MIKHAIL MARCHENKO No Attendance v ADELAIDE PLAINS COUNCIL [2026] SASCA 17

On Appeal from SUPREME COURT OF SOUTH AUSTRALIA (THE HONOURABLE JUSTICE B DOYLE) CIV-25-011091 Appellant: MIKHAIL MARCHENKO No Attendance Respondent: ADELAIDE PLAINS COUNCIL Counsel: MR J RODER - Solicitor: KELLEDY JONES Hearing Date/s: 06/03/2026 File No/s: CIV-25-013728 B SUPREME COURT OF SOUTH AUSTRALIA (Court of Appeal: Civil) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. MARCHENKO v ADELAIDE PLAINS COUNCIL [2026] SASCA 17 Reasons for Decision of the Honourable President Livesey 6 March 2026 PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - ENDING PROCEEDINGS EARLY - SUMMARY DISPOSAL - SUMMARY JUDGMENT FOR DEFENDANT OR RESPONDENT: STAY OR DISMISSAL OF PROCEEDINGS ENVIRONMENT AND PLANNING - ENVIRONMENT PROTECTION - OFFENSIVE TRADES AND PREMISES - OFFENCES - STATUTORY NUISANCE The applicant was a respondent to proceedings brought by the Adelaide Plains Council in the Environment, Resources and Development Court (the ERD Court) pursuant to s 33 of the Local Nuisance and Litter Control Act 2016 (SA) (the Act), in which it was alleged that noise associated with the applicant’s roosters constituted a “local nuisance”. His application for a permanent stay of those proceedings was dismissed by the ERD Court. The applicant appealed that decision, which was dismissed by B Doyle J on 27 October 2025. An application for a stay pending a further appeal to the Court of Appeal was also refused by Bleby JA on 18 November 2025. The appeal came before the Court at a callover on 2 December 2025. The applicant did not attend, citing ill-health, and the matter was adjourned to a further callover on 6 March 2026. On 4 March 2026, the respondent filed an interlocutory application seeking summary dismissal of the appeal on the basis that the ERD Court proceedings had already concluded. The day before the second callover, the applicant again advised that he was medically unfit to participate and sought an adjournment. At that callover, the respondent submitted that the appeal lacked utility and should be dismissed summarily. -- 1 of 6 -- Held, summarily dismissing the appeal: 1. There is no utility associated with an appeal intended to prevent the hearing of the ERD Court proceedings, which have already been heard. 2. The applicant may be able to agitate this issue if he is dissatisfied with the outcome of the ERD Court proceedings. 3. The applicant offered no objective evidence in support of his ill-health and inability to appear before the Court. Environment, Resources and Development Court Act 1993 (SA) s 30(2); Local Nuisance and Litter Control Act 2016 (SA) s 33, referred to. Adelaide Plains Council v Marchenko [2025] SAERDC 17; GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 280 CLR 442; Willmot v Queensland (2024) 98 ALJR 1407; Marchenko v Adelaide Plains Council [2025] SASC 178; Marchenko v Adelaide Plains Council [2025] SASCA 133; Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273; Miojlic v City of Onkaparinga Council [2025] SASCA 2; McVicars v South Australian Housing Trust (No 4) [2025] SASCA 109; Starke v Legal Profession Conduct Commissioner [2025] SASC 140; Zaharuiko v Public Trustee [2025] SASCA 106, considered. -- 2 of 6 -- MARCHENKO v ADELAIDE PLAINS COUNCIL [2026] SASCA 17 Court of Appeal – Civil LIVESEY P: Introduction 1 The respondent has applied for the summary dismissal of this appeal pursuant to r 212.5 of the Uniform Civil Rules 2020 (SA). 2 The application was filed just before the second callover of this matter. As with the previous callover, Mr Marchenko did not appear today. 3 After hearing from Mr Roder, for the respondent, I summarily dismissed the appeal. These are my reasons for making that order. The decision the subject of the appeal 4 Mr Marchenko is a respondent to proceedings brought by the Adelaide Plains Council (the Council) in the Environment, Resources and Development Court (the ERD Court) pursuant to s 33 of the Local Nuisance and Litter Control Act 2016 (SA) (the Act) in which it is alleged that noise associated with Mr Marchenko’s roosters constitute a “local nuisance”. Mr Marchenko has a complex disability and contends that his roosters are therapeutic animals and they are not causing any local nuisance. 5 Mr Marchenko applied for a permanent stay of those proceedings. The stay application was dismissed by a Commissioner.1 By an appeal filed on 18 September 2025, Mr Marchenko challenged the ERD Court decision. That appeal came before the appeal judge in October 2025. The proceedings were scheduled to be heard in the ERD Court on 19 and 20 November 2025. (Subsequently, the hearing was adjourned to late February 2026.) 6 The appeal judge explained in clear and comprehensive reasons the principles relating to a stay,2 and he characterised the proceedings in the ERD Court as neither civil nor criminal but having “something of a hybrid regulatory character”:3 I will proceed on the basis that the ERD Court had power (and indeed a duty) to permanently stay proceedings brought pursuant to s 33 of [the Act], if positively persuaded that the action could clearly be seen to be foredoomed to fail and was, for that reason, an abuse of process. I will decide this appeal on that basis (which is favourable to 1 Adelaide Plains Council v Marchenko [2025] SAERDC 17. 2 Citing GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 280 CLR 442, [3] (Kiefel CJ, Gageler and Jagot JJ); Willmot v Queensland (2024) 98 ALJR 1407, [15] (Gageler CJ, Gordon, Jagot and Beech-Jones JJ). 3 Marchenko v Adelaide Plains Council [2025] SASC 178, [13]-[14] (B Doyle J). -- 3 of 6 -- [2026] SASCA 17 Livesey P 2 Mr Marchenko) and without bringing to bear any additional caution that may apply in criminal proceedings or, by analogy, in regulatory proceedings. Where the focus of a permanent stay application is not solely upon its inevitable failure but on the oppressive nature of the proceeding itself, the relevant inquiry is whether any prospective trial will be unfair or so unfairly and unjustifiably oppressive as to constitute an abuse of process. (Citation omitted.) 7 Recognising that the relevant standard of appellate review was the standard of correctness, the appeal judge observed that s 30(2) of the Environment, Resources and Development Court Act 1993 (SA) conferred an appeal as of right on a question of law and with permission on a question of fact. After considering the written and oral submissions of the parties, the appeal judge rejected Mr Marchenko’s contentions, including his reliance upon the United Nations Convention on the Rights of Persons with Disabilities,4 and found that a permanent stay should not be ordered. Mr Marchenko had not established that the proceedings could clearly be seen to be foredoomed to fail, nor that the maintenance of them was oppressive or vexatious so as to amount to an abuse of process. 8 An application for a stay pending an appeal to the Court of Appeal against that decision was heard by Bleby JA and refused on 18 November 2025.5 His Honour found that the prospects of a grant of leave to appeal were “extremely low” and that the balance of convenience “manifestly favoured the ERD Court proceedings continuing to a hearing”. The application for summary dismissal 9 The appeal to this Court is only by leave. The appeal came before the Court at a callover on 2 December 2025. At 2.25 am on the morning of that callover, Mr Marchenko sent an email to my chambers describing a “major nervous shock and a severe exacerbation of my diagnosed complex post-traumatic stress disorder … and associated somatic systems” following recent proceedings in the Supreme Court and the ERD Court. Mr Marchenko said that he was not able to use the telephone because it triggered “painful spasms in my ears and a severe anxiety response, which makes it impossible for me to hear and communicate effectively”. 10 Mr Marchenko undertook to submit a medical certificate as soon as possible once it was available. 4 Observing that international treaties are not direct sources of individual rights and obligations, Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273, 286-287 (Mason CJ and Deane J); Marchenko v Adelaide Plains Council [2025] SASC 178, [43]-[44] (B Doyle J). 5 Marchenko v Adelaide Plains Council [2025] SASCA 133 (Bleby JA). -- 4 of 6 -- [2026] SASCA 17 Livesey P 3 11 At the callover on 2 December, Mr Roder, for the Council, explained that the ERD Court proceedings were listed for hearing in late February 2026. In the circumstances, the matter was adjourned to another callover on 6 March 2026. 12 The day before the second callover, Mr Marchenko sent further correspondence to my chambers advising that he was still medically unfit to participate because his condition had not “become any better since”. Mr Marchenko requested an adjournment of the callover. This time he undertook to submit a medical certificate “if requested”. 13 At the hearing of the callover, the Court was told that the hearing in the ERD Court had proceeded to a conclusion in the absence of Mr Marchenko. The ERD Court had, however, given Mr Marchenko a month in which to respond in writing to the Council’s case. In the circumstances, Mr Roder submitted that there was no utility in Mr Marchenko’s appeal and it should be summarily dismissed. 14 Whilst the Court would not ordinarily proceed to determine an application for summary dismissal of an appeal without hearing from the appellant, I was persuaded to make that order for four reasons. 15 The first and most important reason is that the point of Mr Marchenko’s appeal was to challenge the refusal to grant a stay which would prevent the hearing of the proceedings in the ERD Court. A stay application has been heard and dismissed in the ERD Court, as has the appeal against that decision. An application for a stay pending an application for leave to appeal to the Court of Appeal has also been dismissed. Even if I thought that there was some error associated with any of those decisions, and at the moment I am far from convinced that there is, those proceedings have now been heard. There is no utility associated with an appeal intended to prevent the hearing of proceedings which have already been heard. 16 Secondly, I am mindful that even if some utility could be identified, in the circumstances of this case that would not be sufficient to warrant a favourable grant of leave to appeal to the Court of Appeal. 17 Thirdly, it is at least theoretically possible that Mr Marchenko can agitate this issue in the event that he is dissatisfied with the outcome of the ERD Court proceedings. In saying this, I should not be taken to be ruling on whether that course is in fact open to Mr Marchenko, nor whether any contention of that kind has any merit. 18 Finally, though Mr Marchenko has graphically described his ill-health and explained his inability to appear, he has offered no objective evidence in support. Where a litigant, represented or not, seeks an adjournment of a hearing, particularly of an appellate proceeding commenced by that litigant, it is necessary for the litigant to demonstrate why the hearing cannot proceed. As Mr Marchenko’s email on 2 December 2025 recognised, it was for him to provide -- 5 of 6 -- [2026] SASCA 17 Livesey P 4 the medical evidence supporting his adjournment application. It is not for the Court or the respondent to seek out the evidence in support of the adjournment application. Where the evidence comprises medical evidence from doctors treating the litigant, only the litigant will usually be in any position to obtain that evidence. Mr Marchenko has not explained his failure to do so. 19 Whilst Mr Marchenko’s health difficulties and lack of legal representation warrant both sympathy and caution, this is an appropriate case in which to proceed to exercise the power to summarily dismiss an appeal.6 Conclusion 20 For these reasons, I summarily dismissed Mr Marchenko’s appeal on 6 March 2026. 6 Miojlic v City of Onkaparinga Council [2025] SASCA 2 (Livesey P); McVicars v South Australian Housing Trust (No 4) [2025] SASCA 109 (Livesey ACJ); Zaharuiko v Public Trustee [2025] SASCA 106 (Livesey ACJ). See also Starke v Legal Profession Conduct Commissioner [2025] SASC 140 (Stein J). -- 6 of 6 --