Mulhern v Fuller

COURT OF APPEAL [1992] QCA 323

FITZGERALD P
PINCUS JA

LEE J

NO. CA 138 OF 1992

ROBERT MAXWELL MULHERN

STEVEN THOMAS FULLER

(Appellant)

BRISBANE

... DATE 22/7/92

... DAY 1

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.

THE PRESIDENT: Very well, appeal dismissed.

CaseChat Overview and Summary

In the matter of Mulhern v Fuller, the appellant, Steven Thomas Fuller, sought to challenge an order made by a Magistrate, with the respondent being Robert Maxwell Mulhern. The Court of Appeal was tasked with determining the appropriate remedy for Fuller, who felt aggrieved by the Magistrate's order. The central issue before the Court was whether the correct legal remedy had been pursued by Fuller, considering that the order in question should not have been made in the first place. Specifically, the Court had to decide whether Fuller could avail himself of the remedy of certiorari to quash the order or if an alternative remedy under section 141 of the relevant Act was more appropriate.

The Court of Appeal deliberated on the nature and scope of the remedies available to Fuller. Pincus JA and Lee J noted that while certiorari could be an appropriate remedy to quash an unlawful order, it was also important to consider whether the statutory remedy under section 141 was applicable. Section 141 allows a Magistrate to vacate orders where parents are not notified of the hearing and are therefore not heard. The Court examined whether the phrase "in respect of" in section 141 was sufficiently broad to encompass orders against the father. The appellant's counsel, Mr. Herbert, argued that the statutory remedy was not applicable, but Lee J suggested that it might be. Ultimately, the Court found that Fuller's counsel did not have instructions to pursue the statutory remedy, and therefore, the appeal was dismissed.

Given the circumstances, the Court concluded that the appeal had no merit, as the proper remedy had not been pursued by Fuller. The Court dismissed the appeal, leaving the order in place. The Court did not make any further orders beyond the dismissal of the appeal.

CaseChat Overview and Summary

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Background to the litigation

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Legal Principle Established