TERRITORY INSURANCE OFFICE v CREEDON
In the Supreme Court of the Northern Territory of Australia. Kearney J.
16 March, 3 July 1987 at Darwin.
Practice and Procedure	Order	19 Rule 50 of Rules of the Supreme Court - Jurisdiction of Master.

Practice and Procedure - Order 19 Rule 50 of Rules of the Supreme Court - appointment of representative of estate of deceased for purposes of cause necessity that person appointed consent to appointment.

Practice and Procedure - Scope of Order 19 Rule 50 of Rules of the Supreme Court - where proceedings not commenced at time deceased died Administrator ad litem may be appointed.

Cases applied:
Government Insurance Office v Johnson (1981) 2 NSWLR 617
Lean v Alston (1947) KB 467
Pratt v London Passenger Transport Board (1937) 1 All ER 473 Re Hart deceased: Smith v Clarke (1963) NSWR 627
Woolley and Garden v Green (1820) 3 Phill.Ecc. 314;
161 ER 1336

Counsel for applicant Solicitor for applicant
Solicitor for respondent

G. Hiley Ward Keller
P. McQueen

kea870135
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY OF AUSTRALIA
No.277 of 1986

IN THE ViATTER OF the estate of PETER TYRONE CROCKER

AND IN THE MATTER of an
application under Order 19 Rule 50 of the Rules of the Supreme Court
BETWEEN:
TERRITORY INSURANCE OFFICE
Applicant

AND:
JOSEPH PATRICK CREEDON
Respondent

CORAM:	Kearney J.

REASONS FOR DECISION
(delivered 3 July 1987)

By Interlocutory Summons dated 17 June 1986 the Territory Insurance Office (herein referred to as "the Office") applied to have set aside certain orders herein made by the Master on 21 April 1986. The application came on before me in Chambers on 16 March 1987. After hearing argument I ordered that the Master's orders be set aside, for reasons to be later published. I now publish those
reasons.

The chronology of relevant events is as follows.

The respondent contends that

on	21 April

1980	2

motor

vehicles	collided	on	the

Arnhem

Highway.

One

Peter Crocker	was	the	driver

of	a

Holden

sedan.

Joseph Creedon, the respondent was a passenger in this vehicle. The Holden sedan collided with a Kenworth truck driven by a Mr Collicco. Mr Crocker died in the collision; Mr Creedon sustained injuries.

On 21 April 1986 the solicitor for by	Originating	Summons	applied	ex	parte

the	respondent under Order 19

Rule 50 to the Master to have the Territory Insurance Office
appointed to represent the Estate of the late Mr Crocker for the purposes of an action which the respondent proposed to bring against the Estate (inter alia), claiming damages for the injuries he had sustained in the accident of 21 April 1980. The Master made the orders sought.

After these orders had been made and on the same day, 21 April 1986, the respondent instituted proceedings No.280 of 1986 in this Court by filing a Writ of Summons claiming damages against the driver and the owner of the Kenworth truck, the owner of the Holden sedan, and the Office  as  representative  of  the  Estate  of  the  late Mr Crocker pursuant to the Master's order made that day.

2

On 5 June 1986 the Office entered a conditional Appearance in proceedings No.280 of 1986; and on 17 June 1986 it filed the Interlocutory Summons in these proceedings to have the Master's orders set aside.

An affidavit filed in support of that application was sworn on 13 June 1986 by Mr Stewart, the solicitor for the Office. In that affidavit Mr Stewart deposed that  he was informed that the Office had no prior notice of the ex parte application of 21 April 1986, and at no time had consented to the making of the order appointing it as representative of the Estate.

Before me, Mr Hiley for the Office submitted that the Court had jurisdiction to set aside the Master's orders either under its inherent jurisdiction or  pursuant  to Order 56 Rule 22. I accept that that is correct. Mr Hiley submitted that the Master's orders should be set aside upon any one of three grounds viz:-

that the Master had no jurisdiction to deal with the application of 21 April 1986;

that the consent of the Office was necessary before an order appointing it as legal representative could be made, and no such consent had been given;
=d

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that the application did not fall within the proper scope of Order 19 Rule 50, which applied only to an application in relation to a "cause, matter or other proceeding" on foot at the time the deceased died and in which the deceased "was interested".

As to the first ground, it is clear that Order56 Rule 19 enables the Master to hear applications under any of the Rules listed in Column 1 of Part 1 of the Fifth Schedule to the Rules of Court. The Fifth Schedule, however, expressly excludes power under Rules 11, 36  and  50 of Order 19 from the powers vested in the Master. Jurisdiction under Order 19 Rule 50 remains vested in "the Court or a Judge".. There is no provision vesting power in the Master to entertain this application. Accordingly, Mr Hiley made good his first ground and the Master's orders must be set
aside.
It is accordingly strictly unnecessary to consider the further grounds relied on, but in deference to the careful arguments put, I deal briefly with them.

On the second ground, that the consent of the Office to its appointment was required and had never been obtained, Mr Hiley relied on 4 authorities: Pratt v London Passenger Transport Board (1937) 1 All ER 473; Lean v Alston (1947) KB 467; Re Hart deceased: Smith v Clarke (1963) NSWR

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627; and Government Insurance Office v Johnson (1981) 2 NSWLR 617. Pratt's case (supra) was very similar to this case; it establishes that there is no jurisdiction to appoint a person who is unwilling to act. Lean's case (supra) establishes that the consent of the person appointed must be obtained. The reason for consent is a matter of commonsense: the appointed representative may become liable for costs. In Government Insurance Office v Johnson (supra) the Court of Appeal discussed Part 8 Rule 16 of the NSW Supreme Court Rules which is substantially  the same as Order 19 Rule 50 of our Rules. Mahoney J.A. said at p.637:-

"Such an appointment will not, of course, be made without the insurer's consent and the court, before making such an appointment will no doubt usually satisfy itself that there is no objection to the appointment being made, from those interested in the insured's estate or for any other reason."

Accordingly, the authorities establish that the consent of the Office to its appointment is necessary.  As no such consent was ever given, this is a further reason why the orders of the Master must be set aside.

As to the third ground, both Pratt's case and Lean's case (supra) establish that Order 19 Rule 50 applies only where there is a "cause, matter or other proceeding" on

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"" ....

foot at the time the deceased dies.  It seems,.. however, that the deceased need not have been a party to that ... proceeding; see per Morton L.J. in Lean's case (supra) at p:.'473. In the present case, there were no proceedings on foot :.gt' the time of Mr Cracker's death. Accordingly, Mr Hiley makes good his third ground. I consider that the Court has power to appoint an administrator ad litem in a situation such as this where proceedings have not been commenced aeI the time of death; see Woolley and Garden v Green (18.2:(}) 3 Phill. Ecc. 314; 161 ER 1336.	,·t.

The foregoing are the reasons for the cco:r;ders	made on 16 March 1987, which were as follows:-
::o·

order in terms of paragraph 1 of theJlriterlocutory Summons of 17 June 1986 (setting aside;·:::the orders of the Master made on 21 April 1986);

the	Office	to have its costs of and.£mcidental to this application; and

application certified a proper case	f r	counsel's attendance, in terms of Order 64 Rule <Bir
Le<

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