Pengelly v Serpentine Jarrahdale Shire
[2014] WASCA 5
•9 JANUARY 2014
PENGELLY -v- SERPENTINE JARRAHDALE SHIRE [2014] WASCA 5
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASCA 5 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:25/2013 | 18 OCTOBER 2013 | |
| Coram: | McLURE P BUSS JA MAZZA JA | 9/01/14 | |
| 17 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal refused Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | KAY PATRICIA PENGELLY RICHARD PENGELLY SERPENTINE JARRAHDALE SHIRE JOANNE ABBISS RICHARD GORBUNOW |
Catchwords: | Criminal law Application for leave to appeal Convictions after trial in the Magistrates Court Leave to appeal refused |
Legislation: | Criminal Appeals Act 2004 (WA), s 3, s 9, s 18 Criminal Procedure Rules 2005 (WA), r 58, r 60, r 62, r 63, r 65 |
Case References: | Hedley v Spivey [2012] WASCA 116 Pengelly v Abbiss [2013] WASC 10 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : PENGELLY -v- SERPENTINE JARRAHDALE SHIRE [2014] WASCA 5 CORAM : McLURE P
- BUSS JA
MAZZA JA
- First Appellant
RICHARD PENGELLY
Second Appellant
AND
SERPENTINE JARRAHDALE SHIRE
First Respondent
JOANNE ABBISS
Second Respondent
RICHARD GORBUNOW
Third Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : McKECHNIE J
Citation : PENGELLY -v- ABBISS [2013] WASC 10
File No : SJA 1134 of 2012
Catchwords:
Criminal law - Application for leave to appeal - Convictions after trial in the Magistrates Court - Leave to appeal refused
Legislation:
Criminal Appeals Act 2004 (WA), s 3, s 9, s 18
Criminal Procedure Rules 2005 (WA), r 58, r 60, r 62, r 63, r 65
Result:
Leave to appeal refused
Appeal dismissed
Category: B
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 : In person
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
Pengelly v Abbiss [2013] WASC 10
1 McLURE P: I agree with Buss JA, generally for the reasons he gives, that leave to appeal should be refused on all grounds with the consequence that the appeal is taken to be dismissed. I propose to make some brief additional comments.
2 The appellants appeal to this court from the decision of McKechnie J under pt 2 of the Criminal Appeals Act 2004 (WA) (CAA) refusing leave to appeal against the appellants' convictions in the Magistrates Court. The appellants were not legally represented below or in the appeal to this court.
3 In an appeal under pt 2 of the CAA, the leave of the court is required for each ground of appeal (s 9(1)). The court must not give leave to appeal on a ground of appeal unless it is satisfied the ground has a reasonable prospect of succeeding (s 9(2)). Unless the court gives leave to appeal on at least one ground of appeal, the appeal is to be taken to have been dismissed (s 9(3)).
4 Under s 9(4) (and s 27(4)) of the CAA the court may decide whether or not to give leave to appeal with or without written or oral submissions from the parties to the appeal. As the appellants were afforded a hearing, it is unnecessary to determine whether rules 60, 62 and 63 of the Criminal Procedure Rules 2005 (WA) (the Rules) apply where, as in this case, the jurisdiction to decide on the papers is sourced in the CAA, not the Rules. However, the invariable practice of the Court of Appeal Division is to conduct a leave hearing if it has formed a preliminary view on the papers that no ground of appeal has a reasonable prospect of succeeding.
5 Although the appellants were heard by the primary judge on the question whether leave to appeal should be given on any of the grounds in the appeal, they were not given notice that that was the purpose of the hearing. The notice to the appellants advised that the matter had been listed for directions. The practice in the Court of Appeal Division is to notify an appellant of the specific purpose of the hearing (that is, to consider the application for leave to appeal).
6 The appellants were represented at the hearing below (and in this appeal) by the first appellant. At the commencement of the hearing, the primary judge advised the first appellant that it was a directions hearing to see if leave should be granted. The first appellant informed the court that everything they wanted to tell the court was in their written submissions. However, the primary judge then directed questions to the first appellant going to the substance and merits of the grounds of appeal. When pressed as to the meaning of a number of propositions in the appellants' written submissions, the first appellant advised the primary judge that she thought it was a directions hearing not a leave hearing and as a result had not brought all the necessary documentation to enable her to respond to the primary judge's questions.
7 Prima facie, in circumstances where a litigant in person is not informed of the specific purpose of a hearing and as a result has not prepared for the hearing or attended with all necessary documentation, the proper course is to adjourn the hearing or permit the litigant to file supplementary written submissions. That course would accommodate the requirements of procedural fairness. However, the rules of procedural fairness did not require an adjournment or other equivalent action in the unusual circumstances of this case. The appellants were seeking to re-litigate constitutional and legal issues that this and other courts have repeatedly ruled on. See Hedley v Spivey [2012] WASCA 116 [7]. There was nothing the appellants could say by way of further oral or written submissions that was capable of altering an outcome which, based on existing authority, was inevitable.
8 Having to deal repeatedly with issues that have been held to be devoid of merit can, not unreasonably, induce judicial exasperation and frustration, particularly in a busy court with heavy demands on its resources. Even so, the primary judge ought not to have made personal, derogatory comments about the appellants. However, in all the circumstances, his conduct did not give rise to any appealable error or miscarriage of justice.
9 BUSS JA: The appellants are husband and wife.
10 The first respondent is a local government. The second and third respondents are officers or employees of the first respondent.
11 On 26 October 2012, after a trial in the Magistrates Court before Magistrate Hamilton, each appellant was convicted of four offences under the Planning and Development Act 2005 (WA) (the Act). The charges against each of them were in substance identical.
Details of the charges
12 The charges alleged that between 22 September 2010 and 8 February 2011, at 121 King Road, Oakford (the Land), each appellant, being an owner of land situated within the first respondent's district (namely, the Land):
(a) failed to comply with a direction served on him or her pursuant to s 214(2) of the Act, such direction requiring him or her to stop and not recommence the storage of various materials on the Land, including building rubble, bricks, plaster, roof trusses and other metal items, and the construction of a development on the Land comprising those various materials, contrary to s 214(7) of the Act (charge no 1);
(b) failed to comply with a direction served on him or her pursuant to s 214(3) of the Act, such direction requiring him or her to remove the development comprising the storage of various materials on the Land and to restore the Land as nearly as practicable to its condition immediately before the development started, to the satisfaction of the first respondent, within 60 days of service of that direction, contrary to s 214(7) of the Act (charge no 2);
(c) failed to comply with a direction served on him or her pursuant to s 214(3) of the Act, such direction requiring him or her to remove the development comprising the excavation of fill and digging of soil on the Land and to restore the Land as nearly as practicable to its condition immediately before the development started, to the satisfaction of the first respondent, within 60 days of service of that direction, contrary to s 214(7) of the Act (charge no 3); and
(d) commenced development on the Land without development approval from the first respondent, thereby breaching the first respondent's Town Planning Scheme No 2, contrary to s 218(b) of the Act (charge no 4).
The procedural history
13 After recording judgments of conviction against each appellant on the charges, Magistrate Hamilton imposed fines totalling $10,000 on each of them. Her Honour also ordered each appellant to pay costs of $4,227.95.
14 The appellants applied for leave to appeal under div 2 of pt 2 of the Criminal Appeals Act 2004 (WA). McKechnie J (the primary judge) refused leave and dismissed the appeal. See Pengelly v Abbiss [2013] WASC 10.
15 The appellants have now applied for leave to appeal against his Honour's decision.
The proposed grounds of appeal before the primary judge
16 In the appeal before the primary judge the appellants relied on 13 proposed grounds of appeal, as follows:
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.
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 the 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 had 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.
The hearing before the primary judge
17 On 9 November 2012, the appellants filed their appeal notice under div 2 of pt 2 of the Criminal Appeals Act.
18 By letter dated 13 November 2012, an assistant supervisor in the Central Office of the Supreme Court wrote to the appellants, as follows:
I refer to the Appeal Notice, which was lodged on 9 November 2012.
This appeal cannot proceed further until you lodge the following documents:
• A certified copy of the Prosecution Notice for each charge being appealed
• A Certificate of Service (Form 21) certifying that the respondent has been served [with] the Appeal Notice and these other documents.
If the Supreme Court Registry does not receive the abovementioned documents by 21 December 2012, the matter will be referred to a judge, who may at his or her discretion, dismiss the appeal. If you are unable to comply within this timeframe then you should provide an explanation in writing. Such an explanation will be provided to the judge.
Please contact me if you have any queries regarding this matter.
19 As at 3 January 2013, the appellants had not lodged a certified copy of the prosecution notice for each charge under appeal. See r 65(1), (6) and (7) of the Criminal Procedure Rules 2005 (WA). The matter was referred to the primary judge.
20 By email of 11 January 2013, the acting Associate to the primary judge informed the parties to the appeal, as follows:
I refer to the appeal notice lodged 9 November 2012 in the Supreme Court, in respect of the decision made by Magistrate Hamilton on prosecution notice numbers AR 3384 - 3387 of 2012 and AR 3380 - 3383 of 2012.
The matter has been listed for directions before the Honourable Justice McKechnie at 10am next Tuesday, 15 January 2013 in the Supreme Court at Perth.
The respondent is not required to attend the hearing. (original emphasis)
21 At the hearing on 15 January 2013, the first appellant, but not the second appellant, appeared. The first appellant explained that the second appellant 'suffers with dyslexia and gets very distressed and has given me permission to speak for him' (ts 2). His Honour permitted the first appellant to make submissions on the second appellant's behalf.
22 The following exchange then occurred between the primary judge and the first appellant:
McKECHNIE J: Very well. What do you want to tell me about - this is just a directions hearing to see if I should grant leave. So what do you want to tell me about it?
PENGELLY, MS: Well, everything that we want to tell you is actually in our submissions, sir (ts 2).
23 The submissions referred to by the first appellant comprised a document headed, 'Affidavit of Submissions for Grounds of Appeal' sworn 14 January 2013 by the first appellant and a document headed, 'Affidavit of Reservation of Rights' sworn 11 July 2011 [sic] by her.
24 After the first appellant informed his Honour that 'everything that we want to tell you is actually in our submissions' (ts 2), his Honour asked the first appellant questions about aspects of the appellants' case. The exchange between his Honour and the first appellant continued for five pages of transcript. The hearing concluded with the following interaction:
PENGELLY, MS: As I said, sir, I have not got all my notes here to read from. I have got my notes at home. I believed that this was a directions hearing.
McKECHNIE J: It is a directions hearing.
PENGELLY, MS: Yes, but I didn't believe that I was going to be - - -
McKECHNIE J: Well, I'm merely - - -
PENGELLY, MS: - - - asked all these questions.
McKECHNIE J: I'm merely asking you questions about your own submissions. I would have thought it was reasonable to expect that if somebody had prepared submissions that they would understand what they're about.
PENGELLY, MS: I do understand a lot of it, sir, but you have to realise I'm not a lawyer.
McKECHNIE J: No.
PENGELLY, MS: I am rather nervous at having to come and do this, and that doesn't help matters.
McKECHNIE J: All right. Is there anything else you would like to tell me?
PENGELLY, MS: I would hand up this document that was filed in the High Court.
McKECHNIE J: Very well.
PENGELLY, MS: I would ask your Honour to set our decision aside until this is heard in the High Court.
McKECHNIE J: This is from Mr Glew. What has that got to do with this?
PENGELLY, MS: Because it raises every issue that we're raising, sir.
McKECHNIE J: Yes. I see that the High Court so far has refused leave.
PENGELLY, MS: They accepted it yesterday, sir.
McKECHNIE J: Accepted what? The document?
PENGELLY, MS: They have accepted the document, yes, sir.
McKECHNIE J: I'm sure they have, but at the moment you don't have leave, so thank you. And anything else you would wish to put before me?
PENGELLY, MS: No, sir.
McKECHNIE J: Very well. You may be seated (ts 7 - 8).
25 The primary judge then pronounced the orders and gave his reasons.
The primary judge's reasons
26 The primary judge said in his reasons that, contrary to proposed ground 13, 'this entire appeal is vexatious and an abuse of the processes of the court' [6]. His Honour then said:
I have read the submissions filed by the appellant and read the affidavits on the Magistrate Court file. Today I listened to Ms Pengelly [the first appellant] amplify some of the arguments. They do not add to the store of human knowledge.
Grounds of appeal like these are promoted by a small group of sad and deluded individuals who labour on in their delusions despite comprehensive rejection by the Court of Appeal and the General Division: See, for example, Hedley v Spivey [2012] WASCA 116.
Law students are required to study constitutional law and are examined on their knowledge as a prerequisite for legal practice.
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.
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 [6] - [10].
The appellants' proposed grounds of appeal before this court
27 The appellants rely on eight proposed grounds in their appeal from the primary judge's decision.
28 The proposed grounds read:
Ground 1. Justice McKechnie was wrong in law by failing to 'do right by all men' according to his oath of office, he failed to ensure justice could be done when he was advised that the Pengellys had received an email on the 11th January 2013 that did not explain what a Directions Hearing entailed.
Ground 2. Justice McKechnie without evidence or fact unlawfully aligned the Pengelly's [sic] with a small group of mislead [sic] people that were at the court when the Magistrate abandoned the court and the case before her.
Ground 3. Justice McKechnie was wrong in law and fact when he had pre decided the case and set about ridiculing Kay of the family Pengelly before reading out his pre written decision which was witnessed by two people in the court.
Ground 4. Justice McKechnie brought up a previous decision of his - Hedley v Spivey 2012 WASCA 325 where the magistrates court Kalgoorlie was challenged and he was aware of the unlawful magistrate court Act 2004 and he failed in his judicial function to declare the Act invalid under the provisions of Chapter 111 of the Commonwealth Constitution.
Ground 5. Justice McKechnie failed to obey the Commonwealth Constitution Chapter 111 in Hedley v Spivey when he sat under State Acts and Statutes and not Chapter 111 of the Commonwealth Constitution he also repeated the unlawful act in the case that is before the court.
Ground 6. Justice McKechnie was wrong in law and fact when he failed to recognise the Statute of Monopolies - ref Imperial Acts Application Act 1980 (Cth). The Statute of Monopolies 1623 section 6.1.9 states that - 'we reserve unto ourselves our heirs and successor the right to change these our letters patent'. Justice McKechnie displayed a very low understanding of the English language when he could not work out the difference between change and alter and he ridiculed Kay of the family Pengelly when she tried to explain the difference
Ground 7. Justice McKechnie's attitude to Kay of the family Pengelly was vexatious, malicious and a complete abuse of the process of the Supreme Court of Western Australia.
Ground 8. Justice McKechnie was wrong in law and fact when he stated that the transcript in disc form was not in the correct form.
29 By s 18 read with s 9(1) of the Criminal Appeals Act, the leave of this court is required for each ground of appeal.
30 By s 18 read with s 9(3) of the Criminal Appeals Act, unless this court gives leave to appeal on at least one ground of appeal in an appeal, the appeal is to be taken to have been dismissed.
The merits of ground 1
31 Section 9(4) of the Criminal Appeals Act provides, relevantly, that the Supreme Court may decide whether or not to give leave to appeal with or without written or oral submissions from the parties to the appeal. See, however, r 60, r 62 and r 63 of the Criminal Procedure Rules.
32 By s 3 of the Criminal Appeals Act, the Criminal Appeals Act is to be read with the Criminal Procedure Act 2004 (WA). The Criminal Procedure Rules include rules made under the Criminal Procedure Act, the Juries Act 1957 (WA), the Criminal Appeals Act and the Sentencing Act 1995 (WA).
33 In the present case, the appellants were given a hearing. When the primary judge informed the first appellant at the beginning of the hearing that the purpose of the directions hearing was to decide whether leave to appeal should be granted, the first appellant said in substance that she and the second appellant did not want to add to their written submissions. The first appellant did not apply for an adjournment.
34 In any event, there was nothing the appellants could reasonably have added to their written or oral submissions if the proceedings before his Honour had been adjourned. As I will explain, the appellants did not have a reasonably arguable case in relation to any of the grounds of appeal before his Honour.
35 Any difficulty the first appellant may have had in responding to his Honour's questions about the appellants' grounds of appeal or their written submissions did not constitute or give rise to a miscarriage of justice.
36 In the circumstances, there was no denial of procedural fairness.
37 Ground 1 is without merit.
The merits of grounds 2, 3 and 7
38 It is convenient to deal with grounds 2, 3 and 7 together.
39 The primary judge did not, as alleged in ground 2, 'align' the appellants with 'a small group of … [misleading] people' who were in the Magistrates Court when 'the magistrate abandoned the court and the case before her'. Rather, his Honour referred in his reasons to the proposed grounds of appeal and said in substance that those grounds were promoted by a small group of people despite the grounds having been rejected by this court. It is correct that grounds of appeal to the effect of, or similar to, proposed grounds 1, 2, 3, 7, 8, 9, 10, 11 and 12 before his Honour have been held by this court to be completely devoid of legal merit. See Hedley v Spivey [2012] WASCA 116 [7] (McLure P, Buss & Mazza JJA agreeing) and the cases there cited.
40 The assertion in ground 3 that the primary judge 'pre decided the case', and the complaint in ground 3 that his Honour gave his oral reasons by 'reading out his pre written decision', do not allege reasonably arguable errors of law or a reasonably arguable miscarriage of justice. It is not unusual for a judge to prepare draft reasons for decision before hearing an application if, on a preliminary assessment of the papers, it may be possible to deliver judgment and accompanying reasons at the conclusion of the hearing. The preparation of draft reasons on that basis does not demonstrate actual or apprehended bias, by prejudgment.
41 As to ground 7, I am satisfied, on my examination of the record of the proceedings before the primary judge, that his Honour's exchanges with the first appellant, and his conduct of the proceedings generally, were not, as described in ground 7, 'vexatious, malicious and a complete abuse of … process'. His Honour questioned the first appellant closely about some of her grounds and submissions, but it is not reasonably arguable that the questioning evinced any form of bias. Further, I consider it is not reasonably arguable that his Honour's 'attitude' towards the first appellant was 'vexatious' or 'malicious'. There was no 'abuse of the process' of the court.
42 As to grounds 2, 3 and 7 generally, it must be acknowledged that some parts of the primary judge's reasons for decision were unfortunate. His Honour did not focus on the undoubted absence of merit in the appellants' grounds of appeal and submissions. The reasons contained, by association, personal and derogatory comments about the appellants. He described them as 'sad and deluded'. He said their legally fallacious beliefs revealed a 'peculiar arrogance'. He diagnosed the appellants as suffering from a cognitive bias known as the 'Dunning-Kruger effect'. It is not surprising the appellants were offended by his Honour's comments. They were extraneous to the matters arising for decision and should not have been made.
43 However, the comments in question did not, in the context of the grounds of appeal and the submissions, indicate bias in relation to the matters to be decided or occasion a miscarriage of justice.
44 Grounds 2, 3 and 7, when evaluated individually and in combination, do not establish a reasonably arguable foundation for setting aside the primary judge's decision.
The merits of grounds 4, 5 and 6
45 It is convenient to deal with grounds 4, 5 and 6 together.
46 That part of ground 6 which complains that the primary judge ridiculed the first appellant, when she endeavoured to explain the difference between 'change' and 'alter', refers to the following passage in the transcript of the hearing:
McKECHNIE J: … Why do you say in ground 9 that the state parliament being used had been unlawful[ly] changed contrary to section 107 of the Commonwealth constitution?
PENGELLY, MS: Because it has, sir. Our state constitution has been changed.
McKECHNIE J: How is that by section 107?
PENGELLY, MS: They've removed sections of the state constitution and replaced it and you can't do that under the letters patent.
McKECHNIE J: Who has done that?
PENGELLY, MS: The government.
McKECHNIE J: Or the parliament.
PENGELLY, MS: Or the parliament, one or the other.
McKECHNIE J: Which one?
PENGELLY, MS: Well, it is our state constitution so I presume it is our state parliament.
McKECHNIE J: How does section 107 of the Commonwealth constitution forbid that?
PENGELLY, MS: Because under letters patent our constitution can only be altered; it cannot be changed.
McKECHNIE J: And what is the difference - - -
PENGELLY, MS: And it must be done with the monarch's signature.
McKECHNIE J: What is the difference between alteration and changing?
PENGELLY, MS: A lot. They've removed sections completely. 32 sections.
McKECHNIE J: Yes, but you said it cannot be altered, it can only be changed, so what is the difference?
PENGELLY, MS: They can only alter wordings; like, if they've got pounds in there they can alter it to dollars but they can't change for - the whole lot.
McKECHNIE J: Yes, well, you still haven't answered my question but we'll move on (ts 2 - 3). (emphasis added)
47 In my opinion, his Honour asked legitimate questions about the first appellant's submission that 'under letters patent our constitution can only be altered; it cannot be changed' (ts 3). His Honour did not ridicule the first appellant's responses to his questions.
48 There is no merit in grounds 4 and 5 and the balance of ground 6. See Hedley [3] - [7].
The merits of ground 8
49 Ground 8 refers to the following passage in the primary judge's reasons:
The appellants have lodged an appeal notice.
They have not provided [a] 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 [1] - [2].
50 His Honour's statements as to the appellants' provision of computer discs and their failure to provide a transcript of the hearing in the Magistrates Court were correct.
51 Rule 65(1)(f) of the Criminal Procedure Rules provides that, to commence an appeal, the appellant must lodge a copy of the 'primary court's transcript'. This provision requires an appellant to lodge a transcript of the proceedings and not merely computer discs recording the proceedings. See the definition of 'primary court's transcript' in r 58(1).
52 The primary judge did not make an error of law or fact as alleged in ground 8.
Some observations about the proposed grounds of appeal before the primary judge
53 For completeness, I note that there was no merit in any of proposed grounds 1, 2, 3, 7, 8, 9, 10, 11 or 12 before the primary judge. See Hedley [3] - [7].
54 The appellants have still not obtained and lodged with this court the transcript of the proceedings in the Magistrates Court. It is not apparent from the material filed by the appellants, either in the appeal before the primary judge or in the appeal before this court, that the appellants have a reasonably arguable case in relation to any of grounds 4, 5, 6 or 13 in the appeal before his Honour.
Conclusion
55 None of the proposed grounds in the appeal before this court has a reasonable prospect of success. Leave to appeal must therefore be refused. The appeal should be dismissed.
56 MAZZA JA: I agree with Buss JA.
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