Shmandiy v Magistrates Court of South Australia

[2025] SASC 62

SUPREME COURT OF SOUTH AUSTRALIA

(Civil: Application)

SHMANDIY v MAGISTRATES COURT OF SOUTH AUSTRALIA

[2025] SASC 62

Judgment of the Honourable Justice Stanley  

MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - JUDICIAL REVIEW

COURTS AND JUDGES - JUDGES - DISQUALIFICATION FOR INTEREST OR BIAS - REASONABLE APPREHENSION OF BIAS GENERALLY

The applicant seeks judicial review of ‘decisions’ made in the course of Magistrates Court proceedings against her wherein the police prosecutor applied for, and was granted, permission to withdraw all charges on the second day of trial. Ultimately the magistrate entered findings of not guilty and acquitted the applicant on all charges. The applicant was awarded $1,030 in costs.

Prior to the judicial review hearing the applicant made a number of interlocutory applications seeking various orders. Two of those applications, FDN 38 and 43 were heard together.

In FDN 38 the applicant sought that the Court re-hear an earlier interlocutory application (FDN 34) or enter a default judgment in favour of her with respect to that application or ‘disqualify’ me from having reserved my decision in FDN 34.

In FDN 43 the applicant sought a hearing confirming my recusal, a record of outcome to ‘officially reflect’ my recusal from this case, and that she be permitted to attend any future hearings by audiovisual link.

Both applications were opposed.

Held:

1.The merit of any submissions given by a party are not necessarily determined by their length, nor can their duration provide a foundation for an allegation of judicial bias. The fact that a judicial officer may ask more questions of one party than the other does not provide a basis for a submission of bias. Needless questions from the bench which have the effect of prolonging proceedings should be avoided.

2.The applications FDN 38 and FDN 43 are dismissed except insofar as they relate to the application to appear via audiovisual link for future hearings.

QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15; R v Commonwealth Conciliation Arbitration Commission; Ex Parte Angliss Group (1969) 122 CLR 547; Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; Re JRL; Ex Parte CJL (1986) 161 CLR 342, applied.

SHMANDIY v MAGISTRATES COURT OF SOUTH AUSTRALIA
[2025] SASC 62

Civil - Application

STANLEY J:

Introduction

1. The applicant, Mariya Shmandiy, (the applicant) seeks judicial review of “decisions” made in the Magistrates Court of South Australia (MCSA) in a prosecution by SAPOL.  The applicant was charged with failing to comply with a direction of an authorised officer given in accordance with the Emergency Management Act 2004 (SA) during a declared major emergency; of refusing, or failing to state any or all details when required by a police officer and of possession of a prescription drug, not being a drug of dependence, contrary to s 18(3) of the Controlled Substances Act 1984 (SA).

2. On 15 March 2023, the second day of the applicant’s trial, the police prosecutor applied for, and was granted, permission to withdraw all charges.  The magistrate entered findings of not guilty and acquitted the applicant on all charges.  The applicant made an application for costs.  The prosecution opposed the quantum sought.  On 10 July 2023 the magistrate ordered SAPOL to pay the applicant’s costs fixed in the sum of $1,030.

3. On 2 November 2023 the applicant’s originating application for review was sealed by the Higher Courts Registry.  By that application the applicant seeks:

   1.That [she] be awarded court costs equivalent to the financial loss suffered and incurred by the Defendant in the amount of $22,421.60.

   2.That the court issue a final verdict on the court record for matter AMC-21-11824 specifically detailing the outcome resulting in [her] acquittal on counts 1, 3-4 on the basis that [she] had No Case to Answer because the Prosecution’s allegations were frivolous, vexatious and an abuse of the process that resulted in unlawful arrest and false imprisonment due to failure to uphold justice and the law contrary to the intention of the provision to issue an expiation notice for the breach of the Emergency Management Act 2004 Section 28.

   [emphasis in original]

4. Prior to the hearing of the application for judicial review the Court heard two interlocutory applications brought by the applicant, FDN 38[1] and FDN 43.[2]  Both applications were opposed. 

   [1]    This application was supported by an affidavit of the applicant filed on 12 July 2024 (FDN 39).

   [2]    This application was supported by an affidavit of the applicant filed on 12 September 2024 (FDN 44).

5. The background to these applications is that I heard an earlier interlocutory application brought by the applicant on 16 May 2024.[3]  The applicant represented herself.  Ms Hedger of the Crown Solicitor’s Office (CSO) appeared for the MCSA.  The applicant sought an order to remove Ms Hedger from representing the MCSA, and subsequent orders directing the CSO to cease its representation of the MCSA, and to adjourn the matter until a suitable party was appointed to represent the MCSA.  The applicant submitted that the CSO’s representation of the MCSA before me breached the separation of powers between the executive and the judiciary.  The applicant sought to have this application heard before argument proceeded on her application for judicial review and other interlocutory applications including an application by SAPOL to be joined to the proceedings.  I agreed to do so.  I heard submissions from the applicant and Ms Hedger.  I reserved judgment.  Before I could deliver judgment on the applicant’s interlocutory application she brought the application in FDN 38. 

   [3]    FDN 34. 

6. For the reasons that follow I dismiss both FDN 38 and FDN 43.  They are fundamentally misconceived. 

   FDN 38

7. The applicant seeks the following orders:

   1.Re-hear FDN 34 (“the Application”) to make an order for the Respondent to provide their responses to arguments before the court will determine its judgment or,

   In absence of merits for disputing the Application, based on the Respondent’s failure to present arguments, enter a default judgment in favour of the Application.

   Alternatively,

   2.Disqualify Justice Stanley from making a Reserved Judgment on FDN 34 as was ordered at the hearing on 16 May 2024.

8. Fundamental to application FDN 38 is a misunderstanding on the part of the applicant concerning the conduct of proceedings.  The applicant appears to think that because Ms Hedger’s submissions were shorter than the applicant’s and that I asked more questions of the applicant than Ms Hedger, that somehow the proceedings either miscarried, or the submissions put by Ms Hedger were so weak or wrong that the CSO should be required to put further submissions, or judgment should be entered for the applicant by default.  I do not accept this submission.  The merit of any submission is not necessarily determined by its length.  Such a proposition is not only wrong, it should be discouraged.  It would result in a waste of court resources and the unnecessary incurring of legal costs by the parties. 

9. Whether, as the applicant submits, the respondent failed to present reasoned counter arguments and overlooked crucial aspects of the application requiring a judgment in her favour, is a matter for the Court. 

10. Further, the applicant’s submission proceeds on the basis that in reserving judgment I had made a decision.  That again betrays a fundamental misunderstanding of procedure.  The applicant complains that when I reserved judgment I did not fix a specific time or place for further hearing, potentially allowing the continuation of the hearing in her absence.  Again, this betrays a fundamental misunderstanding of procedure.  There is no basis for the applicant to apprehend that having reserved judgment and adjourned the Court I might then resume the hearing in her absence.  Her further submission in support of this proposition is that this was only prevented by the refusal of some of her supporters to leave the courtroom and the courthouse unless the court was also vacated by my associate and the respondent’s solicitor.  That submission has no basis in fact. 

11. The applicant also complained that at the hearing there was present in Court an unknown and unnamed solicitor or police who was not legitimately or procedurally admitted to the courtroom.  I infer this to be a reference to the instructing solicitor from the CSO.  However, there appeared to be a half-dozen people in Court who seemed to be supporters of the applicant, so I may be drawing an incorrect inference in that regard.  But in any event, the applicant’s submission again involves a fundamental misunderstanding about the principle of open justice.  Subject to an order to the contrary, made on a proper basis, the proceedings of our courts are open to any member of the public without them having to demonstrate some legitimate purpose or entitlement to be there. 

12. In the alternative the applicant asks me to recuse myself.  The basis of the application is that I should have given judgment in her favour on the day of the hearing as the respondent’s submissions lacked merit.  The applicant submits my failure to do so reflected a lack of interest in hearing the respondent’s response to the applicant’s application and my failure to scrutinise properly the respondent’s submissions which she asserts I seemingly accepted without any examination or discernible legal foundation.  The applicant submits that this suggests I accepted the submissions put without examining their merits.   She submits this evidences bias on my part.  The applicant further submits that the evidence of bias on my part was allowing the respondent to file written submissions in relation to the originating application, including for the joinder of SAPOL to the proceedings.  An additional instance of bias on my part was advice I gave her that she should bring an appeal from the magistrate’s decision.

13. Judicial decisions must be made in accordance with the rules of natural justice.  There are two traditional rules in natural justice: procedural fairness, namely the hearing rule, that is the right to be heard; and the bias rule, that is the decision-maker must be impartial.  In this case it is the bias rule that is invoked by the applicant. 

14. It is unclear whether the applicant alleges apprehended or actual bias but in any event the basis of the application does not satisfy either test. 

15. Actual bias is concerned with whether the judge is insufficiently impartial so as to be unable to decide the case on its merits.  Deciding a case on its merits is vital to permit justice to be done.[4]  It focusses on the judge’s subjective state of mind.[5]  The allegation of actual bias must be firmly established.[6]  Actual bias is not to be equated with a judge, before hearing, having given thought to the subject matter of the dispute or while hearing it, having formed any views or inclination of mind upon or with respect to it.  What is critical is that the judge’s mind remains open.[7]  The authorities are clear that an allegation of actual bias must be distinctly identified, fully particularised and clearly proved.[8] 

    [4]    QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15 at [120] and [219].

    [5]    QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15 at [115].

    [6]    R v Commonwealth Conciliation Arbitration Commission; Ex Parte Angliss Group (1969) 122 CLR 547 at 553-554.

    [7]    R v Commonwealth Conciliation Arbitration Commission; Ex Parte Angliss Group (1969) 122 CLR 547 at 554.

    [8]    Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [69] and [127].

16. The test for apprehended bias is set out in Ebner v Official Trustee in Bankruptcy,[9] namely, whether a fair-minded lay observer might reasonably apprehend that the judicial officer might not bring an impartial and independent mind to the fair resolution of the issue to be decided.  This has been referred to as the double-might test. 

    [9] [2000] HCA 63, (2000) 205 CLR 337.

17. To establish an apprehension of bias requires two fundamental steps.  First, the identification of a factor or factors which is said might lead the judge to decide the hearing otherwise than on an independent impartial evaluation of the merits.  Second, there must be a logical connection between the factor or factors identified and the apprehended deviation from deciding the application on its merits.  A finding of apprehended bias it not reached lightly.[10] 

    [10] Re JRL; Ex Parte CJL (1986) 161 CLR 342 at 371.

18. I do not accept that any proper basis has been demonstrated for me to recuse myself on the ground of bias.  That the applicant feels that the Court did not question the respondent’s submission as closely as it questioned her submissions merely reflects an attempt to properly understand the applicant’s arguments.  The length of the submissions of the parties is, generally speaking, a matter for them.  Accordingly, the length of the submissions cannot provide a foundation for an allegation of bias on my part.  Further, for reasons I have already explained, needless questions from the bench which have the effect of prolonging proceedings should be avoided.  Accordingly, by way of contrast, the failure to ask unnecessary questions should not provide a basis for a submission of bias.  The lack of questions to the counsel for the respondent reflected the fact I understood their submissions and did not feel a need to seek further explanation or clarification.  It did not reflect prejudgment on my part.  Nor might a fair-minded lay person reasonably apprehend that I might not bring an impartial or independent mind to deciding the applications on that basis. 

19. I did give a direction to the Registry to allow written submissions to be filed on behalf of SAPOL by the CSO.  However, those submissions were unconnected with FDN 34, FDN 38 and FDN 43.  They were concerned with the questions of whether SAPOL should be joined to the proceedings and issues to do with, inter alia, orders for the “recusal” of a solicitor in the CSO, a Judge of this Court and other bases upon which the relief sought by the applicant could not be granted on an application for judicial review.  The application whether SAPOL should be joined to the proceedings is yet to be argued.  The mere direction permitting submissions to be filed in the Registry by SAPOL is not an indication that I have pre-judged that application.  There is no basis upon which that direction evinces apprehended or actual bias on my part.  In any event, even if it did, it could only do so in relation to the application for joinder not these interlocutory applications.[11] 

    [11] FDN 34, FDN 38 and FDN 43. 

20. I did advise the applicant that she should appeal from the magistrate’s decision.  This was in an endeavour to assist her as a litigant in person, particularly in light of the challenge to the Court’s power to grant the relief she was seeking by way of an application for judicial review.  Such advice, far from evincing bias on my part, was undertaken to fulfil the Court’s duty to assist self-represented litigants in the conduct of proceedings. 

    FDN 43

21. The applicant seeks the following orders:

    1.Hearing with Justice Stanley to confirm his recusal and the reasons for his decision, or, alternatively,

    2.A record of outcome to officially reflect Justice Stanley’s recusal from case CIV-23-012411 and the reasons for it.

    3.That the applicant attend any future hearings via video link or audio link via her mobile number [redacted] due to being out of the State.

22. The relief sought in paragraphs 1 and 2 of the application are misconceived.  They proceed on the incorrect assumption that I had recused myself from hearing the application in FDN 34.  That has not occurred.  Accordingly I am not in a position to provide reasons for doing so.  Equally, no basis exists to direct that the record of outcome reflects my recusal from the application in FDN 34. 

23. As far as the relief sought by way of an order that the applicant attend any future hearings via video link or audio link via her mobile telephone number, as she resides interstate, that application was not addressed.  As the position presently stands, I am prepared to permit the applicant to participate in the hearing of interlocutory proceedings by an audio-visual link as long as the applicant continues to reside interstate and that link remains functional and suitable.  The quality of the proceedings by AVL link should not suffer relative to the quality of the proceedings that would exist if the applicant was present in the courtroom.  If it becomes evident that that is so then I could withdraw permission for the proceedings to be conducted by an AVL link.  In any event, I would not permit the applicant to attend any future hearings on an audio only link via her mobile phone.  It is vital that she be visible to me and those representing the respondent.    

    Conclusion

24. For these reasons I would dismiss the applications FDN 38 and FDN 43 except in respect of the application to appear by AVL.