>>>>>>>>>>>>>>> IN WHAT INSTANCE CAN YOU VOID ORDERS? >>>>>>

>>>>>>>>>>>>>>> IN WHAT INSTANCE CAN YOU VOID ORDERS? >>>>>>

Postby donkey1984 » Sat Nov 03, 2012 8:01 pm

All i can find on void orders is what happens if and when you void orders, but nothing mentioning the specific instances when such action would be acceptable. Does anyone have any examples of instances that would warrant a void order. thanks
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THE VOID COURT ORDER

Postby Oshun » Thu Nov 08, 2012 12:27 pm

THE VOID COURT ORDER
Friday February 17, 2012
By Shirley Lewald, Solicitor Advocate Higher Rights (Civil and Criminal Courts), MSc (Psych), PGDip (SocSc), PGCPSE, LLB (Hons).

The interesting and important nature of a ‘void’ order of a Court is not fully understood and appreciated in England and this article is written to assist the understanding of a ‘void’ order and to assist legal professionals in any concerns they may have in submitting to a Court that its order is void, if indeed it is void.

In Anlaby v. Praetorius (1888) 20 Q.B.D. 764 at 769 Fry L.J. stated on the issue of void proceedings that:
“A plaintiff has no right to obtain any judgement at all”.

A void order does not have to be obeyed because, for example, in Crane v Director of Public Prosecutions [1921] it was stated that if an order is void ab initio (from the beginning) then there is no real order of the Court.
In Fry v. Moore (1889), 23 Q.B.D. 395 Lindley, L.J. said of void and irregular proceedings that it may be difficult to draw the exact line between nullity and irregularity. If a procedure is irregular it can be waived by the defendant but if it is null it cannot be waived and all that is done afterwards is void; in general, one can easily see on which side of the line the particular case falls.

A void order results from a ‘fundamental defect’ in proceedings (Upjohn LJ in Re Pritchard (deceased) [1963] 1 Ch 502 and Lord Denning in Firman v Ellis [1978] 3 WLR 1) or from a ‘without jurisdiction’/ultra vires act of a public body or judicial office holder (Lord Denning in Pearlman v Governors of Harrow School [1978] 3 WLR 736).

A ‘fundamental defect’ includes a failure to serve process where service of process is required (Lord Greene in Craig v Kanssen Craig v Kanssen [1943] 1 KB 256); or where service of proceedings never came to the notice of the defendant at all (e.g. he was abroad and was unaware of the service of proceedings); or where there is a fundamental defect in the issuing of proceedings so that in effect the proceedings have never started; or where proceedings appear to be duly issued but fail to comply with a statutory requirement (Upjohn LJ in Re Pritchard [1963]). Failure to comply with a statutory requirement includes rules made pursuant to a statute (Smurthwaite v Hannay [1894] A.C. 494).

A ‘without jurisdiction’/ultra vires act is any act which a Court did not have power to do (Lord Denning in Firman v Ellis [1978]).
In Peacock v Bell and Kendal [1667] 85 E.R. 81, pp.87:88 it was held that nothing shall be intended to be out of the jurisdiction of a Superior Court, but that which specially appears to be so; and nothing shall be intended to be within the jurisdiction of an Inferior Court but that which is so expressly stated.
It is important to note therefore that in the case of orders of Courts with unlimited jurisdiction, an order can never be void unless the ‘unlimited jurisdiction’ is ‘limited’ in situations where it is expressly shown to be so. In the case of orders of the Courts of unlimited jurisdiction where the jurisdiction is not expressly shown to be limited, the orders are either irregular or regular. If irregular, it can be set aside by the Court that made it upon application to that Court and a person affected by the irregular order has a right –ex debito justitiae – to have it set aside. If it is regular, it can only be set aside by an appellate Court upon appeal if there is one to which an appeal lies (Lord Diplock in Isaacs v Robertson (1984) 43 W.I.R. PC at 128-130). However, where the Court’s unlimited jurisdiction is shown to be limited (for example: a restriction on the Court’s power by an Act of Parliament or Civil or Criminal Procedure Rule) (Peacock v Bell and Kendal [1667]; Halsbury’s Laws of England) then the doctrine of nullity will apply.

Similarly, if the higher Court’s order is founded on a lower Court’s void act or invalid claim then the higher Court’s decision will also be void (Lord Denning in MacFoy v United Africa Co. Ltd. [1961] 3 All ER).



Full piece here http://thinkfree.org.uk/forum/index.php?topic=1952.msg3334#msg3334

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Re: >>>>>>>>>>>>>>> IN WHAT INSTANCE CAN YOU VOID ORDERS? >>>>>>

Postby musashi » Thu Nov 08, 2012 6:40 pm

The Void Order was posted on this site on the 30th April.

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