Greenway v McKay

[1911] HCA 25

310 HIGH COURT

[1911.

H. C. OF A. O ’C o n n o r

J.

I agree in thinking that tlie reasoning of

McMillan J. is conclusive.

Sm it h

V.A

23peal allotued.

Order appealed from dis­

Mt l l a b s ’

K a e b i a n d

charged. Appeal from McMillan J.

J a e e a h Co .

dismissed with costs, and his judgment restored. Respondent to pay the costs of this appeal.

(1902) L t d .

Solicitors, for the appellant, Lawson & Jardine for James &

Darhyshire, Perth.

Solicitors, for the respondents, Blahe & Riggall for Stone &

Burt, Perth.

B.L.

[HIGH COURT OF .4.USTRAL1A.]

GREENWAY

. A p p e l l a n t ;

McKAY

.

R e sp o n d e n t .

ON APPEAL PROM THE SUPREME COURT OP

VICTORIA.

H. C. OF A . Administration ad litem—Necessity fo r notice o f ajpplication—Seasons fo r granting

1911.                 —PoveHy—Action fo r death caused hy negligence—Administration and Probate Act 1890 (Viet.), (No. 1060), secs, 14, 110—Probate and Administration Rules

M e l b o d e n b ,

1906 (FicL), rr. 4, 15— Wrongs A ct 1890 (Viet.), (No. 1160), secs. 14, 15, 16.

June 7, 8, 9.

The Supreme Court of Victoria having jurisdiction under the AdministTU- Griffith C.J., Barton and tion and Probate, Act 1890 to grant administration arf litem may do so under

r. 15 of the Probate and Adndni^tration Rules 1906 without the previous

O’Connor JJ.

publication of the notice required by r. 4.

12 C.L.R.] OF AUSTRALIA.

311

Sec. 16 of the Wrongi Act 1890 requiring that an action in respect of the H. C. or A.

death of a person caused by negligence must be brought within twelve months 1911.

of his death, the facts that, unless administration is granted immediately, the

twelve months will have expired and that the applicant, the widow of the

G b e e n w a y

V.

intestate, has been prevented by poverty from applying earlier, are sufficient

M cK a y .

reasons for granting administration ad litem.

Semble, the Supreme Court having granted administration ad litem has no jurisdiction to revoke that grant on the motion of the defendant in the proposed action.

Decision of Hood J. : In re Oreenway, (1910) V.L.R., 469 ; 32 A.L.T., 169,

reversed.

A ppe a l from the Supreme Court of Victoria.

Elizabeth Marcella Greenway, the appellant, wa.s the widow of Edmund Joseph Greenway who died intestate on 20th September 1909 from injuries received while in the employment of Hugh Victor McKay, the respondent, l e a v i n g him surviving his widow and one infant child.

On 15th September 1910 the appellant published in a Melbouime newspaper a notice that after the expiration of 14 days from the publication she would apply for administration of tlie estate of her deceased husband.

On 16th September 1910 application…