Court Orders May Be Set Aside; Nullities; Irregularities

1.

In Isaacs v Robertson (1985) (AC97) the Privy Council said at page 102:

“… The judges in the cases which have drawn a distinction between the two types of orders have cautiously refrained from seeking to lay down a comprehensive definition of defects that bring an order into the category that attracts ex debito justitiae the right to have it set aside, save that it specifically includes orders that have been obtained in breach of rules of natural justice.

Lord Greene MR stated in Craig v Kanssen (1943) 1 KB at 262

" a person who is affected by an order which can be properly described as a nullity is entitled ex debito justitiae to have it set aside."

And

“ In Craig v. Kanssen Lord Greene M.R. set aside an order purportedly made under the rules of the Court after examining the distinction between orders that are nullities and those which are only irregularities.

Lord Greene stated

“These cases to me establish that a person who is affected by an order which can properly be described as a nullity is entitled ex debito justitiae to have it set aside. So far as procedure is concerned, it seems to me that the court in its inherent jurisdiction can set aside its own order and it is not necessary to appeal it.”

2.

Hoskins v Van den Braak (3 April 1998; Mason P; Priestley JA; Beazley JA

“… common law right to relief ex debito justitiae against such a denial of natural justice

In Lapa (No.2) (1995) 80 ACrimR 398, the Court of Criminal Appeal had delivered judgment on 8 August 1994, and the appellant’s solicitors had written to the Court on 27 October 1994 claiming that the Court had not determined one of the grounds of appeal. The Court found in that case that the order of 8 August 1994 had not been formally entered when the application was made on 27 October 1994, it gave judgment on the application on the assumption that the order was perfected thereafter before this judgment was given. The Court of Criminal Appeal held that it could review, correct or alter its judgment at any time until its order or judgment had been perfected; [emphasis added] and that power was not lost by the administrative act perfecting the order taking place after the application to re-open had been made.