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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 adversarial system Civil litigation 5. The civil justice system should be managed in order to be expeditious, proportionate, and both procedurally and substantively just. [6.7] 6. Legislation should be enacted applying the objects clause (at Recommendation 5) to all legislation impacting upon civil justice, including Rules of Court, so that the principles on which the civil justice system rests are clearly set out. [6.7] 7. Rules and procedures should be amended to allow courts to require legal representatives and self-represented litigants to report to case managers (in confidence) where a matter has settled so that surveys can be carried out. [6.12] 8. Where litigants are able to make a greater contribution to the cost of accessing the civil justice system they should do so and it should be proportional to the cost to the public of conducting the case. [6.17] 9. As new court fee scales are scheduled, the costs for businesses to access the public civil justice system should be higher than the fees charged to other users, to balance the tax deductibility of legal expenses for businesses. [6.18] Criminal litigation 10. The court registry should create and use files relating to each individual defendant who has a charge or charges pending, rather than files relating to each individual charge pending against a defendant. [7.24] 11. Each file relating to an individual defendant in the Courts of Petty Sessions should be allocated to a magistrate other than the trial magistrate to exercise jurisdiction over pre-trial matters concerning the defendant. [7.24] 12. The pre-trial magistrate should have powers to: (1) grant investigative or forensic powers, such as issuing warrants for search and seizure upon application by the police or prosecution; (2) impose time limits on the parties; (3) oversee the exchange of information between the prosecution and defence— subject to the defendant’s right not to disclose his or her defence; and (4) assist in the identification of issues. [7.24] 13. An abbreviated documentary procedure for trial of certain summary offences should be introduced and available at the election of the defendant. [7.26] 342

RECOMMENDATIONS 14. The Criminal Code 1913 (WA) should be amended to include, as far as possible, all indictable offences. All matters relating to criminal procedure should be removed. [7.29] 15. A Summary Offences Act, as recommended by this Commission in 1992, should be enacted to include, as far as possible, all summary offences. [7.29] 16. A comprehensive code of criminal practice procedure should be developed. [7.29] 17. In rationalising criminal law and procedure in Western Australia consideration should be given to the recommendations of this Commission (1994) in its report on the British Imperial legislation which continues to apply in Western Australia. [7.29] Means of commencing civil proceedings 18. The sole form of originating process in Western Australia should be known as an ‘Application’. [9.9] 19. In the usual case, the Application should be endorsed with details of the applicant’s case. (See Recommendation 26.) In exceptional circumstances leave of the court may be obtained to provide details of the case separately. [9.9] 20. Prerogative writs should be abolished and actions for judicial review of public agencies and officers should be commenced by Application like other civil actions. [9.12] 21. There should be no requirement to establish an ‘error of law on the face of the record’ in an Application to review actions of public agencies and officers. [9.12] Pleadings 22. The system of formal written pleadings and the procedural code of rules by which it is governed should only apply in exceptional cases, to be identified by a case manager. (And see Recommendations 36 and 37.) [10.8] 23. The term ‘pleadings’ only should be used to refer to the exception referred to in Recommendations 36 and 37. Generally ‘case statements’ should be used to describe Applications, Responses and other documents which parties exchange in civil actions to outline their cases. [10.8] 24. Case managers should have the power to order parties to confer and file a statement of agreed facts. [10.9] 25. The failure to agree facts not in contention should result in costs orders as appropriate. [10.9] 343

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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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    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

  • 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
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  • Page 337 and 338: ACKNOWLEDGEMENTS Anna Wasylkewycz M
  • Page 339 and 340: GLOSSARY Applicant Application to s
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  • Page 347 and 348: GLOSSARY and a timetable for the ca
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  • 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: List of Recommendations The justice
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    RECOMMENDATIONS seek feedback from

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    RECOMMENDATIONS 436. All technologi

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