Jakaj v Kinnane

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.