Shmandiy v Magistrates Court of South Australia (No 2)

[2025] SASC 63

SUPREME COURT OF SOUTH AUSTRALIA

(Civil: Application)

SHMANDIY v MAGISTRATES COURT OF SOUTH AUSTRALIA (No 2)

[2025] SASC 63

Judgment of the Honourable Justice Stanley  

MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - JUDICIAL REVIEW

CONSTITUTIONAL LAW - OPERATION AND EFFECT OF THE COMMONWEALTH CONSTITUTION - GENERAL MATTERS - NATURE AND SCOPE OF COMMONWEALTH POWERS - SEPARATION OF POWERS

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.

The day before the judicial review hearing was listed the applicant made an interlocutory application (FDN 34). The applicant requested that this application be heard first, prior to the judicial review. This request was granted. By this application the applicant sought that a solicitor of the Crown Solicitor’s Office (CSO) be ‘removed’ from representing the Magistrates Court, that the CSO cease its representation of the respondent, that the matter be adjourned until a suitable party is appointed to represent the respondent and that the separation of powers between the executive and the judiciary be ‘enforced’.

The application was opposed.

Held:

1.By entering a submitting appearance, a party adopts a passive role in the proceedings. There is no conflict in the CSO acting for both the Magistrates Court of South Australia (MCSA) and SAPOL in circumstances where the MCSA is entering a submitting appearance save as to costs.

2.Save for the order sought by the applicant that this application be heard first, FDN 34 is dismissed.

Balog v Independent Commissioner Against Corruption (1990) 169 CLR 625; Commonwealth v Rhind (1966) 119 CLR; R v Australian Broadcasting Tribunal; Ex Parte Hardiman (1980) 144 CLR 13; Viscariello v Legal Profession Conduct Commissioner [2015] SASC 132, applied.

SHMANDIY v MAGISTRATES COURT OF SOUTH AUSTRALIA (No 2)
[2025] SASC 63

Civil - Application

1. The applicant, Mariya Shmandiy (the applicant), seeks judicial review of “decisions” made in the Magistrates Court of South Australia (MCSA) in a prosecution of the applicant, by SAPOL.  Those proceedings were withdrawn by SAPOL on the second day of the applicant’s trial.  The magistrate found her not guilty and acquitted her on all charges.  The magistrate ordered SAPOL to pay the applicant’s costs fixed in the sum of $1,030.

2. There was a directions hearing on 15 March 2024. At that hearing the applicant confirmed she does not seek to appeal the magistrate’s decision nor does she seek that the judgment of the magistrate be reversed. The applicant insisted she wished to pursue an application for judicial review of the magistrate’s “decisions”. 

3. In the application for judicial review the Crown Solicitor’s Office (CSO), acting on behalf of the MCSA, has filed a submitting appearance save as to costs.  The CSO has appeared as an interested party to seek an order that SAPOL be joined as the appropriate contradictor to the application for judicial review.  The applicant objects to this occurring. 

4. On 15 May 2024, the day before the matter came on for hearing of the judicial review the applicant filed and served an interlocutory application (FDN 34) seeking orders removing Alexis Hedger of the CSO from representing the Magistrates Court; directing the CSO to cease its representation of the MCSA; to adjourn the matter until a suitable party is appointed to represent the MCSA; and to have this application heard first.  In addition, the applicant purported to seek an order enforcing the separation of powers between the executive and the judiciary for lawful interpretation and application of the law.

5. I agreed first to hear this application FDN 34 on 16 May 2024. I reserved my decision. Before I could deliver judgment on this application the applicant brought further interlocutory applications FDN 38 and 43 which delayed the determination of this application. I address those applications and the further procedural history of this matter in Shmandiy v Magistrates Court of South Australia.[1]

   [1]    Shmandiy v Magistrates Court of South Australia [2025] SASC 62.

6. It is not easy to follow the applicant’s submissions.  Her argument seems to proceed from the proposition that it is not open for the Crown Solicitor, on the one hand, to represent the MCSA for the limited purpose of filing a submitting appearance to the application for judicial review and to be heard on the question of the costs of that application, and, on the other hand, to act for SAPOL on an application to be joined to the judicial review application as the appropriate contradictor.  The applicant contends that there is a conflict of interest between the CSO, as an arm of the executive, appearing for the MCSA, which is an arm of the judiciary.  The applicant relies upon a statement on the CSO’s website to the effect that the CSO has only one client, the Government of South Australia.  Relying on that statement the applicant contends the CSO cannot act for the MCSA, as the Government of South Australia is the executive arm and the MCSA, as part of the judiciary, is not part of the executive.

7. The applicant’s argument is misconceived.

8. In Australia there is a separation of powers between the Parliament and the executive government on the one hand, and the judiciary on the other.  The extent and ambit of that separation are, on occasions, the source of debate between the various arms of government.  Legislation is interpreted against the background of the constitutional independence of the judiciary[2] and of the separation of judicial functions.  Where a statute specifically refers to “the Crown” it is assumed that it refers to the Crown in its executive capacity.[3] 

   [2]    Balog v Independent Commissioner Against Corruption (1990) 169 CLR 625 at 635-636.

   [3]    Commonwealth v Rhind (1966) 119 CLR 584 at 599.

9. The applicant seeks relief against the MCSA. The legal rights and interests of the MCSA cannot be defended by the MCSA in accordance with the Hardiman principle.[4]

   [4]    R v Australian Broadcasting Tribunal; Ex Parte Hardiman (1980) 144 CLR 13 at 35-36.

10. The High Court in Hardiman said that the usual course when a judgment made by an inferior court or tribunal is challenged on judicial review is for the court or tribunal to submit to such order as the court may make.  In practical terms what occurs as a matter of practice is that inferior courts and tribunals instruct the Crown Solicitor to attend at the first opportunity to give an undertaking to abide the decision of the court hearing the application for judicial review, save as to costs.  If there is no other contravener, the Crown Solicitor, acting for the Attorney-General may then intervene or appear as amicus curiae.  The High Court made clear that there is a risk if an inferior court or tribunal actively defends its own decision it will endanger impartiality should the matter be remitted for further consideration.[5]

    [5]    Viscariello v Legal Profession Conduct Commissioner [2015] SASC 132 at [56].

11. By convention where proceedings are brought against a court it is the role of the Attorney-General to represent the Court.  The CSO acts for the Attorney-General. 

12. The relief the applicant seeks includes a claim for damages.  If the applicant’s entitlement to damages is established it is SAPOL that will be liable to satisfy the award of damages.  That is why the MCSA has entered a submitting appearance, save as to costs, and why SAPOL is the appropriate contradictor.

13. By entering a submitting appearance the MCSA is adopting a passive role in the proceedings except on the question of costs.  The MCSA will not appear or be represented on the hearing for judicial review, at least, until there is any argument as to the costs of the proceedings.  If SAPOL is joined to the proceedings there will be no conflict for the CSO in acting for it because the MCSA will not be appearing on the hearing for judicial review. Accordingly, there is no conflict in the CSO acting for both the MCSA and SAPOL.  To the extent there is any inconsistency in this position with the statement on the CSO website, that the CSO has only one client, namely, the Government of South Australia, that statement does not have any statutory force or effect or, in any event, is contrary to longstanding practice that the CSO acts for judges and courts by filing submitting appearances on their behalf where proceedings are brought against them. 

14. Further, it is premature to argue that any conflict exists until the Court decides whether SAPOL should be joined to the application for judicial review. At this stage a conflict cannot be identified.  

15. I return to the aspect of the applicant’s application which seeks that Ms Hedger be ‘removed’ from representing the respondent as acting solicitor on behalf of the Crown Solicitor’s Office. Again, the applicant’s submissions on this subject are misconceived. The applicant appears to take issue with the fact that Ms Hedger filed written submissions on behalf of SAPOL, while also representing MCSA. As I have already explained, no conflict can be identified, and the applicant’s  argument fails for the same reasons.

16. Accordingly, save for the order sought by the applicant that this application be heard first, I refuse to grant the orders sought in FDN 34.