Kay Patricia Pengelly & Anor v Serpentine Jarrahdale Shire

[2014] HCASL 122

KAY PATRICIA PENGELLY & ANOR

v

SERPENTINE JARRAHDALE SHIRE

[2014] HCASL 122
P7/2014

1. After a trial in the Magistrates Court of Western Australia, the applicants were convicted of four offences under the Planning and Development Act 2005 (WA) and each applicant was fined $10,000. The applicants seek special leave to appeal against orders made by the Court of Appeal of the Supreme Court of Western Australia (McLure P, Buss and Mazza JJA) refusing the applicants leave to appeal from orders made by the Supreme Court (McKechnie J). By those orders, McKechnie J refused the applicants leave to appeal against their convictions and dismissed the appeal.

2. The unusual circumstances of the case were that the applicants were seeking to re-litigate constitutional and legal issues that the Court of Appeal and other courts had ruled on repeatedly.  The Court of Appeal held that, although the applicants were unaware that the purpose of the hearing before the primary judge was to determine whether leave to appeal should be granted, there had been no denial of procedural fairness.  The Court of Appeal also found that in the unusual circumstances of this case, comments made by the primary judge in his reasons did not give rise to appellable error, indicate bias or occasion a miscarriage of justice.

3. As the applicants do not have legal representation, the application falls to be dealt with under r 41.10 of the High Court Rules 2004.

4. As the application for special leave is brought out of time, the applicants seek an order under r 41.02.2 of the High Court Rules dispensing with compliance with r 41.02.1. It is not necessary to decide whether that order should be made.

5. The applicants' written summary of argument in support of the application for special leave raises no arguable ground suitable to a grant of special leave.  An appeal to this Court would enjoy no prospects of success.

6. Pursuant to r 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing the application.

K.M. Hayne
6 August 2014 S.M. Crennan