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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 and judges deal with civil disputes involving up to $250,000 and have unlimited jurisdiction for personal injury claims. The District Court also handles most indictable criminal offences, other than the very serious, through trial by judge and jury. The highest level of court in the State system is the Supreme Court which has unlimited civil jurisdiction, and Supreme Court judges, usually with juries, handle the most serious criminal matters which carry life imprisonment. 2.13 Appeals from each level are to the next highest court although, in the criminal area, appeals from the Courts of Petty Sessions go straight to the Supreme Court. Appeals from the Full Court of the Supreme Court, which sits as the Court of Criminal Appeal in some criminal matters, go to the High Court of Australia but first require a grant of special leave from the High Court. (See Chapter 32.) Proposed Magistrates Court 2.14 The Attorney General currently is considering a limited change to the existing court structure in Western Australia: the establishment of a Magistrates Court along the lines proposed in a Western Australian Law Reform Commission Report of 1988. The structure of the new court suggested in that report was a single court which combined the civil jurisdiction of the Local Courts and the criminal jurisdiction of the Courts of Petty Sessions. It also was recommended that the proposed Magistrates Court have five divisions: • an Offences Division dealing with offences currently dealt with by the Courts of Petty Sessions; • a Civil Minor Division replacing the Small Disputes Division and including Residential Tenancies and small claims up to $10,000; • a Civil General Division dealing with civil claims that are above the ‘Minor’ division limit and up to $50,000; • an Administrative Division dealing with the statutory reviews and appeals that magistrates currently hear; and • a Family Law Division dealing with those family law matters currently dealt with in Petty Sessions. However, if our recommendations in Chapter 33 are adopted and a Western Australian Civil and Administrative Tribunal is established, the Administrative and Civil Minor Divisions of the proposed Magistrates Court would be incorporated into the Tribunal. 2.15 A Magistrates Court Bill and Magistrates Court (Consequential Provisions) Bill are currently being drafted. If passed after being placed before Parliament these will establish the Magistrates Court, amend or repeal 16

THE JUSTICE SYSTEM various Acts and provide transitional provisions for justices, magistrates, clerks and other court staff. The Local Courts Act 1904 (WA) will be renamed the Magistrates Courts (Civil Jurisdiction) Act 1904 (WA) and the Justices Act 1902 (WA), which currently defines the criminal jurisdiction of the Courts of Petty Sessions, will be renamed the Criminal Procedure (Summary Proceedings) Act 1902. 1. The proposed Magistrates Court Acts should be enacted, taking into account our recommendations for the establishment of a Western Australian Civil and Administrative Tribunal. (See Recommendations 371 and 372.) Uniform procedures in plain English 2.16 Although the distinction between civil and criminal matters is not always clear, substantially different procedures attach to processing criminal and civil matters through the courts. In our view, this procedural distinction should be retained because of the significant additional considerations which apply in criminal matters, as identified in Chapter 1. In other respects, however, the range of different procedures used by the various tiers of courts across the country is largely the result of historical developments. We believe the system would be simplified and costs reduced by greater uniformity of procedures throughout the various courts and laws, and by rules and procedures being expressed in plain English. Given that self-represented litigants now make up a significant proportion of court-users, we feel these reforms would be particularly helpful. 2. While maintaining the distinction between civil and criminal matters and in so far as possible, uniformity of rules for different courts and plain English should be implemented when revising or drafting new legislative and procedural provisions in response to recommendations in this Report and generally. 17

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  • Page 5 and 6: 1 Touchstones The legal system on t
  • Page 7 and 8: TOUCHSTONES Procedure Expense and d
  • Page 9 and 10: TOUCHSTONES criminal justice system
  • Page 11 and 12: TOUCHSTONES him or her adversely. W
  • Page 13 and 14: 2 The Justice System The existing s
  • Page 15: THE JUSTICE SYSTEM acts even though
  • 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
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  • Page 43 and 44: 6 The Adversarial System of Civil L
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  • Page 49 and 50: 7 The Adversarial System of Crimina
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  • Page 59 and 60: 8 Civil System — Overview Alterna
  • Page 61 and 62: CIVIL SYSTEM — OVERVIEW 8.7 The S
  • Page 63 and 64: 9 Means of Commencing Civil Proceed
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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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