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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 The higher courts Legal representation Evidence 4.11 If the defendant is committed for trial on indictment or has pleaded guilty to charges not tried summarily, the matter is sent to the District or Supreme Court. The District Court has jurisdiction to deal with indictable matters other than those for which a penalty of life imprisonment may be imposed. This was the result of a significant expansion of the District Court’s jurisdiction in 1996. It was part of a broader program of legislative reform designed to address issues of access to justice and, in particular, to reduce the backlog of cases in the Supreme Court. (See Chapter 5.) Criminal matters may be determined in the District Court by a judge and jury, although in some cases the defendant may be tried by judge alone, a relatively recent legislative innovation discussed at Chapter 30. The Supreme Court has jurisdiction over all indictable offences, but usually hears only the most serious offences. A judge and jury try all matters unless the defendant elects to be tried by judge alone and the prosecution consents. The procedures of the higher courts are discussed at Chapter 29. 4.12 People accused of crimes may engage a private solicitor or barrister to represent them in court and will incur legal costs. Legal costs in criminal matters are discussed in Chapter 31. Alternatively, legal representation may be provided by Legal Aid, the Youth Legal Service, the Aboriginal Legal Service or by a duty solicitor from one of these organisations. Legal Aid is means tested and generally only people with very little income or few assets qualify for assistance. The other forms of representation referred to are generally provided free of charge or for a nominal fee. Many people also appear in court without legal representation. 4.13 Dietrich v The Queen, (1992) 177 CLR 292, highlighted the importance of the defendant’s legal representation in serious criminal cases. In that case, the High Court held that on serious charges the unavailability of legal representation might mean that the defendant is denied the possibility of a fair trial. However, in Australia there is no general right to legal representation. Chapter 34 recommends changes to assist self-represented litigants, including those charged with criminal charges, and in Chapter 35 we discuss, amongst other things, how technology may assist litigants who are not legally represented. 4.14 The criminal justice system must strike a balance between ensuring the conviction of guilty persons and protecting defendants from wrongful conviction. A right to a fair trial includes examination of the admissibility of evidence and scrutiny of how evidence was obtained. Rules of fairness, voluntariness and public policy apply to the admissibility at trial of responses to all police questioning regardless of the form of the evidence. However, past concerns surrounding the contents of confessional statements made to police have largely been resolved through the use of video-taping procedures where available. Recommendations to reform the rules of evidence affecting criminal trials are made in Section V and Chapters 27 and 29. 32

THE CRIMINAL SYSTEM Jury or judge alone? Conduct of the trial 4.15 If a matter proceeds to trial by jury, 12 men and women are empanelled, frequently with a reserve juror in case one of the 12 is unable to complete his or her duties. Both the prosecution and the defence are entitled to ‘challenge’ the selection of jurors — with eight peremptory challenges (challenges as of right) each and an additional right of challenge for cause. A challenge for cause requires the party objecting to a potential juror to provide to the court satisfactory reasons for the objection. The Attorney General currently is considering reducing the number of peremptory challenges available to parties at criminal trial. 4.16 A criminal trial commences with a plea by the defendant. If the defendant pleads guilty he or she will be sentenced in the normal manner. If the defendant pleads not guilty, the prosecution opens its case by outlining the facts on which it relies and calls prosecution witnesses. Each witness gives ‘evidence-in-chief’ for the prosecution and then may be cross-examined by the defence and re-examined by the prosecution. Once the prosecution has presented its case, the defence may argue that there is no case to answer. If the trial judge agrees he or she will direct the jury to enter a verdict of not guilty. If this argument is not raised or accepted by the judge, the defence can call evidence. 4.17 The defendant is not required to call any evidence or give evidence. This is because the prosecution bears the burden of proving its case beyond reasonable doubt. A defendant need not prove innocence. If a defendant elects to give evidence in his or her own defence, the evidence must be on oath and will be subject to cross-examination. 4.18 Both prosecution and defence are entitled to make a closing address consisting of a version or interpretation of the facts most favourable to their respective cases. If the defence calls no evidence it is entitled to make the address after the prosecutor, otherwise the defence must make its address first. The role of judge and jury 4.19 In jury trials the judge decides questions of law only, while the jury decides the facts. The judge will ‘sum up’ each side’s evidence and instruct the jury on the law. The judge also is required to warn the jury if there is any aspect of the trial suggesting that the evidence of a witness may be unreliable. After the judge’s instructions the jury retires to consider its verdict. If, after three hours, the jury is unable to reach a unanimous verdict it may be sufficient if a decision can be reached by not less than 10 jurors. If the jury cannot reach a verdict it will be discharged, and the matter may be tried again later. If the jury reaches a verdict, the defendant will be acquitted or convicted. The jury will then be discharged. If the judge hears matters without a jury, the judge determines both questions of fact and law. A matter tried by judge 33

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  • Page 5 and 6: 1 Touchstones The legal system on t
  • Page 7 and 8: TOUCHSTONES Procedure Expense and d
  • Page 9 and 10: TOUCHSTONES criminal justice system
  • Page 11 and 12: TOUCHSTONES him or her adversely. W
  • Page 13 and 14: 2 The Justice System The existing s
  • Page 15 and 16: THE JUSTICE SYSTEM acts even though
  • Page 17 and 18: THE JUSTICE SYSTEM various Acts and
  • Page 19 and 20: 3 The Civil System The origins of o
  • Page 21 and 22: THE CIVIL SYSTEM • in which a dis
  • Page 23 and 24: THE CIVIL SYSTEM Pleadings as forma
  • Page 25 and 26: THE CIVIL SYSTEM • settlement and
  • Page 27 and 28: THE CIVIL SYSTEM own costs but also
  • Page 29 and 30: 4 The Criminal System The criminal
  • Page 31: THE CRIMINAL SYSTEM Sessions. If a
  • Page 35 and 36: 5 Measuring the Justice System The
  • Page 37 and 38: MEASURING THE JUSTICE SYSTEM civil
  • Page 39 and 40: MEASURING THE JUSTICE SYSTEM increa
  • Page 41 and 42: MEASURING THE JUSTICE SYSTEM • th
  • Page 43 and 44: 6 The Adversarial System of Civil L
  • Page 45 and 46: THE ADVERSARIAL SYSTEM OF CIVIL LIT
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  • Page 49 and 50: 7 The Adversarial System of Crimina
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  • Page 59 and 60: 8 Civil System — Overview Alterna
  • Page 61 and 62: CIVIL SYSTEM — OVERVIEW 8.7 The S
  • Page 63 and 64: 9 Means of Commencing Civil Proceed
  • Page 65 and 66: MEANS OF COMMENCING CIVIL PROCEEDIN
  • Page 67 and 68: 10 Pleadings What are pleadings? Ar
  • Page 69 and 70: PLEADINGS Accordingly, we recommend
  • Page 71 and 72: PLEADINGS What should case statemen
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  • Page 75 and 76: PLEADINGS Amending case statements
  • Page 77 and 78: PLEADINGS (1) the documentation for
  • Page 79 and 80: 11 Alternative Dispute Resolution 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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    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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