Shmandiy v Police - [2025] SASC 105

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeal: Criminal)
SHMANDIY v POLICE
[2025] SASC 105
Judgment of the Honourable Justice Gray (ex tempore)
19 June 2025
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - PROCEDURE - COSTS - POWER TO AWARD
This matter concerns the costs of an appeal before a single judge and in the Magistrates Court when the appeal is conceded, and the appellant is self-represented.
The respondent conceded the appeal, and the Court made orders that the conviction and sentence on MCCRM-23-045253 be quashed and the charge pursuant to s 22(1)(d) of the Local Nuisance and Litter Control Act 2016 (SA) be dismissed.
The respondent seeks that there be no order as to costs. The appellant seeks costs in the amount of $9,690.68.
Costs are awarded in favour of the appellant in the amount of $375.
Held;
1.Costs are awarded in favour of the appellant fixed in the amount of $375.

Magistrates Court Act 1991 (SA) s 42(5)(c); Uniform Special Statutory Rules 2022 (SA) r 371.2; Joint Criminal Rules (SA) r 191.3, referred to.
Bell Lawyers Pty Ltd v Penteloq [2019] 269 CLR 333; Birketu Pty Ltd v Atanaskovic [2025] HCA 2, considered.

SHMANDIY v POLICE
[2025] SASC 105
Criminal: Magistrates Appeal

GRAY J (ex tempore): This matter concerns the question of costs arising consequent upon an appeal brought by Ms Shmandiy against a conviction and sentence of the Magistrates Court.
On 5 June 2025, this Court made orders to the following effect:[1]
[1] Record of Outcome dated 5 June 2025, on SCCRM-25-005286.
1.The respondent concedes appeal against conviction on SCCRM-25-005286;
2.The conviction on file MCCRM-23-045253 is quashed;
3.The sentence on file MCCRM-23-045253 is quashed;
4.The charge of dispose up to 50 litres of general litter, contrary to s 22(1)(d) of the Local Nuisance and Litter Control Act 2016 (SA), on file MCCRM-23-045253, is dismissed;
5.The appellant to be referred to as ‘Mariya Shmandiy’;
6.On or before 12 June 2025, the appellant, if so advised, has leave to file and serve any affidavit and submissions as to the question of costs;
7.On or before 17 June 2025, the respondent has leave to file and serve any affidavit and submission in reply, as to the question of costs;
8.The matter adjourned for further consideration as to the application for costs to 9:30 am on Thursday 19 June 2025.
The final question to consider is the question of costs of the appeal, and in respect of the Magistrates Court proceedings. Both parties have provided detailed written submissions on the question of costs. The respondent seeks that there be no order as to costs. The appellant seeks costs to be awarded in her favour in the amount of $9,690.68.
I have considered the provisions of s 42(5)(c) of the Magistrates Court Act 1991 (SA), which authorise this Court to make orders with respect to costs that are necessary and desirable in the circumstances, as well as to the provisions of…

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 Shmandiy v Police

Details

AGLC: Shmandiy v Police [2025] SASC 105
Case: [2025] SASC 105
Decision Date: 19 June 2025

CaseChat Overview and Summary

Shmandiy was the appellant in an appeal against a decision made by the police in South Australia. The nature of the dispute was related to the costs incurred in the Magistrates Court proceedings and the subsequent appeal to the Supreme Court. The appeal was heard and decided by the Supreme Court of South Australia. The primary legal issue before the court was the determination of costs to be awarded to the appellant, Shmandiy, for both the Magistrates Court proceedings and the appeal to the Supreme Court.

In exercising its discretion concerning the award of costs, the court considered several factors. These included the general principles governing costs, the broad discretion available to the court, the rules which aim to limit the award of costs in many circumstances, and the limited evidence provided by the appellant concerning the costs claims. The court also took into account the limited evidence regarding any costs incurred in the Magistrates Court proceedings and the fact that the appeal was conceded. Given these considerations, the court decided to approach the question of costs globally and exercise its discretion accordingly.

The Supreme Court determined that the respondent, the Commissioner of Police, should pay the appellant's costs, which were fixed at $375.00. This decision was influenced by the rules in place, including Uniform Special Statutory Rules 2022 (SA) r 371.2 and the Joint Criminal Rules 2022 (SA) r 191.3. The court concluded that the Commissioner of Police should pay the appellant's costs for both the Magistrates Court proceedings and the appeal to the Supreme Court.

In summary, the Supreme Court ordered that the Commissioner of Police pay the appellant's costs, fixed at $375.00, for both the Magistrates Court proceedings (MCCRM‑23‑045253) and the appeal to the Supreme Court (SCCRM‑25‑005286). This decision was based on the court's discretion, taking into account the general principles of costs, the limited evidence provided, and the conceded nature of the appeal.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

GRAY J

Having regard to the general principles concerning costs, to my broad discretion, to the rules which evidence an attempt to limit in many circumstances the award for costs, even for a legally represented party when a matter proceeds to a hearing to an amount of $750.00,[6] and having regard to the limited evidence adduced by the appellant concerning the costs claims and the limited evidence concerning any costs incurred in the Magistrates Court proceedings, and the fact that the appeal was conceded, I propose to consider the question of costs globally. In the exercise of my discretion concerning costs, I would make an order that the respondent pay the appellant’s costs fixed in the sum of $375.00.[6] Uniform Special Statutory Rules 2022 (SA) r 371.2 and the Joint Criminal Rules 2022 (SA) r 191.3.Conclusion It follows that I would order:1.In respect of the costs in the Magistrates Court proceedings MCCRM‑23‑045253, and in respect of the costs of this appeal, being SCCRM‑25‑005286, I would make one award of costs; namely, that the Commissioner of Police pay the appellant’s costs fixed in the sum of $375.00.

Ratio Decidendi

Legal Principle Established

Established by: GRAY J

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