Pengelly v Abbiss
[2013] WASC 10
PENGELLY -v- ABBISS [2013] WASC 10
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASC 10 | |
| Case No: | SJA:1134/2012 | 15 JANUARY 2013 | |
| Coram: | McKECHNIE J | 15/01/13 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal refused Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | KAY PATRICIA PENGELLY RICHARD PENGELLY JOANNE ABBISS RICHARD GORBUNOW SERPENTINE JARRAHDALE SHIRE |
Catchwords: | Practice and procedure Leave to appeal Whether real prospect of success grounds vexatious Incoherent |
Legislation: | Nil |
Case References: | Hedley v Spivey [2012] WASCA 116 Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- First Appellant
RICHARD PENGELLY
Second Appellant
AND
JOANNE ABBISS
First Respondent
RICHARD GORBUNOW
Second Respondent
SERPENTINE JARRAHDALE SHIRE
Third Respondent
(Page 2)
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE E A HAMILTON
File No : AR 3380 of 2011, AR 3381 of 2011, AR 3382 of 2011, AR 3383 of 2011, AR 3384 of 2011, AR 3385 of 2011, AR 3386 of 2011, AR 3387 of 2011
Catchwords:
Practice and procedure - Leave to appeal - Whether real prospect of success - grounds vexatious - Incoherent
Legislation:
Nil
Result:
Leave to appeal refused
Appeal dismissed
Category: B
(Page 3)
Representation:
Counsel:
First Appellant : In person
Second Appellant : No appearance
First Respondent : No appearance
Second Respondent : No appearance
Third Respondent : No appearance
Solicitors:
First Appellant : In person
Second Appellant : No appearance
First Respondent : No appearance
Second Respondent : No appearance
Third Respondent : No appearance
Case(s) referred to in judgment(s):
Hedley v Spivey [2012] WASCA 116
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
(Page 4)
1 McKECHNIE J: The appellants were charged with offences under the Planning and Development 2005 (WA). Following a trial they were convicted and a global penalty of $10,000 was imposed. The appellants have lodged an appeal notice.
2 They have not provided transcript of the hearing although they filed a series of disks purportedly containing the audio recording of the proceedings. These are not, however, in proper form.
3 Under the Criminal Appeals Act 2004 (WA) s 14 leave of the court is required for each ground of an appeal. The Supreme Court must not give leave to appeal on a ground unless it is satisfied that the ground has a reasonable prospect of succeeding.
4 The Court of Appeal construed s 14 in Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473:
The ordinary meaning of the words, taken in their context (which includes the legislative purpose) must accordingly be taken to mean that a ground is required to have a rational and logical prospect of succeeding; that is, it would not be irrational, fanciful or absurd to envisage it succeeding in that forum; in effect, that it has a real prospect of success. However, it is important to bear in mind that, because the test is directed to each ground, it seems that the answer to the question whether leave to appeal is or is not granted will not involve any consideration of whether, if the ground of appeal succeeds, the error in question has led to a substantial miscarriage of justice. That issue is left for determination on the appeal proper [56].
5 The appellants have not supplied transcript either of the hearing or the magistrate's decision. The lack of transcript would not be a reason to dismiss the application for leave to appeal immediately but rather to allow further time for the appellants to comply. However, the transcript and the magistrate's reasons for conviction are irrelevant to the grounds of appeal which are:
1. The Magistrate erred in law when she continually disobeyed all High Court Decisions of the High Court of Australia. Which state she must sit under chapter 111 of the Commonwealth Constitution Act. The Magistrate was reminded of this in all our submissions presented to her.
2. The Magistrate sat under the Magistrates Court Act 2004 which contravenes the State Constitution Act which is put in place with letters patent and the Commonwealth Constitution and contravenes the Judiciary Act. When Challenged on what authority she sat, Magistrate Hamilton abandoned the Court.
(Page 5)
- 3. The Magistrate erred in law when she stated that the Local Government Act was a lawful Act, when it contravenes both State and the Commonwealth Constitution Act.
4. The Magistrate erred in law when she failed to deal with criminal offences revealed to her and ignored them. (Trespass).
5. The Magistrate erred in law by refusing to accept affidavits that outlined those offences.
6. The Magistrate erred in law by allowing any Local Government employee to express right to enter our property.
7. The Magistrate erred in law when she allowed an employee of a company to prosecute in a criminal jurisdiction, for and on behalf of another company knowing that, that company was not acting under the Crown.
8. The magistrate erred in law when she sat in Armadale Court on the 26th October 2012 knowing that she has not been appointed or sworn in using the lawful oath by the Governor General of the State of Western Australia under the correct State Constitution.
9. The Magistrate erred in law when she failed to acknowledge that the State Constitution being used by Western Australia is unlawful.
10. The Magistrate by failing to answer challenges on her abandonment of the Court and the State Constitution agreed in TACIT that we were correct.
11. The issues raised are inter-se and that includes this Court and the Full Bench of this Court.
12. Magistrate Langdon & Hamilton erred in law when they refused to accept or recognise the UCC 1-308 declarations of Common Law Rights handed to them.
13. This appeal is not vexatious or malicious, in fact the Magistrates Court of Armadale displayed vexatious and malicious behaviour during the whole case.
6 Contrary to proposed ground 13 this entire appeal is vexatious and an abuse of the processes of the court. I have read the submissions filed by the appellant and read the affidavits on the Magistrate Court file. Today I listened to Ms Pengelly amplify some of the arguments. They do not add to the store of human knowledge.
7 Grounds of appeal like these are promoted by a small group of sad and deluded individuals who labour on in their delusions despite
(Page 6)
- comprehensive rejection by the Court of Appeal and the General Division: See, for example, Hedley v Spivey [2012] WASCA 116.
8 Law students are required to study constitutional law and are examined on their knowledge as a prerequisite for legal practice.
9 It is a peculiar arrogance for an appellant to believe that without similar study they know better. Psychologists refer to this syndrome as the Dunning Kruger effect.
10 Judicial time is a scarce public resource to be spent in resolution of issues of substance not to be squandered on applications of legal incoherence.
11 Leave to appeal in respect of each ground is refused and as a consequence the appeal is dismissed.
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