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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 a number of submissions indicated the importance of opposing parties having access to the expert reports in full. This was not only because of the potential of the proposal to create duplication of work — through writing and then summarising the report — but also in the interests of fair disclosure of the opponent’s case and the increased likelihood of settlement prior to trial. 22.16 Accepting the importance of full disclosure, however, leaves the issue of how to encourage shorter reports which provide all relevant detail. Our view is that courts could encourage this, at least in civil cases, by not allowing costs in full where an expert report is excessively long. 247. Civil courts should disallow costs in full for overly long experts’ reports. Expert witnesses’ obligations to the courts 22.17 There appears to be a view, especially amongst judges, that experts are not aware of their obligation to provide independent assistance to the court. To address these concerns the Federal Court recently published a practice direction including the requirement that: At the end of the report the expert should declare that ‘[the expert] has made all the inquiry which [the expert] believes are desirable and appropriate and that no matters of significance which [the expert] regards as relevant have, to [the expert’s] knowledge, been withheld from the Court. The Supreme Court already has implemented a similar practice. In our view, this practice should be universal. 248. All expert witness statements should contain a detailed declaration that all appropriate enquiries had been made in a form required by the courts. Hearsay and expert evidence 22.18 The common law requires that the basis of an expert opinion must be proved by admissible evidence. Considerable time and expense may be incurred in proving the basis for an expert opinion in circumstances where it is usual in commercial practice to rely upon hearsay evidence, for example. The Evidence Act 1995 (Cth) replaced this rule with a discretion for judges to admit expert evidence by balancing the potential prejudice against the probative value of the opinion evidence. 22.19 Recent Commonwealth reforms of hearsay and expert evidence do not require the factual basis of expert evidence to be proved or tested. 192

EXPERT EVIDENCE Concerns over not requiring the factual basis of the expert opinion to be proved may be countered by parties seeking to have more weight attached to the evidence, where possible, by adducing and proving expert opinion by direct evidence. In any event, it is difficult to see how expert evidence which does not establish its factual basis could meet the requirements of relevance. The ‘ultimate issue’, ‘common knowledge’ and expert evidence Commonwealth Evidence Act 1995 and expert evidence 22.20 The courts are cautious of expert witnesses giving evidence on the ‘ultimate issue’. The difficulty is that by speaking to the ultimate issue the expert may be seen to be taking the place of the arbiter of fact — the judge or jury. For example, issues concerning the cause of an accident, or what conduct amounts to negligence, may be the subject of expert opinion, but the answer to the question: ‘was a party negligent?’ is not allowed. Another difficult rule precludes expert witnesses from giving evidence which is not in the ‘common knowledge’ of the decision-maker. This has been interpreted to mean that the only evidence the expert is allowed to provide is evidence which may assist the decision-maker. Both rules prescribe standards which are uncertain and raise conceptual distinctions which are difficult to apply. General discretions replace these rules in the Evidence Act 1995 (Cth). 22.21 We believe the Commonwealth provisions governing expert evidence and hearsay, the ‘ultimate issue’ and the ‘common knowledge’ rules, have much to commend them and should be adopted in Western Australia. The adoption of these provisions and others relating to expert evidence, would not only assist in the uniformity of evidence rules throughout Australia, but could result in cost savings. In particular, allowing a judicial discretion may ensure that substantial costs are not expended in proving matters which are out of proportion to their significance in the dispute between the parties. 249. When drafting a new Evidence Act for Western Australia (Recommendation 221) the provisions of the Evidence Act 1995 (Cth) relating to expert evidence, as modified by these recommendations, should be adopted. 22.22 The ALRC has recently distributed for comment ALRC (1999d) Background Paper No. 6, Experts. The paper sets out the ALRC’s (1999e) current thinking on expert evidence in federal courts and tribunals. As part of the drafting of a new Evidence Act recommended in Chapter 20, the matters raised in the ALRC’s discussion paper, where relevant, should be considered. An Expert Evidence Forum 22.23 There is no established channel of communication between judges, lawyers, experts and parties to litigation concerning the process by which experts prepare and present evidence to the courts. Information on the 193

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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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    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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  • Page 157 and 158: 19 Unreasonable and Malicious Litig
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  • Page 181 and 182: 22 Expert Evidence Expert evidence
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  • Page 209 and 210: 26 Joinder Fair trials and the issu
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  • Page 231 and 232: 28 Preliminary Hearings What are pr
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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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