty, while requiring the applicant to swear to a belief rather than treating the Court’s order as a substitute for the oath [2], [7].
The “after” state in this case was narrow. Mrs White received leave only once she filed the required supplementary affidavit. The order did not register a death, determine the exact date, or resolve an insurance claim. The supplied judgment does not describe any later change in the law, so no broader post-decision legal development can be established from this source.
At [6], the Master stated that “at what time within that period he died is not a matter of presumption but of evidence.” In plain English, the seven-year absence rule may support a finding that death occurred during the relevant period, but does not itself identify the day or year. Someone whose legal claim depends on a particular date has to prove that date.
At [7], the Master said that “the Court, in proceedings of this kind, does not presume death, but gives to the applicant leave to swear to the death.” This explains the limited function of the proceeding. The Court is not making a general declaration that the missing person is dead. It is permitting the applicant to make the required statement on oath, subject to the evidence and the procedural requirements.
At [8], the Master required a supplementary affidavit stating the applicant’s belief that death occurred on or after the date of disappearance. In practical terms, the order was conditional: the application had not yet supplied an essential statement about the applicant’s belief.
At [14], the Master observed that the absence of any record of Mr White was “more consistent with him having died than with him simply living apart from his family and friends.” This was an assessment of the evidence in this case, particularly the record checks. It was not a rule that missing records always prove death.
Finally, at [18], the Master found that “the facts support a presumption of law that Mr White is dead.” That conclusion followed the combined findings about the seven-year period, likely family contacts, lack of communication, due enquiries, and absence of acceptable affirmative evidence of life. The resulting order remained one for leave to swear, not a determination of date.
The judgment is relevant to applications involving a person who has been missing for at least seven years and where the applicant needs leave to swear to death for probate or a related purpose. Its reasoning makes clear that elapsed time alone is not enough. The evidence should address who would probably have heard from or of the missing person, whether those people have heard anything, what enquiries have been made, and whether any reliable evidence indicates the person was alive during the period [9]–[10], [18].
The identity and circumstances of likely contacts matter. In this case, the wife and adult daughter were considered likely to hear from Mr White, taking account of their relationship, his living arrangements before disappearance, and his note to his family [17]. The Master did not treat every person in the extended family as necessarily satisfying the test. The finding specifically focused on the wife and daughter Emma.
The decision also illustrates the significance of the quality of evidence about sightings. The reported Queensland sighting was second-hand, its source was not identified, and the witness could not be more specific. The Master found it too vague and remote to carry weight [11]. The judgment does not establish that every unverified report can be disregarded; it records the assessment of this particular evidence.
A further feature is the need to consider competing explanations for absence. Zurich argued that Mr White may have disappeared intentionally and could therefore have avoided contact [13]. The Master considered the history of disappearance and other personal circumstances, but found that they did not adequately explain the absence of any trace in the enquiries and records [14]–[16]. Thus, the case is relevant where the evidence permits both death and intentional absence as possibilities. The court’s reasoning depends on the whole evidentiary picture, not a single circumstance such as a farewell note, a missing body, or financial pressure.
The decision does not determine what evidence would prove a particular date of death, whether an insurance policy remained in force, or whether a particular insurance benefit would be payable. The Master expressly left those matters outside the application [7], [15].
The supplied judgment contains no decisions issued after Re White and no account of how later courts treated it. It would therefore be unsupported to say that later courts followed, distinguished, or otherwise applied this decision.
Within its own reasoning, Master Holt relied on earlier authorities. Re Smith is mentioned in explaining the purpose of leave to swear to death [2]. Re How’s Goods and Lal Chand Marwari are used to explain that the presumption does not fix a particular date of death [6]. Re Jackson’s Goods supports the distinction between the Court presuming death and giving an applicant leave to swear [7]. Re Hurlston’s Goods is relied on for the supplementary affidavit requirement [8]. Axon v Axon and Chard v Chard inform the test for the seven-year presumption [9]–[10].
Those citations show the authorities Master Holt considered in 2001. They do not establish how subsequent courts have treated either Re White or those authorities. The judgment itself also does not identify whether its decision was appealed.
The decision leaves several matters open because they were not necessary to determine the application. First, it does not identify when Mr White died. At [6]–[7], the Master expressly distinguished the presumption of death from proof of a particular date. Any claim requiring a date would involve a separate evidentiary question.
Second, the Court did not decide whether the Zurich policy remained in force throughout the relevant period or whether any insurance benefit was payable. The Master noted that an insurance action might raise a date-of-death issue if the policy had not been maintained for the full seven years, but that action was not before the Court [7]. The existence of the policy was not, by itself or together with the other evidence, sufficient to explain the complete absence of trace [15].
Third, the judgment does not lay down a universal checklist for what counts as “all due enquiries”. It records the enquiries made in Mr White’s case, including police searches and cross-jurisdictional record checks, and finds them appropriate to the circumstances [14], [18]. The exact scope required in another factual setting is not resolved by this decision.
Fourth, the order depended on Mrs White filing a supplementary affidavit stating her belief. The judgment does not discuss what would follow if an applicant could not honestly make that statement, or if evidence emerged after leave was granted.
Finally, the judgment does not resolve how evidence of a deliberate disappearance should be assessed in every case. Here, the Master found that the possible explanations raised by Zurich did not overcome the weight of the evidence and the absence of reliable traces [13]–[16]. Different evidence could require a different assessment; the decision’s reasoning remains tied to the circumstances found in this application.
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CITATION: In re Margarete Maria White [2001] TASSC 7
HEARING DATE: 13 July, 2 November 2000, 6 February 2001
Succession - Wills, probate and administration - Presumption of death - Leave to swear death.
Re Smith (1975) 6 ALR 123; Re How's Goods (1858) 1 Sw & Tr 53; Lal Chand Marwari v Mahant Ramrup Gir and Anor (1925) 42 TLR 159; re Jackson's Goods (1902) 87 LR 747; Re Hurlston's Goods (1898) P 27; Axon v Axon [1937] HCA 80; (1937) 59 CLR 395; Chard v Chard [1956] P 259, referred to.
Judgment Number: [2001] TASSC 7
IN THE MATTER OF AN APPLICATION BY MARGARETE MARIA WHITE
1 Margarete Maria White by originating application filed 23 September 1999, applied for the following orders:
"1 That the Applicant have leave to swear to the death of ROBIN GEOFFREY WHITE.
2 That the Applicant be at liberty to presume that ROBIN GEOFFREY WHITE is now dead having died on a date unknown after 9 April 1992.
3 That under Section 35 of the Registration of Births and Deaths Act 1895 the death of ROBIN GEOFFREY WHITE be registered.
4 That the Applicant's costs of and incidental to these proceedings be taxed on a solicitor/client basis, if not agreed, and paid out of the estate of the said ROBIN GEOFFREY WHITE."
2 The grounds upon which the application is made are self evident from the affidavits filed in support. The applicant married Robin Geoffrey White ("Mr White") in March 1987. Mr White disappeared on 9 April 1992. Mr White had made a will in which he appointed the applicant to be the executrix and trustee of his will and estate. In order to obtain a grant of probate of the will, the applicant must provide an affidavit of death. The applicant does not know that Mr White is dead, and so she must obtain the leave of the Court to swear to the death:
"This practice no doubt evolved in order to help and protect the executors who, without this leave, could not truthfully swear to the death of the testator as required by the common form procedure and who, if they did so swear without leave might be committing perjury." Re Smith (1975) 6 ALR 123.
"20B An application for leave to swear to the death of a person shall be made by summons to a judge and shall be supported by an affidavit -
(a) setting out the grounds of the application; and
(b) containing particulars of every policy of insurance on the life of the person presumed deceased."
4 In this case, the affidavit of the applicant disclosed that Mr White's life was insured with Zurich Australian Life Insurance Ltd, now Zurich Australia Ltd ("Zurich") for the sum of $225,000 plus the percentage increase in the consumer price index since the policy was first taken out in March 1988. The applicant was the plan owner and under the terms of the policy, Zurich was to pay "to the plan owner or the executors, administrators or assigns of the plan owner" the benefit specified in the policy "on the death of the life insured prior to the benefit expiry date". Zurich, having been served with the application, applied to be made a respondent to the proceedings and an order was made accordingly on 22 December 1999.
5 At the hearing, counsel for Zurich submitted that the second and third orders sought in the application were misconceived. It was said that an order giving the applicant liberty to presume the death was meaningless, as no consequences would flow from such an order, the correct form of order being as set out in par1 of the application. As to the Registration of Births and Deaths Act 1895, s35, it was said that this "appears to be a permissory section, enabling a death to be registered beyond the time limited by s29 of the Act, namely twelve months", and had no relevance, as neither the fact of, nor date of death was the subject of the proceedings. Having heard these submissions, counsel for the applicant advised me that the applicant did not persist in seeking the second and third orders referred to in the application. Accordingly, the sole matter for my consideration is whether or not the applicant should be given leave to swear to the death of Mr White so as to enable her to obtain probate of his will.
6 I point out at the outset that an order granting leave to swear to the death made upon a presumption arising from disappearance for seven years provides no assistance as to the date of death. The presumption is simply that the person died at some time during the seven year period. Re How's Goods (1858) 1 Sw & Tr 53. The onus of proof of death at any particular date is on the person to whose title the date is essential. Lord Blanesburgh, speaking for the Privy Council in Lal Chand Marwari v Mahant Ramrup Gir and Anor (1925) 42 TLR 159 at 160 adopted the expression of principle contained in In re Phené's Trusts LR 5 Ch 139, namely:
"If a person has not been heard of for seven years, there is a presumption of law that he is dead: but at what time within that period he died is not a matter of presumption but of evidence and the onus of proving that the death took place at any particular time within the seven years lies upon the person who claims a right to the establishment of which that fact is essential."
7 In order for me to determine the application, it is not necessary for me to assign a date of death should I grant the order sought. I have not been asked to do so by counsel. It may be that ultimately proceedings will be instituted by the applicant against Zurich for the life insurance moneys in which an issue may arise as to the date of death if the policy was not maintained throughout the seven year period. I suggested to counsel for the applicant, before embarking upon the hearing of this matter, that if an action was to be commenced against Zurich for the life insurance moneys, that action might conveniently be heard at the same time as this matter. That did not occur and so date of death is not an issue before me. Neither is the fact of death. The Court, in proceedings of this kind, does not presume death, but gives to the applicant leave to swear to the death. The report of re Jackson's Goods (1902) 87 LR 747 contains the following:
"Pritchard, for the applicant, said that Mrs Ives had scruples as to swearing that Mr Macintyre was dead and that she was the next-of-kin. Seeing that there had been no knowledge of the man's existence for a period of nearly 30 years, the court ought to presume his death.
Barnes J pointed out that the court never did presume death, but gave the applicant leave to swear the death, and the applicant then had to swear to the fact. Parties had to prove their right to a grant and they did not establish their right unless they made the necessary oath. The true principle in such cases was for the applicant to obtain the leave of the court to swear in his or her belief that a person is dead."
8 Presumably the applicant has a belief that Mr White is dead but she has not said so in her affidavits in support of the application and she must do so before she is entitled to the order sought. In Re Hurlston's Goods (1898) P 27, Gorelle Barnes J said:
"It is essential in these cases that the applicant should state a belief that the death occurred on or after the alleged date. The applicant must make a supplementary affidavit containing a statement to this effect. When this supplementary affidavit has been filed at the registry the order may be made as prayed."
If I make the order sought by the applicant, it will be conditional upon the applicant filing an affidavit stating her belief that the death occurred on or after the date of disappearance, namely 9 April 1992.
9 Plainly, if, on the evidence, a court would, if the issue was before it, presume death and the applicant has stated a belief that death has occurred, an order granting leave to swear to the death should be made. The circumstances in which the fact of death may be presumed following disappearance for seven years were referred to by Dixon J in Axon v Axon [1937] HCA 80; (1937) 59 CLR 395 at 405, as follows:
"The presumption of life is but a deduction from probabilities and must always depend on the accompanying facts. ... As time increases, the inference of survivorship may become inadmissible, and after a period arbitrarily fixed at seven years, if certain conditions are fulfilled, a presumption of law arises under which a court must treat the life as having ended before the proceedings in which the question arises. 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."
10 Provided that there are persons who would, if the missing person were alive, be likely to have seen, heard from or of him, or have learned of his whereabouts, and there is evidence that that has not occurred, and provided that the Court is satisfied that all due enquiries have been made, the legal presumption of death will arise unless there is acceptable affirmative evidence that the person was alive at some time during the seven year period. This is made clear in the judgment of Sachs J in Chard v Chard [1956] P 259 at 272 where he said:
"My view is thus that in matters where no statute lays down an applicable rule, the issue of whether a person is, or is not to be presumed dead, is generally speaking one of fact and not subject to a presumption of law.
To that there is an exception which can be assumed without affecting the present case. By virtue of a long sequence of judicial statements, which either assert or assume such a rule, it appears accepted that there is a convenient presumption of law applicable to certain cases of seven years' absence where no statute applies. That presumption in its modern shape takes effect (without examining its terms too exactly) substantially as follows. Where as regards 'AB' 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, 'AB' will be presumed to have died at some time within that period. (Such a presumption would, of course be one of law, and could not be one of fact, because there can hardly be a logical inference from any particular set of facts that a man had not died within 2,555 days but had died within 2,560.)"
11 The only evidence of anyone hearing of Mr White since his disappearance is as set out in the affidavit of Graham Beswick which was read into evidence on behalf of Zurich. Mr Beswick said:
"2 Whilst I lived at St Mary's I knew Mr and Mrs White who operated the St Mary's Supermarket.
3 I recall hearing that Mr White had disappeared shortly after this occurred in 1992. Three or four years later, somebody told me that they had been told that Mr White was or had been seen in Queensland after he disappeared from Tasmania.
4 I conveyed this information to my sister-in-law, Katrina Atkins. My sister-in-law has advised me, and I verily believe, that she in turn told Susan Horne and I was subsequently contacted by Detective Constable Neil McLarty of Launceston police about this information.
5 I cannot recall who gave me the information referred to in paragraph 3 of my affidavit. I believe the information came from somebody in the St Mary's district who knew Mr White, but I cannot be more specific."
This evidence is too vague and remote for any weight to be attached to it.
12 To consider, who, if anybody, would have been likely to have seen, heard from or of Mr White or learned of his whereabouts had he been alive, it is necessary to consider Mr White's personal circumstances and the circumstances in which he disappeared. I list the relevant circumstances, none of which were the subject of dispute, below:
1 Mr White was born on 25 April 1954 at Box Hill in Victoria. His father died many years ago. His mother suffers from severe dementia and is unable to recognise family members. His mother's second husband died in Victoria in 1994. Other children in the family were Mr White's brothers (Malcolm, Gavin and Mark), his step-sister (Lorraine Henderson) and his step-brother (Graham Cottee). He married Susan Horne and by that marriage had one daughter, Emma, born on 10 June 1978. The first marriage ended in divorce in 1986 and Mr White married the applicant Margarete White in March 1987. The only child by the second marriage is a daughter, Annika, born 25 May 1990.
2 The applicant and Mr White purchased a supermarket business at St Mary's in Tasmania in early 1988. The supermarket was sold in January 1992 and after loans were paid off, an amount of about $140,000 was left over. The couple then bought a house in Launceston for about $140,000 and also bought a take-away food business in Launceston for about $160,000, the latter amount being borrowed funds. Immediately upon taking over the new business, the couple had to purchase stock and pay rent. An instant cash flow problem occurred. Cheques were written with insufficient money to cover them. An overdraft facility to cover the cheques was applied for but refused on 8 April 1992. On the same day, the couple had an argument about money.
3 On 9 April 1992, Mr White had not been seen since early in the day. His brother, Malcolm, closed up the business and brought the takings home in Mr White's brief case that evening. The brief case contained a note written by Mr White to his wife and two daughters in the following terms:
I'm sorry that I've not been able to do the same for you.
My own stupidity has led to a situation where things can't go on as before. The only future I see for you is one without me.
Please cal Rob Dalgleish. I'm sure he'll look after everything.
Mr Dalgleish was Mr White's solicitor and Mr Anderson was a financial adviser who had arranged the Zurich life insurance policy. The policy did not contain a suicide exclusion.
4 Mr White was last seen driving his Daihatsu van in Launceston on the morning of 9 April 1992. The van was located four days later on a bush track off the end of Mountain Road at Lilydale. It was located about 20 minutes walking distance from a road from which it would be about a 30 minute drive to the Bass Strait ferry terminal at Georgetown. The van was examined by police and found to be clean and tidy with no evidence of blood, trauma, or any item which might have been used by Mr White to commit suicide. Over the next few days a very intensive search of the area was undertaken by police and volunteers. On 2 of the days of the search, about 50 police officers were involved. An area of about six square kilometres around the vehicle was the subject of a search technique involving police officers working in grids, line abreast, 3 - 4 metres apart. No evidence of Mr White being in the area, other than the discovery of his vehicle, was found. The officer in charge of the search, Mark Hindrum, said in his affidavit sworn 4 July 2000:
"Whilst with the search and rescue squad with Tasmania Police I have attended a significant number of searches where people have taken their own lives. In my experience as a member of the search and rescue squad, where a person has driven to a secluded spot for the purpose of taking their own lives, death occurs either in the vehicle or within the immediate surroundings of the vehicle. I have never seen an instance where a person has driven to a secluded place and taken their own life after walking more than a few meters [sic] from their vehicle."
5 Mr White, as an 18 year old, disappeared for 4 - 5 months without contacting any family members. During his first marriage, he had had at least two affairs, including an affair with the applicant. Mr White's first wife reported to police that she had seen Mr White in Launceston about a fortnight before his disappearance holding hands with a female. The description of the female given by Mr White's first wife matched a description of a female who had lived in the St Mary's area at the time the White's owned the supermarket there.
13 It was not submitted that there was any evidence which I should find to be acceptable affirmative evidence that Mr White is still alive. The submission by counsel for Zurich, Mr Estcourt QC, proceeded as follows:
"... the persons who have been put forward by the applicant as being persons who are likely to have heard from him in the period intervening since 9 April 1992, are not, given the circumstances of Mr White's disappearance, persons who could be expected to have heard from him at all.
(i) there is no evidence from which it could be presumed in the ordinary sense of the word, that Mr White committed suicide and that all traces of him, his body and his clothes vanished; and
(ii) the evidence pointing to an intentional disappearance which would render it unlikely that Mr White could ever make contact again with his wife, family or friends, is so strong as to prevent the presumption that he is dead from being made.
The evidence pointing to an intentional disappearance comprises:
* financial and personal pressures on Mr White of great weight;
* a predisposition to disappear to escape from pressure;
* a farewell note which is equally consistent with disappearing to start a new life as with suicide;
* the absence of a body which would have been found on such a thorough search as was made by Tasmania Police;
* the abandoned vehicle located adjacent to an 'escape route' via Georgetown and Bass Strait.
The totality of that evidence prevents Mr White being presumed to be dead with sufficient confidence to permit Mrs White to swear to his death.
* that Mr White did not commit suicide establishes the alternative of an intentional disappearance;
* that Mr White disappeared intentionally means that persons who would ordinarily be expected to have heard from him were he alive, cannot be expected to have heard from him;
* the absence of persons who can be expected to have heard from him and have not done so, prevents the presumption from being made that he is dead."
14 Constable McLarty gave evidence that very extensive police enquiries have been undertaken to ascertain whether or not Mr White is still alive. Many of these enquiries were repeated about 12 months ago. There is no record of any activity by Mr White since his disappearance. The police file shows that on 18 August 2000, the Health Insurance Commission reported that there had been no activity in respect of Mr White since 1991. A passenger movement check dated 21 August 2000 has no record of him travelling. In August 2000, records were checked nation-wide to see if Mr White had registered a change of name. No such record was located. The affidavit of Officer Deearna Rowe contains the following:
"On 15 August 1994 Constable N M Scott requested all Australian States and Territories to undertake an 'indices search' in relation to Robin Geoffrey White born 25 April 1954. By indices search I mean a search of the databases maintained in each Australian State and Territory for:
(a) offences committed by people in that State of Territory;
(b) transport authority records such as the issue of driver's licences and the like;
(c) subscribers to instrumentalities providing hydro-electricity supply;
The result of that request was that all Australian States and Territories returned negative results meaning Robin Geoffrey White born 25 April 1954 was not recorded on any such databases.
On 21 January 2000 I requested a further indices search to be carried out by all Australian States and Territories in an effort to locate Mr White. The result of that request was that I received a negative result from all States and Territories as to Mr White."
The fact that the enquiries made have revealed no record of Mr White is more consistent with him having died than with him simply living apart from his family and friends.
15 There is no foundation for any suspicion that Mr White disappeared for the purpose of committing an insurance fraud. Beside the note and the van parked in the bush, he left no evidence of his death. There is no evidence that he knew of the legal presumption of death following seven years' disappearance. There is no evidence that the Zurich insurance policy has been kept in force over the seven year period. The evidence of the existence of the life insurance policy is not sufficient on its own, nor in combination with any of the other evidence to account for there being no trace of Mr White since 1992.
16 The woman who was suspected of having been seen holding hands with Mr White a fortnight before his disappearance was located by the police. Her affidavit was read into evidence. She said:
"I do not recollect ever knowing anyone called Robin Geoffrey White whether in Tasmania or elsewhere."
She was cross-examined at length and did not depart from what she had deposed in her affidavit and there was nothing in her demeanour; or in what she said; or in other materials or information presented to provide any basis for disbelieving her. Counsel for Zurich did not suggest in submissions that she should be disbelieved. Even if it were to be assumed that Mr White deserted his family, that fact would not account for the absence of records of him since 1992.
17 There was evidence from the applicant, Margarete White; Emma White; and Mr Winter (a long-standing friend of Mr White) that they had not heard from Mr White since his disappearance in April 1992. This evidence was unchallenged. In addition, annexed to the affidavit of the applicant's solicitor which was read into evidence without objection, were letters from Mr White's brothers, Malcolm, Gavin and Mark, stating that they had not heard from him since April 1992. There were letters to the same effect from Mr White's first wife; his step-sister and step-brother; and some former friends of Mr White. At least in relation to the applicant, Margarete White, and Emma White, I am satisfied that these are persons who would have been likely to have heard from or of Mr White since April 1992 if he were alive. At the time of his disappearance, Mr White was living with the applicant and his daughters, Emma and Annika and it is obvious from the note he left that he had great affection for his family. If any of the relatives or family friends of Mr White had seen, or heard from or of him, since his disappearance, it would, in the common course of affairs, have been likely to have been communicated to his wife and children.
1 Mr White has not been seen, heard from or of since 9 April 1992, a period of more than seven years;
2 his wife and daughter Emma (Annika probably being too young to remember him) would be likely to have seen, heard from or of him during that period were he alive;
3 those persons have not seen, heard from or of him;
4 all due enquiries have been made appropriate to the circumstances by the police and the applicant through her solicitors and that those enquiries have not resulted in any evidence (excepting for the vague assertions contained in Mr Beswick's affidavit to which I have no regard) that anybody has seen, heard from or of him since 9 April 1992; and
5 there is no acceptable affirmative evidence that he was alive at some time since 9 April 1992.
The facts support a presumption of law that Mr White is dead. No reason to refuse the grant of leave exists. It will be ordered that upon the applicant filing a supplementary affidavit containing a statement of her belief that Mr White died on or after 9 April 1992 that she have leave to swear to the death of Robin Geoffrey White.
Re Smith (1975) 6 ALR 123; Re How's Goods (1858) 1 Sw & Tr 53; Lal Chand Marwari
Mahant Ramrup Gir and Anor
(1975) 6 ALR 123
(1937) 59 CLR 395
Margarete White was granted leave to swear to Robin Geoffrey White’s death upon filing a supplementary affidavit stating her belief that he died on or after 9 April 1992.