[2025] SASC 190

Applicant: JAMES ROSS ARMITAGE In Person First Respondent: DISTRICT COURT OF SOUTH AUSTRALIA Counsel: MS L FLETCHER - Solicitor: CROWN SOLICITOR (SA) Second Respondent: DIRECTOR OF PUBLIC PROSECUTIONS FOR THE STATE OF SOUTH AUSTRALIA In Person Counsel: MR R GULLIVER - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Hearing Date/s: 24/06/2025, 25/06/2025 File No/s: CIV-25-002494 B SUPREME COURT OF SOUTH AUSTRALIA (Civil: Judicial Review) 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. ARMITAGE v DISTRICT COURT OF SOUTH AUSTRALIA & ANOR [2025] SASC 190 Judgment of the Honourable Justice Gray 18 November 2025 ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - ERROR OF LAW ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - PROCEDURAL FAIRNESS ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - RELEVANT CONSIDERATIONS ADMINISTRATIVE LAW - JUDICIAL REVIEW - PROCEDURE AND EVIDENCE - JOINDER OF PARTIES CRIMINAL LAW - PROCEDURE - INFORMATION, INDICTMENT OR PRESENTMENT - ARRAIGNMENT This matter concerns an application for judicial review of an order of a Judge of the District Court of South Australia, to proceed with the arraignment of the applicant, Mr James Ross Armitage. The applicant contends that the learned Judge in making the order to proceed with the arraignment: 1. Did not afford the applicant procedural fairness; 2. Made a decision contrary to law; 3. Failed to have regard to relevant considerations; and, 4. Showed bias toward the applicant. -- 1 of 16 -- The applicant sought an order of certiorari quashing the order and an order of mandamus to compel the decision to be re-made ‘while taking into account procedural fairness, the due process principle, the judicial process, and the requirements of the applicable law.’ The Director of Public Prosecutions for the State of South Australia (‘the Director’) sought to be joined as a second respondent to the proceedings. The Director brought an interlocutory application for summary dismissal of the judicial review proceedings. The Director contended that the application for review lacked any reasonable basis, that an arraignment was not a final process and a grant of relief would not be reasonable in the circumstances. The applicant opposed the application for summary judgment and brought two interlocutory applications subsequent to the application for summary judgment (FDN 16 and FDN 19). The applicant submitted that the application for joinder should be dealt with in advance of the application for summary dismissal. Held, granting the application for joinder, dismissing interlocutory applications FDN 16 and FDN 19, and granting the interlocutory application for summary dismissal (FDN 10): 1. The Director of Public Prosecutions for the State of South Australia is joined as second respondent to the proceedings. The Director has a sufficient interest in the proceedings. The Director is an appropriate contradictor to the proceedings in circumstances where the first respondent has submitted to any order of this Court save as to costs pursuant to the Hardiman rule: at [27]-[28]; 2. The Director having been joined, FDN 16 and FDN 19 are dismissed: at [29]; and, 3. The applicant does not have a real, as opposed to merely fanciful, prospect of success in respect of the grounds raised on the application for judicial review, and there are strong considerations militating against a grant of discretionary relief sought which would fragment the criminal proceedings. The application for summary dismissal is granted: at [53]. Criminal Procedure Act 1921 (SA) s 129; District Court Act 1991 (SA) s 9; Uniform Civil Rules 2020 (SA) r 22.1, r 144.1-2 and r 256.5, referred to. Armitage v Magistrates Court of South Australia; James v Magistrates Court of South [2024] SASC 141; Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321; R v Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13; (1980) 144 CLR 13; R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd [1953] HCA 22; (1953) 88 CLR 100; R v Chairman, County of London Quarter Sessions; Ex parte Downes [1954] 1 Q.B 1; Davies v Minister for Urban Development and Planning [2011] SASC 87; (2011) 109 SASR 518; Davis v Corporation of the City of Adelaide [2025] SASC 42; Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337; F, BV v Magistrates Court (SA) [2013] SASCFC 1; (2013) 115 SASR 232; R v Gee [2012] SASCFC 86; (2012) 113 SASR 372; H, JR v Department for Child Protection & Anor [2017] SASC 121; Jago v District Court (NSW) [1989] HCA 46; (1989) 168 CLR 23; Kirk v Industrial Relations Commission of New South Wales [2010] HCA 1; (2010) 239 CLR 531; Lazarus v Director of Public Prosecutions [2015] NSWSC 1116; Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507; Ong v Lottwo Pty Ltd (in liq) [2013] SASCFC 57; (2013) 116 SASR 280; R v Pacitti [2022] SASCA 108; (2022) 141 SASR 482; Vansetten v State of South Australia [2020] SASC 158; Wilczynski v District Court of South Australia [2023] SASCA 82, considered. -- 2 of 16 -- ARMITAGE v DISTRICT COURT OF SOUTH AUSTRALIA & ANOR [2025] SASC 190 Civil: Judicial Review 1 GRAY J: Mr Armitage, the applicant, brought proceeding by originating application for review seeking an order in the nature of certiorari to quash an arraignment in the District Court.1 This matter concerns an application for summary dismissal of a revised application for judicial review which was filed on 24 April 2025.2 Two interlocutory applications were also brought by the applicant. Background 2 Mr Armitage, who was self-represented in the judicial review proceedings, sought an order in the nature of certiorari quashing the order under review, and an order of mandamus “compelling the relevant decision to be re-made while taking into account procedural fairness, the due process principle, the judicial process, and the requirements of the applicable law”.3 3 The judicial review proceedings brought by the applicant named the District Court of South Australia (‘District Court’) as the first respondent. The Director of Public Prosecutions for the State of South Australia (‘the Director’) was named as the first interested party. The application for judicial review was brought by originating application,4 supported by an affidavit.5 4 The matter was first called on in this Court on 11 April 2025. At that time, the first respondent had not been served. Procedural orders were made concerning the filing of an amended application by the applicant, and any amended statement of facts, issues and contentions. Orders were also made concerning the filing of a response to the statement of facts, issues and contentions by the Director. The matter was adjourned until 2 May 2025 for further directions. 5 The revised judicial review application dated 24 April 2025 sought to challenge the decision made on 14 February 2025 by her Honour Judge Telfer to proceed with the arraignment of the applicant. The orders sought in that application were:6 a. Order of [certiorari] quashing the order under review b. Order of mandamus compelling the relevant decision to be re-made while taking into account procedural fairness, the due process principle, the judicial process and the requirements of the applicable law. 1 Originating Application for Judicial Review dated 5 March 2025 (FDN 1), then superseded by FDN 8. 2 Amended Application for Judicial Review dated 24 April 2025 (FDN 8). 3 Amended Application for Judicial Review dated 24 April 2025 (FDN 8). 4 Originating Application for Judicial Review dated 5 March 2025 (FDN 1), then superseded by FDN 8. 5 Affidavit of James Ross Armitage affirmed 30 January 2025 (FDN 2). 6 Amended Application for Judicial Review dated 24 April 2025 (FDN 8). -- 3 of 16 -- [2025] SASC 190 Gray J 2 6 By interlocutory application dated 29 April 2025 (FDN 10), the Director sought that the application for judicial review be summarily dismissed.7 That application was supported by an affidavit.8 7 The matter was listed for directions on 2 May 2025. On that occasion, the District Court appeared represented by counsel and undertook to abide any order of the Court save as to costs and sought to be excused from further attendance. No party objected to an order being made to that effect and such an order was made.9 The applicant also sought orders that the Director file a response to the substantive application prior to determination of the summary judgment application. The application for those orders was refused.10 Orders were made extending the time for the applicant to file and serve an amended statement of facts, issues and contentions. The Director was excused from compliance with the orders made for the filing of a response. Timetabling orders were made, and the matter was listed for hearing on 24 June 2025. 8 By interlocutory application dated 22 May 2025, the applicant11 sought that the Director’s application for summary judgment be struck out. The applicant sought orders that the Director be taken to be an interested party from the outset and further directions. That interlocutory application was supported by a further affidavit filed by the applicant.12 The orders sought in that interlocutory application (FDN 16) were as follows: a. Summary judgment application (FDN10) struck out. b. The DPP be taken to be an interested party from the outset. c. The matter called on for directions hearing to re-determine appropriate orders for the conduct and good management of these proceedings as so far as they [operate] in accordance with the orders sought above. 9 The applicant brought a further interlocutory application dated 30 May 2025 (FDN 19). The nature of the orders sought in that application are as follows:13 a. The matter be called on for directions in its urgency. b. Dispensation from compliance with order pending further direction of the Court. c. The date for the applicant’s strike out application brought forward. 7 Interlocutory Application dated 29 April 2025 (FDN 10). 8 Affidavit of Rowan Mark Gulliver affirmed 29 April 2025 (FDN 11). 9 Record of Outcome dated 2 May 2025 (FDN 13). See also Transcript of Proceedings of 2 May 2025 at T1.18. 10 Record of Outcome dated 2 May 2025 (FDN 13). 11 Interlocutory Application dated 22 May 2025 (FDN 16). See also Transcript of Proceedings of 2 May 2025 at T7.11-8.16. 12 Affidavit of James Ross Armitage affirmed 22 May 2025 (FDN 17). 13 Interlocutory Application dated 30 May 2025 (FDN 19). -- 4 of 16 -- [2025] SASC 190 Gray J 3 10 The applicant sent correspondence to chambers the following day regarding his concerns about the party status of the Director and sought to have the applications that had been filed listed for hearing. The applicant was advised via telephone from Registry that the matters raised by that correspondence and in FDN 19 would be dealt with at the hearing on 24 June 2025. 11 At the hearing of the matter on 24 June 2025, the Director made an oral application to be joined as a respondent. The applicant made an oral application that I recuse myself, on the basis that I proposed to receive submissions on the application for joinder and the interlocutory applications FDN10, FDN16 and FDN19. The application for recusal was refused and ex tempore reasons provided.14 Submissions were made by the applicant. Submissions were then made by the applicant seeking an adjournment, initially on the grounds that the applicant wanted to seek legal advice, and then on the grounds that police were searching his house and had seized his computer. The matter was adjourned until the following day, 25 June 2025. 12 When the matter was called on before the Court on 25 June 2025, the applicant did not attend. Correspondence was received from the applicant indicating, amongst other things, that an adjournment was sought. Further timetabling orders were made providing for the filing of written submissions so that the matter before the Court, namely, the application for joinder and FDN 10, FDN 16 and FDN 19, which had been the subject of some oral argument could be considered on the basis of the oral submissions already received and any further written submissions to be received. The parties were granted liberty to apply. The remarks indicate that in the event that no further issues were raised requiring a further oral hearing, then it was proposed that the matter could be considered on the basis of the further written submission received. A copy of those orders and a transcript of the hearing on 25 June 2025 were sent to the applicant. The applicant then sought to file with the registry a notice of discontinuance only against the Director, however, that document was not accepted for filing as it did not comply with the Uniform Civil Rules 2020 (SA) (‘the Rules’) and the applicant was required to seek leave to discontinue the application. No application for leave to discontinue the application was made. 13 Written submissions were filed by the respondent, but no further submissions were received by the applicant, and accordingly judgment was reserved.15 The parties’ submissions 14 At the hearing of the matter on 24 June 2025, the applicant clarified that the matter that the applicant sought to raise on the judicial review proceedings was that the applicant should not have been arraigned on 14 February 2025.16 The 14 Ruling of Gray J dated 24 June 2025 (FDN 28). See also Record of Outcome dated 24 June 2025 (FDN 24). 15 See Record of Outcome dated 14 August 2025 (FDN 27). 16 Transcript of Proceedings of 24 June 2025 at T17.5-8.10 (in respect of the interlocutory applications) (‘IAT’). -- 5 of 16 -- [2025] SASC 190 Gray J 4 applicant did not challenge the laying of the information or the Director’s actions in laying the charge in any way, rather the challenge made in the judicial review proceedings was to the District Court arraigning the applicant on 14 February 2025.17 15 The Director’s position was that the judicial review proceedings should be summarily dismissed on the basis that an arraignment was not a final decision. The Director submitted that an accused could be arraigned a number of times in the District Court, and the decision sought to be challenged not being a final decision, this Court should decline to grant relief.18 16 The applicant in oral submissions at the hearing on 24 June 2025 addressed the Director’s application to be joined as a party. The applicant submitted that the underlying issue in this case was that this Court, in its supervisory jurisdiction, reviewing a decision by a lower court, by allowing the joinder of the Director as a respondent on behalf of the learned Judge, would blur the separation of powers. The applicant further submitted that by the Director being a respondent this would remove a person’s right to have a superior court examine the decision made and consider whether or not it was made according to law.19 To allow the Director to be joined as a party to these proceedings, the applicant contended, would be to allow the Director to respond on behalf of the decision made by the Court below and that was not appropriate.20 17 In relation to the application for summary dismissal, there is some difficulty in distilling the applicant’s response to this application, however, the applicant appears to contend that the Director did not have standing to bring the claim because, according to the Rules, a summary judgment application needed to be brought by a respondent to the proceeding, and orders had not been made joining the Director as a party to the proceeding.21 This submission also appeared to form the basis of the reason that the applicant sought the orders set out in FDN16 and FDN19. The grounds upon which the applicant relies in support of the application for judicial review as set out in the statement of facts, issues and contentions, concern the following matters: 20.1 that the decision to arraign the applicant denied the applicant procedural fairness;22 17 IAT at T18.5-10. 18 IAT at T14.25-9. See also IAT at T9.37-10.3 and T13.13-27. 19 IAT at T2.20-7. 20 IAT at T5.12-9. 21 IAT at 20.6-20. See also IAT at T18.16-9.14. 22 Amended Application for Judicial Review (FDN 8), Statement of Facts, Issues and Contentions, ‘Issues’ at [6]. -- 6 of 16 -- [2025] SASC 190 Gray J 5 20.2 that the decision was made contrary to the Criminal Procedure Act 1921 (SA) and more generally was contrary to law; 23 20.3 that the decision was made without regard to relevant considerations; 24 20.4 that the decision was affected by actual bias. 25 18 The Director sought, pursuant to r 22.1(4) of the Rules, to be joined as a party to the proceedings, and that the joinder take effect from the commencement of the proceedings.26 The Director submitted that there could be no impropriety in the presenting of the ex officio information in the District Court, and that such a decision was not reviewable. The Director contended that the information having been presented, the District Court was required at common law, and pursuant to s 9 of the District Court Act 1991 (SA), to arraign the applicant.27 The Director further contended that the quashing on the information would have a limited effect upon the proceeding as the decision to arraign was not final and that was a matter which would weigh against the grant of any relief in the judicial review proceedings, such that the proceedings should be summarily dismissed.28 19 I address below the submissions in relation to central matters which were specifically advanced by the parties or which may otherwise be discerned from the written materials. I have however considered all of the written material filed in this Court. I have also considered the detailed oral submissions that were advanced by the parties at the hearing of this matter. Consideration as to application for joinder 20 Rule 22.1 of the Rules provides that the Court “may at any stage order the joinder of a party to a proceeding or appellate proceedings on such conditions as it thinks fit.” When the applicant brought these proceedings, the applicant named the District Court as the first respondent, and the Director as the first interested party. The Director filed a notice of acting in which the Director entered his appearance as a second respondent.29 21 The Director seeks to pursue the summary dismissal application on one of two bases. Either, pursuant to r 256.5 if the order for joinder is made; or alternatively, pursuant to rr 144.1 and 144.2, if the order to join the Director as a respondent is not made. The applicant, as I have indicated above, opposes the 23 Amended Application for Judicial Review (FDN 8), Statement of Facts, Issues and Contentions, ‘Issues’ at [1] and [10], ‘Contentions’ [1] to [15]. 24 Amended Application for Judicial Review (FDN 8), Statement of Facts, Issues and Contentions, ‘Issues’ at [3], [5] and [13], ‘Contentions [1] to [6]. 25 Amended Application for Judicial Review (FDN 8), Statement of Facts, Issues and Contentions, ‘Issues’ at [13]. 26 IAT at T6.15-20. 27 Written Submissions of the Director of Public Prosecutions dated 10 June 2025 (FDN 21) at 3, [23] (‘DWS1’). 28 DWS1 at 6, [53]. 29 Notice of Acting dated 14 March 2025 (FDN 4). -- 7 of 16 -- [2025] SASC 190 Gray J 6 application for joinder on the basis that allowing the Director to appear as a respondent on behalf of the learned Judge blurs the separation of powers, and removes the applicant’s right to have a superior court examine the decision made and consider whether or not it was made according to law.30 22 In R v Australian Broadcasting Tribunal; Ex parte Hardiman,31 on an application for review in the High Court of a decision of the Australian Broadcasting Tribunal, the Court referred to the unusual course taken by the Tribunal in that case of contesting the prosecutors’ case for relief by presenting substantive argument. The Court went on to hold:32 In cases of this kind the usual course is for a tribunal to submit to such order as the court may make. The course which was adopted by the Tribunal in this Court is not one which we would wish to encourage. If a tribunal becomes a protagonist in this Court there is the risk that by so doing it endangers the impartiality which it is expected to maintain in subsequent proceedings which take place if and when relief is granted. The presentation of a case in this Court by a tribunal should be regarded as exceptional and, where it occurs should, in general, be limited to submissions going to the powers and procedures of the Tribunal. 23 This statement of the law is known as the Hardiman principle or rule. 24 At the hearing on 2 May 2025, the District Court, by its counsel, indicated, based upon the Hardiman rule, that the first respondent would submit to any order of the Court save as to costs. The District Court was excused from further attendance. No objection was taken by any other party to that occurring. 25 It is appropriate that there be a contradictor in these proceedings. The Director has, since the commencement of the proceedings, been acting as a respondent and a contradictor, as indicated by the procedural orders made on 11 April 2025. At the hearing on 11 April 2025, no objection was taken to orders being made concerning the filing of a response to the statement of facts, issues and contentions by the Director.33 The orders sought, that the Director be joined as a party, seek to regularise what has occurred. 26 The applicant did not take objection to the Director appearing as a contradictor until after the first respondent had been excused from further attendance. The objection was raised formally in FDN16 which was filed on 22 May 2025. I have considered the applicant’s objection to the joinder and in particular the submission put that such an approach would blur the separation of powers, as the Director would be appearing on behalf of the District Court. I reject that contention. The District Court has, consistently with the Hardiman rule, indicated that the District Court would abide the event. The applicant’s objection 30 IAT at T7.20-7. 31 R v Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13; (1980) 144 CLR 13. 32 R v Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13; (1980) 144 CLR 13 at 35- 6 (Gibbs, Stephen, Mason, Aickin and Wilson JJ). 33 Transcript of Proceedings of 11 April 2025 at T3.20-6 and T4.27-5.13. See also Record of Outcome dated 11 April 2025 (FDN 6). -- 8 of 16 -- [2025] SASC 190 Gray J 7 can only be put, it would seem, on the basis that the Director’s appearance in this Court as a respondent would somehow interfere with the prosecutorial discretion in the Court below. A logical or factual basis for that contention has not been made out. Nor has the applicant established how the appearance of the Director as a respondent would affect the capacity of this Court to examine the decision made and consider whether or not it was made according to law. 27 In exercising the discretion to order the joinder of a party, a court will generally have regard to the nature and strength of the interest relied upon by the party seeking to be joined, as well as the broader implications for the efficient and effective resolution of the relevant litigation.34 The Director has an interest in the efficient resolution of the judicial review proceedings so that the proceedings in the District Court can progress and not be unduly fragmented.35 In my view, the Director has an appropriate interest in these proceedings and it would assist the efficient and effective resolution of the proceedings for the Director to be joined. 28 I consider it is in the interests of justice that the Director be joined, and I make orders accordingly. The applicant in oral argument, and in the affidavit dated 22 May 2025, stated to the effect that FDN16 is an application for strike out of the Director’s application on the basis that the Rules do not provide for an application for summary dismissal to be brought by an interested party.36 As the applicant accepted at the hearing,37 the effect of on order that the Director be joined as a party, together with the directions already made concerning the progress of the hearing made on 24 June 2025, addresses the issues raised in FDN16 and FDN 19. I make orders joining the Director and otherwise dismiss both those applications. Consideration as to application for summary dismissal 29 The power to determine an action summarily should not be exercised lightly. The Court on such an application is required to consider whether the applicant has a real, as opposed to merely fanciful, prospect of success.38 Whilst the Court does not need to be satisfied that the action is hopeless or bound to fail, the Court must be careful to avoid injustice to any party by dismissing an action where there is a disputed issue of fact or law or merely because the Court considers the action unlikely to succeed.39 30 The power to summarily dismiss a claim extends to situations in which the respondent challenges the applicant’s entitlement to discretionary relief.40 If the Court is satisfied that even if a ground was made out, there is no reasonable basis 34 Ong v Lottwo Pty Ltd (in liq) [2013] SASCFC 57; (2013) 116 SASR 280 at 294-6, [50]-[58] (Nicholson J, Kourakis CJ and Stanley J agreeing). 35 IAT at T22.23-9. 36 IAT at T43.26-31 and Affidavit of James Ross Armitage affirmed 22 May 2025 (FDNs 17 and 20) at 3- 5, [9.1]-[9.5]. 37 IAT at T26.14-5. 38 Vansetten v State of South Australia [2020] SASC 158 at [68] (S Doyle J). 39 Vansetten v State of South Australia [2020] SASC 158 at [69] (S Doyle J). 40 Vansetten v State of South Australia [2020] SASC 158 at [69] (S Doyle J); Davies v Minister for Urban Development and Planning [2011] SASC 87; (2011) 109 SASR 518 at 532, [44]-[45] (Bleby J). -- 9 of 16 -- [2025] SASC 190 Gray J 8 for it to exercise its discretion to grant the relief sought, then the Court should dismiss the applicant’s claim.41 31 In respect of the application to summarily dismiss the judicial review proceedings, the Director in effect relies upon two bases to support the application. First, the Director contends that the grounds sought to be raised in the judicial review proceedings are without merit.42 Second, the Director contends that there are strong discretionary reasons as to why the Court should not grant relief, such that the proceedings should be summarily dismissed.43 32 The applicant did not advance detailed submissions at the hearing on 24 June 2025 in opposition to the summary dismissal application prior to seeking an adjournment of the hearing. The applicant did not attend at the resumed hearing on 25 June 2025, nor did the applicant file written submissions, or exercise liberty to apply, although orders were sent to the applicant44 and the applicant was on notice from the hearing of 24 June 2025 as to the manner in which the matter was proceeding.45 The applicant clearly objected to submissions being received concerning the summary dismissal application prior to a ruling being made on the application for joinder.46 As was explained to the applicant at the hearing on 24 June 2025, this procedure was adopted so as to afford procedural fairness to the applicant, and to allow the applicant the opportunity to consider and respond to the submissions that the Director advanced on the application for joinder which was supported by a number of authorities47 which the applicant wanted time to consider.48 33 The applicant has not availed himself of the opportunity to make further submissions on the Director’s application for summary dismissal of the judicial review proceedings either orally or in writing. The applicant was afforded the opportunity to do so. The applicant did not attend the hearing on 25 June 2025, although he indicated on 24 June 2025 that he could attend at the time specified. The applicant did not file written submissions, although he was provided with a copy of the orders made on 25 June 2025 concerning the filing of written submissions, and he was aware from his attendance on 24 June 2025 that the Court would be receiving further written submissions from the parties. In these circumstances, where the applicant has been afforded the opportunity to engage in 41 Vansetten v State of South Australia [2020] SASC 158 at [69] (S Doyle J); Davies v Minister for Urban Development and Planning [2011] SASC 87; (2011) 109 SASR 518 at 532, [44]-[45] (Bleby J). 42 DWS1 at 5-6, [49] and [52]. 43 DWS1 at 6, [53]-[55]. 44 Email to applicant dated 26 June 2025 at 2:02pm. 45 See IAT at T48.4-50.20. 46 IAT at T44.21-5.5. See also Ruling of Gray J dated 24 June 2025 (FDN 8). 47 Kirk v Industrial Relations Commission of New South Wales [2010] HCA 1; (2010) 239 CLR 531; F, BV v Magistrates Court (SA) [2013] SASCFC 1; (2013) 115 SASR 232; R v Pacitti [2022] SASCA 108; (2022) 141 SASR 482. 48 See e.g. IAT at T24.32 and T28.35-7. -- 10 of 16 -- [2025] SASC 190 Gray J 9 the proceedings, but has not done so, it is appropriate to consider the applicant’s position based upon the material he filed.49 34 The applicant filed a detailed statement of facts, issues and contentions,50 which was in the form of a written submission. As I have indicated above, whilst the grounds of the judicial review application were not specifically enumerated, there are four general contentions that the applicant advances. The applicant also confirmed at the hearing on 24 June 2025 that the complaint that the applicant advanced concerned the decision of the learned Judge on 14 February 2025 to proceed with the arraignment of the applicant.51 Merits of the grounds of judicial review Procedural fairness 35 The content of the requirement to afford procedural fairness will depend upon the facts and circumstances of the particular proceeding including the statutory framework in which the relevant decision falls to be made.52 Procedural fairness is ultimately a practical construct and the question to be considered is whether there was any practical injustice occasioned to the applicant. In order to justify a grant of relief, the denial of procedural fairness must be material to the decision made.53 Whether a breach of procedural fairness is material will often turn on consideration of how the decision was made and whether the decision could have been made differently if the relevant obligation to afford procedural fairness was complied with.54 The applicant made clear that he does not challenge the validity of the information.55 Once a valid information is presented to the District Court, the Court has both the jurisdiction and duty to arraign and try the case.56 There is no obligation either at common law or an obligation imposed by virtue of the Joint Criminal Rules 2022 (SA), the Criminal Procedure Act 1921 (SA) or the District Court Act 1991 (SA) identified by the applicant which would require a judge at an arraignment to afford a hearing to the applicant on the matters he sought to raise prior to arraigning the applicant. 36 In any event, it is apparent from the transcript of the arraignment that, contrary to contentions of the applicant, the learned Judge before whom the applicant appeared on 14 February 2025 and was arraigned, afforded the applicant the opportunity to make submissions objecting to his arraignment and the learned Judge considered them. 49 See further H, JR v Department for Child Protection & Anor [2017] SASC 121 at [35] (Nicholson J). 50 See Ruling of Gray J dated 24 June 2025 (FDN 8). 51 IAT at T8.34-9.8. 52 Vansetten v State of South Australia [2020] SASC 158 at [90] (S Doyle J). 53 Davis v Corporation of the City of Adelaide [2025] SASC 42 at [46] (Stein J). 54 Davis v Corporation of the City of Adelaide [2025] SASC 42 at [46] (Stein J). 55 IAT at T16.38-8.10. 56 See Jago v District Court (NSW) [1989] HCA 46; (1989) 168 CLR 23 at 38-9 (Brennan J). -- 11 of 16 -- [2025] SASC 190 Gray J 10 37 There was no denial of procedural fairness in the decision to arraign.57 The learned Judge at first instance afforded the applicant the opportunity to consider his position. At the hearing on 14 February 2025, the learned Judge explained the implications of the plea to the applicant in a manner that went well beyond what was required in a usual arraignment hearing, and in a manner that went beyond what would ordinarily be required as part of a court’s duty to provide assistance to a self-represented litigant. 38 I find that the applicant has not identified in the application for judicial review the nature of the procedural fairness obligation which is said to arise. Nor has the applicant identified there is a real as opposed to fanciful prospect of the applicant’s procedural fairness complaints succeeding. No denial of procedural fairness that was material to the decision and would justify a grant of relief was identified.58 Decision made contrary to law 39 Once an information is presented to the District Court, the District Court has an obligation to try the offence. At common law, the duty of a court to try a case was explained in Jago v District Court (NSW) (‘Jago’).59 In that case, Brennan J, citing Lord Goddard CJ in R v Chairman, County of London Quarter Sessions; Ex parte Downes,60 held as follows:61 Once an indictment is before the court the accused must be arraigned and tried thereon unless (a) on motion to quash or demurrer pleaded it is held defective in substance or form and not amended; (b) matter in bar is pleaded and the plea is tried or confirmed in favour of the accused; (c) a nolle prosequi is entered by the Attorney-General, which cannot be done before the indictment is found; or (d) if the indictment disclosed an offence which a particular court has no jurisdiction to try, for example, an indictment at sessions for an offence punishable with imprisonment for life in the first instance. 40 As Brennan J went on in Jago to explain, this statement is subject to the qualification that courts of criminal jurisdiction have a power to prevent an abuse of process to ensure a fair trial.62 The remedy available is a stay of proceedings in the court in which the criminal proceedings have been brought.63 41 The applicant in the statement of facts, issues and contentions does not explain the relevant considerations that the learned Judge is said to have failed to take into account. The transcript of the hearing before the learned Judge of 57 Including prior to consideration of the abuse of process argument and other matters raised by the applicant. See Affidavit of James Ross Armitage affirmed 22 April 2025 (FDN 9) at Exhibit JA-1 (Transcript of Proceedings, R v James Ross Armitage and Belinda Marie James (District Court of South Australia, Judge Telfer, 14 February 2025) at T3.7-5.31). 58 See further Davis v Corporation of the City of Adelaide [2025] SASC 42 at 46 (Stein J). 59 Jago v District Court (NSW) [1989] HCA 46; (1989) 168 CLR 23 at 38-9 (Brennan J). 60 R v Chairman, County of London Quarter Sessions; Ex parte Downes [1954] 1 Q.B 1 at 5 61 Jago v District Court (NSW) [1989] HCA 46; (1989) 168 CLR 23 at 38-9 (Brennan J). 62 Jago v District Court (NSW) [1989] HCA 46; (1989) 168 CLR 23 at 46-7 (Brennan J). 63 Armitage v Magistrates Court of South Australia; James v Magistrates Court of South Australia [2024] SASC 141 at [78]-[80] (McDonald J). -- 12 of 16 -- [2025] SASC 190 Gray J 11 14 February 2025 indicates that the learned Judge heard and considered each submission made by the applicant. The learned Judge explained to the applicant the ability of the applicant to seek a stay or consider a stay on the basis of an abuse of process. It is not apparent from the materials before this Court that there was any failure on the learned Judge to take into account relevant considerations nor what the relevant considerations would be. I find that the applicant does not have a real, as opposed to merely fanciful, prospect of success in respect of the grounds that the applicant seeks to raise concerning the arraignment being contrary to law. Failure to have regard to relevant considerations 42 A court will fall into jurisdictional error where it acts beyond jurisdiction by disregarding a matter that a relevant statute requires be taken into account as a condition of jurisdiction or in cases where the opposite occurs and an irrelevant matter is taken into account.64 The failure to have regard to a relevant consideration in the exercise of jurisdiction is a form of jurisdictional error.65 43 As indicated above, the applicant has not identified any relevant consideration to which the learned Judge failed to have regard. Bias 44 In Ebner v Official Trustee in Bankruptcy, Gleeson CJ, McHugh, Gummow and Hayne JJ described apprehended bias as involving:66 … a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. 45 If actual bias is to be shown sufficient to establish material jurisdictional error, it must be shown that a judge prejudged the decision or was so committed to the conclusion, that the judge was incapable of altering it regardless of the evidence or argument.67 It must also be shown that there was a high probability that bias was inconsistent with the performance of the judge’s duty and was demonstrated.68 46 The fact that the learned Judge reached a conclusion adverse to the applicant does not provide a factual basis for a claim of actual or apprehended bias.69 It is 64 Kirk v Industrial Relations Commission of New South Wales [2010] HCA 1; (2010) 239 CLR 531 at 573, [71] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). 65 Kirk v Industrial Relations Commission of New South Wales [2010] HCA 1; (2010) 239 CLR 531 at 573, [71] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ); F, BV v Magistrates Court (SA) [2013] SASCFC 1; (2013) 115 SASR 232 at 262-3, [110] (Gray J). 66 Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at 344, [6] (Gleeson CJ, McHugh, Gummow and Hayne JJ); Wilczynski v District Court of South Australia [2023] SASCA 82 at [20]-[21] (Bleby and David JJA). 67 Lazarus v Director of Public Prosecutions [2015] NSWSC 1116 at [99]-[100] (Garling J); Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 at 531-2, [72] (Gleeson CJ and Gummow J), 564, [185] (Hayne J) and 584, [247] (Callinan J). 68 R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd [1953] HCA 22; (1953) 88 CLR 100 at 111 (Dixon CJ, Williams, Webb, and Fullagar JJ, Taylor J agreeing). 69 Lazarus v Director of Public Prosecutions [2015] NSWSC 1116 at [104] (Garling J); -- 13 of 16 -- [2025] SASC 190 Gray J 12 necessary when seeking to establish bias that the party seeking to establish it identify what matters might lead a decision-maker to resolve the question other than on its legal and factual merits and to explain the logical connection between those factors and the claimed deviation from deciding the question on its merits.70 47 The applicant has not identified a basis for any actual or apprehended bias on the part of the learned Judge. The transcript of the hearing on 14 February 2025 does not reveal any basis for actual bias or the apprehension of bias on the part of the learned Judge in determining that the applicant be arraigned. The fact that the applicant was arraigned despite his submission that that should not occur, whilst adverse to the position the applicant was seeking to advance, does not provide evidence of actual or apprehended bias. 48 I find that there is no evidence in the transcript which would cause a fair-minded lay observer to reasonably apprehend that the learned Judge might not have brought an impartial mind to the determination that the arraignment would proceed. The transcript reveals that the learned Judge clearly sought, heard and considered the submissions of the applicant, and the transcript does not provide evidence of any prejudgment in respect of those matters. No objection of bias or apprehension of bias was advanced by the applicant at the arraignment. 49 It follows that I find that to the extent that the applicant seeks to advance an apprehension of bias or actual bias, that the applicant does not have a real, as opposed to a merely fanciful, prospect of success in respect of those contentions. The nature of the relief sought 50 In South Australia, a person may be arraigned more than once in the District Court.71 The first arraignment on any information is a step in the District Court assuming jurisdiction over and taking management in the proceedings. That is the effect of the statutory provision in s 129 of the Criminal Procedure Act 1921 (SA). A person arraigned who enters a plea of not guilty will be taken by virtue of that section to put themselves on the country for trial.72 In South Australia, the trial of an accused does not commence upon the first arraignment but rather upon the accused person being arraigned in the presence of the jury panel and having them placed in the charge of the jury.73 51 The applicant’s trial had not commenced by the arraignment of which he now seeks review. The arraignment itself which the applicant challenges in this court is largely procedural in character which, properly apprehended, militates strongly against this Court granting discretionary relief as sought by the applicant. As 70 Davis v Corporation of the City of Adelaide [2025] SASC 42 at [45] (Stein J). 71 R v Pacitti [2022] SASCA 108; (2022) 141 SASR 482 at 490, [33] (Livesey P) and 502, [107] (S Doyle and David JJA). 72 R v Pacitti [2022] SASCA 108; (2022) 141 SASR 482 at 489-90, [28] (Livesey P) and 503, [113] (S Doyle and David JJA). 73 R v Pacitti [2022] SASCA 108; (2022) 141 SASR 482 at 505, [118] (S Doyle and David JJA, citing Peek J in R v Gee [2012] SASCFC 86; (2012) 113 SASR 372 at 431-2, [249]-[252]). -- 14 of 16 -- [2025] SASC 190 Gray J 13 Mason CJ observed in Australian Broadcasting Tribunal v Bond, albeit in the context of a decision made to which the Administrative Decisions (Judicial Review) Act 1977 (Cth) applied:74 Further, I agree that only in most exceptional circumstances would it be appropriate to grant relief in respect of a decision given by a magistrate in committal proceedings. The delays consequent upon fragmentation of the criminal process are so disadvantageous that they should be avoided unless the grant of relief by way of judicial review can clearly be seen to produce a discernible benefit. (citations omitted) 52 The applicant has not identified any proper basis which would justify fragmentation of the criminal process. Conclusion on the application for summary dismissal 53 In this case, the applicant has not shown there is any basis for his various complaints of bias, a denial of procedural fairness, nor has the applicant shown that the arraignment was conducted contrary to law. The transcript of the hearing of 14 February 2025, which is the subject of complaint by the applicant, indicates that the learned Judge conducted the arraignment proceedings according to law, afforded the applicant procedural fairness, and did not demonstrate any basis from which actual or apprehended bias could be discerned. 54 The applicant has not demonstrated that he has a real, as opposed to a merely fanciful, prospect of success in respect of the judicial review application. In addition to the fact that each of the grounds put forward by the applicant are not shown to have a real prospect of success, a further hurdle is that there is no discernible benefit in the grant of the relief sought, which would justify the fragmentation of the criminal process. 55 As the applicant has not demonstrated a reasonable basis upon which any of the grounds that the applicant has put forward have a real, as opposed to merely fanciful, prospect of success, and because there are strong considerations militating against the grant of any discretionary relief, I would summarily dismiss the application for judicial review. Conclusion and orders 56 The orders of this Court are: a. That the requirement under r 22.1(3) of the Uniform Civil Rules 2020 (SA) for the Director to file an interlocutory application and supporting affidavit seeking to be joined as a party be dispensed with; 74 Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 338-9 (Mason CJ, Brennan J agreeing). -- 15 of 16 -- [2025] SASC 190 Gray J 14 b. That the Director be joined as a second respondent to these proceedings; c. That the order joining the Director as a second respondent take effect nunc pro tunc from 5 March 2025; d. That FDN16 and FDN19 are dismissed; and e. That FDN10 is granted and the proceedings brought by the applicant are summarily dismissed. 57 I will hear the parties as to any other orders. -- 16 of 16 --