The Approach of the Courts to the construction and application of time limit privative clauses
- Publisher:
- Thomson Lawbook Company
- Publication Type:
- Journal Article
- Citation:
- Ellis-Jones Ian 2006, 'The Approach of the Courts to the construction and application of time limit privative clauses', Thomson Law Book Co, vol. 11, no. 3, pp. 153-159.
- Issue Date:
- 2006
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A time limit privative clause differs from other types of privative clauses in
that it is analogous to a statute of limitations. By its very nature, this type of
privative clause does not constitute an absolute bar to judicial review. Thus,
there is not the same compulsion to construe the clause as strictly as is the
case with other types of privative clauses. Subject to one important
qualification (compliance with the well-known Hickman principle and any
other "inviolable limitations or restraints" on the power), a time limit privative
clause in a statute passed by a state legislature ordinarily will prevent
judicial review once the time period has expired. Despite some earlier
confusion, a much clearer and more predictable and consistent approach is
now being taken by superior courts in the exercise of their inherent
supervisory powers of judicial review of administrative decisions. In
particular, it now seems beyond doubt that a failure to observe "inviolable
limitations or restraints" is a jurisdictional error and, accordingly, not a
"decision" under the relevant enactment even as regards a time limit
privative clause expressed to prevent the questioning of "validity" of a
decision which has been held to otherwise extend to ''purported decisions"
as well as "decisions".
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