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date: Fri, 09 Oct 2009 14:25:07 +0100,    group: uk.legal.moderated        back       
Does 'void' trump res judicata ?   
Will those who are capable of reasoning from first principles,
criticise my reasoning and speculations here, please.

Authority held:-
]it was found that default judgment, until rescinded, was binding 
]and thus competent to sustain a plea of res judicata. In casu the
]default judgment is however void and not effective as res judicata 
]inter partes.

It seems to me that this implies that the 'voidness' of a judgment
trumps res judicata? 
Possible reasoning could be that 'voidness' of a judgment, effectively
means that the judgment did not occur, so therefor the condition for
res judicata is absent? I.e the judgment which would bar a further
judgment is to be ignored?

The specific facts that I'm investigating are:
1. a default judgment set aside application was refused;
2. a new cause of action [which by the rules could be be brought at
any time up to 12 months after knowledge] was not disputed as being 
good reason to set aside the default judgment;
3. but the res judicata counter argument was accepted: that the second 
cause of action argument "should have been brought at the time of the 
first application".

IMO a further arguement, that res judicata is not applicable for these 
circumstances [of a void judgment] is that the rules allowing the
challenge of the void judgment are not 'time restricted', whereas the
whole purpose of res judicat is to "get the matter finished with".
Therefore the legislators [wisely] didn't want void judgments to
stand, because of 'out of time'.

Whereas the time allowed to initiate a default judgment set-aside
application is limited; my inet research/search found this US 
reference, re. time allowed to challenge a void judgment:
]a default judgment thereon is void and may be successfully assailed, 
]collaterally or other wise, whenever it is sought to be made the 
]foundation of a claim of right.

So, does "*whenever*  it is sought to be made..", mean no time limit?
And does that extend to preclude the res judicata [no different 
argument] principle?

Am I right that [in the above US jurisdiction] a void default judgment
has no time bar for being brought as cause in an application ?

What are the rules re. void default judgment and time bars and
res judicata in your jurisdiction ?

== TIA.
date: Fri, 09 Oct 2009 14:25:07 +0100   author:   unknown

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