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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 term now refers to more serious crimes such as murder or armed robbery but is not subject to the same punishments as defined felonies at common law. Filing of entry for trial Hand-up brief Hearsay High Court of Australia Implied assertion In camera Indemnity costs Indemnity principle Independent Bar Indictable offence 'Individual docket system' Informations Injunction/injunctive relief Once the court is satisfied that all aspects of preparing for trial have been completed satisfactorily, parties can apply to have the case listed for trial. The brief that the prosecution prepares in indictable matters consisting of a copy of each witness's written statement that the prosecution is proposing to tender in evidence in the committal. It is not intended to, and usually does not, comprise a comprehensive disclosure of the case the State will present at trial. Material tendered in evidence as proof of the truth of facts stated by a person not called as a witness. The most senior judicial tribunal in Australia. Appeals from the Supreme Court are only allowed with the grant of special leave by the High Court. Relevant to the hearsay rule. An example of an implied assertion is a statement such as 'Hello Mary'. The statement does not assert that Mary was present at the time it was said as would the statement 'Mary was there', but it implies that she was. In terms of the rule against hearsay, an implied assertion is regarded as more reliable than a direct assertion. In private; excluding the public from judicial proceedings. An award of costs against the losing party to indemnify the winning party for all but unreasonable costs incurred in the litigation. Can include costs above scale rates. Normally used as a sanction. Like the 'loser pays principle', the losing party will pay the winning party for costs reasonably incurred in the proceeding. Rarely in practice an 'indemnity'. Although all certified practitioners in Western Australia are admitted as barristers and solicitors, the Independent Bar consists of lawyers who practise only as barristers and who only take work from other legal practitioners. Criminal offences of a more serious nature which are usually dealt with by a judge and jury in either the District or Supreme Court. In some instances, an election may be made to have an indictable offence dealt with summarily — in the lower courts without a jury, or by a judge alone in the higher courts. The case management system implemented in the Federal Court, with a judge being allocated management of a case from commencement to conclusion. It provides for directions, procedures and listings that are individually tailored to the case, at the judge's discretion. Documents which contain the details of criminal charges of which a person is accused. Another term for the 'Complaint' used to commence criminal proceedings in the Court of Petty Sessions. The equivalent of indictments in higher courts. Court orders which either restrain a party from doing, or compel him or her to do, a particular thing. 412

GLOSSARY 'Interest-based' mediation or dispute resolution Interlocutory processes or procedures Internet JJT JP Judicial review Judge Judgment by consent Judgment by default Judgment: summary Jurisdiction Justice of the Peace (JP) Juvenile Justice Team (JJT) Leading question Leave Legal Professional Privilege Listing conference A form of dispute resolution concerned with reconciling the parties' underlying interests as opposed to determining which one is 'right'. The various steps which take place between the commencement of a case and trial; matters incidental to a case and not finally determinative of the outcome. Short for the 'International Network', the Internet is a linkage of computers joined by telephone lines and fibre-optic cables. Juvenile Justice Team. Justice of the Peace. Review of legal determinations by the courts — may be applied to the review of governmental determinations if those determinations raise issues of law. Judicial officer of the higher courts (District and Supreme) — different to magistrates who sit in the Court of Petty Sessions and Local Court. Note however, the term is not always strictly applied and can be used to include magistrates also — as often meant by 'trial judges' or 'judicial officers'. Where both parties agree to the decision of the court. Where a plaintiff obtains judgment in his or her favour because of the defendant's failure to defend the complaint. A procedure where the court gives one party judgment without proceeding to a full trial. Evidence is on affidavit. Refers to the authority conferred on a particular court to 'adjudicate' or decide a dispute. Person appointed by the State to be a justice within a certain area. In most States except Western Australia justices of the peace have had their judicial functions reduced and now only have powers in relation to bail applications. A diversionary procedure for the victims of juvenile offenders to negotiate with the offender and his or her family to achieve an outcome satisfactory to all. The victim's consent is required to any proposed outcome of a JJT process. A question which suggests the answer being sought. Permission — as in 'leave of the court is required to appeal'. The rule of evidence according to which certain communications between a client and his or her legal adviser cannot be produced in evidence. Presently, conferences held shortly after a matter is entered for trial or application is made for a hearing date. The listing conference is held before a judge in chambers. The judge may review documents, enquire about settlement, establish which documents can be admitted into evidence by consent, the number and availability of witnesses, the time their evidence will take and so on. The judge may also determine any question of 413

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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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    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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  • Page 295 and 296: THE COURT ENVIRONMENT them. Court s
  • Page 297 and 298: THE COURT ENVIRONMENT of courts adj
  • Page 299 and 300: THE COURT ENVIRONMENT 412. Future c
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  • Page 307 and 308: 35 Technology and Justice The impac
  • Page 309 and 310: TECHNOLOGY AND JUSTICE Uniformity i
  • Page 311 and 312: TECHNOLOGY AND JUSTICE Authenticity
  • Page 313 and 314: TECHNOLOGY AND JUSTICE 35.17 Recent
  • Page 315 and 316: TECHNOLOGY AND JUSTICE 35.23 In the
  • Page 317 and 318: 36 The Legal Profession The legal p
  • Page 319 and 320: THE LEGAL PROFESSION role of the le
  • Page 321 and 322: THE LEGAL PROFESSION • While ther
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  • Page 325 and 326: 37 Private Civil Courts The adversa
  • Page 327 and 328: PRIVATE CIVIL COURTS 446. Private c
  • 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
  • Page 341: GLOSSARY Disbursements Discovery Mo
  • Page 345 and 346: GLOSSARY Plaint Plaintiff Practisin
  • Page 347 and 348: GLOSSARY and a timetable for the ca
  • Page 349 and 350: REVIEW OF THE CRIMINAL AND CIVIL JU
  • Page 351 and 352: Bibliography of In-text References
  • Page 353 and 354: BIBLIOGRAPHY of Court Rules and Pro
  • Page 355 and 356: BIBLIOGRAPHY Family Law Act 1975 (C
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  • Page 359 and 360: List of Recommendations The justice
  • Page 361 and 362: RECOMMENDATIONS 14. The Criminal Co
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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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