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Riggs v Registrar of Births Deaths and Marriages[2010] QSC 481

Riggs v Registrar of Births Deaths and Marriages[2010] QSC 481

 

SUPREME COURT OF QUEENSLAND

 

CITATION:

Riggs v Registrar of Births Deaths and Marriages & Ors [2010] QSC 481

PARTIES:

MATILDA ANN RIGGS
(applicant)

v

REGISTRAR OF BIRTHS DEATHS AND MARRIAGES
(first respondent)

AND

EDMUND IAN RIGGS
(second respondent)

AND

HARRIET ELSIE RIGGS
(third respondent)

AND

EDGAR ALBERT RIGGS
(fourth respondent)

AND

JOHN KNOWLES
(fifth respondent)

AND

CAROL SAXTON
(sixth respondent)

AND

MARK KNOWLES
(seventh respondent)

AND

FILE NO/S:

BS12346/2010

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

24 December 2010

DELIVERED AT:

Brisbane 

HEARING DATE:

21 December 2010

JUDGE:

Martin J

ORDER:

DECLARE:

  1. That Patricia Anne Riggs is dead;
  1. That she died on or about 30 September 2001; and
  1. That she died in Queensland.

CATCHWORDS:

REGISTRATION – REGISTRATION OF BIRTHS, MARRIAGES AND DEATHS – REGISTRATION OF DEATH – where a person has not been seen or heard from since 30 September 2001 – whether that person can be declared deceased under s 31 of the Births Deaths and Marriages Registration Act 2003 (Qld)

Births Deaths and Marriages Registration Act 2003 (Qld), s 27(2A), s 31

Axon v Axon (1937) 59 CLR 395

Estate of Howard (1996) 39 NSWLR 409

Re Parker [1995] 2 Qd R 617

COUNSEL:

P Davis SC and G Del Villar for the applicant

D Keane for the first respondent

SOLICITORS:

De Groots for the applicant

G R Cooper Crown Solicitor for the respondent

  1. The applicant seeks declarations that Patricia Anne Riggs (Mrs Riggs) died, in Queensland, on or about 30 September 2001.
  1. The applicant is one of Mrs Riggs’ daughters. Apart from the Registrar the other respondents are Mrs Riggs’ husband, her other children, her parents and her brother. Only the Registrar appeared on this application.
  1. The material in support of the application consists of affidavits from family members, associates and the applicant’s solicitor. The affidavits from family members are startlingly brief. They are all generally of the same form and recite the fact that on 30 September 2001 the deponent was living at the family home at Margate, and that the deponent has not seen or heard from Mrs Riggs since 30 September 2001.
  1. Mrs Riggs was a joint owner with her husband of property in the Northern Territory and the Australian Capital Territory. Each of those properties is managed by a resident real estate agent and neither of them has had any contact with Mrs Riggs since 30 September 2001.
  1. Mrs Riggs was due to commence employment as a swimming instructor at a swim school at Scarborough on 1 October 2001. She did not attend for work on that day and her prospective employer has not heard from her.
  1. Mrs Riggs had two bank accounts with the ANZ. Both of them were being used by her up until about 18 September 2001 and, since that time, there have been no transactions initiated by Mrs Riggs.
  1. The applicant’s solicitors made enquiries with other entities which might have had dealings with Mrs Riggs. They included: the National Australia Bank, Australian Super, Virgin Mobile, the Roads and Traffic Authority of the ACT, and Queensland Transport. None of those bodies had any record of Mrs Riggs engaging with them or communicating in any way after 30 September 2001.
  1. The only person who claims to have seen Mrs Riggs after 30 September 2001 is her sister-in-law, Elaine Riggs, who says that she saw and spoke to Mrs Riggs on 1 October 2001 outside her, that is, Elaine Riggs’ house in Margate. She has not seen or heard from Mrs Riggs since 1 October 2001.
  1. An earlier application for an order under s 31 of the Births Deaths and Marriages Registration Act 2003 (the Act) that the death of Patricia Anne Riggs be registered pursuant to s 27(2A) of that Act was heard in the District Court in September 2007. His Honour Judge Martin SC, who heard the matter, sought further material from the applicant, including an explanation as to why Mrs Riggs was not reported missing for some days following her disappearance. The matter was adjourned for that information to be obtained. No further material was filed by the applicant who, in that case, was Mrs Riggs’ husband. No explanation was given at this hearing for that curious failure to respond to the request from Judge Martin SC but that does not affect this application.

Presumption of death

  1. The applicant relies upon a presumption which exists at common law and which will operate in certain circumstances. The extent of the presumption was considered by Dixon J in Axon v Axon (1937) 59 CLR 395 at 404-405:

“When it is proved that a human being exists at a specified time the proof will support the inference that he was alive at a later time to which, having regard to the circumstances, it is reasonably likely that in the ordinary course of affairs he would survive. It is not a rigid presumption of law. The greater the length of time the weaker the support for the inference. If it appears that there were circumstances of danger to the life in question, such as illness, enlistment for active service or participation in a perilous enterprise, the presumption will be overturned, at all events when reasonable inquiries have been made into the man’s fate or whereabouts and without result. The presumption of life is but a deduction from probabilities and must always depend on the accompanying facts. ‘In England it is only a general supposition of continuance, applicable to everything which has once been proved to exist—to an orange as well as a man;—a presumption which serves, in reasoning, to relieve from the necessity of constantly re-proving, from minute to minute, this once-proved fact of existence’ (The late Professor J. B. Thayer, Preliminary Treatise on Evidence at Common Law (1898), p. 348). 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. But the presumption authorizes no finding that he died at or before a given date. It is limited to a presumptive conclusion that at the time of the proceedings the man no longer lives.”

  1. Further consideration of this presumption was given by Lee J in Re Parker [1995] 2 Qd R 617 at 621-622:

“When it becomes necessary in a legal proceeding to establish the death of a person, the party on whom the burden of proving that issue lies may do so directly, circumstantially or presumptively: cf Axon v Axon (1937) 59 CLR 395 at 403 per Dixon J.

In relation to the third category of proof, there is said to be a rebuttable presumption of law that a person who is not heard of for a period of seven years, by those who would, in the normal course of events, be expected to hear from him if he were alive, is dead: Axon v Axon at 401 per Latham CJ. The mere fact of a seven year absence is insufficient; it is the fact that the absence remains unaccounted for when one would not reasonably expect it to be if the person were alive that forms the basis of the presumption: Chard v Chard [1956] P 259 at 271-2 per Sachs J. A fortiori, if the absence or lack of communication is unexplained but perhaps not unexpected the presumption will not arise: Ivett v Ivett (1930) 94 JP 237; Axon v Axon at 401-2 per Latham CJ and at 406 per Dixon J; Re Liebeskind [1952] CLY 1349.

But where death is proved presumptively, it is not taken to have occurred at any particular time within that seven year period nor, for that matter, at any particular time within any greater period extending up to the date that the issue falls to be determined: Axon v Axon at 401 per Latham CJ and at 403-4 per Dixon J; Re Reynolds' Trusts [1942] QWN 16. If the date of death becomes relevant, it is incumbent on the party seeking to establish it as the basis for the right claimed or remedy sought to prove it, not as a matter of presumption, but as a matter of evidence: In re Phene's Trusts (1869-70) 5 LR Ch. App. 139; In re Lewe's Trusts (1871) 6 LR Ch. App. 356; Prudential Assurance Co v Edmonds [1877] 2 App.Cas. 487 (PC) at 509; In re Rhodes; Rhodes v Rhodes (1877) 36 Ch. D. 586; In re Benjamin [1902] 1 Ch. 723; In re Jackson [1907] 2 Ch. 354; Lal Chand Marwari v Mahut Ramrup Gir (1926) 42 TLR 159 (PC) at 160 per Lord Blanesburgh; Axon v Axon at 404 per Dixon J; In re Carr [1942] Qd R 182 (FC); Re Reynolds' Trusts; Chard v Chard. The fact of death may be proved presumptively but not the time or manner of death.”

  1. In Estate of Howard (1996) 39 NSWLR 409 Cohen J considered what needed to be established and said, at 413:

“It will be seen that there are four essential matters which must be found on the balance of probabilities. First, there must be an absence for seven years. Secondly, a missing person has not been heard of in that time, thirdly, that those who might be expected to have heard of the person have not done so, and fourthly, that due inquiries have been made.”

  1. It was suggested by Mr Keane that the fourth requirement referred to by Cohen J had not been satisfied in this case. The first three matters can be seen to be drawn from the statements of Dixon J in Axon. The fourth, though, does not emerge from those reasons. I would prefer to express the matters which must be attended to when dealing with the establishment of the presumption by incorporating the issue of whether due inquiry has been made into the requirement to establish who might be expected to have heard of the person. The latter, is, after all, a requirement expressed for the establishment of the presumption and it follows, in my view, that to demonstrate who might be expected to have heard of the person will require that appropriate inquiries have been made.
  1. Mr Keane submitted that there was a lack of utility in the making of any declaration as there was no evidence of an associated probate application or letters of administration. The affidavit from the applicant discloses that the reason for her seeking these orders is so that she may attend to the estate of Mrs Riggs and associated matters. In order to make an application for probate or letters of administration it would be necessary to establish death and, in the absence of a death certificate, there would need to be evidence put on. This application is one way of satisfying that requirement.
  1. Another matter that was put before me was that there have been continuing investigations by the police into the circumstances of Mrs Riggs’ disappearance and that there may be an inquiry under the Coroners Act undertaken some time next year. A declaration that Mrs Riggs is dead will not affect any police inquiries or any coronial inquiry. They would be more concerned with the circumstances surrounding Mrs Riggs’ disappearance than anything else.
  1. I am satisfied that the evidence is sufficient to ground the presumption referred to in Axon and that I can make a declaration that Mrs Riggs is dead. It is also sought that there be two further declarations, namely, that she died on or about 30 September 2001 and that she died in Queensland. The presumption which applies only goes so far as to allow the finding that someone has died. It does not allow, by itself, for a finding as to date or place of death.
  1. Mr Davis SC argued that a finding that Mrs Riggs died on or about 30 September 2001 could be made based on the following circumstantial evidence:
  1. The date of her disappearance;
  1. The absence of any activity initiated by Mrs Riggs with respect to her bank account, telephone service and so on; and
  1. That she did not attend on 1 October to take up her new job.
  1. The material which has been exhibited to some of the affidavits includes the bank accounts held by Mrs Riggs with statements both before and after 30 September 2001. The statements for those accounts in the months leading up to 30 September 2001 do not reveal any unusual withdrawals or other transactions which might, for example, suggest that the holder of any account was accumulating cash in order to fund a different life. Mrs Riggs’ sister-in-law says that she saw Mrs Riggs on 1 October 2001 but she could be mistaken about that. She was not cross-examined on this. On the basis of the evidence put before me and on the basis of inferences which I think are able to be drawn, I conclude that it is more likely than not that Mrs Riggs died on or about 30 September 2001.
  1. It was also argued for the applicant that, having found that the death occurred on or about 30 September 2001, it was open to be inferred that the death occurred in Queensland. There was no evidence to suggest that anything had occurred which might have allowed Mrs Riggs to have left Queensland. Her sister-in-law saw her only a short distance from her own home and, once again, I think that it is more likely than not that, applying the presumption of death together with the circumstantial evidence surrounding her disappearance, she did die in Queensland.
  1. I therefore declare:
  1. That Patricia Anne Riggs is dead;
  1. That she died on or about 30 September 2001; and
  1. That she died in Queensland.
  1. The parties have agreed that there be no order as to costs.
Close

Editorial Notes

  • Published Case Name:

    Riggs v Registrar of Births Deaths and Marriages & Ors

  • Shortened Case Name:

    Riggs v Registrar of Births Deaths and Marriages

  • MNC:

    [2010] QSC 481

  • Court:

    QSC

  • Judge(s):

    Martin J

  • Date:

    24 Dec 2010

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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