REVIEW OF THE CRIMINAL AN

REVIEW OF THE CRIMINAL AND CIVIL JUSTICE SYSTEM representatives should be required to notify their clients and, in particular, advise that no action has been taken on the case for six months when the matter is entered on the Inactive Cases List. An inactive case may be removed from the List only by order of the court. After six months on the List a proceeding should be administratively dismissed for want of prosecution. A party should require leave of the court to re-issue proceedings. [12.10] 81. Any case dismissed for want of prosecution, whether judicially or administratively, should require leave of the court to re-issue proceedings. Leave to re-issue should be determined on the same criteria as ought to apply to leave to issue proceedings outside the limitation period as recommended previously by this Commission in our 1997 Report, No 36, Part II, and only should be given in the interests of justice. [12.10] Disclosure 82. The case manager should have a discretion, usually exercised at the status conference, to order disclosure of documents that are directly relevant to the issues in dispute. The party who is seeking the documents should apply for disclosure. Leave should only be granted where the case manager has identified a category of documents which bears directly on an issue arising out of the exchange of case statements. The case manager must be satisfied the disclosure would contribute to the just resolution of the case so that the time and cost involved are proportional to the significance of the dispute. [13.8] 83. The court should retain a discretion to order disclosure in phases, particularly for, but not limited to, drawing a distinction between documents relating to issues of liability, and documents relating to issues of damages. [13.8] 84. Strict time limits for complying with orders for disclosure should be imposed and not be departed from unless there exists very good cause. [13.8] 85. No subpoena against a party to compel production of documents in relation to a civil action should be allowed. [13.9] 86. Applications for further and better disclosure ought to be allowed where there exist reasonable grounds for belief that a document exists which has not been disclosed and which falls within a category identified by the case manager as bearing directly on an issue arising out of the exchange of case statements. [13.10] 87. Disclosure by verification on oath of a list of documents should be retained. In the affidavit of disclosure a party should depose that reasonable enquiries have been made and there exist no documents other than those 352

RECOMMENDATIONS specified in the list that are directly relevant to any of the categories of documents identified by the case manager. [13.12] 88. In every case in which disclosure is provided, the solicitor, if any, shall certify that: (1) the obligations of disclosure have been fully explained to the client; and (2) the solicitor is not aware of any documents that are directly relevant to any of the categories of documents identified by the case manager which have not already been disclosed. [13.12] 89. When it is clear that a party providing disclosure appears to be misinterpreting the test of direct relevance, or shielding behind that test, the case manager should have a discretion to permit cross-examination on an affidavit of disclosure prior to trial. [13.12] 90. Leave to interrogate must be obtained from the case manager in any matter, usually at the status conference. [13.14] 91. Leave to deliver interrogatories should only be granted if a case manager is satisfied that there is not likely to be available any other reasonably simple and inexpensive way of proving the matter at trial. Leave also should be granted if the party seeking to deliver interrogatories can demonstrate an unfair disadvantage if leave is not granted. The application should be accompanied by a draft of intended interrogatories. [13.14] 92. The number of interrogatories should be as few as is practicable and generally not more than 30 unless the case manager otherwise directs. The number of interrogatories is to be determined by treating each distinct question as one interrogatory. [13.14] 93. All disclosed documents, including those appended to case statements, should be automatically capable of being admitted into evidence without reference to a witness, unless the authenticity of the document is disputed. The weight to be given to any disclosed documents will be a matter for the court. [13.15] 94. The only opportunity to query or object to an interrogatory should be at the time the case manager’s approval of the draft list of interrogatories is being sought. [13.16] 95. An answer to an interrogatory should be given directly and without evasion or resort to technicality. [13.16] 353

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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
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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
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 and 342: GLOSSARY Disbursements Discovery Mo
Page 343 and 344: GLOSSARY 'Interest-based' mediation
Page 345 and 346: GLOSSARY Plaint Plaintiff Practisin
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
Page 357 and 358: REVIEW OF THE CRIMINAL AND CIVIL JU
Page 359 and 360: List of Recommendations The justice
Page 361 and 362: RECOMMENDATIONS 14. The Criminal Co
Page 363 and 364: RECOMMENDATIONS (3) the practitione
Page 365 and 366: RECOMMENDATIONS (2) if a practition
Page 367 and 368: RECOMMENDATIONS 54. The current pra
Page 369: RECOMMENDATIONS 74. The neutral con
Page 373 and 374: RECOMMENDATIONS 106. Either party s
Page 375 and 376: RECOMMENDATIONS 124. Court staff sh
Page 377 and 378: RECOMMENDATIONS 141. Limited contin
Page 379 and 380: RECOMMENDATIONS 160. All Local Cour
Page 381 and 382: RECOMMENDATIONS 174. Unless good ca
Page 383 and 384: RECOMMENDATIONS practice direction
Page 385 and 386: RECOMMENDATIONS 203. The Local Cour
Page 387 and 388: RECOMMENDATIONS (3) The Act include
Page 389 and 390: RECOMMENDATIONS 226. The use and ex
Page 391 and 392: RECOMMENDATIONS 246. Where there ar
Page 393 and 394: RECOMMENDATIONS 258. If practicable
Page 395 and 396: RECOMMENDATIONS can be overcome by
Page 397 and 398: RECOMMENDATIONS (3) enabling senten
Page 399 and 400: RECOMMENDATIONS (3) any other agree
Page 401 and 402: RECOMMENDATIONS at the close of the
Page 403 and 404: RECOMMENDATIONS 340. When a ruling
Page 405 and 406: RECOMMENDATIONS be made before the
Page 407 and 408: RECOMMENDATIONS 376. The WACAT shou
Page 409 and 410: RECOMMENDATIONS 393. Full-time and
Page 411 and 412: RECOMMENDATIONS seek feedback from
Page 413 and 414: RECOMMENDATIONS 436. All technologi

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