TNAG-2218-FCO40-3186-Constitutional-development-in-Hong-Kong-Letters-Patent-and-R-1991 — Page 89

22-APR-1991 17:40

CONSTITUTIONAL AFFAIRS BR

852 840 1976

P.15

the

the

proceedings then and there before officer in question when the mutter comes on before him ana before he has given any decision, he ought to degist from hearing the matter to allow an application for quo warranto to be made. If despite the objection he goes on and

aecides the case and subsequently judgment of ouster is given ayainst him on quo warranto, I refuse co Delawve that there would be no way o£ obliterating the decision or

effacts

•

·

or itz

A juagment of ouster clearly has no retrospective effect. This appears from Aldridge S case, where the appointment of the purported Judge in question had been previously declarea invalid by the Privy Council in the equivalent of quo warranto proceedings (Buckley v. Edwards.) .

•

Али if instead of desisting he purported to decide

the question of

validity and decided 10 in his Own

favour

am not convinced that 21 court with appellate jurisulction ought not to take cognizance of the point and decide it, despite logical difficulties about appeals against nullities. I discus8 this Matter in Reg. V.

The Industrial Commission of South Australia; Ex parte Public Service Association.

The ansveI probably is that if the validity of the appointment ia challengea before the officer when the matter arises he no longer has such a reputation of lawful appointment as * ઙ referred to in the first proposition of Butler C.J. and the defect has been made known to the public within the meaning of the third proposition

and this

❤

qualification must, in my view, impliedly apply to the second proposition as well

W

so that the rule about the validity of the acts of we facto officers woulu no longer apply.

In Cawthorne,

waen the application came

on

after

there

Ene second appointment, no objection was then and taxen to the validity of that appointment. At p. 340. Sanyster,

1:1 nozing that Mr. Cawthorne nati not

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