Australia: Kay & Richard Pengelly - judge hurt our feelings

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Hilfskreuzer Möwe
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Australia: Kay & Richard Pengelly - judge hurt our feelings

Post by Hilfskreuzer Möwe » Thu Jan 30, 2014 6:11 am

I’ve a judge to add to my little pantheon of worthy denouncers of Sovereign / Freeman litigants - the Honourable Justice John Roderick McKenchie of the Supreme Court of Western Australia. Justice McKenchie, I would like to quietly thank you for keeping it brief, and saying it like it is.

The case in point:
This is an appeal of the trial of Kay Patricia and Richard Pengelly. They appear to be a couple. At trial they were fined $10,000 for leaving a ton of crap and holes in the ground of their lot despite municipal orders that they correct those hazards ([2014] WASCA 5 at para. 12).

(And those orders were from Shire of Serpentine Jarrahdale – no really – I didn’t make that up – look here! It's for real!

The Pengellys sought leave to appeal the trial, but they did not file the appropriate transcript, or the judgment from the trial itself. Justice McKenchie could have extended the time for the Pengellys to obtain those items, but didn’t. There was no point:
... 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.

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.
I will post the remainder of the judgment unedited and without comment. It requires neither:
[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 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.
Thank you Justice McKenchie for saying what I think practically everyone in this forum has often, and repeatedly, thought. Thank you.

Needless to say the Pengellys were pissed. The appeal of the McKenchie decision is reported and quite a bit longer than the decision below:
Once more the Pengellys needed leave, and they didn’t get it. Any legal basis to challenge the decisions below was decided by an earlier decision on the same subject, Hedley v Spivey [2012] WASCA 116.

However, the appeal panel is a little more … circumspect. There are two sets of concurring reasons, the main one from Justice Buss. We learn some more about the McKenchie proceeding. Kay spoke for the Pengellys because her husband “… suffers with dyslexia and gets very distressed and has given me permission to speak for him.” The Pengellys tell Justice McKenchie to refer to their written materials which is followed by McKenchie interrogating Kay on their position and the transcript goes on for five pages, and ends with a little exchange, of which I will reproduce part:
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.


PENGELLY, MS: I am rather nervous at having to come and do this, and that doesn't help matters.
Kay then ices the cake by handing up materials from a chap named Wayne Kenneth Glew, who has previously been featured on Quatloos (viewtopic.php?f=47&t=9335&p=157705). Justice McKenchie then in a more eloquent manner says “Stupid argument is stupid” and denies leave to appeal.

As you would expect the Pengellys have a mess of grounds for appeal:
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.
All are rejected. Ground 1 because the Pengellys were inevitably going to get punted, and adjournment would have done no good: paras. 31-37. Grounds 2, 3 and 7 amounted to ‘the judge was mean to me and my friends.’ Judges often write up draft judgment in advance of a hearing: para. 40. Nevertheless, while Justice McKenchie was mean and should not have said what he did, that did not indicate bias (paras. 42-43):
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.
The reply to grounds 4-6 is another transcript excerpt:
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
Yup, Stupid argument is stupid.

And the Pengellys were also wrong that it was ok for them to file the record of the original trial hearing in the form of what I suspect were clandestine audio recordings: paras. 49-52.

Justice McLure’s concurring reasons add little except this little note at para. 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.
Well, I have to say I think the Western Australia Court of Appeal was a little harsh to the good Justice McKenchie – but I am an outlander and probably should not impose my own standards of judicial conduct on that jurisdiction. That said, here in Canada I think Justice McKenchie’s succinct dissection of the case he faced would be entirely appropriate – as an illustration I offer this comment by Justice Thomas of the Alberta Court of Queen’s Bench on the scope of judicial commentary and criticism, from R v LL, 2013 ABQB 531 (
[27] An unpleasant reality of today’s courtrooms is that not all its participants use this forum for legitimate purposes. It falls to judges to comment on this phenomenon. I note, for example, the blunt words of Justice Saunders in the recent Doncaster v. Chignecto‑Central Regional School Board, 2013 NSCA 59 at paras. 44-48 decision, echoed in MacDonald v. First National Financial GP Corp., 2013 NSCA 60 at paras. 42-43:

[28] Rooke A.C.J. of this Court made a broader and equally forthright commentary on the misuse of court resources by litigants who advance frivolous commercially-sourced pseudolegal schemes to disrupt court processes in Meads v. Meads, 2012 ABQB 571, 543 A.R. 215. That was not a basis to conclude he was biased: A.N.B. v. Hancock, 2013 ABQB 97 at paras. 26-29.

[29] I believe an aspect of my role as a Judge, is that I clearly identify instances where I observe a Crown Prosecutor has acted in a manner that is inconsistent with that lawyer’s duty as an officer of the court. That commentary should be in a manner that leaves no potential for misapprehension, not just for the education of the criminal bar and as common law precedent, but also to maintain public confidence in the courts. Misconduct or error will typically fall on a range, from comparatively innocent to malevolent and inexcusable. Courts turn to experts such as medical doctors and religious leaders to evaluate the ‘wrongness’ of misconduct that is outside the knowledge of the finder of fact: for example Ter Neuzen v. Korn, [1995] 3 S.C.R. 674 at paras. 32‑33, 38, 127 D.L.R. (4th) 577, more generally R. v. Mohan, [1994] 2 S.C.R. 9, 114 D.L.R. (4th) 419.

[30] That kind of external context is unnecessary to evaluate misuse and abuse of the courts. Judges are presumed competent and expert in that role: R. v. Burns, [1994] 1 S.C.R. 656, 89 C.C.C. (3d) 193; R. v. Sheppard, 2002 SCC 26 at paras. 32, 52, [2002] 1 S.C.R. 869.

[31] Judges are the authorities who say when an error is technical and does not affect the rights of the accused and others, or ranges to instances where pursuit of criminal sanction is inexplicable and grotesque. I believe a judge’s duty requires forthright and direct evaluation of the scale and kind of misconduct, and that I do not need to mince words when I assign misconduct on the appropriate point on that spectrum: R. v. C.J.T.
As you can see in Canada it is ok for a judge to say “this stupid is REALLY stupid." I'm glad of that. And I have this sneaking suspicion that, with time, the Australian judiciary may come to a similar conclusion.

In the meantime – Justice McKenchie? Thank you.

The only thing I learned about the Pengellys in my online prowling is that their business is converting motor vehicles to run on liquid natural gas - and they do those conversions on their own residential property.

SMS Möwe
That’s you and your crew, Mr. Hilfskreuzer. You’re just like a vampire, you must feel quite good about while the blood is dripping down from your lips onto the page or the typing, uhm keyboard there... [ at 11:25]

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Re: Australia: Kay & Richard Pengelly - judge hurt our feeli

Post by grixit » Thu Jan 30, 2014 8:32 am

Where's the Serpent King when you need him?
I voted for Hillary, and i didn't even get a stupid tshirt!

10 . . . . . . . . . . . . . . . 2
. . . . . . Dr Pepper
. . . . . . . . . . . . . . .. . . 4

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Re: Australia: Kay & Richard Pengelly - judge hurt our feeli

Post by grixit » Thu Jan 30, 2014 8:33 am

They do not add to the store of human knowledge.
I voted for Hillary, and i didn't even get a stupid tshirt!

10 . . . . . . . . . . . . . . . 2
. . . . . . Dr Pepper
. . . . . . . . . . . . . . .. . . 4

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Re: Australia: Kay & Richard Pengelly - judge hurt our feeli

Post by morrand » Sun Feb 02, 2014 1:12 am

Hilfskreuzer Möwe wrote: As you can see in Canada it is ok for a judge to say “this stupid is REALLY stupid." I'm glad of that. And I have this sneaking suspicion that, with time, the Australian judiciary may come to a similar conclusion.

In the meantime – Justice McKenchie? Thank you.
And meanwhile, here in the States, you can get things like this:
The ostrich is a noble animal, but not a proper model for an appellate advocate. (Not that ostriches really bury their heads in the sand when threatened; don't be fooled by the picture below.) The "ostrich-like tactic of pretending that potentially dispositive authority against a litigant's contention does not exist is as unprofessional as it is pointless." [Citation omitted]
"Picture"? Oh, yes.