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Final Report (September 1999) - Law Reform Commission of ...

Final Report (September 1999) - Law Reform Commission of ...

REVIEW OF THE CRIMINAL

REVIEW OF THE CRIMINAL AND CIVIL JUSTICE SYSTEM Court determination or alternative dispute resolution The structure of the system A criminal/civil dichotomy Judicial review 1.19 Is ADR what the community wants or is it what those who would reform the system think will make the system more efficient? ADR is not necessarily more cost effective. However ADR may satisfy a deeper aim by resolving the parties' disputes in a non-hostile atmosphere. This very proper aim should not shut parties out of courts or make the courts virtually inaccessible. While ADR, or at least some forms of it, seeks to reach consensus between the parties, the courts play a unique role in the vindication of the rights of the citizen. Court resolutions also may lay down principles which go well beyond the case at hand. It is the task of the courts to preserve the rule of law and, particularly in criminal matters, to provide some balance to the power of the State as prosecutor. For this reason alternative dispute resolution currently has little place in criminal law, as Chapter 11 of this Report indicates. 1.20 The justice system in Western Australia operates essentially through the courts and to a lesser extent, tribunals. It is structured on the notion of the separation of powers: a legislature, an executive and a judiciary known as the Westminster system. At the heart of this relationship is judicial independence, the principle that courts must be allowed to exercise judicial power and decide cases according to the rule of law and without pressure from the legislature, the executive, or the public. The rationale for judicial independence is the protection of the citizen not only from private retribution but also from the overbearing power of the State. Ordinarily the power of the State is seen most clearly in criminal prosecutions. But it should not be forgotten that the State is a frequent litigant in civil matters, either directly or through statutory bodies. 1.21 There is nonetheless an important difference between the role of the courts in civil and criminal systems. Civil disputes do not come to the attention of the courts until parties commence proceedings. In criminal matters, while the attention of the courts is not engaged until a charge is laid, the entire investigative process into an alleged crime has an impact, often critical, on the criminal justice system. This can be seen in decisions to exclude improperly obtained confessions and other evidence. Considerations of fairness intrude at an earlier stage in criminal matters than in civil disputes. This relates to the role of the courts in protecting the citizen from misconduct by the State and the nature of penalties attached to conviction. Perhaps the considerations of fairness and justice in these contexts are best met by making more specific the circumstances in which evidence may be excluded. We consider some of these issues in this Report, and particularly in Chapter 20. 1.22 A similar role underlies the judicial review functions of the courts over administrative decisions by government. While judicial review increases tension between the judiciary and the legislature, there is no doubt that judicial review of administrative agencies empowers the ordinary citizen to seek relief against the actions of government agencies which have affected 8

TOUCHSTONES him or her adversely. We recommend in Chapter 33 that administrative review be entrusted to a tribunal while the courts maintain a limited supervisory role particularly to ensure the correct application of law in administrative processes. The issue is one of the critical questions we examine in this Report — what is the proper role of the courts? Criminal trials and the right to silence The significance of trials 1.23 Even more than the courts, trial by jury historically has been regarded as a protection for those accused of an offence by the State. It is so ingrained in our criminal justice system that it is unrealistic to consider its elimination even if that were desirable. We discuss the importance of jury trials in Chapters 7 and 30. Another fundamental right in criminal matters is what is known as 'the right to silence'. The right to silence has fostered the principle that pre-trial disclosure of the defence cannot be required. Strong cases can be made for the reform of these traditional practices, but reforms must be measured against the touchstones of a justice system, in this context, effectiveness and fairness. In Chapter 24 we consider these issues as well. 1.24 Trials and the legal culture, particularly in civil disputes, are often about winning and losing. These values are embedded in the civil system and in summary criminal matters through the awarding of costs to the successful party and against the unsuccessful party. The principles for awarding costs sometimes fail to recognise the wider community issues at stake in litigation. Reform of the awarding of costs is recommended in Chapters 16 and 31. 1.25 Due in part to the 'winner takes all' or ‘loser pays’ presumption, the majority of civil disputes do not go to trial; they are settled. It is also important to note that the majority of criminal cases, particularly summary matters, are disposed of by guilty pleas. The defendant often is only before the court for the purposes of entering a plea and sentencing. While the focus of much concern over the justice system is on trials, in reality pre-trial proceedings are already highly significant, and possibly not the subject of sufficient scrutiny or accountability. We examine these issues in Chapters 11 and 25. Settlement or trial 1.26 Not all actions, either criminal or civil, are capable of settlement. Often the parties are too far apart. This is a particular issue in criminal matters. The State prosecutes with all its might and its resources. Defendants rarely are in a comparable position and are entitled to protections which play no part in civil litigation. Criminal disputes also involve matters of public interest and policy — which is why prosecution is by the State and not the victim. However, even in civil matters many more people than the actual parties to the dispute may be involved, as is the case, for example, with environmental disputes. 1.27 Not all actions should be settled. The traditional role of the courts should continue. What is important is that in those actions the courts 9

  • Page 1 and 2: REVIEW OF THE CRIMINAL AND CIVIL JU
  • Page 3 and 4: REVIEW OF THE CRIMINAL AND CIVIL JU
  • Page 5 and 6: 1 Touchstones The legal system on t
  • Page 7 and 8: TOUCHSTONES Procedure Expense and d
  • Page 9: TOUCHSTONES criminal justice system
  • Page 13 and 14: 2 The Justice System The existing s
  • Page 15 and 16: THE JUSTICE SYSTEM acts even though
  • Page 17 and 18: THE JUSTICE SYSTEM various Acts and
  • Page 19 and 20: 3 The Civil System The origins of o
  • Page 21 and 22: THE CIVIL SYSTEM • in which a dis
  • Page 23 and 24: THE CIVIL SYSTEM Pleadings as forma
  • Page 25 and 26: THE CIVIL SYSTEM • settlement and
  • Page 27 and 28: THE CIVIL SYSTEM own costs but also
  • Page 29 and 30: 4 The Criminal System The criminal
  • Page 31 and 32: THE CRIMINAL SYSTEM Sessions. If a
  • Page 33 and 34: THE CRIMINAL SYSTEM Jury or judge a
  • Page 35 and 36: 5 Measuring the Justice System The
  • Page 37 and 38: MEASURING THE JUSTICE SYSTEM civil
  • Page 39 and 40: MEASURING THE JUSTICE SYSTEM increa
  • Page 41 and 42: MEASURING THE JUSTICE SYSTEM • th
  • Page 43 and 44: 6 The Adversarial System of Civil L
  • Page 45 and 46: THE ADVERSARIAL SYSTEM OF CIVIL LIT
  • Page 47 and 48: THE ADVERSARIAL SYSTEM OF CIVIL LIT
  • Page 49 and 50: 7 The Adversarial System of Crimina
  • Page 51 and 52: THE ADVERSARIAL SYSTEM OF CRIMINAL
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  • Page 59 and 60: 8 Civil System — Overview Alterna
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    CIVIL SYSTEM — OVERVIEW 8.7 The S

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    9 Means of Commencing Civil Proceed

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    MEANS OF COMMENCING CIVIL PROCEEDIN

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    10 Pleadings What are pleadings? Ar

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    PLEADINGS Accordingly, we recommend

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    PLEADINGS What should case statemen

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    PLEADINGS highly critical of the cu

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    PLEADINGS Amending case statements

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    PLEADINGS (1) the documentation for

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    11 Alternative Dispute Resolution W

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    ALTERNATIVE DISPUTE RESOLUTION or w

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    ALTERNATIVE DISPUTE RESOLUTION Acce

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    ALTERNATIVE DISPUTE RESOLUTION to b

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    ALTERNATIVE DISPUTE RESOLUTION It w

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    ALTERNATIVE DISPUTE RESOLUTION 63.

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    ALTERNATIVE DISPUTE RESOLUTION to m

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    12 Case Management Case management

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    CASE MANAGEMENT 78. A listing confe

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    CASE MANAGEMENT 81. Any case dismis

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    13 Disclosure What is discovery? Un

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    DISCLOSURE directly relevant to a m

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    DISCLOSURE 89. When it is clear tha

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    14 Summary Judgment, Interlocutory

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    SUMMARY JUDGMENT, INTERLOCUTORY INJ

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    SUMMARY JUDGMENT, INTERLOCUTORY INJ

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    SUMMARY JUDGMENT, INTERLOCUTORY INJ

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    15 Written and Oral Submissions Wri

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    WRITTEN AND ORAL SUBMISSIONS should

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    16 Civil System — Costs Civil cos

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    CIVIL SYSTEM — COSTS 116. Order 8

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    CIVIL SYSTEM — COSTS quantum invo

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    CIVIL SYSTEM — COSTS 123. The req

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    CIVIL SYSTEM — COSTS 128. An Orde

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    CIVIL SYSTEM — COSTS Assessment o

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    CIVIL SYSTEM — COSTS Lump sum cos

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    CIVIL SYSTEM — COSTS Costs to det

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    CIVIL SYSTEM — COSTS the end of t

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    17 Local Courts The Local Court Equ

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    LOCAL COURTS Commencing proceedings

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    LOCAL COURTS 168. If a party verifi

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    LOCAL COURTS 171. Notice of Intenti

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    LOCAL COURTS 178. As soon as practi

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    LOCAL COURTS Summary judgment in th

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    LOCAL COURTS Witnesses 17.26 We are

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    18 Self-Represented Litigants Self-

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    SELF-REPRESENTED LITIGANTS we are c

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    SELF-REPRESENTED LITIGANTS make cou

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    SELF-REPRESENTED LITIGANTS how to i

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    19 Unreasonable and Malicious Litig

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    UNREASONABLE AND MALICIOUS LITIGANT

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    UNREASONABLE AND MALICIOUS LITIGANT

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    20 Evidence Why is there a law of e

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    EVIDENCE • it contains a number o

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    EVIDENCE evidence is minimised at t

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    EVIDENCE in chief. The exchange of

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    21 The Limits of Examination and Cr

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    THE LIMITS OF EXAMINATION AND CROSS

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    THE LIMITS OF EXAMINATION AND CROSS

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    THE LIMITS OF EXAMINATION AND CROSS

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    THE LIMITS OF EXAMINATION AND CROSS

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    22 Expert Evidence Expert evidence

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    EXPERT EVIDENCE exchange of expert

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    EXPERT EVIDENCE opposing party subp

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    EXPERT EVIDENCE Concerns over not r

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    23 Criminal System — Overview The

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    CRIMINAL SYSTEM — OVERVIEW basis

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    24 The ‘Right to Silence’ What

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    THE ‘RIGHT TO SILENCE’ speaking

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    THE ‘RIGHT TO SILENCE’ The defe

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    THE ‘RIGHT TO SILENCE’ ii. iii.

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    25 Alternative Criminal Charge Reso

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    ALTERNATIVE CRIMINAL CHARGE RESOLUT

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    ALTERNATIVE CRIMINAL CHARGE RESOLUT

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    ALTERNATIVE CRIMINAL CHARGE RESOLUT

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    26 Joinder Fair trials and the issu

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    JOINDER 271. The existing principle

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    JOINDER 273. The existing principle

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    27 Criminal Process in the Court of

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    CRIMINAL PROCESS IN THE COURT OF PE

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    CRIMINAL PROCESS IN THE COURT OF PE

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    CRIMINAL PROCESS IN THE COURT OF PE

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    CRIMINAL PROCESS IN THE COURT OF PE

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    CRIMINAL PROCESS IN THE COURT OF PE

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    CRIMINAL PROCESS IN THE COURT OF PE

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    CRIMINAL PROCESS IN THE COURT OF PE

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    28 Preliminary Hearings What are pr

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    PRELIMINARY HEARINGS brief at trial

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    PRELIMINARY HEARINGS to be tendered

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    PRELIMINARY HEARINGS Proposal G Abo

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    29 Criminal Process in the Higher C

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    CRIMINAL PROCESS IN THE HIGHER COUR

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    CRIMINAL PROCESS IN THE HIGHER COUR

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    CRIMINAL PROCESS IN THE HIGHER COUR

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    CRIMINAL PROCESS IN THE HIGHER COUR

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    30 Trial by Judge Alone Trial by ju

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    TRIAL BY JUDGE ALONE according to c

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    TRIAL BY JUDGE ALONE 333. Except wh

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    TRIAL BY JUDGE ALONE a successful a

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    31 Criminal System — Costs Costs

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    CRIMINAL SYSTEM — COSTS • where

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    CRIMINAL SYSTEM — COSTS reasonabl

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    32 Appeals The system of appeals Ap

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    APPEALS of a decision can be appeal

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    APPEALS • appeals from a judge or

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    APPEALS • questions of relevance

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    APPEALS 355. Order 65B rule 3 (3)b

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    APPEALS Short form judgments 32.24N

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    APPEALS requirements in civil matte

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    APPEALS no appeal against an acquit

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    APPEALS to serve that purpose. Ther

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    33 Boards and Tribunals Boards and

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    BOARDS AND TRIBUNALS consistent pro

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    BOARDS AND TRIBUNALS 374. If all bo

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    BOARDS AND TRIBUNALS 383. Original

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    BOARDS AND TRIBUNALS 391. Where the

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    34 The Court Environment Architectu

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    THE COURT ENVIRONMENT there walls,

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    THE COURT ENVIRONMENT them. Court s

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    THE COURT ENVIRONMENT of courts adj

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    THE COURT ENVIRONMENT 412. Future c

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    THE COURT ENVIRONMENT Courts’. As

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    THE COURT ENVIRONMENT Self-represen

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    THE COURT ENVIRONMENT vulnerable wi

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    35 Technology and Justice The impac

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    TECHNOLOGY AND JUSTICE Uniformity i

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    TECHNOLOGY AND JUSTICE Authenticity

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    TECHNOLOGY AND JUSTICE 35.17 Recent

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    TECHNOLOGY AND JUSTICE 35.23 In the

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    36 The Legal Profession The legal p

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    THE LEGAL PROFESSION role of the le

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    THE LEGAL PROFESSION • While ther

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    THE LEGAL PROFESSION through to the

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    37 Private Civil Courts The adversa

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    PRIVATE CIVIL COURTS 446. Private c

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    Appendix 1 Acknowledgments The memb

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    ACKNOWLEDGEMENTS Charles Brookes Do

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    ACKNOWLEDGEMENTS Lizzie Hill Gisell

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    ACKNOWLEDGEMENTS Hon Judge MDF O’

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    ACKNOWLEDGEMENTS Anna Wasylkewycz M

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    GLOSSARY Applicant Application to s

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    GLOSSARY Disbursements Discovery Mo

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    GLOSSARY 'Interest-based' mediation

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    GLOSSARY Plaint Plaintiff Practisin

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    GLOSSARY and a timetable for the ca

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    REVIEW OF THE CRIMINAL AND CIVIL JU

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    Bibliography of In-text References

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    BIBLIOGRAPHY of Court Rules and Pro

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    BIBLIOGRAPHY Family Law Act 1975 (C

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    REVIEW OF THE CRIMINAL AND CIVIL JU

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    List of Recommendations The justice

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    RECOMMENDATIONS 14. The Criminal Co

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    RECOMMENDATIONS (3) the practitione

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    RECOMMENDATIONS (2) if a practition

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    RECOMMENDATIONS 54. The current pra

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    RECOMMENDATIONS 74. The neutral con

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    RECOMMENDATIONS specified in the li

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    RECOMMENDATIONS 106. Either party s

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    RECOMMENDATIONS 124. Court staff sh

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    RECOMMENDATIONS 141. Limited contin

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    RECOMMENDATIONS 160. All Local Cour

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    RECOMMENDATIONS 174. Unless good ca

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    RECOMMENDATIONS practice direction

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    RECOMMENDATIONS 203. The Local Cour

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    RECOMMENDATIONS (3) The Act include

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    RECOMMENDATIONS 226. The use and ex

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    RECOMMENDATIONS 246. Where there ar

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    RECOMMENDATIONS 258. If practicable

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    RECOMMENDATIONS can be overcome by

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    RECOMMENDATIONS (3) enabling senten

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    RECOMMENDATIONS (3) any other agree

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    RECOMMENDATIONS at the close of the

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    RECOMMENDATIONS 340. When a ruling

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    RECOMMENDATIONS be made before the

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    RECOMMENDATIONS 376. The WACAT shou

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    RECOMMENDATIONS 393. Full-time and

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    RECOMMENDATIONS seek feedback from

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    RECOMMENDATIONS 436. All technologi

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