Void Or Voidable?—Natural Justice and Unnatural Meanings: (Part Two)66: V—Collateral Proceedings

Publication Date01 Mar 1968
DOIhttp://doi.org/10.1111/j.1468-2230.1968.tb01179.x
VOID OR VOIDABLE?-NATURAL JUSTICE
AND UNNATIJRAL MEANINGS
(Part
Two)
"
V-COLLATERAL
PROCEEDINGS
Collateral proceedings may take many forms. One of the most
obvious varieties is enforcement proceedings, where the person to
whom an administrative decision is addressed pleads its irregularity
by way of defence in proceedings where he is sued
or
prosecuted
for discegarding the de~ision."~
In
Labalmondibre
v.
Frost,
magistrates ordered the defendant
to repair his building without first hearing him.
On
his failure
to do
so,
officials repaired it for him and sued him for the cost,
under special statutory provisions. The claim was dismissed,
but it was not said whether the original order was void
or
voidable.e8
In
Smith
v.
R.,
the Crown, acting under statutory powers, forfeited
a
colonial lease which it had granted and instituted proceedings
to recover the land.
It
was held that
"
the governor had no juris-
diction to issue the proclamation,'' in the absence of a prior hearing,
and the Crown lost its case.B0
Similar problems may arise over the enforcement of foreign
judgments. Where the defendant has not been notified of proceed-
ings,
or
has not been given a chance to state his case, English
courts will refuse to eiiforce the foreign judgment; but this is
a
rule
of
English public policy, which operates regardless of whether
the judgment was void, voidable
or
unimpeachable under the foreign
Zem
fori.
Occasionally, however, there may be a statute which
obliges
the courts to enforce foreign judgments, without exception
;
the only defence which can be raised in such a case is that the judg-
ment is in reality no judgment because void under the foreign
0%
The first part
of
this article, which dealt with violation
of
natural justice in
the context
of
direct attack against judicial and administrative decisions,
appeared in the previous issue:
(1968)
91
M.L.R.
2.
67
Garnishee proceedings may be included under the rubric of enforcement pro.
ceedings, even though they are designed
to
secure enfurcement
of
B
judgment
addressed to a person who is not the defendant in the garnishee proceedings.
See
Lazard
8ros.
d
Co.
v.
Midland Bank
Ltd.
[1933]
A.C.
289,
306307;
supra,
p.
6,
note
21.
The House
of
Lords seems to have treated a merely
voidable judgment as insufficient to justify garnishee proceedings, but the
explanation is probably that the judge in the garnishee proceedings should
have set aside the original judgment; besides, the making of
a
garnishee order is
discretionary
.
68
(1859)
1
El.
&
El.
527.
R.
v.
Tolnea
Union
(1845)
7
Q.B.
690
is
a
little
Bimilar, but the enforcement sought there was by way of mandamus, which is
of
course
D
discretionary remedy.
69
(1878)
3
hpp.Ca8.
614,
626
(P.C.).
138

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