A ‘fundamental defect’ includes a failure to serve process where service of process is
required (Lord Greene in Craig v Kanssen Craig v Kanssen [1943] 1 KB 256); or where
service of proceedings never came to the notice of the defendant at all (e.g. he was
abroad and was unaware of the service of proceedings); or where there is a fundamental
defect in the issuing of proceedings so that in effect the proceedings have never started; or
where proceedings appear to be duly issued but fail to comply with a statutory
requirement (Upjohn LJ in Re Pritchard [1963]). Failure to comply with a statutory
requirement includes rules made pursuant to a statute (Smurthwaite v Hannay [1894] A.C.
494).
A ‘without jurisdiction’/ultra vires act is any act which a Court did not have power to do
(Lord Denning in Firman v Ellis [1978]).
In Peacock v Bell and Kendal [1667] 85 E.R. 81, pp.87:88 it was held that nothing shall be
intended to be out of the jurisdiction of a Superior Court, but that which specially appears
to be so; and nothing shall be intended to be within the jurisdiction of an Inferior Court
but that which is so expressly stated.
It is important to note therefore that in the case of orders of Courts with unlimited
jurisdiction, an order can never be void unless the ‘unlimited jurisdiction’ is ‘limited’ in
situations where it is expressly shown to be so. In the case of orders of the Courts of
unlimited jurisdiction where the jurisdiction is not expressly shown to be limited, the
orders are either irregular or regular. If irregular, it can be set aside by the Court that
made it upon application to that Court and a person affected by the irregular order has a
right –ex debito justitiae – to have it set aside. If it is regular, it can only be set aside by an
appellate Court upon appeal if there is one to which an appeal lies (Lord Diplock in Isaacs
v Robertson (1984) 43 W.I.R. PC at 128-130). However, where the Court’s unlimited
jurisdiction is shown to be limited (for example: a restriction on the Court’s power by an
Act of Parliament or Civil or Criminal Procedure Rule) (Peacock v Bell and Kendal [1667];
Halsbury’s Laws of England) then the doctrine of nullity will apply.