PENGELLY -v- ABBISS [2013] WASC 10

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2013] WASC 10
Case No:	SJA:1134/2012	Heard:	15 JANUARY 2013
Coram:	McKECHNIE J	Delivered:	15/01/13
No of pages:	6	Judgment Part:	1 of 1
Result:	Leave to appeal refused Appeal dismissed
Category:	B
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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

CITATION : PENGELLY -v- ABBISS [2013] WASC 10 CORAM : McKECHNIE J HEARD : 15 JANUARY 2013 DELIVERED : 15 JANUARY 2013 FILE NO/S : SJA 1134 of 2012 BETWEEN : KAY PATRICIA PENGELLY

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Pengelly v Abbiss

Details

AGLC: Pengelly v Abbiss [2013] WASC 10
Case: [2013] WASC 10
Decision Date

CaseChat Overview and Summary

The appeal in Pengelly v Abbiss was heard in the Supreme Court of Western Australia, presided over by Justice McKechnie. The appellants, Kay Patricia Pengelly and Richard Pengelly, sought leave to appeal against their convictions and penalty for offences under the Planning and Development Act 2005 (WA). The respondents were Joanne Abbiss, Richard Gorbunows, and Serpentine Jarrahdale Shire. The appellants' primary contention was that the magistrate's handling of their case was unlawful, stemming from perceived constitutional breaches and errors in applying the law.

The legal issues before the court centred on whether the appellants had a real prospect of success for each ground of appeal and whether the grounds were vexatious. Under the Criminal Appeals Act 2004 (WA), leave to appeal is contingent on the court being satisfied that the ground has a reasonable prospect of success, which must be rational and logical. The appellants' grounds for appeal included claims that the magistrate failed to apply High Court decisions, sat under an incorrect Act, and misapplied the Local Government Act, among others. The court needed to assess whether these grounds met the threshold for leave to appeal.

Justice McKechnie held that the appellants' grounds of appeal were incoherent and vexatious. The appellants had not provided a transcript of the hearing or the magistrate's decision, despite being given an opportunity to do so. The grounds of appeal, which largely revolved around constitutional and jurisdictional errors, were rejected as they were not supported by any substantive legal argument or evidence. The court found that the appellants' submissions were not only legally unsound but also demonstrated a lack of understanding of basic constitutional principles, akin to the Dunning-Kruger effect. Consequently, the court concluded that the appeal was vexatious and dismissed the application for leave to appeal, resulting in the appeal being refused.

Orders