Vv is i n Wang Vv leeetay fang v Min Fell

Vv is i n Wang Vv leeetay fang v Min Fell - [1946] HCA 50 - HCA 1946 case summary — Zoe

[70]

Privy Council considered the distinction between procedural irregul- arities which render a judgment or an order void and those which render it only voidable. It was held that if there were an irreg- ularity which had caused a failure of natural justice the irregularity made the order void, but that if the irregularity was not of this description it made the order only voidable. In the judgment of the Board it was said that there was an obvious distinction between obtaining judgment on a writ which had never been served and one in which there had been a defect in the service but the writ had come to the knowledge of the defendant. In the present case the order was obtained on a summons which had never been served. According to the reasoning in Marsh v. Marsh (1) it would seem that the order should be held to be void. The Court of Appeal has recently taken the same view of the effect of complete absence of service in two cases ; first, Cratg v. Kanssen (2), where it was held that failure to serve process where service is required renders null and void an order made against the party who should have been served and that he is entitled ex debito justitiae to have it set aside ; and secondly, In re the Affairs of Hart (3). Similarly, in R. v. North ; Ex parte Oakey (4), it was held that in the absence of notice of proceed- ings a tribunal (in that case the Consistory Court) " had no juris- diction" to make an order (per Bankes L.J. (5)). On the other hand, in Ex parte Hopwood (6) and In re Shropshire Justices ; Ex parte Blewitt (7), the fact that there had been no service of a summons was held not to affect the jurisdiction of justices. In Fry v. Moore (8) there was an order for substituted service of a writ which was held to be "a bad order." The result was that the writ was not properly served. Lindley L.J. said: " But then arises the question, whether the order for substituted service was a nullity, rendering all that was done afterwards void, or whether it was only an irregularity. If it was the latter, it could be waived by the defendant. I shall not attempt to draw the exact line between an irregularity and a nullity. It might be difficult to do so, But I think that in general one can easily see on which side of the line the particular case falls, and in the present case it appears to me that the proceeding was rather an irregularity than a nullity. 'The writ was properly issued, but it was improperly served, and I am not prepared to say that by no subsequent conduct of the defen- dant the irregularity could be waived" (9). It was held that the

[75]

It is difficult, if not impossible, to reconcile all the decisions upon this question, but in the present case, in my opinion, sure ground is to be found in the answer to the next question which arises. If it be conceded that service of process is a condition of jurisdiction it is still necessary to determine whether the responsibility of determ- ining whether process had been served has been committed to the tribunal by which the challenged judgment or order was made. In Colonial Bank of Australasia v. Willan (1) it was said in a well-known passage : - " There must, of course, be certain con- ditions on which the right of every tribunal of limited jurisdiction to exercise that jurisdiction depends. But those conditions may be founded either on the character and constitution of the tribunal, or upon the nature of the subject-matter of the inquiry, or upon certain proceedings which have been made essential preliminaries. to the inquiry, or upon facts or a fact to be adjudicated upon in the course of the inquiry. It is obvious that conditions of the last differ materially from those of the three other classes" (2). In R. v. Nat Bell Liquors Ltd. (3) Lord Sumner referred to " the not infrequent: confusion between facts essential to the existence of jurisdiction in the inferior Court which it is within the competence of that Court: to inquire into and to determine, and facts essential thereto which are only within the competence of the superior Court." See also Amalgamated Society of Carpenters & Joiners (Australian District) v. Haberfield Pty. Ltd. (4) and R. v. Commissioner of Patents ; Ex parte Weiss (5). Thus though service of process may be a condition of jurisdiction of a court, the question as to whether there has been service of process or not may be a matter to be decided by that court itself. Provisions conferring such authority upon a court are, for reasons which readily suggest themselves, much more usual than provisions which leave such a question outstanding for binding decision in collateral proceedings in some other jurisdiction: See Parisienne Basket Shoes Pty. Ltd. v. Whyte (6).

[159]

and is so headed, and Part VI. to " proceedings in case of simple offences and other matters." Sections 56 and 57, which occur in Part III., prescribe respectively how service of a summons must be effected and how it may be proved. Section 135, which occurs in Part VI., provides that, if at the appointed time and place, the defendant does not appear when called and proof is made to the justices in manner thereinbefore prescribed (scil. by s. 57) of due service of the summons upon the defendant a reasonable time before the time appointed for his appearance, the justices may either proceed ex parte to hear and determine the case in the absence of the defendant or issue their warrant for his apprehension. By s. 147 a restriction is imposed upon the use of certiorari, but it is not taken away completely: See Paley on Convictions 9th ed. (1926), pp. 804 et seq. and Paul's Justices of the Peace (1936), pp- 426-427. On the other hand, there appears to be no express power in the justices to set aside orders made in the absence of the defendant and to rehear the complaint such as that dealt with in De la Rue v. Brown (1), and it has been said that justices have no inherent power of that kind (Gregory v. Murphy (2) ). Moreover, the time for obtaining an order to review is limited, though, perhaps, now there is some elasticity : ss. 197 and 206 (6). On an order to review there is power to take fresh evidence : s. 205. A party against whom an order has been made without his knowledge may, therefore, encounter some difficulty in having it set aside or quashed. That, no doubt, is an argument for treating the Justices Act as intending that non-service of a summons should be fundamental to the validity of an order made in the absence of a defendant. It is not clear that, except for bad faith or want of jursidiction, certiorari will still go for non-service: Ct. R. v. Smith (3); R. v. Farmer (4) ; Colonial Bank of Australasia y. Willan (5). But, however that may be, it appears to be very difficult to say that the Justices Act means that for no purpose shall an order made ex parte in purported pursuance of s. 135 have any validity, if it turns out that service was not effected duly or at all. That is an interpretation which, I think, the statute cannot fairly bear. But, unless the order is altogether void and for every purpose, it appears to me to be impossible to say that Div. 3 of Part IV. of the Victorian Maintenance Acts do not apply to it. The appellant's contention that the order is not one that is enforceable under Div. 3 must, in my opinion, fail.

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Judgment (197 paragraphs)

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