Final Report (September 1999) - Law Reform Commission of ...
REVIEW OF THE CRIMINAL AND CIVIL JUSTICE SYSTEM IN WESTERN AUSTRALIA thousands more through the web-site. Information about our Review on the Internet expanded progressively as 30 papers on different aspects of the justice system were published on our web-site. The public meetings During the Review of the Criminal and Civil Justice System, the Commission held or participated in 10 ‘Have Your Say’ public meetings throughout the State. The Commission also hosted an hour-long television broadcast concerning law reform. The program on the Westlink Satellite Network offered viewers a toll-free number which they could call in order to speak to the three members of the LRCWA. Our objective was to give Western Australians living in remote parts of the State an opportunity to express their views. Members of the Commission and our Administrative Officer spoke to ABC Regional Radio and the ABC’s Stateline television program as well as numerous local newspapers. Public meetings held in Karratha, Kalgoorlie, Bunbury, Geraldton, Albany and Perth brought the Commissioners face to face with a wide range of Western Australians, many of whom were eager to speak out concerning their experiences with the justice system. The public submissions Resourcing our recommendations More than 650 people and stakeholder organisations made submissions concerning the Review of the Civil and Criminal Justice System with some individuals and groups, including the Australian Law Reform Commission, making numerous submissions. The focus of many of the public submissions was law and order. These voluminous submissions are summarised briefly in a separate report. The Public Submissions Report synthesises thousands of pages of material provided to the Commission by members of the public and includes suggestions received on a wide variety of topics including issues outside the current project’s Terms of Reference, such as sentencing of offenders. Making resourcing recommendations is also outside the scope of our work. The Law Reform Commission’s task was to come up with suggestions to make the justice system work better. In our view that means we are to develop ideas for making the system faster, simpler, and easier to understand while delivering fair and just results. What improvements to the justice system may cost is beyond our capacity to evaluate. We can only make recommendations; we can not implement them nor do we consider how they can be resourced. However, we have been cognisant of the futility of making recommendations likely to consume significant public resources at a time when finances are already stretched in health, education and other important areas of State responsibility. Therefore we have focussed our attention upon reforms likely to involve no, or limited, public expenditure. viii
REVIEW OF THE CRIMINAL AND CIVIL JUSTICE SYSTEM IN WESTERN AUSTRALIA The stakeholders’ survey and consultation process To ensure that our recommendations would be workable and have some support, the Commission surveyed stakeholders. At the conclusion of the survey process it was apparent we should circulate proposals set in the context of an analysis of the existing system and available alternatives before coming out with final recommendations. The Commission produced 30 Consultation Drafts and Background Information Papers in connection with the Review which we circulated in hardcopy to the media and stakeholders and, as noted above, made freely available through the Internet web-site. The Background Information Papers describe the present system and set the stage for the Consultation Drafts. The Consultation Drafts propose more than 400 reforms for reducing delay and making the justice system simpler, fairer and less expensive. Some of the proposals are controversial. We received more than 150 detailed submissions from individuals and organisations in response to the Consultation Drafts. Our Final Report In keeping with our efforts to reform law reform, this Final Report is unlike any report previously produced by this Commission. Lawyers and legal scholars may question our style. There are no footnotes and very few citations to cases and other legal authorities. We use few abbreviations. Our method of citation to material outside this report is simple. It is not the formal style of legal citation with which lawyers are familiar. Our sources are, for the most part, detailed in the collected Consultation Drafts. There is also a short bibliography of materials directly referred to in this Final Report as well as source materials we used which are not cited in the Consultation Drafts. The Consultation Drafts and the work of the Australian Law Reform Commission (ALRC) which we have considered canvas the law and legal literature on the wide variety of subjects covered in this Review. We should note that the ALRC released Discussion Paper 62: Review of the federal civil justice system in late August 1999. While we have reviewed Discussion Paper 62, our substantive work had been completed by the time we received this document. This Final Report is our attempt to communicate clearly, directly and succinctly. We have tried to eliminate Latin and archaic terminology and to avoid ‘legalese’. Our objective has been to express our ideas for reform in plain English. We hope that some day all rules, statutes and communications concerning legal proceedings will be capable of being understood by the average person. When we have not been able to simplify our terminology, we have put the word in the glossary at the back of this Report. Special thanks My fellow Commissioners and I are indebted to the authors of the Consultation Drafts, the hundreds of people who wrote submissions or spoke out at public meetings, and our own staff of temporary employees and consultants. ix
THE ADVERSARIAL SYSTEM OF CRIMINAL
THE ADVERSARIAL SYSTEM OF CRIMINAL
THE ADVERSARIAL SYSTEM OF CRIMINAL
8 Civil System — Overview Alterna
CIVIL SYSTEM — OVERVIEW 8.7 The S
9 Means of Commencing Civil Proceed
MEANS OF COMMENCING CIVIL PROCEEDIN
10 Pleadings What are pleadings? Ar
PLEADINGS Accordingly, we recommend
PLEADINGS What should case statemen
PLEADINGS highly critical of the cu
PLEADINGS Amending case statements
PLEADINGS (1) the documentation for
11 Alternative Dispute Resolution W
ALTERNATIVE DISPUTE RESOLUTION or w
ALTERNATIVE DISPUTE RESOLUTION Acce
ALTERNATIVE DISPUTE RESOLUTION to b
ALTERNATIVE DISPUTE RESOLUTION It w
ALTERNATIVE DISPUTE RESOLUTION 63.
ALTERNATIVE DISPUTE RESOLUTION to m
12 Case Management Case management
CASE MANAGEMENT 78. A listing confe
CASE MANAGEMENT 81. Any case dismis
13 Disclosure What is discovery? Un
DISCLOSURE directly relevant to a m
DISCLOSURE 89. When it is clear tha
14 Summary Judgment, Interlocutory
SUMMARY JUDGMENT, INTERLOCUTORY INJ
SUMMARY JUDGMENT, INTERLOCUTORY INJ
SUMMARY JUDGMENT, INTERLOCUTORY INJ
15 Written and Oral Submissions Wri
WRITTEN AND ORAL SUBMISSIONS should
16 Civil System — Costs Civil cos
CIVIL SYSTEM — COSTS 116. Order 8
CIVIL SYSTEM — COSTS quantum invo
CIVIL SYSTEM — COSTS 123. The req
CIVIL SYSTEM — COSTS 128. An Orde
CIVIL SYSTEM — COSTS Assessment o
CIVIL SYSTEM — COSTS Lump sum cos
CIVIL SYSTEM — COSTS Costs to det
CIVIL SYSTEM — COSTS the end of t
17 Local Courts The Local Court Equ
LOCAL COURTS Commencing proceedings
LOCAL COURTS 168. If a party verifi
LOCAL COURTS 171. Notice of Intenti
LOCAL COURTS 178. As soon as practi
LOCAL COURTS Summary judgment in th
LOCAL COURTS Witnesses 17.26 We are
18 Self-Represented Litigants Self-
SELF-REPRESENTED LITIGANTS we are c
SELF-REPRESENTED LITIGANTS make cou
SELF-REPRESENTED LITIGANTS how to i
19 Unreasonable and Malicious Litig
UNREASONABLE AND MALICIOUS LITIGANT
UNREASONABLE AND MALICIOUS LITIGANT
20 Evidence Why is there a law of e
EVIDENCE • it contains a number o
EVIDENCE evidence is minimised at t
EVIDENCE in chief. The exchange of
21 The Limits of Examination and Cr
THE LIMITS OF EXAMINATION AND CROSS
THE LIMITS OF EXAMINATION AND CROSS
THE LIMITS OF EXAMINATION AND CROSS
THE LIMITS OF EXAMINATION AND CROSS
22 Expert Evidence Expert evidence
EXPERT EVIDENCE exchange of expert
EXPERT EVIDENCE opposing party subp
EXPERT EVIDENCE Concerns over not r
23 Criminal System — Overview The
CRIMINAL SYSTEM — OVERVIEW basis
24 The ‘Right to Silence’ What
THE ‘RIGHT TO SILENCE’ speaking
THE ‘RIGHT TO SILENCE’ The defe
THE ‘RIGHT TO SILENCE’ ii. iii.
25 Alternative Criminal Charge Reso
ALTERNATIVE CRIMINAL CHARGE RESOLUT
ALTERNATIVE CRIMINAL CHARGE RESOLUT
ALTERNATIVE CRIMINAL CHARGE RESOLUT
26 Joinder Fair trials and the issu
JOINDER 271. The existing principle
JOINDER 273. The existing principle
27 Criminal Process in the Court of
CRIMINAL PROCESS IN THE COURT OF PE
CRIMINAL PROCESS IN THE COURT OF PE
CRIMINAL PROCESS IN THE COURT OF PE
CRIMINAL PROCESS IN THE COURT OF PE
CRIMINAL PROCESS IN THE COURT OF PE
CRIMINAL PROCESS IN THE COURT OF PE
CRIMINAL PROCESS IN THE COURT OF PE
28 Preliminary Hearings What are pr
PRELIMINARY HEARINGS brief at trial
PRELIMINARY HEARINGS to be tendered
PRELIMINARY HEARINGS Proposal G Abo
29 Criminal Process in the Higher C
CRIMINAL PROCESS IN THE HIGHER COUR
CRIMINAL PROCESS IN THE HIGHER COUR
CRIMINAL PROCESS IN THE HIGHER COUR
CRIMINAL PROCESS IN THE HIGHER COUR
30 Trial by Judge Alone Trial by ju
TRIAL BY JUDGE ALONE according to c
TRIAL BY JUDGE ALONE 333. Except wh
TRIAL BY JUDGE ALONE a successful a
31 Criminal System — Costs Costs
CRIMINAL SYSTEM — COSTS • where
CRIMINAL SYSTEM — COSTS reasonabl
32 Appeals The system of appeals Ap
APPEALS of a decision can be appeal
APPEALS • appeals from a judge or
APPEALS • questions of relevance
APPEALS 355. Order 65B rule 3 (3)b
APPEALS Short form judgments 32.24N
APPEALS requirements in civil matte
APPEALS no appeal against an acquit
APPEALS to serve that purpose. Ther
33 Boards and Tribunals Boards and
BOARDS AND TRIBUNALS consistent pro
BOARDS AND TRIBUNALS 374. If all bo
BOARDS AND TRIBUNALS 383. Original
BOARDS AND TRIBUNALS 391. Where the
34 The Court Environment Architectu
THE COURT ENVIRONMENT there walls,
THE COURT ENVIRONMENT them. Court s
THE COURT ENVIRONMENT of courts adj
THE COURT ENVIRONMENT 412. Future c
THE COURT ENVIRONMENT Courts’. As
THE COURT ENVIRONMENT Self-represen
THE COURT ENVIRONMENT vulnerable wi
35 Technology and Justice The impac
TECHNOLOGY AND JUSTICE Uniformity i
TECHNOLOGY AND JUSTICE Authenticity
TECHNOLOGY AND JUSTICE 35.17 Recent
TECHNOLOGY AND JUSTICE 35.23 In the
36 The Legal Profession The legal p
THE LEGAL PROFESSION role of the le
THE LEGAL PROFESSION • While ther
THE LEGAL PROFESSION through to the
37 Private Civil Courts The adversa
PRIVATE CIVIL COURTS 446. Private c
Appendix 1 Acknowledgments The memb
ACKNOWLEDGEMENTS Charles Brookes Do
ACKNOWLEDGEMENTS Lizzie Hill Gisell
ACKNOWLEDGEMENTS Hon Judge MDF O’
ACKNOWLEDGEMENTS Anna Wasylkewycz M
GLOSSARY Applicant Application to s
GLOSSARY Disbursements Discovery Mo
GLOSSARY 'Interest-based' mediation
GLOSSARY Plaint Plaintiff Practisin
GLOSSARY and a timetable for the ca
REVIEW OF THE CRIMINAL AND CIVIL JU
Bibliography of In-text References
BIBLIOGRAPHY of Court Rules and Pro
BIBLIOGRAPHY Family Law Act 1975 (C
REVIEW OF THE CRIMINAL AND CIVIL JU
List of Recommendations The justice
RECOMMENDATIONS 14. The Criminal Co
RECOMMENDATIONS (3) the practitione
RECOMMENDATIONS (2) if a practition
RECOMMENDATIONS 54. The current pra
RECOMMENDATIONS 74. The neutral con
RECOMMENDATIONS specified in the li
RECOMMENDATIONS 106. Either party s
RECOMMENDATIONS 124. Court staff sh
RECOMMENDATIONS 141. Limited contin
RECOMMENDATIONS 160. All Local Cour
RECOMMENDATIONS 174. Unless good ca
RECOMMENDATIONS practice direction
RECOMMENDATIONS 203. The Local Cour
RECOMMENDATIONS (3) The Act include
RECOMMENDATIONS 226. The use and ex
RECOMMENDATIONS 246. Where there ar
RECOMMENDATIONS 258. If practicable
RECOMMENDATIONS can be overcome by
RECOMMENDATIONS (3) enabling senten
RECOMMENDATIONS (3) any other agree
RECOMMENDATIONS at the close of the
RECOMMENDATIONS 340. When a ruling
RECOMMENDATIONS be made before the
RECOMMENDATIONS 376. The WACAT shou
RECOMMENDATIONS 393. Full-time and
RECOMMENDATIONS seek feedback from
RECOMMENDATIONS 436. All technologi