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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 Applications to appeal ‘on the papers’ 32.11As a result of an examination of the civil Court of Appeal in the United Kingdom, the Bowman Report (1997) proposed that applications for leave to appeal be considered ‘on the papers’, that is, on the basis of documents filed with the court and without oral argument by the parties. We recommend significant reductions in the requirement to apply for leave to appeal in criminal matters, at No. 367. However, there seems no reason why the option to have the application considered ‘on the papers’ should not be extended to leave applications in civil matters and appropriate criminal cases where the leave requirement is retained (for example, on a further appeal from an appeal to a single judge under the Justices Act). 350. Applications for leave to appeal in civil and criminal matters should be dealt with, if possible, without oral argument. After consideration of an application for leave to appeal, the court would have the option to: (1) allow the application for leave to appeal without oral argument; (2) hear argument on the application for leave to appeal; (3) increase the number on the bench to hear the application for leave and hear argument at the same time as the appeal; or (4) refuse the application. 351. An application for leave to appeal should either be accompanied by a written submission or the submission should be filed very soon after the filing of the application. Appeal books 32.12 The preparation of an appeal book, which generally must contain all relevant documents from the original hearing, can be one of the major expenses associated with civil and criminal appeals. Multiple copies of appeal books must be produced, filed and served. In appeals against conviction or sentence under the Criminal Code, however, a judge of the Supreme Court settles the contents of the appeal book with the parties prior to listing the matter. Practice directions allow the omission of agreed materials and the contents of these appeal books are relatively standard and not lengthy. This has meant that, apart from delays caused by litigants who have no legal representation, these appeals can be listed for hearing relatively quickly. 32.13 While there appears to be an effective process for settling the contents of appeal books for appeals against conviction or sentence under the Criminal Code the same is not true of Justices Act or civil appeals. Responsibility for preparation of those appeal books lies with the parties, primarily the appellant. Supreme Court Practice Direction 6 of 1997 requires practitioners to give personal consideration to: 278

APPEALS • questions of relevance of materials; • legibility of documents; • duration of appeals; and • suitability for mediation. The Direction also requires practitioners, whether they act for the appellant or the respondent (the party against whom an appeal is lodged), to provide a detailed certificate of correctness. It seems, however, that there is still much included in appeal books which, in most cases, is never referred to in the course of appellate proceedings and which therefore creates needless expense and delay. As a result an appellant who is eventually successful may nonetheless be refused costs of preparation of irrelevant material in the appeal book. We have recommended that the Supreme Court have power to order parties to enter into ADR to limit or define the issues on appeal. (See Recommendation 75.) We believe that before resorting to ADR, it would be useful to encourage parties to any complex appeal to confer with a view to agreeing the facts and identifying the issues for determination on appeal. 352. Except for appeals against sentence or conviction under the Criminal Code where a satisfactory process is already in place, parties to complex appeals should: (1) be encouraged to confer with a view to agreeing a summary of the facts and proceedings from the court/tribunal/board below and agree to identify the issues for determination on the appeal. Consolidated outlines of facts should be agreed before a hearing date is set; and (2) prepare appeal books containing only the agreed facts and issues and information relevant to matters in dispute on appeal together with other standard information as may be required by the appellate court. Information technology 32.14 A means of reducing the expense associated with the production of appeal books would be to utilise advances in information technology. The Supreme Court of Western Australia has a pilot project for electronic appeals. It was initiated under the Electronic Appeals Project endorsed by the Council of Chief Justices of Australia and New Zealand in 1996. The pilot is very successful and already has saved an enormous amount of work and paper in the preparation of appeal books for some of the longest-running appeals in the State. The Supreme Court is now expanding its capacity to operate in this way. 279

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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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    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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  • Page 231 and 232: 28 Preliminary Hearings What are pr
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  • Page 263 and 264: 32 Appeals The system of appeals Ap
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  • Page 311 and 312: TECHNOLOGY AND JUSTICE Authenticity
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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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