Voidness and voidability in administrative law

Abstract

It is proposed to investigate whether the distinction between a void and a voidable act, is a necessary incident of the law governing judicial review of administrative decisions, whether the consequences of the distinction are utilised by the Courts, and whether the distinction has a useful role to play in administrative law. The theoretical and historical basis of the distinction is first examined with the conclusion that void and voidable decisions are a necessary result of a system of review based upon the ultra vires doctrine. The notion of jurisdiction is examined to ascertain whether there is any general formula with which to distinguish between decisions producing nullity and those resulting in a voidable decision. It is concluded that such a formula is undesirable in principle and can not in the light of existing authority be produced. The various reviewable defects are then analysed to determine whether the Courts regard them as void or voidable. There is considerable inconsistency in the cases, but it is reasonably clear that some procedural defects, breach of natural justice, and serious abuse of discretion are jurisdictional and produce nullity. As a result of this an investigation of the various consequences of the distinction in connection with remedies, leous standi, estoppel, and privative clauses leads to the conclusion that the Courts do not consistently apply the logical consequences of nullity, and indeed that to do so would produce inconvienience. However, in the field of actions in tort and privative clauses the distinction is consistently relied upon. Finally voidable decisions are examined to determine whether a doctrine of retroactivity operates with the conclusion that it does not. In conclusion the technical difficulties arising from the existing system of review based upon the notion of jurisdiction are criticised, and a broader basis for judicial review is proposed which would involve the ultra vires doctrine and therefore the void voidable distinction having only a subordinate role.