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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 120. The District Court should be given its own scale of costs. Within that scale there should be a special scale tailored to the steps peculiar to personal injuries actions. The special personal injuries scale should make provision for cases in which quantum is the only issue. Estimating costs Client protection before litigation 16.18 Aside from litigation costing too much there is also a problem of the extreme difficulty in trying to estimate precisely how much a litigation venture will actually cost. Litigation is uncertain enough to start with and so it is necessary to work out what the client will have to pay to take the case to its conclusion. This includes the costs which may be owed to the client’s own lawyers as well as the costs the client may have to pay the other side. These two categories of costs — solicitor/client and party/party — reflect the twin liabilities a litigant may confront when embarking on litigation. 16.19 Currently there is no legal obligation on solicitors to provide clients with the costs implications of any proposed litigation, nor to enter into any agreement about costs. Clients who enter into litigation without realising the full costs often face a dilemma. If they withdraw the claim, they may be required to pay the other side’s costs in addition to the costs they have already paid their own solicitor. One problem in providing costs estimates prior to litigation, however, is that they are extremely hard to make. 121. The Legal Practitioners Act should be amended to impose an obligation on solicitors to advise their clients from time to time, and not less than once every 12 months, of an estimate of the likely cost of resolving the dispute. 122. Should a solicitor fail to comply with the obligation to advise a client of the likely cost of resolving a dispute, the Legal Practitioners Act should prohibit the solicitor from recovering fees from the client. Litigants’ handbook of pitfalls 16.20 It also would be useful for the client to be given a standard form booklet or video which refers to the risks and pitfalls of litigation generally — such as the risks of losing on appeal although successful at trial and the possibility of interlocutory skirmishes and their costs implications. Civil litigants booklets and videos would be most useful if tailored to the particular court out of which proceedings issue and would be of particular use to self-represented litigants. Such litigants could be issued a copy of the relevant booklet or granted access to the video either in tape form or through the Internet by court staff. The booklets, videos and information in alternative translations and formats ideally would be produced after consultation. 126

CIVIL SYSTEM — COSTS 123. The requirement to provide a standard form civil litigants’ booklet or video should be made by amendment to the Professional Conduct Rules and/or as a prerequisite to entering into a valid costs agreement with a client. 124. Court staff should be directed to provide a copy of the civil litigants’ booklet or video to self-represented litigants, or provide internet access, immediately upon filing an Application or a Response. The loser pays principle Judicial review and costs 16.21 The usual order in civil litigation in Western Australia is that the loser must pay the winner’s costs. However, there are a number of exceptions. These include probate, where administration and trust disputes are often paid out of the estate. There are also a number of jurisdictions where the usual rule is that parties must bear their own costs — under the Industrial Relations Act 1979 (WA) and the Family Law Act 1975 (Cth) for example, and certain criminal jurisdictions which are discussed in Chapter 31. In any event, most practitioners agree with the estimate that costs recoverable from the other side will only be between 40 to 60 per cent of what the winning client has to pay his or her own lawyers. 16.22 One other area in which the ‘loser pays’ principle has not applied is in judicial review applications. These are applications to superior courts for prerogative writs and equivalent statutory remedies against public officers and agencies, discussed at Chapter 9. Because of the involvement of public officials and agencies, the courts tend to apply special rules when allocating costs in these matters. In particular the court will not usually award costs against a public official or agency successfully challenged in the courts. The successful applicant may be understandably disgruntled by having to bear all of his or her own costs. While it may be unfair to expect tribunal members who have acted in good faith to bear the costs of litigation, it is no less unfair to expect the successful litigant to pay. The current practice is inconsistent with the principles behind the Suitors’ Fund, designed to give an unsuccessful respondent to an appeal a public fund to contribute to the costs. (Discussed further in this Chapter at 16.46 — 16.50.) The theory is that it is neither side’s fault that the judge made an error of law. We recommend in Chapter 9 that applications for judicial review in these cases be commenced in the same way as other civil proceedings. The same rules also should apply in relation to costs. 125. The Supreme Court Act and/or the Supreme Court Rules should be amended to state a general rule that an unsuccessful public respondent to an application for judicial review should pay the costs on the loser pays principle. The applicant may enforce the costs order as a debt owed by the State. 127

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    REVIEW OF THE CRIMINAL AND CIVIL JU

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    REVIEW OF THE CRIMINAL AND CIVIL JU

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    1 Touchstones The legal system on t

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    TOUCHSTONES Procedure Expense and d

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    TOUCHSTONES criminal justice system

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    TOUCHSTONES him or her adversely. W

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    2 The Justice System The existing s

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    THE JUSTICE SYSTEM acts even though

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    THE JUSTICE SYSTEM various Acts and

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    3 The Civil System The origins of o

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    THE CIVIL SYSTEM • in which a dis

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    THE CIVIL SYSTEM Pleadings as forma

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    THE CIVIL SYSTEM • settlement and

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    THE CIVIL SYSTEM own costs but also

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    4 The Criminal System The criminal

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    THE CRIMINAL SYSTEM Sessions. If a

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    THE CRIMINAL SYSTEM Jury or judge a

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    5 Measuring the Justice System The

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    MEASURING THE JUSTICE SYSTEM civil

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    MEASURING THE JUSTICE SYSTEM increa

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    MEASURING THE JUSTICE SYSTEM • th

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    6 The Adversarial System of Civil L

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    THE ADVERSARIAL SYSTEM OF CIVIL LIT

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    THE ADVERSARIAL SYSTEM OF CIVIL LIT

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    7 The Adversarial System of Crimina

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    THE ADVERSARIAL SYSTEM OF CRIMINAL

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    THE ADVERSARIAL SYSTEM OF CRIMINAL

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    THE ADVERSARIAL SYSTEM OF CRIMINAL

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    THE ADVERSARIAL SYSTEM OF CRIMINAL

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    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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  • Page 93 and 94: 12 Case Management Case management
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  • Page 135 and 136: 17 Local Courts The Local Court Equ
  • Page 137 and 138: LOCAL COURTS Commencing proceedings
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  • Page 163 and 164: 20 Evidence Why is there a law of e
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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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