Jakaj v Kinnane - [2020] ACTCA 19

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL

Case Title:	Jakaj v Kinnane
Citation:	[2020] ACTCA 19
Hearing Date:	18 March 2020
DecisionDate:	22 April 2020
Before:	Burns J
Decision:	See [18]-[19]
Catchwords:	APPEAL – JURISDICTION, PRACTICE AND PROCEDURE – Application for certain orders preliminary to an appeal – applicant sought 23 orders, including certain declarations, undertakings and orders to produce evidence – consideration of the phrase “practice and procedure” in s 37J(1)(k) of the Supreme Court Act 1933 (ACT)
Legislation Cited:	Acts Interpretation Act 1901 (Cth) Australian Capital Territory (Self-Government) Act 1988 (Cth) Australian Constitution ss 5, 42, 71, 117 Australian Road Rules r 300 Commonwealth of Australia Constitution Act (Imp) cl 2, ss 58, 42, 76 Court Procedure Rules 2006 (ACT) r 300 Crimes Act 1900 (ACT) Director of Public Prosecutions Act 1990 (ACT) Judiciary Act 1903 (Cth) s 78B Legislation Act 2000 (ACT) Magistrates Court Act 1930 (ACT) s 208(1)(c) Supreme Court Act 1933 (ACT) ss 37J, 37N
Cases Cited:	Byrnes v Barry [2004] ACTCA 24; 150 A Crim R 471 Minister of State for the Army v Parbury Henty & Co Pty Ltd (1945) 70 CLR 459 Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369
Texts Cited:	Nygh, P E, and Butt, P, Butterworths Australian Legal Dictionary (Butterworths, 1997)
Parties:	Eduard Jakaj (Appellant) The Magistrates Court of the Australian Capital Territory (1^st Respondent) Damien Kinnane (2^nd Respondent)
Representation:	Counsel Self-represented (Appellant) K McCann (2^nd Respondent)
Solicitors Self-represented (Appellant) ACT Director of Public Prosecutions (2^nd Respondent)
File Number:	ACTCA 16 of 2019
Decision under appeal:	Court/Tribunal: ACT Supreme Court Before: McWilliam AsJ Date of Decision: 22 March 2019 Case Title: Jakaj v Kinnane Citation: [2019] ACTSC 71

BURNS J:

By an application in proceeding dated 4 March 2020, the applicant applied to the ACT Court of Appeal constituted by a single judge for certain orders preliminary to an appeal currently listed to be heard in the Court of Appeal on 7 May 2020.

As I understand the history of this matter, the applicant was charged in the ACT Magistrates Court with an offence of using a mobile telephone while driving a motor vehicle, contrary to r 300 of the Australian Road Rules (the Rules). This offence was said to have occurred on 12 August 2017. The applicant represented himself in the course of that proceeding. On 10 August 2018, a Magistrate convicted the applicant and ordered that he pay a fine of $416, court costs of $80 and the Victim Services Levy of $60.

The applicant had a right of appeal from the orders made by the ACT Magistrates Court under s 208(1)(c) of the Magistrates Court Act 1930 (ACT) (the Magistrates Court Act). He did not seek to exercise that right. Instead, the applicant sought judicial review of the Magistrate’s decision on the grounds, including, that the ACT Magistrates Court lacked jurisdiction to hear the charge against him, that he was denied procedural fairness and…

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 Jakaj v Kinnane

Details

AGLC: Jakaj v Kinnane [2020] ACTCA 19
Case: [2020] ACTCA 19
Decision Date: 22 April 2020

CaseChat Overview and Summary

Burns J of the Supreme Court of the Australian Capital Territory considered an application by the applicant for a range of preliminary orders in anticipation of an appeal. The applicant sought 23 distinct orders, encompassing declarations, undertakings, and the production of evidence. The central dispute revolved around the scope of the phrase "practice and procedure" as used in section 37J(1)(k) of the *Supreme Court Act 1933* (ACT), which grants the Court power to make orders for the purpose of facilitating the hearing and determination of an appeal.

The primary legal issue before the Court was whether the extensive orders sought by the applicant fell within the ambit of "practice and procedure" as contemplated by the *Supreme Court Act*. This required an interpretation of the statutory provision and an assessment of whether the applicant's requests were ancillary to, and in aid of, the proper conduct of the anticipated appeal, or if they sought to determine substantive issues prematurely.

Burns J reasoned that the power to make orders concerning practice and procedure in aid of an appeal is generally limited to matters that facilitate the appeal process itself, rather than determining the merits of the appeal. The Court found that many of the orders sought by the applicant, particularly those seeking declarations and undertakings, were not merely procedural but went to the substance of the appeal. Consequently, such orders were not properly characterised as relating to "practice and procedure" within the meaning of section 37J(1)(k). The Court indicated that while some limited procedural orders might be permissible, the broad scope of the application exceeded the Court's jurisdiction under that provision.

Orders

Orders of the court

See [18]-[19]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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