Mulhern v Fuller

[1992] QCA 323

COURT OF APPEAL [1992] QCA 323

FITZGERALD P
PINCUS JA

LEE J

NO. CA 138 OF 1992

ROBERT MAXWELL MULHERN

v.

STEVEN THOMAS FULLER

(Appellant)

BRISBANE

... DATE 22/7/92

... DAY 1

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MR. S. E. HERBERT (instructed by Legal Aid Office) for the appellant

MR. J. COSTANZO (instructed by the Director of Prosecutions) for the Crown

THE PRESIDENT: Well, what's happening in this matter? Everybody agrees that the order shouldn't have been made, but you seem to be appearing for the wrong party, don't you?

MR. HERBERT: That's why I said I appeared for the appellant with a smile. What needs to be one is that certiorari needs to be taken out against the Magistrate.

PINCUS JA: I didn't quite make what you said? What needs to be done is what?

MR. HERBERT: You'll need to - the only remedy available to Mr. Fuller, the person against whom the order was really made, is certiorari, I should think to bring the decision up to quash it.

LEE J: Was any attempt made to invoke section 141 of the Act? A Magistrate can vacate orders where parents not notified of the hearing, and wasn't heard.

MR. HERBERT: No, that hasn't been done.

LEE J.: The Act expressly allows that.

MR. HERBERT: Well, that's what should be done then.

LEE J: It says where an order is made in respect of a child. So the question is whether "in respect of" is wide enough to include the orders against the father.

MR. HERBERT: Oh, well, that's the difficulty. Under section 668 of the Code, an appeal can be brought in relation to a sentence, which includes any order made by the Court of trial on conviction of a person with reference to his person or his property.

LEE J: Yes, that's in relation to the sentence, but section 141 seems to be wider.

MR. HERBERT: I don't know that it is, Your Honour.

THE PRESIDENT: But you're not appearing for the father anyway, are you, Mr. Herbert? So whether or not - well, I mean, in those circumstances even if you were to disposed to do so, if you were to move the Court for prerogative - you wouldn't have any claim to move for it.

MR. HERBERT: I've got no instructions. I invite Your Honours to dismiss the appeal.

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THE PRESIDENT: Very well, appeal dismissed.

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