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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. At worst, the case would only need to be ‘stood down’ until later in the day for the information to be obtained rather than adjourned to a later date, as is currently the practice. Access to information through technology would mean that police would not need to formally deliver materials to the defendant, although the defendant or defence counsel would still need to obtain secure access passwords and have ready access to appropriate technology. 282. Information, including any confessional materials, a simply expressed statement of material facts and particular principles of law relating to a charge, and the defendant’s criminal record, should be made available to all defendants on or before their first appearance in court. The information should be provided through the proposed Justice Information Exchange or formally delivered to defendants or their legal representatives. Legal advice 27.14 Currently once a matter has been adjourned and the necessary information is obtained the defendant may wish to obtain legal advice. Often financial constraints mean that advice is sought from the Legal Aid duty lawyer. Because there is usually only very limited time available for consultation, duty lawyers may be reluctant to advise a defendant to plead guilty in these circumstances. 27.15 Reforms could be instituted to enable a defendant to obtain legal advice before the first appearance in court. The existing Legal Aid duty lawyer scheme operates only a small-scale system for seeing clients a day or more before the first appearance. If relevant information is available to a defendant prior to appearing in court, the time to obtain legal advice should be before — and not after — the first appearance in court. This also would provide an opportunity to advise defendants of the ACCR process described in Chapter 25. 283. The existing Legal Aid duty lawyer system of consultation with defendants prior to their first court appearance should be expanded. Sentencing issues 27.16 A defendant may wish to collect materials relevant to pleas in mitigation of sentence, such as character references. A defendant also may wish to put his or her affairs in order if facing imprisonment. Both may cause 228

CRIMINAL PROCESS IN THE COURT OF PETTY SESSIONS a defendant to delay pleading guilty even if not intending to contest the charge. Furthermore, the present law on bail operates against bail being granted after conviction and before sentence if the defendant is in custody, regardless of the likely sentence. Another problem, raised in Chapter 26, confronts a defendant who is charged with multiple offences in the Courts of Petty Sessions. The only way to achieve one sentencing date may be to plead not guilty and adjourn one or more of the cases until they ultimately coincide. Being sentenced on the one date is more likely to result in concurrent sentences being handed down. Other advantages are that it may avoid problems in relation to sentence calculation and sentence planning in the prison system. Pre-release programs and parole may be held up by multiple sentencing dates and proposed diversionary schemes may not be able to operate effectively when diversion depends on an early plea of guilty or a final disposition of all outstanding charges. (Defendants facing multiple charges in both Petty Sessions and higher courts are discussed in this Chapter at 27.29 to 27.30.) 27.17 Currently if a defendant pleads guilty, sentencing will not necessarily take place immediately. This can be seen in the current ‘fast track’ system of committal to a higher court, discussed in Chapter 28. Under that system a defendant who pleads guilty to an indictable offence at an early date is committed to the superior court for sentencing only. There is inevitably a delay in getting into the superior court and in any event adjournment may be allowed so a convicted person can prepare for a plea in mitigation or for imprisonment. There is no presumption against bail being granted during the delay in these circumstances, whether the convicted person is already in custody or not. The fast track system could be mirrored in the Courts of Petty Sessions. 27.18 Delays arising as a result of sentencing issues could be reduced by: • adjourning sentencing to enable a defendant to prepare for a plea in mitigation or when imprisonment is an option; • adjourning sentencing to permit sentencing on multiple charges to be handed down at the one time; and • amending the Bail Act 1982 (WA) to remove the presumption against bail being granted after conviction. Additional adjournments of sentencing should not be available for any offences alleged to have been committed after the offender was convicted and released on bail pending sentencing. 229

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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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    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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  • 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 249 and 250: 30 Trial by Judge Alone Trial by ju
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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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