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 the rules, and the general principles and authorities concerning the questions of costs.
I have considered the submissions made by both parties as to costs that have been incurred. I have considered all of those submissions and the detail in relation to those submissions. I have had regard to the recent comments of the High Court in Bell Lawyers Pty Ltd v Pentelow[2], and in Birketu Pty Ltd v Atanaskovic.[3] In Birketu, Gageler CJ, Gordon, Edelman, Gleeson and Beech-Jones JJ held:[4]
… The general common law principle limits the costs that can be ordered in two respects. First, it combines the costs that can be ordered to the costs of professional legal services rendered to a litigant in the conduct of litigation. Second, it confines the costs of professional legal service rendered to a litigant in the conduct of litigation to those “actually incurred” by the litigant, so as, for example, to exclude professional legal services which have been agreed to be rendered to a litigant for free.
The outworking of the general common law principle has the result described by the plurality in Bell Lawyers that, “[a]s a general rule, a self-represented litigant may not obtain any recompense for the value of his or her time spent in litigation”.
[2] [2019] 269 CLR 333; [2019] HCA 29 (‘Bell’).
[3] [2025] HCA 2 (‘Birketu’).
[4] [2025] HCA 2 at [17] (Gageler CJ, Gordon, Edleman, Gleeson, and Beech-Jones JJ).
Following those general principles, I would not award the costs for the following categories, the loss of income claims, and the costs of obtaining a psychological report. The appellant in her written submissions states that the report was relied upon to show the impact of the flawed conviction and proceedings on the appellant’s wellbeing. The date of the report is stated in the affidavit of the appellant as being 26 June 2024, and in oral submissions the respondent states that the consultation occurred in May 2024. The Magistrates Court proceedings concerning the appellant recorded a conviction and sentence on 13 June 2024.
If, as the appellant claims on the appeal, the report is directly relevant to the effect of the conviction upon her, that does not make the report something that can be claimed as a cost or disbursements of the proceedings. The appellant does not submit that the report was relevant to an issue in dispute between the parties concerning the Magistrates Court charges.
That leaves the following three categories of the appellant’s claim:
1.The claim for legal fees in the amount of $3,850.00 (including GST) for the obtaining of legal advice, strategic consultation, document drafting and appeal preparation;
2.The claim for $200.00 in out-of-pocket expenses associated with printing, postage and filing preparation; and
3.$637.60 for disbursements such as obtaining information from SAPOL through Freedom of Information.
The difficulty with these claims is that the evidence provided by the appellant, as the respondent points out in their written submissions, is deficient in a number of respects. As I have indicated, I have considered all of the submissions, both orally and in writing advanced by the parties in respect of these claims, and I have had regard to the fact that Ms Shmandiy is self-represented.
The invoice for legal fees dated 28 February 2025, attached to Ms Shmandiy’s initial affidavit dated 10 June 2025, did not make reference to these proceedings. The further reissued invoice dated 18 June 2025, whilst it makes reference to these proceedings, does not itemise when legal work was performed; nor does it specify, other than in a very general way, the nature of any legal work performed.
The appellant was at all times self-represented before this Court and the Magistrates Court. The appeal was conceded by the respondent.
I have had regard to what was said by Kiefel CJ, Bell, Keane and Gordon JJ in Bell; namely,[5]
…The courts have long regarded the statutory power to make an order for costs as confined by the concern to provide the successful party with a measure of indemnity against the expense of professional legal costs actually incurred in the litigation.
[5] Bell Lawyers Pty Ltd v Pentelow [2019] HCA 29 at [33] (Kiefel CJ, Bell, Keane and Gordon JJ).
On the evidence adduced on the claim for costs, the evidence is not detailed concerning the connection of the legal costs to these proceedings, and, as I have already indicated, Ms Shmandiy was at all times self-represented in the Magistrates Court and before this Court.
The claim for $200.00 in expenses associated with printing, posting and filing preparation has not been supported by any receipts, and the respondent notes all documents were filed by the appellant electronically.
The claim for $637.60 for disbursements, such as obtaining information from SAPOL through Freedom of Information, has not identified the applications made, or the information received. In oral submissions, when this issue was raised with the self-represented appellant, the appellant indicated that the request related to obtaining body-worn footage and notes from SAPOL concerning the charge.
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.