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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 …a fathomless and boundless chaos, made up of fiction, tautology, technicality and inconsistency, and the administrative part of it a system of exquisitely contrived chicanery which maximises delay and the denial of justice. Jeremy Bentham quoted in Dillon (1907) 494 More recent reforms — case management abolished the common law system of pleading and introduced a system with essential features which still operate in the Supreme and District Courts of Western Australia today. The reforms of the Judicature Acts originated in the rapidly changing social and economic conditions in England during the 19th century associated with the industrial revolution. Parliament acknowledged a significant and sustained public attack on the legal system articulated in the newspapers and in the intellectual critique of Jeremy Bentham and his followers. 8.4 Most but not all aspects of the civil justice system in Western Australia have remained unchanged since the local adoption of the reforms of the Judicature Acts more than a century ago. Significant reforms in recent years have seen the courts take a more active role in monitoring and managing civil litigation. These changes often conflict with the traditional notion of the adversarial character of the civil justice system. 8.5 In 1990 the Supreme Court introduced an ‘Expedited List’ to provide a procedure for bringing urgent commercial and other civil disputes to trial more quickly. The next important phase of reform commenced with the introduction in 1993 of a delay elimination goal in the Supreme Court Rules. Further revisions commencing in November 1996 brought into operation a full system of controlling the various stages of a civil action through ‘case flow management’. Case management in the higher courts 8.6 Although amendment of the Supreme Court Rules in 1993 improved the efficiency of the litigation process, the amendments did not bring about as much change as had been hoped. Further changes made in 1996 evolved out of consultation with members of the Supreme Court and legal profession. The procedure was meant to secure efficient and timely disposal of matters through continuous supervision by the court. The amendments allowed for: • status conferences — to bring all parties before a court officer at the earliest possible point in time. Options for settlement and a timetable for the case can be reviewed. Long and complex matters are transferred to a ‘Long Causes List’ for a judge to manage; • case evaluation conferences — which are held within seven months after the summons to the status conference. These enable parties to review progress in the matter with the court; and • listing conferences — which are 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 law or procedure. 64

CIVIL SYSTEM — OVERVIEW 8.7 The Supreme Court created a case management registrar with extensive and significant power to make ‘case management directions’ at the status and evaluation conferences. These directions can limit or dispense with pleadings and other interlocutory steps, direct any or all parties or experts to attend ‘without prejudice’ settlement conferences and require solicitors to give clients memoranda of costs. We review the case management procedures of the higher courts in Chapter 9. In Chapter 17 we examine the case management and other legal procedures of the Local Courts. Case management in the Local Court 8.8 As a result of amendments introduced in 1987, the Local Courts Act requires that within 14 days of the time for filing the defence, a pre-trial conference should be scheduled. Amongst other things, the pre-trial conference examines the likelihood of settlement, delineates issues in dispute, and considers the state of preparation of the parties’ cases and other procedural matters. 8.9 The bulk of matters commenced in the Local Court, however, are debt recovery matters. These are often resolved by default or summary judgment soon after the Plaint is issued. Therefore, many cases at this level of court are not subject to case management processes. Of matters not resolved through default or summary judgment, however, many are settled at the pre-trial conference. 8.10 The introduction of case management principles has had an effect on the efficiency of the civil justice system, although it is not without its critics. Some argue that judges have been over-zealous in the application of its principles. Even the much-heralded reforms of the civil system of England and Wales resulting (in April 1999) from Lord Woolf’s (1996) review have been subject to trenchant criticism. Furthermore, any changes may take many years and considerable litigation to settle their meaning. Other ‘reforms’ Reforming civil justice 8.11 At the same time as the implementation of case management procedures by the courts, there have been reductions in legal aid and an increasing number of self-represented litigants. The increase in self-represented litigants before the courts has significant implications for all aspects of the civil justice system as access to the legal system and justice between the parties have become increasingly difficult to sustain in this context. Many of our recommendations for reform have been drafted with a view as to how the civil justice system can best manage this phenomenon. We consider this problem particularly in Chapter 18. 8.12 The system for resolution of civil disputes in Western Australia has evolved over several centuries. However, its principal features can be traced back to the significant English reforms from the latter part of the 19th century. While important changes have occurred since reforms arising from the 65

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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

  • 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
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  • 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
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  • Page 59: 8 Civil System — Overview Alterna
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  • Page 67 and 68: 10 Pleadings What are pleadings? Ar
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  • Page 93 and 94: 12 Case Management Case management
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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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