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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 determined by a plea of guilty. In 1996/97, 90 per cent of police charges in the Courts of Petty Sessions were determined by pleas of guilty (CRC 1998). Plea bargaining 7.19 Where a guilty plea is open to the defendant, informal negotiations with the prosecution can be entered into to obtain a lessening of charges in return for a guilty plea. This is known as ‘plea bargaining’ in the United States. Although Australian courts are not actively involved in pre-trial negotiations and do not endorse them, negotiations between the prosecution and defence do occur in Western Australia and include agreement by the prosecution not to oppose a sentence proposal put to the court by the defence on a plea of guilty. The ‘negotiated pleas’ process can lead to an excessive emphasis on confessions. As a consequence, police may use unacceptable methods to put pressure on the defendant to confess which can lead to miscarriages of justice. (The ‘right to silence’ is discussed at Chapter 24.) Negotiated pleas also may result in a lack of public confidence in the system. Justice may be seen to be ‘for sale’ (by bargaining) and offenders seen to get off too lightly, particularly if negotiations are not formally acknowledged or regulated. 7.20 Despite the drawbacks, a number of European jurisdictions are investigating the introduction of guilty pleas in order to simplify and reduce the cost of the criminal justice system. This would be a significant move towards the adversarial approach, as it would entail precedence being given to the defendant’s wishes over any official inquiry into ‘the truth’. Management of cases prior to trial 7.21 One means of preventing some of the drawbacks associated with guilty pleas in adversarial systems is for pre-trial negotiations between the prosecution and the defence to be formally acknowledged and regulated. This is discussed further in Chapter 25, ‘Alternative Criminal Charge Resolution’ (ACCR). 7.22 There also should be greater pre-trial management of cases. In the Consultation Draft on this topic we proposed the establishment of a new ‘pre-trial court’. However, we believe the option explained below achieves the same outcomes without the duplication of court bureaucracies necessitated in establishing a separate court. Instead we recommend drawing on magistrates appointed to the Court of Petty Sessions to oversee the pretrial process. On the filing of charges, responsibility for the conduct of pretrial matters relating to the defendant’s progression through the criminal justice system should be allocated to a ‘pre-trial magistrate’ of the Court of Petty Sessions. Pre-trial process in the Court of Petty Sessions 7.23 Criminal complaints, whether charging summary or indictable offences, are initially filed in the Court of Petty Sessions. It is therefore in the Court of Petty Sessions that many of the pre-trial issues concerning the processing of 56

THE ADVERSARIAL SYSTEM OF CRIMINAL LITIGATION criminal charges arise. In our view, the pre-trial process would best be managed by the appointment of a magistrate to deal with all pre-trial matters affecting the defendant, the object being to manage the person and not the individual charge. The rule requiring separation of charges in the interests of not prejudicing the trial of a defendant on multiple but independent charges is intended to protect the interests of the defendant. (Refer to Chapter 26.) However this consideration does not apply to pre-trial matters. 7.24 The pre-trial magistrate should be responsible for managing all charges against a defendant and assume responsibility for granting investigative or forensic powers, such as issuing warrants for search and seizure upon application by the police or prosecution. The pre-trial magistrate also should have extensive powers to deal with issues arising from the progression of a defendant through the criminal justice system until such time as it becomes clear that a charge will need to proceed to trial or is otherwise resolved. 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. 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. 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. Accelerated trial processes 7.25 Greater curial management at the pre-trial stage could: • prevent delaying tactics; • clarify issues; • allow the early identification of the most appropriate way to proceed; and • speed up trials. 57

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    REVIEW OF THE CRIMINAL AND CIVIL JU

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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 and 32: THE CRIMINAL SYSTEM Sessions. If a
  • Page 33 and 34: THE CRIMINAL SYSTEM Jury or judge 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
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  • Page 43 and 44: 6 The Adversarial System of Civil L
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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
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  • Page 79 and 80: 11 Alternative Dispute Resolution W
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  • Page 93 and 94: 12 Case Management Case management
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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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