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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 voices and silence people by means of (often unnoticed) social dominance behaviours. A ‘withdrawal space’ would provide a significant brake on the capacity of a dominant personality or groups to control jury deliberations. PROPOSED JURY ROOM FRESH FLOWERS WATER GARDEN IN ENCLOSED COURTYARD OR BALCONY WITHDRAWAL SPACE ROUND JURY TABLE CARPET REST AREA — TEA AND COFFEE SEPARATE FROM WITHDRAWAL SPACE 420. The importance of jury service should be recognised by providing pleasant facilities for jurors including round tables in jury rooms with natural light, appropriately screened outside views, withdrawal spaces, comfortable seating, and good quality fittings and furnishings. 421. Instructions for juries should be developed to provide each juror with an equal opportunity to speak and be heard during deliberations. The legal profession 34.35 As the legal profession is a frequent user of the courts, spaces which serve the profession deserve attention. However, as non-legal users have the least voice in the design of courts, it is their needs which are the focus of this Chapter. 422. The design requirements and practical needs of the legal profession as regular court facility users should be surveyed prior to developing or renovating future court facilities. Courtrooms 34.36 Courtrooms are complex places. They require separate entrances and circulation systems for judges, prisoners, the public and, in some cases, 314

THE COURT ENVIRONMENT vulnerable witnesses. Courts use different height elevations for different participants. Courtrooms increasingly include security devices, computerised information systems, closed circuit television and other equipment (See Chapter 35.) Separation, elevation, information; these criteria make the design of courtrooms a costly and difficult process. 34.37 Courtrooms in Australia have largely remained unchanged in their traditional configurations for at least a century, while new technology has been added around the existing shapes and spaces. In the traditional courtroom: • judges sit in the middle at the front on an elevated bench; • prosecution and defence lawyers sit side-by-side in the space below the bench facing the judge; • witness boxes are usually on one side, jury boxes on the other; • prisoners’ docks are at the back in some criminal courtrooms, or on the side, opposite the witness box, in others, and both are elevated. Social distance, personal space and audibility 34.38 Studies have been undertaken which document the culturally defined boundaries of social distance and personal space. Court processes often violate these boundaries through inappropriate intimacy or excessive distancing. It also is probable that such spacings will impact differently upon people from various cultural, social or occupational groups. Other studies have shown that schizophrenics and violent prisoners also have different perceptions of what are appropriate personal spaces. 34.39 Audibility is another problem in modern courtrooms. The furniture layout, the distances involved, the exposed nature of the witness box, the lack of adjacent support people and the adversarial nature of questioning combined with the formality and the lack of familiarity with the proceedings mean that most people may not be comfortable speaking in court. Unlike lawyers, most people are not trained to be verbally competent in the courtroom situation and are at a disadvantage. Non-verbal gestures also are a significant component in properly interpreting testimony. Audibility issues, broadly defined, raise further issues of gender and culture that are not addressed merely by better acoustics. Flexible architecture 34.40 One of the few predictions that can be made with any certainty is that the demands placed on courtrooms are likely to change in ways which cannot be foreseen. In a technologically evolving society, and for the reasons given above, flexibility of furniture and layout are highly desirable. The ALRC (1999f) believes that the provision of facilities for alternative processes within the court is extremely important to furthering the success of, and confidence in, such processes within the existing court structures. We agree. 315

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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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    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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  • Page 263 and 264: 32 Appeals The system of appeals Ap
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  • Page 271 and 272: APPEALS 355. Order 65B rule 3 (3)b
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  • Page 309 and 310: TECHNOLOGY AND JUSTICE Uniformity i
  • Page 311 and 312: TECHNOLOGY AND JUSTICE Authenticity
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  • Page 329 and 330: Appendix 1 Acknowledgments The memb
  • Page 331 and 332: ACKNOWLEDGEMENTS Charles Brookes Do
  • Page 333 and 334: ACKNOWLEDGEMENTS Lizzie Hill Gisell
  • Page 335 and 336: ACKNOWLEDGEMENTS Hon Judge MDF O’
  • Page 337 and 338: ACKNOWLEDGEMENTS Anna Wasylkewycz M
  • Page 339 and 340: GLOSSARY Applicant Application to s
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  • Page 351 and 352: Bibliography of In-text References
  • Page 353 and 354: 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