The Application of Jill May Morison; In the matter of Neil Walter Morison

In Guo v Gao [2021] NSWSC 1059 at [1], I wrote:

As in that case, these are some of the questions that will need to be answered in the present proceedings. These reasons endeavour to answer those questions.

Jill May Morison, who is a sister of Neil Walter Morison (to whom I shall refer, hereafter, for convenience, as “NWM”), applies, by Summons filed on 23 November 2021 for letters of administration of his estate, on intestacy, and on presumption of death, pursuant to s 40A of the Probate and Administration Act, 1898 (NSW). She also seeks leave to distribute NWM’s estate, pursuant to s 40B of the Probate and Administration Act, upon the basis of the operation of the rules of intestacy. She filed an amended Summons on 28 October 2022, but it did not change the substance of the relief sought.

NWM left movable property in NSW of modest value.

Ms T Catanzariti, counsel for the Plaintiff, requested the Court to deal with the matter, in Chambers, on the papers. On 5 November 2022, she provided detailed written submissions to the Court. In the circumstances, the Court acceded to the request and no oral argument occurred.

However, on reading the contents of the Court file, it was necessary to raise some requisitions in order to deal with the matter in this way. These reasons have been delayed because the evidence, which needed to be supplemented, took far longer to obtain than was anticipated.

In ordinary litigation, the Plaintiff must decide who to name as a defendant. In this case, no person was named. However, notice of the application was given, by the solicitor for the Plaintiff, on 17 November 2021, to the following relatives of NWM:

Notice of these proceedings was also served on the following insurers:

No person who, and no entity which, was served filed an Appearance, or otherwise indicated a wish, or intention, to intervene in the proceedings. I am satisfied that the Plaintiff has given notice to the persons who are, or who may be, affected by the orders.

As in The Estate of Alan Bruce Beeby [2020] NSWSC 1512 at [55]-[62], I am also satisfied that there is no need for a contradictor to be named, mainly because the evidence, to which I shall refer, appears to be all one way. Indeed, there are no countervailing factors to delay dealing with the matter.

This Court has power to grant declaratory relief under s 75 of the Supreme Court Act 1970 (NSW). As well, like all superior courts, it has inherent power to grant declaratory relief: CGU Insurance Ltd v Blakeley (2016) 259 CLR 339 at 346-347 [13]; [2016] HCA 2 at [13] (French CJ, Kiefel, Bell and Keane JJ). That in a case such as this that a superior Court may do so is also made clear from cases such as Lashko v Lashko [2011] WASC 214 and Re Application for Grant of Presumption of Death; Ex Parte Craig Charles Park [2022] WASC 230, the latter of which involved applications for declaratory relief, in which the rebuttable presumption of fact relied upon in this case was sought to be invoked.

The material before the Court, which goes to establishing the necessary elements to enable the questions to be answered, will be considered in order to determine whether it provides a proper basis for giving the relief sought. In any event, there is no person who, or entity which, would have a sufficient interest to oppose the granting of the relief, or be likely to be able to add anything to the evidence that the Plaintiff has adduced.

Section 11 of the Supreme Court Act 1970 (NSW) provides:

Under s 11, there is no restriction on where the Supreme Court may exercise its powers, apart possibly from constitutional limits, not relevant in this case, requiring there to be a nexus with New South Wales. This is apparent from s 11(2) of the Supreme Court Act, which, by the use of the phrase “or otherwise”, contemplates no restriction on where the business of the Court might be conducted: King Investment Solutions v Hussain (2005) 64 NSWLR 441; [2005] NSWSC 1076 at [147] (Campbell J). Indeed, the section specifically “abolishes the distinction between court and chambers”: Hassan v Sydney Local Health District (No 4) [2021] NSWCA 187 at [9].

In addition, the business of the Court, whether conducted in court, or otherwise, is taken to be conducted in court.

I should also refer to s 71 of the Civil Procedure Act 2005 (NSW), which section permits the business of a court, in relation to any proceedings, to be conducted in the absence of the public, “...(f) if, in proceedings in the Equity Division of the Supreme Court, the court thinks fit”.

Whilst a chambers hearing is in private, in the sense that members of the public are not given admission as of right to the courtroom, dealing with a matter “in chambers” does not mean that the proceedings are dealt with in secret. To deal with a matter in chambers means no more than a less formal procedure may be adopted by the Court where there is no opposition to the Court making the orders sought: Le Grand v Criminal Justice Commission (No 2) [2001] QCA 432 at [19] (White J, Davies and Williams JJA agreeing).

In the Succession List, the Court, frequently, makes orders in chambers. The procedure enables matters to be determined informally and expeditiously. The documents in the Court file, where relevant, are read, and those documents are identified in the Court’s record of proceedings: Kelly v Kelly (2019) 17 ASTLR 429; [2019] NSWSC 994 at [79]; Robinson v Robinson (2020) 102 NSWLR 1; [2020] NSWCA 4 at [131]. It saves the costs of a hearing conducted with oral submissions.

In the circumstances, I considered it appropriate to deal with the matter in chambers.

On the written evidence submitted, I find the following facts. In stating these facts, there is nothing to suggest, in this application, that the general rule that the standard of proof in civil cases, being the "balance of probabilities", is altered. This means no more than a fact is proved if the Court is satisfied that it is more likely to be true than not true.

NWM was born in May 1948, in Strathfield, a suburb of Sydney, New South Wales.

NWM went missing in about 1972. He has not been seen, or heard of, since then. There are no reasons, known to the Plaintiff, for him not to have communicated with the members of his family in the 50 years that has passed since then. He has not been known to be alive, at any time, since then.

Evidence reveals that NWM joined the Australian Defence Force in April 1971 but was discharged on 13 October 1972 for being absent without leave.

NWM was not married, or in a de facto relationship, at the time of his disappearance. So far as is known, he then had no issue. Both of his parents have died, his father, Alexander Morison, on 22 August 1959, and his mother, Marion May Brown, on 2 July 2007.

NWM had eleven siblings, some of whom died before the making of this application. The siblings are:

The Plaintiff gave evidence, by affidavit, that, before he went missing, she had a good relationship with NWM and had been in regular contact with him. She also stated that she observed that he had strong family relationships with other members of his family. She stated that he appeared to be positive, and happy, about his life.

In the years that have passed, his body has not been found. There has been no coronial inquest. Naturally, there is no Death Certificate. There is no direct evidence that NWM has died. However, because of the period of time that has elapsed, it is not necessary to bring positive proof of his death.

The NSW Trustee and Guardian has made searches for NWM, including searches of the NSW, and Queensland, Registry of Births Deaths and Marriages, the Roads and Traffic Authority (as Transport for NSW was then called), Centrelink, the NSW Department of Corrective Services, the Department of Veterans Affairs, the Department of Immigration, and the Salvation Army family tracing service, all without success.

There has been no coronial investigation.

Letters to persons with similar names, identified in the White Pages of the NSW telephone directory, have not resulted in a response.

The Plaintiff’s solicitor has searched Revenue NSW and the publicly available records of ASIC. In addition, the Plaintiff and her solicitor have published a notice in the Sydney Morning Herald and have searched the National Library of Australia online site, Trove, a free online research portal. The Plaintiff has also completed an Ancestry DNA test to ascertain whether, through DNA matching, she could trace NWM. These searches, also, have been unsuccessful.

The Plaintiff, and her solicitor, have sought information from banks, including Westpac, NAB, the Commonwealth Bank and the ANZ Bank, searched insurers upon which notice has been served. All of these searches, also, have yielded no relevant information.

There were, however, no results of any searches through mobile phone records, or email services, as NWM went missing in 1972, well before mobile phones and email. Following reading the documents in the Court file, at my request, on 9 November 2022, my Associate sent the following email to the legal practitioners:

On 16 November 2022, Mr J Langley, a solicitor instructed by the Plaintiff, filed an affidavit detailing further attempts to locate NWM via Facebook. He stated that on 14 November 2022, he searched Facebook to see whether there were any positive matches to the name “Neil Morison”, limiting the search to ‘people’. The search had returned eight results which matched the search “Neil Morison”. Of the matches, a review of the profiles, with profile pictures, revealed that each of the persons was too young, based on the age NWM would be (74 years old). A review of profiles with an ‘About’ section of the profile with a date of birth displayed did not return a positive match to the deceased.

There were two remaining profiles that matched ‘Neil Morison’, which did not have a profile picture or a complete “About” section. Mr Langley sent a private message to each of these profiles asking whether they are the Neil Walter Morison who was last seen in Phegans Bay, NSW, Australia in 1972. At the date of swearing the affidavit, no response was received to the messages sent.

On 16 December 2022, Mr Langley filed another affidavit, sworn on that date, to which was annexed correspondence received from NSW Police Force in answer to a subpoena issued by him. The correspondence revealed:

I am satisfied that all reasonable investigations have been undertaken by the Plaintiff to determine whether NWM is still alive. In my view, to require her to undertake any further searches would be unnecessarily expensive and time consuming, with no reasonable prospect of eliciting any further information.

When the Court is dealing with an estate of about $50,000, bearing in mind s 56 of the Civil Procedure Act, the cost of further investigation is, proportionately, too great.

NWM’s estate is tiny, consisting of cash of almost $53,000, which is currently held by NSW Trustee and Guardian on trust for NWM. It appears that he is a beneficiary in the estate of his mother, Marion May Brown, who, as stated, died on 2 July 2007, and that the funds held relate to his share of her estate.

The Plaintiff has not located any will made by NWM. Searches have been undertaken at his last known address, with a local law firm, Farrell Goode, and with the NSW Trustee and Guardian, all without success. There is no evidence that any of NWM’s family has any knowledge of him having made a will or of a will existing. There are no obvious further enquiries that could be made in searching for a will. Currently, therefore, it appears, that if NWM is dead, he should be regarded as having died intestate.

Section 129 of the Succession Act 2006 (NSW) provides:

No person, other than the Plaintiff, has sought administration. Her family members do not oppose a grant being made to her.

I have dealt with the law in Guo v Gao. For the benefit of the Plaintiff, the other siblings, and the nieces and nephews of NWM, I shall repeat what I wrote in that, and in other cases that are relevant.

It is fundamental to any application for probate, or letters of administration, to show that the person whose estate would be the subject of the proposed grant of probate or administration is dead. That is usually satisfied by the presentation of a death certificate. As no death certificate has been issued in this case, the Court may consider whether to make a grant of probate or administration upon the basis that death can be presumed.

The test to establish the death of a person is a positive one based upon direct evidence of death. In relation to presumed death, the test is one dependent upon an absence of knowledge of the death of the missing person.

In Application by Walsh (Estate of Robert Charles Walsh (deceased)) [2020] NSWSC 976; (2020) 20 ASTLR 45 at [33]-[35], I wrote:

It has been written that “[a]n application for a grant on presumption of death occurs in all cases where the body is not found … This is the case even though a certificate of death may have issued”: Leslie G Handler and Richard Neal, Mason and Handler Succession Law and Practice NSW (LexisNexis Butterworths) at 9234 [5067]; David Liebhold, Stephen Janes, Paul Studdert, Wills, Probate and Administration Law in New South Wales (2nd ed, 2019, Thomson Reuters) 636.

It is important not to confuse the process of inferring death from the evidence available, and the application of the presumption of death at law. The learned authors of Wills, Probate and Administration Law in New South Wales write at 637:

In Re Ryan [1990] 3 NZLR 91, the applicant, who was the widow of the missing person, applied for probate in common form of the last Will of her husband in circumstances where she could not directly prove his death. The Registrar required an application for presumption of death, and the question before Tipping J (as his Honour then was) was whether that application was necessary if the evidence provided a clear inference that death had occurred. At 96, Tipping J wrote:

It is not necessary to rely on the presumption of death when the facts establish, by inference, that the person is deceased.

Section 40A(1) of the Probate and Administration Act 1898 (NSW) provides, relevantly, that where the Court is satisfied, whether by direct evidence or on presumption of death, that any person is dead, the Court shall have jurisdiction to grant administration of the person's estate, notwithstanding that it may subsequently appear that the person was living at the date of the grant.

Section 40B applies where a grant is made on presumption of death. Relevantly, it provides:

The cogency of the evidence that will be required to establish the death of the person is likely to be greater than that required to establish that the person has not been known to be alive for a period of at least seven years. Proving death by inference is a positive test whereas establishing the presumption of death after seven years requires proof of the absence of knowledge of the person being alive.

I turn next to the principles that relate to the presumption of death.

In Elaraby v Minister for Immigration (2018) 332 FLR 353; [2018] FCCA 1101, Judge Manousaridis wrote at [38]-[43]:

The determination of the presumption is a matter of fact: Axon v Axon (1937) 59 CLR 395; [1937] HCA 80 at 412-413 (Evatt J). The onus of establishing the presumption rests on the party who seeks it, and it is found on the balance of probabilities: Estate of Howard (1996) 39 NSWLR 409 (Cohen J).

The Court will “approach the question of proof of death with a great deal of caution because there are all kinds of unknown factors which will influence a person to move from his ordinary environment for no apparent reason whatsoever; and yet people do that very thing”: R A Sundberg, Griffith’s Probate Law and Practice in Victoria (3rd ed, 1983, Law Book Co) at 13-14. Yet, the burden of proof remains on the balance of probabilities.

In Axon v Axon, the Court was required to determine whether the first husband of the appellant was presumed to be dead as at the date of the appellant's second marriage to the respondent. The appellant's first husband had left her in 1923 and she had not seen, or heard, from him, again. The appellant then married the respondent on 6 January 1932. The respondent later claimed that his marriage to the appellant was not valid, because the appellant's first husband was still alive at the time it took place.

Dixon J wrote at 404-405:

The High Court also made it clear that there is no presumption as to the time of the person’s death prior to the institution of the proceedings. Latham CJ wrote at 401:

Evatt J wrote at 411-412:

In Chard v Chard [1956] P 259 at 272, Sachs J wrote:

This passage of Sachs J’s judgment was quoted, with apparent approval, by Holt M in In re Margarete Maria White [2001] TASSC 7 at [10]; by Gray J in In the Estate of Peter Dale Hills [2009] SASC 176 at [6]; and was cited by Ferguson J (as her Honour then was) in Re Curran [2010] VSC 455 at [8].

In In the Estate of Peter Dale Hills, leave to swear to death was granted where the propositus had been missing for 13 years without any contact with his family. Gray J reviewed the authorities and then observed at [7]-[8]:

The party seeking to rely on a presumption of death should prove absence from the last place of residence (or, if this is not known, absence from the last place in which the missing person resided): M'Mahon v M'Elroy (1869) 5 IR Eq 1 at 12; Allman & Co v M’Cabe [1911] 2 IR 398 at 426-427.

To rely upon this presumption, it will be necessary to establish, on the balance of probabilities, the following essential matters, namely that NWM has not been seen, or heard of, for a continuous period of seven years, or more, after he was last seen alive; that there are persons who would be likely to have heard of, or from, him over that period; that those persons have not heard of, or from, him; and that all due inquiries have been made appropriate to the circumstances.

In Prudential Assurance Co v Edmonds (1877) 2 App Cas 487, a case, initially, tried before a Judge sitting with a jury, the House of Lords suggested that a person is not "heard of" if no reliable information concerning the missing person is received by persons likely to have heard from her or him.

There is, of course, a distinction between missing, and not being in communication. The people with whom the missing person would be likely to communicate if she, or he, were alive, would be persons who would be more likely than not in contact with the missing person if she, or he, were alive, and who she, or he, would have had access to by ordinary means of communication. One would not expect the group to include every fellow resident, or relative, or friend, with whom the missing person, from time to time, had communicated with in the ordinary course of daily life.

Whilst not an essential matter to be established, one of the circumstances that the Court may take into account is whether there is a valid explanation why a person has not been heard of for that period: Estate of Howard at 413 (Cohen J). Where the missing person had a reason for not communicating with a person who would be likely to have heard of, or from, them, the presumption will not be invoked: Watson v England (1844) 60 ER 266; Estate of Howard at 413-414 (Cohen J).

As Cohen J also noted, at 415:

If there is evidence that the missing person has died, and the date of death is clear, it will not be difficult to fix that date. The position is less straightforward where there is evidence to satisfy the Court that the missing person has not been heard of for at least seven years.

If relevant matters are established, there arises a rebuttable presumption of law that NWM died at some time within that period, and the party upon whom the burden falls of proving his death may rely upon that presumption: Chard v Chard at 272 (Sachs J).

Thus, if a grant of probate or administration is made on presumption of death, it will not be possible for the date of death of that person to be recorded on the grant. In particular, death is not presumed at the end of the seven year period: Halbert v Mynar [1981] 2 NSWLR 659 at 664 (Waddell J).

His Honour wrote:

The court merely declares that as at the date of the institution of the proceedings the relevant person is dead: Ross v NRMA Life Limited (1993) 7 ANZ Insurance Cases ¶61-170 at 77,964 (Young J).

Whilst the law has used the period of seven years as a yardstick to displace the inference of continuation of life, the period involved is substantially longer in this case.

In the present case, there is no acceptable, affirmative, or direct, evidence that NWM is dead. Nor is there proof of death by inference. For those reasons, the Plaintiff relies upon proof of death by presumption of law. The starting point is the presumption, and the Court should look at all of the evidence to determine whether that evidence is consistent with the presumption.

Having carefully considered the evidence and the submissions of counsel, I am satisfied, on the balance of probabilities, that:

With such a long period of time having elapsed since NWM was last seen or heard from, I am satisfied that the court should declare that NWM is presumed to have died. There is no evidence which raises any question that NWM is alive and the Plaintiff has no reason to believe that he was alive, at any time during the last 50 years, or that he is currently alive, which would rebut the presumption of death. This is not a case where the Court is able to make any determination as to what happened to NWM.

The effect of the presumption is to give rise to a conclusion that, at the time of the proceedings, NWM is no longer alive. There is no presumption as to when NWM died. It is not presumed death occurred on any particular date during the period that he has not been heard from.

As there is no person, other than the Plaintiff, who is seeking the grant of administration, and as there is no opposition to the grant being made to her, I am satisfied that the grant of administration should be made to her.

In the circumstances, the persons identified as the siblings of NWM who are alive, and the issue of the siblings of NWM who died before these proceedings were commenced, should share the estate.

Section 40B(3) of the Probate and Administration Act provides that:

I am satisfied, taking into account the period of time that has elapsed since there has been any contact with, or communication from, NWM, that leave to distribute should be given unconditionally.

In all the circumstances, it is appropriate that there be an order that the Plaintiff’s costs, calculated on the indemnity basis, be paid out of the estate of NWM.

The Court: