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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 • management where control is exercised by requiring the parties to report to the court at fixed milestones and where the court exercises routine and structured control (master list model). 12.3 The first model is expensive and requires frequent appearances by the parties. It is normally suited only to complex cases. The second is effective and relatively inexpensive and reduces the number of interlocutory appearances. A differential case management concept — which recognises that different types of cases require different types and levels of judicial management — is becoming increasingly popular. Case management: efficiency or cost Case management is, I think, a good example of the need to match the extensiveness of the procedure with the magnitude of the dispute. Small and medium-sized cases cannot afford extensive judicial management Justice GL Davies, Supreme Court of Queensland (1997) 12.4 There seems little doubt that the current trend towards increased judicial involvement has the potential to absorb more court resources and to increase the costs of the parties by subjecting the pre-trial stage of litigation to constant intervention. It also appears that the most expensive case management schemes are those which involve multiple conferences. The regime recommended by us seeks, so far as possible, to minimise the number of interlocutory conferences. In our view those conferences largely should follow the form of the current case management structure — with an initial case management conference (to assess ADR options), a status conference and a listing conference. 76. In the usual case there should be only three mandatory pre-trial conferences. Judicial intervention beyond that should be restricted to large or complex matters or on the basis of demonstrable need, including the involvement of self-represented litigants. (See Recommendation 202.) A special list should be established for cases requiring extensive case management. 77. If assessed as not suitable for ADR at a case management conference, a status conference should be held within four weeks of that assessment. If assessed as suitable, but not resolved through ADR, a status conference should be held within four weeks of the determination. The status conference would follow the form of the current status conference in the Supreme Court. At that hearing the court would consider what level of continuing management is appropriate and give such case management directions as the court thinks fit based on: (1) an examination of issues related to disclosure, case statements and expert evidence; and (2) consideration of the potential for summary judgment or trial of preliminary issues, and an agreed statement of facts. 98

CASE MANAGEMENT 78. A listing conference should be held once a case has been entered for trial. That conference would follow the procedure of the current listing conference in the Supreme Court. A party would not be entitled to enter a case for trial where any previous case management directions had not been complied with, except with the leave of the court. Who should manage cases? 12.5 At present a case management registrar conducts status and case evaluation conferences, with extensive powers to make ‘case management directions’ under Order 29A rule 3 of the Supreme Court Rules. The listing conference is held before a judge in chambers. The ALRC (1999c) has identified a lack of continuity between pre-trial hearings and trial as an obstacle to efficient case management. The transition from a court official who oversees the pre-trial hearings to the trial judge inevitably results in a lack of continuity in the treatment of issues raised and the requirement that two court officials rather than one become familiar with the issues in dispute. 12.6 In reviewing the civil system in England and Wales, Lord Woolf (1996) was of the view that the functions involved in the ‘active management of litigation’ are judicial. These functions include: • identifying the issues to be resolved; • summarily disposing of some issues; • deciding on the order in which remaining issues are to be resolved; • fixing timetables for parties to take particular steps; and • limiting disclosure and expert evidence. The character of case management 12.7 Under our recommended reform of the civil case management regime in Western Australia, the difficult question arises of which court official is appropriate to conduct pre-trial conferences. In spite of some concerns about the resource implications and fears of apparent bias, it is our view that the trial judge should take the conduct of the status and listing conferences. However, someone other than the trial judge should conduct the preliminary assessment at case management conferences of cases’ suitability for ADR and the appropriate form of ADR (discussed in Chapter 11). The kinds of issues to be assessed may not be regarded by the parties as appropriate to be raised before the trial judge. In our view registrars would be most appropriate to conduct case management conferences, unless the parties consent to the conference being conducted by the supervising judge. 79. A registrar should conduct the case management conference, unless the parties consent to it being conducted by the supervising judge. In the usual case, the proposed trial judge should conduct the status and listing conferences. 99

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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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    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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