1 See Akehurst, , “Void or Voidable?—Natural Justice and Unnatural Meanings” (1968) 31 Mod.L.R. 138, 144–149.Google Scholar

2 See Farhi v. The Competent Authority for the Acquisition of Land (1952) 6 P.D. 33, 35; Shimel v. The Competent Authority and the Appeal Committee for the Purpose of the Emergency Land Requisition (Regulation) Law, 1949 (1955) 9 P.D. 459, 461–462; Proo v. Qadi Madhhab (1966) (II) 20 P.D. 342, 344. See generally, Landau J.'s opinion in Shmuel v. A.G. (1964) (III) 18 P.D. 452, 462: “This court followed the English judicature when faced with accusations of bias against judicial officials.” See also Zamir, , Administrative Procedure in Israel and Section 46 of the Palestine Order-in-Council (1974, in Hebrew) 38–39Google Scholar; Levin, , Judicial Tribunals in the State of Israel (1969, in Hebrew) 72–3, §76 b.Google Scholar

3 19 L.S.I. 158, as amended in 1974 (29 L.S.I. 8).

4 (1972) H.H. 425, 426.

5 9 L.S.I. 184.

6 See sec. 418 and cf. the Courts Law, 1957, sec. 7(b) (f) (11 L.S.I. 157) which prevents the High Court of Justice from ordering a religious court not to deal with a matter beyond its jurisdiction if the petitioner failed to raise an objection “at the earliest opportunity he had”. Silberg J. was of the opinion that this stipulation applies only to real lack of jurisdiction and not to infringment of the rules of natural justice: see his judgment in Viki Levi v. The District Rabbinical Court (1959) 13 P.D. 1182, 1190–1191, but see also Maoz, , “Jurisdiction Depending on Doubt” (1975) 4 Iyunei Mishpat 598, 606, n. 46.Google Scholar

7 See Bracton, De Legibus, f. 412; Phillips, Hood, Constitutional and Administrative Law (4th ed., 1967) 358–9.Google Scholar

8 See Akehurst, op. cit. supra n. 1, at 150. This rule has been applied by Cohn J., in Petach Tikvah v. Tahan (1969) (II) 23 P.D. 399, 406. The case dealt with the violation of the audi alteram partem rule. Cohn J. however, spoke of the violation of the natural justice rules in general. But, cf. Sussmann D.P.'s opinion, ibid., at 404.

9 Judicial Review of Administrative Action (3rd ed., 1973) 242. For a contradicting precedent, see R. v. Cambridgeshire J. J. ex parte Steeple Morden Overseers (1855) 25 L.J. 128.

10 (1912) 108 L.T. 270.

11 [1911] 1 K.B. 836.

12 Ibid., at 838. Cf. Denning's, Lord opinion in F. Hoffman-La Roche A.G. v. Secretary of State for Trade and Industry [1973] 3 W.L.R. 805, 822.Google Scholar

13 Simpson v. A.G. [1955] N.Z.L.R. 271.

14 See Davis, A.G., “Annulment of a General Election” (1955) 18 Mod.L.R. 495, 496.Google Scholar On consent to jurisdiction cf. Maoz (op. cit. supra n. 6) at 605 ff.

15 Cf. R. v. Commissioners of Cheltenham (1841) 1 Q.B. 467, 476, per Lord Denman C.J.; Marshall, , Natural Justice (1959) 50.Google Scholar For the American Law, see Davis, K.C., Administrative Law Treaties (1958) 168Google Scholar and authorities cited there.

16 Unlike civil courts, the Military Justice Law is explicit on this subject, probably due to the fact that only one of the three or five judges at a court martial must be a “legally qualified military judge”, and even this does not apply to all cases (see sec. 202). For the complications arising out of the inclusion of regular officers in a court martial, see Reuven v. Chief Military Prosecutor (1971) Selected Judgments of the Military Court of Appeal (in Hebrew) 5. Cf. secs. 148–149 which enable any soldier brought for trial before a disciplinary officer to request referral of his case to another officer without stating any reason.

17 R. v. Williams, Ex parte Phillips [1914] 1 K.B. 608, 615 Cf. Channell J.'s opinion, ibid., at 613. The petitioner must declare that his representative in the attacked litigations had no knowledge of the disqualifying interest; see, R. v. Richmond JJ. (1860) 24 J.P. 422; Ex Parte Ilchester Parish (1861) 25 J.P. 56. Knowledge of the company's director of the existence of such interest prevents the company from raising an objection at a later stage; see Hotel and Recreation in Eilat Ltd. v. Electra Ltd. (1959–60) 21 P.M. 72.

18 (1952) 6 P.D. 35, per Smoira P. In a later judgment, the Supreme Court distinguished this case from the Shimel case, (supra n. 2). The Court pointed out the fact that Shimel's attorney, unlike Farhi's, “had declared in simple and clear words—the truth of which we have no reason to question—that he also knew nothing of Ginzberg's interest before the decision in the appeal was handed down”. This declaration came in addition to the petitioner's affidavit stating that he himself knew nothing of such interest; (1955) 9 P.D. 461, 462. Cf. Proo v. Qadi Madhhab (1966) (II) 20 P.D. 345.

19 See supra, text at n. 6.

20 Reuven v. Chief Military Prosecutor (1971) Selected Judgments of Military Court of Appeal 17 and 18.

21 (1843) 4 Man. & G. 219, 247, 134 Eng. Rep. 545, 558. Cf. Lord Alverston's words in overruling the objection taken on appeal in R. v. Byles (supra, n. 10, at 271): “They kept this point in reserve”. And see Landau J.'s opinion in Proo v. Qadi Madhhab (1966) (II) P.D. 342, 344. Failure to raise an objection to a disqualified referee, was seen by Sussmann J. as tantamount to “consent to an arbitration which actually is dependant on the fact that the referees should adjudicate in his favour; such conditional consent cannot be allowed”: Sucaris Coarse Sand Enterprises v. Rosenberg (1961) 15 P.D. 2450, 2502. Silberg J. saw in a temporary omission to object to a court's jurisdiction “a tactical silence that has in it the effect of setting a trap for the opponent”: Klotr.man v. Chief Execution Officer (1953) 7 P.D. 266, 269.

22 For an analysis of these two possible results of breach of natural justice, see the Tahan case (supra n. 8, at 402–406); Moshivich, , “The Consequences of a Breach of the Rules of Natural Justice” (1971) 3 Mishpatim 84Google Scholar; Grabelsky, , “Infringement of Right of Pleading: The Source for Intervention and Consequences of the Fault” (1970) 26 HaPraklit 180.Google Scholar

23 Gordon, , “Certiorari and the Revival of Error in Fact” (1926) 42 L.Q.R. 521, 523.Google Scholar Gordon has enlarged on this point in his later article, “The Observance of Laws as a Condition of Jurisdiction, Part II” (1931) L.Q.R. 557, 572. See also in de-Smith, (1st ed., 1959) 99, 162–163, and in the 2nd ed., (1968) at 260. Sec also Rubinstein, , Jurisdiction and Illegality (1965) 195, 196, 203.Google Scholar

24 (1968) 84 L.Q.R. 95, the first part of his article was published in (1967) 83 L.Q.R. 499.

25 Op. cit. supra n. 1.

26 Id. at 149.

27 Id.

28 Id.

29 (1968) 84 L.Q.R. at 109. Wade phrases the right to a hearing in a similar style.

30 [1973] 3 W.L.R. 805; affd. [1974] 3 W.L.R. 104 (H.L.).

31 (1974) 90 L.Q.R. 154, 157.

32 See extensively, (1967) 83 L.Q.R. at 512 ff. Wade, , Administrative Law (3rd, 1971) 102 ff.Google Scholar Wade's theory has been referred to with approval by Kahan J. in his opinion in Anonymous v. The Rabbinical District Court, Beersheba (1975) (II) 29 P.D. 433, 443–444; Cf. Sussmann J.'s opinion in the Tahan case, supra n. 8, at 404 and Cohn J.'s opinion at 406.

33 The “voidness theory” has gained much support in recent years. De-Smith, a former supporter of the “voidability theory”, expressly changed his mind in the third edition of his book, see at 240 ff. esp. n. 84. Foulks, , in his book, Introduction to Administrative Law (3rd ed., 1972) 166Google Scholar, expressed the view that “since the Anisminic decision [Anisminic Ltd., v. Foreign Compensation Commission [1969] 1 All E.R. 208] it seems clear that every breach of natural justice makes a decision void”. For a summary of English precedents supporting the voidness results, see Wade, “Unlawful Administrative Action: Void or Voidable? (1968) 84 L.Q.R. 95, 104–106.

34 The mere adoption of the voidness categories from the private law of contract into public law has been criticised: see Diplock's, Lord opinion in the Hoffman-La Roche case [1974] 3 W.L.R. at 131Google Scholar; see also Wade, (1967) 83 L.Q.R. at 518.

35 The family ties between the petitioner and the Chairman of the Council were brought to the knowledge of the Court by the latter in his affidavit submitted in the name of the Local Council of Taibeh. It seems that the Chairman specified his kinship to the petitioner in order to prove that it did not influence his decision.

36 Op. cit. supra n. 1 at 150.

37 (1843) 5 Man & G. 219; 134 Eng. Rep. 545.

38 Ibid., at 247 (558).

39 Ibid. Akehurst tries to distinguish the Corrigal case as “dealing with a statutory disqualification”, op cit. supra n. 1 at n. 34. It is submitted, with due respect, that Akehurst's distinction is not sound. The disqualification referred to by Akehurst is set out in sec. 22 of a private Railway Act of 1836. This section deals with the case of a railway company which, failing to come to an agreement with the land owner, issued a warrant to summon a jury to assess the amount. The company could not apply to a sheriff who was a shareholder in the company or enjoyed any other interest in it. In Corrigal the application to the sheriffs was made by the lessee of the land for compensation after the company declined to issue their warrant. This application came under sec. 22 of a private Railway Act of 1839 extending the railway line of 1836, which does not include any such provision: see in Tindal C.J.'s opinion at 246–247 (557–558); for the content of the said section, see p. 237 (553). Similarly in the case here under review, there was no statutory disqualification. Art. 103 of the Local Councils (A) Order, (1951) K.T. no. 127, p. 178 as amended in (1964) K.T. no. 1560, p. 980 disqualifies a member of a local council from voting on a resolution in which he himself or his next of kin, including a brother-in-law, is interested. Yet, the said provision applies to proceedings of the Council itself or of one of its committees and was therefore inapplicable to the case of Haj Yihieh.

40 For this purpose it may suffice, however, that the party bring his special relations with the adjudicator to the knowledge of his rival.

41 Cf. the decision in the Corrigal case, supra text at n. 38.

42 He had questioned the qualifications of Massaria for the vacant position and objected to his being considered as a candidate (p. 459).

43 It should be mentioned again that the petitioner did not raise such objection at any stage. The disqualification was raised by the Court itself.

44 See Cohn, J.'s opinion in Ulamei Gil Ltd. v. Ya'ari (1961–1962) 4 S.J.I.Google Scholar, (1961) 15 P.D. 673, 676.

45 See Berinson J.'s opinion in Hassin v. Aloni (1965) (I) 19 P.D. 572, 576.

46 Per Cohn J. in the Ya'ari case (1961–2) 4 S.J. 3, (1961) 15 P.D. at 676. Cf. Anonymous Lawyer v. A.G. (1966) (II) 20 P.D. 322, 324.

47 Cf. Devlin J.'s opinion in R. v. Barnsley Licensing JJ. [1960] 2 Q.B. 167, 187.

48 In English case law, kinship is not treated in regard to the disqualification as equivalent to direct pecuniary or proprietary interest of the adjudicator in the subject matter of the proceedings. It is simply assumed that the adjudicator may be biased in favour of one of the parties: Cf. Blackburn J.'s opinion in R. v. Rand (1866) L.R. 1 Q.B. 230, 232. Only on the first grounds would an adjudicator automatically be disqualified. Cf. Cheshin J.'s opinion in the Shimel case (1955) 9 P.D. at 462 following Slade J.'s opinion in R. v. Camborne JJ. (1954) 2 All E.R. 850. It was therefore, prima facie, not enough to point out the kinship between the Chairman of the Council and the petitioner in order to disqualify the former. It was rather necessary to show that this kinship was likely to lead to bias since, as Marshall (op. cit. supra n. 5 at 32) put it, “favour is not to be presumed in a judge”. Since the Court was willing to assume that the Chairman of the Council's family ties with the petitioner did not affect his decision, one may wonder why he should have been disqualified at all. See Maoz, , “The Rule Against Bias: Adjudicating a Next of Kin's Case” (1977) 6 lyunei Mishpat.Google Scholar

49 It has been decided in the case of Mizrahi v. The Committee for the Release of Prisoners (1966) (I) 20 P.D. 171, 174–175 that a decision of a quasijudicial authority should not be set aside although fair hearing has been denied when, in the opinion of the Court, such hearing, if granted, would not have changed the decision. Criticising the Court's decision, Moshivich argues that the Court should not have put itself in place of the committee (op. cit. supra n. 22) at 87. The Mizrahi decision is parallel to the minority opinion of Evershed, Lord in Ridge v. Baldwin [1964] A.C. 40, 91Google Scholar, which was criticised by Wade, (1968) 84 L.Q.R. at 110, but the problem here discussed is substantially different from the one in the Mizrahi case and the criticism of the latter decision is inapplicable to the case under review.

50 [1954] 1 Q.B. 41.

51 Ibid., at 52. Cf. Berinson J.'s opinion in the Ali Hassin case (1965) (I) 19 P.D. at 576.

52 Quoting Cheshin J. in the Shimel case (1955) 9 P.D. at 463.

53 (1961–2) 4 S.J. 3. See also Cohn J.'s opinion in Avi Yitzchak v. The State (1975) (I) 29 P.D. 807, 809, and Lord Denning's opinion in Metropolitan Properties Co. (F.G.C.) Ltd., v. Lannon [1969] 1 Q.B. 577, 599. Cf. the Court's decision in Anonymous Lawyer v. A.C. (1966) (II) 20 P.D. at 324.

54 See de-Smith at 230–232.

55 Cf. Sir Boyd Merriam's opinion in Cottle v. Cottle [1939] 2 All E.R. 535, 541 and Lord Devlin's opinion in R. v. Barnsley Licensing JJ. [1960] 2 Q.B. 167, 182.

56 Cf. Hannan v. Bradford Corp. [1970] 1 W.L.R. 937, at 942 per Sachs L.J. and at 945–946 per Widgery L.J. and Agranat P.'s opinion in Yedid v. The State (1975) (II) 29 P.D. 375, 380–381. See also de-Smith at 231–235.

57 (1975) (I) 29 P.D. at 576.

58 Ibid.

59 Cf. Sir Merriam's opinion in Cottle v. Cottle [1939] 2 All E.R. at 541.

60 Op. cit. supra n. 57.

61 See de-Smith at 230–232; Wade, , Administrative Law (3rd ed., 1971) 179.Google Scholar

62 Agranat P. in the Yedid case (1975) (II) 29 P.D. at 381. His decision was followed in the following cases: Salem v. The State (1975) (II) 29 P.D. 431, Beranes v. The State (1976) (I) 30 P.D. 208 and Nir v. The State (1977) (III) 31 P.D. 592.

63 There were other good reasons to set aside those proceedings. Thus, Massaria, who was appointed by the second committee, did not qualify for candidacy. See (1975) (I) 29 P.D. at 463, per Etzioni J. Another way to declare the proceedings void was by validating the proceedings of the first committee, which voted in favour of the petitioner, Cf. Justice Cohn's opinion, id. at 461.