Adib v Onur Pty Ltd (Ruling No 1)
[2025] VCC 938
•9 July 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| GENERAL LIST |
Case No. CI-24-01002
| MOHAMMAD ADIB (FORMERLY SHOHANI) | Plaintiff |
| v | |
| ONUR PTY LTD (ACN 101 183 804) | First Defendant |
| and | |
| KAPLAN BUILT PTY LTD (ACN 635 616 894) | Second Defendant |
| and | |
| ICON SCAFFOLDING | Third Defendant |
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JUDGE: | HER HONOUR JUDGE MYERS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17, 18, 19, 20, 23, 24, 25, 26, 27 and 30 June 2025 | |
DATE OF RULING: | 9 July 2025 | |
CASE MAY BE CITED AS: | Adib v Onur Pty Ltd & Ors (Ruling No 1) | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 938 | |
RULING
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Subject:PRACTICE AND PROCEDURE
Catchwords: Workplace injury – negligence – breach of statutory duty – application on third day of trial to amend pleadings to add further particulars of negligence, further breaches of statutory duty and breach of Australian and New Zealand Standard 1576.1
Legislation Cited: Occupational Health and Safety Regulations2017; County Court Civil Procedure Rules2018; Civil Procedure Act2010
Cases Cited:Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; Namberry Craft Pty Ltd v Watson [2011] VSC 136; Matthews v SPI Electricity Pty Ltd (Ruling No 6) [2012] VSC 70; Northern Health v Kuipers [2015] VSCA 172
Ruling: Application allowed in part.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Mighell KC with Ms K Popova | Zaparas Lawyers |
| For the First Defendant | Mr F A L Ryan SC Ms C A Kusiak | TG Legal + Technology |
| For the Second Defendant | Mr D Churilov | Barry Nilsson |
| For the Third Defendant | Mr G A Worth | Sparke Helmore |
HER HONOUR:
Introduction
1Mr Mohammad Adib, the plaintiff, was employed by the first defendant, Onur Pty Ltd (“the employer”) as a window and door installer from 2017.
2In this proceeding, Mr Adib sought damages for injuries he claimed to have suffered in an incident on 17 October 2019 (“the incident”) in the course of installing windows at a two-storey residential property being constructed in Highview Road, Balwyn North (“the property”).
3Mr Adib alleged that he was required to use scaffolding that was wet due to rainfall. He alleged that:
“… [He] slipped and fell through a gap between the scaffold and the wall of the premises. … [He] tried to arrest his fall by grabbing the scaffold but fell to the ground approximately 3m below.”[1]
[1]Second Further Amended Statement of Claim, paragraph [9]
4Kaplan Built Pty Ltd, the second defendant (“Kaplan”), was the main contractor/builder of the property.
5Icon Scaffolding, the third defendant (“Icon”), supplied and installed the scaffolding at the property.
6Mr Adib served a report from Mr Geoffrey Waddell, consulting engineer, dated 14 March 2025. Senior Counsel for Mr Adib informed the Court, prior to empanelment of the jury, that Mr Adib did not propose to call Mr Waddell.[2]
[2]Transcript (“T”) 3
7The trial was heard and determined by a civil jury of six over ten days, commencing on 17 June 2025.
8On 19 June 2025 (the third day of hearing), Mr Adib sought to further amend his Further Amended Statement of Claim.
9After hearing submissions from the parties, I allowed the application to amend in part.
10In order not to delay the trial, I indicated to the parties that I would publish my reasons for that ruling at a later time. These are my reasons.
Background
11On 27 February 2024, Mr Adib issued a Writ and Statement of Claim. He claimed general damages and loss of earning capacity damages from each of the defendants by reason of negligence and breach of statutory duty. He relevantly pleaded:
“11.The plaintiff’s injuries referred to in paragraph 10 hereof were caused by reason of the negligence of the first defendant, its servants or agents and/or the second defendant, its servants or agents and/or the third defendant, its servants or agents.
PARTICULARS OF NEGLIGENCE
(a) failing to provide and maintain a safe system of work;
(b) failing to provide and maintain a safe place of work;
(c) failing to provide and maintain safe plant and equipment for the performance of the work;
(d) failing to provide adequate and competent supervision for the performance of the work;
(e) failing to assess whether the work systems imposed on the plaintiff posed a risk of injury to the plaintiff and if so whether adequate risk control measures were provided;
(f) requiring the plaintiff to use scaffolding when it was wet and therefore dangerous to do so;
(g) requiring the plaintiff to use incomplete or defective scaffolding;
(h) failing to provide adequate scaffolding;
(i) failing to comply with the Occupational Health and Safety Regulations 2017.
12.Further, the first defendant and/or second defendant and/or third defendant is in breach of its statutory duties prescribed by the Occupational Health and Safety Act 2004 and the regulations made pursuant thereof.
PARTICULARS OF BREACH
The first defendant and second defendant and third defendant have breached statutory duties pursuant to the Occupational Health and Safety Regulations 2017:
(a) General Duties, regulation 18
(b) Hazardous Manual Handling, regulations 26, 27 and 28;
(c) Prevention of Falls, regulations 43 and 44;
(d) Plant, regulations 97, 98, 99, 104 and 118;
(e) Construction, regulations 325, 326, 327, 330 and 339.
13. Further, or in the alternative the second defendant and/or third defendant is in breach of its statutory duties prescribed by section 14B of the Wrongs Act 1958 (Vic).”
12The proceeding was first listed for trial on 25 March 2025 before a judge and jury. It was not reached. Consequently, the proceeding was relisted for trial with priority on 16 June 2025 before a judge and jury.
13On 13 May 2025, Mr Adib made application by summons for leave to file and serve an amended writ and statement of claim. The summons was supported by an affidavit sworn by his solicitor, Emily Jones, on 12 May 2025. The affidavit explained the circumstances in which further injuries were to be relied upon, but contained no explanation for the other proposed amendments sought to be made.
14On 27 May 2025, orders were made by consent granting leave to Mr Adib to file and serve the proposed Amended Writ and Statement of Claim.
15On 30 May 2025, Mr Adib filed the Amended Writ and Amended Statement of Claim.
16The amendments included the addition of two further injuries. Relevantly with respect to this application, paragraph 11 was amended, paragraphs 11A, 11B, 11C, 11D and 11E were added, and paragraphs 12 and 13 were deleted.
17Paragraphs 11 and 11A of the Amended Statement of Claim then alleged as follows:
“11.The plaintiff’s injuries referred to in paragraph 10 hereof were caused by reason of the negligence and/or breach of duty of the first defendant, its employees, servants or agents
and/or the second defendant, its servants or agents and/or the third defendant, its servants or agents.
PARTICULARS OF NEGLIGENCE
(a) failing to provide and maintain a safe system of work;
(b)failing to provide and maintain a safe place of work;
(c) failing to provide and maintain safe plant and equipment for the performance of the work;
(d) failing to provide adequate and competent supervision for the performance of the work;
(e) failing to assess whether the work systems imposed on the plaintiff posed a risk of injury to the plaintiff and if so whether adequate risk control measures were provided;
(f) requiring the plaintiff to use scaffolding when it was wet and therefore dangerous to do so;
(g) requiring the plaintiff to use incomplete or defective scaffolding;
(h) failing to provide adequate scaffolding;
(i) failing to comply with the Occupational Health and Safety Act2004 and the Regulations made thereunder.
Regulations 2017.(j)Failing to inspect the premises;
(k) Failing to inspect the scaffolding;
(l) Failing to warn the Plaintiff there was a gap in the scaffolding;
(m) Failing to perform any or any adequate risk assessment of the Plaintiff’s use of the scaffolding.
11A.Further, or in the alternative, the Plaintiff’s injuries referred to in paragraph 10 were caused by the breach by the first Defendant, its employees, servants or agents of its duty to the Plaintiff pursuant to the provisions of the Occupational Health and Safety Regulations 2017 and in particular Regulation 3.3.
PARTICULARS
(a) Failing to carry out any or any relevant hazard identification in relation to a fall hazard;
(b) Failing to eliminate so far as is reasonably practicable, the risk associated with a fall;
(c) Failing to reduce the risk so far as is reasonably practicable with a passage fall prevention device, work positioning system or fall arrest system;
(d) Failing to review and/or revise any measures implemented to control risk associated with a fall in the workplace;
(e) Failing to ensure, having identified the work the Plaintiff was required to carry out involved a risk of fall:
(i) eliminating the risk; or
(ii) reducing the risk –
so far as is practicable.”
18At paragraphs 11B and 11C, the plaintiff made identical allegations of negligence and breach of statutory duty against Kaplan as those made against the employer in paragraphs 11 and 11A.
19At paragraphs 11D and 11E, the plaintiff made identical allegations of negligence and breach of statutory duty against Icon as those made against the employer in paragraphs 11 and 11A.
20In the Amended Statement of Claim, the alleged breach of statutory duty was a breach of Part 3.3 (the falls regulations) of the Occupational Health and Safety Regulations 2017 (“the Regulations”).
21The following claims referable to the Regulations against each defendant were deleted in the amended pleading:
(a) breach of a general duty in regulation 18;
(b) breach of the hazardous manual handling provisions in regulations 26, 27 and 28;
(c) breach of the plant provisions in regulations 97, 98, 99, 104 and 118; and
(d) breach of the construction provisions in regulations 325, 326, 327, 330 and 339 were deleted.
22On 17 June 2025 (the first day of trial), Mr Adib made an application to further amend the Statement of Claim.
23The proposed amendments were to add an allegation of breach of Part 5.1 of the Regulations (the construction provisions) to paragraph 11A, and additional particulars as follows:
“(f) Failing to eliminate any risk associated with construction work.
(g) In the alternative, failing to reduce any risk associated with the construction work.
(h) Failing to prepare any or any proper Safe Work Method Statement for work being performed upon the scaffolding.”
24Mr Adib sought to amend paragraph 11C (with respect to Kaplan) and paragraph 11E (with respect to Icon) in identical terms.
25The defendants did not oppose the application. Leave was granted to Mr Adib to file and serve the proposed Further Amended Statement of Claim prior to empanelling the jury.
26In order to understand the circumstances in which the application to further amend the Further Amended Statement of Claim arose, it is necessary to say something about the course of the trial.
27On 17 June 2025, the jury was empanelled. Senior Counsel for Mr Adib opened the case. Senior Counsel for the employer, counsel for Kaplan, and counsel for Icon briefly identified the issues. Mr Adib completed his evidence-in-chief. Senior Counsel for the employer commenced cross-examination of Mr Adib.
28On 18 June 2025, Senior Counsel for the employer concluded cross-examination of Mr Adib, and he was cross-examined by counsel for Kaplan.
29At 2.15pm on 18 June 2025, Senior Counsel for Mr Adib made application to interpose two witnesses, Mr Genc and Mr Spaulding. They were in attendance at Court as it had been anticipated cross-examination of Mr Adib would have been completed in the course of the morning. The Court was advised that the witnesses’ personal circumstances weighed in favour of interposing their evidence. The defendants did not oppose the application.
30Mr Genc gave evidence and was cross-examined. He was Mr Adib’s co-worker at the property on the day of the incident.
31Mr Spaulding commenced his evidence. He is a retired WorkSafe inspector who attended the property on the day of the incident and issued two WorkSafe Entry Reports, both dated 17 October 2019.
32During Mr Spaulding’s evidence-in-chief, an issue arose as to the admissibility of parts of the WorkSafe Entry Reports.
33One of the objections raised by counsel for Kaplan, was that the WorkSafe Entry reports contained opinion evidence as to breaches of regulation 118 of the Regulations, and non-compliance with the Australian and New Zealand Standard AS/NZS 1576.1 (“the Standard”) not relevant to the case as pleaded.
34During the course of submissions in response, Senior Counsel for Mr Adib indicated that he would seek to further amend the Statement of Claim to plead a breach of the Standard, and a breach of Part 3.5 of the Regulations.
35On 19 June 2025, the third day of trial, Mr Adib made the foreshadowed application to further amend the Further Amended Statement of Claim as follows:
(a) To add an additional particular of negligence against each defendant – failing to comply with the Standard;
(b) To add breaches of Part 3.5 of the Regulations to paragraphs 11A, 11C and 11E, and the following additional particulars:
“(i) Failing to comply with the regulations in respect of plant, including regulations 93, 94, 97, 98, 99, 104, and 118;
(j) Failing to ensure that the plant is inspected and maintained to ensure that any risk arising from the use of plant is so far as reasonably practicable, eliminated or reduced (regulation 93);[3]
[3]Mr Adib withdrew his application to amend to include particulars (j) and (k) in the course of reply submissions on the proposed amendments: T217
(k) Failing to make a record detailing any inspection or maintenance carried out on the plant under regulation 93 (regulation 94);
(l) Failing, so far as is reasonably practicable, to identify all hazards associated with the installation, erection, commissioning, decommissioning, dismantling and use of plant at the workplace where the plant is used or located and the systems of work associated with the plant (regulation 97);
(m) Failing, so far as is reasonably practicable, to eliminate any risk associated with plant or reduce the risk (regulation 98);
(n) Failing to ensure, so far as is reasonably practicable, that guarding designed as a measure to control risk associated with plant will prevent access to the danger area of the plant (regulation 99);
(o) Failing to ensure that the plant is installed or erected to provide sufficient clear working area around the plant to allow the plant to be used in a matter that, so far as is reasonably practicable, eliminates the risk associated with the activity or reduces the risk (regulation 104);
(p) Failing to ensure that no work, other than the work of erecting or dismantling the scaffold, is performed from a scaffold unless the scaffold, or the relevant part of the scaffold is complete (regulation 188);
(q) Failing to ensure that the scaffold is secure and capable of supporting the work to be performed on the scaffold (regulation 118);
(r) Failing to ensure, on becoming aware that the scaffold is in an unsafe condition, that appropriate repairs, alterations or additions are carried out before the relevant part of the scaffold is used (regulation 118);
(s) Failing to ensure so far as is reasonably practicable, that if a scaffold is left unattended, persons who would not ordinarily be using the scaffold are prevented from gaining access to the scaffold (regulation 118).”
(c) To add further breaches of the Regulations against Icon in paragraph 11E:
“and in respect of plant regulations 76, 77, 77, 85 and 87:
(a) Failing to, so far as is reasonably practicable, identify all hazards associated with the use of plant (regulation 76);
(b) Failing to ensure so far as is reasonably practicable that guarding will prevent access to the danger area of plant (regulation 77);
(c) Failing to ensure so far as is reasonably practicable that risk of hazard is eliminated or reduced (regulation 85);
(d) Failing to keep record of any published technical standard used to manufacture the plant (regulation 87).”
(d) To add paragraphs 14, 15 and 16 which alleged, against each defendant, as follows:
“Further or in the alternative, the plaintiff’s injuries referred to in paragraph 10 were caused by the breach by the [relevant] defendant, its employees, servants or agents of the Australian and New Zealand Standard AS/NZ[S] 1576.1.”
Applicable legal principles
36The principles relevant to an application of this kind are well known and were not in dispute.
37Rule 36.01 of the County Court Civil Procedure Rules2018 relevantly provides:
“36.01 General
(1) For the purpose of—
(a) determining the real question in controversy between the parties to any proceeding; or
(b) correcting any defect or error in any proceeding; or
(c) avoiding multiplicity of proceedings—
the Court may, at any stage, order that any document in the proceeding be amended or that any party have leave to amend any document in the proceeding.
… .”
38In Aon Risk Services Australia Limited v Australian National University,[4] the High Court considered the factors relevant in an application for leave to amend. In particular, Gummow, Hayne, Crennan, Kiefel and Bell JJ stated:[5]
“111.An application for leave to amend a pleading should not be approached on the basis that a party is entitled to raise an arguable claim, subject to payment of costs by way of compensation. There is no such entitlement. All matters relevant to the exercise of the power to permit amendment should be weighed. The fact of substantial delay and wasted costs, the concerns of case management, will assume importance on an application for leave to amend. …
112.A party has a right to bring proceedings. Parties have choices as to what claims are to be made and how they are to be framed. But limits will be placed upon their ability to effect changes to their pleadings, particularly if litigation is advanced. That is why, in seeking the just resolution of the dispute, reference is made to parties having a sufficient opportunity to identify the issues they seek to agitate.”
(emphasis added)
[4] (2009) 239 CLR 175
[5]Ibid at 217
39I respectfully adopt the summary of the relevant factors set out by Vickery J in Namberry Craft Pty Ltd v Watson[6] as follows:
“… there are to be limits placed upon re-pleading. The High Court in Aon referred to a range of other considerations which need to be weighed in the balance in the exercise of the discretion to grant an amendment to a pleading. The High Court made reference to the following factors:
(a) Whether there will be substantial delay caused by the amendment;
(b)The extent of wasted costs that will be incurred;
(c)Whether there is an irreparable element of unfair prejudice caused by the amendment, arising, for example, by inconvenience and stress caused to individuals or inordinate pressures placed upon corporations, which cannot be adequately compensated for, whatever costs may be awarded;
(d)Concerns of case management arising from the stage in the proceeding when the amendment is sought, including the fact that the time of the court is a publicly funded resource, and whether the grant of the amendment will result in inefficiencies arising from the vacation or adjournment of trials;
(e) Whether the grant of the amendment will lessen public confidence in the judicial system; and
(f) Whether a satisfactory explanation has been given for seeking the amendment at the stage when it is sought.”
[6][2011] VSC 136 at paragraph [38] (footnotes omitted)
40In Matthews v SPI Electricity Pty Ltd (Ruling No 6),[7] J Forrest J noted that the above list of factors was not exhaustive. An additional factor was that an amendment would not be allowed if it were so obviously futile that it would be liable to be struck out if it appeared in an original pleading.
[7] [2012] VSC 70 at paragraph [33]
41I am required to take into account the objects specified by s9(1) of the Civil Procedure Act 2010. The exercise of my discretion requires me to engage with those provisions in balancing the competing interests of the parties and those of the administration of justice more generally.[8]
[8]Northern Health v Kuipers [2015] VSCA 172
42The ultimate question in determining such an application is what the justice of the case requires.
Mr Adib’s submissions
43Senior Counsel for Mr Adib submitted that “no useful explanation” could be offered for the amendments being sought on day three of the trial, other than oversight.[9] It was submitted that all the parties had copies of the WorkSafe Entry Reports which referred to breach of the Standard.
[9] T204
44The proposed pleadings alleging breach of Part 3.5 were relevant to the circumstances of the plaintiff’s injury. Senior Counsel submitted that many of the obligations in Part 3.5 were the same or similar to the Regulations already pleaded, but Part 3.5 was important because it specifically refers to scaffolding.
45It was submitted that the cross-examination of Mr Adib had not concluded, no expert evidence had then been called, and there was therefore no prejudice to any of the defendants arising from the proposed amendments.
46In his reply submissions, Senior Counsel for Mr Adib submitted that “reliance on the Regulations does not take it substantially further than the pleaded particulars of negligence”.[10] It was submitted that in the expert report of Mr Geoffrey Waddell, reference was made to Part 3.5 of the Regulations, and the defendants “could have reasonably assumed that that would have been relied upon”. Noting that the pleadings included reference to Part 3.5 until they were deleted by the amendment sought in May 2025, Senior Counsel submitted that the defendants had not identified any real prejudice to them by the late amendment, Mr Genc could be recalled and the employer and Kaplan could further cross-examine Mr Adib.
[10]T218
Defendants’ submissions
47Senior Counsel for the employer submitted:
(a) The proposed amendment to add breach of the Standard as a particular of negligence was not opposed;
(b) As to the proposed pleading of Part 3.5 – given the history of the proceeding, and the amendments which had been made as recently as the first day of trial, the case the employer came to meet did not include Part 3.5 of the Regulations. The employer and second defendant had completed cross-examination of Mr Adib, and a liability witness’s evidence was already completed. No cogent reason was provided for the late amendment. The proposed pleading included an alleged failure to make records dealing with inspection or maintenance of plant. As to prejudice, it was submitted that the employer “may not know what prejudice [it] will be faced with, given it’s so late in the piece”.[11] That is, there may well be unfair prejudice which was difficult to judge.
(c) The proposed pleading of the Standard at paragraph 14 did not disclose a known cause of action and ought not to be permitted on that basis.
[11] T211
48Counsel for Kaplan made similar submissions, adding in respect of the proposed pleading of Part 3.5 that Mr Adib had made forensic choices. The Amended Statement of Claim filed and served in May 2025 expressly removed reliance on the breaches of Regulations which are now, in part, being reintroduced. That could not be oversight. Senior Counsel for Mr Adib applied to further amend that pleading on the first day of trial to specifically add allegations in relation to part 5.1 of the Regulations. The failure to provide a proper and adequate explanation is significant. The new pleading may well require further discovery and further interrogation. There was likely unfair prejudice to Kaplan.
49Counsel for Icon adopted the submissions made by the employer and Kaplan.
Consideration
50Mr Adib’s application to further amend the Statement of Claim arose on the third day of trial. It was made in response to a submission as to the admissibility of parts of the WorkSafe Entry Reports.
51The explanation provided by Senior Counsel for Mr Adib, from the Bar table, for the proposed amendments being sought in the course of the trial, a matter of days after a prior amendment, was said to be oversight.
52When asked for an explanation for the prior abandonment of claims of breaches of Part 3.5 of the Regulations, the explanation proffered, again from the Bar table, was oversight.
53No explanation was provided by way of affidavit for the proposed amendments. The explanations, such as were given, were unsatisfactory in the circumstances. This is because two previous applications were made to amend, on 13 May 2025 and 17 June 2025. Mr Adib was in possession of the WorkSafe Entry Reports, and the report of Mr Waddell, the contents of which would ordinarily form part of case preparation. A suggestion of oversight in both respects does not provide a proper basis on which to grant leave to amend partway through a trial.
Adding breach of the Standard as a particular of negligence
54None of the defendants opposed the application to amend the particulars of negligence to plead a breach of the Standard. That alleged breach had been opened to the jury, and no prejudice was alleged by its inclusion. I granted leave for that amendment with identification of the relevant part of the Standard.
Adding breach of Part 3.5 of the Regulations
55There was no adequate explanation for the abandonment of the claim for breaches of Part 3.5 of the Regulations in May 2025.
56There was no adequate explanation for not seeking to amend to include claims for breaches of Part 3.5 of the Regulations until the third day of the trial.
57Senior Counsel’s submission for Mr Adib that the breaches of Part 3.5 of the Regulations did not materially change the case the defendants were required to meet, was an argument that could cut both ways. If it be right that the case proposed to be run on Part 3.5 of the Regulations was not very different from the case already pleaded, then there would be unlikely to be any significant prejudice or disadvantage to Mr Adib by reason of the rejection of that aspect of the proposed amendment.
58The proposed amendments did not further or facilitate the identification of the real issues in dispute and the just resolution of the proceeding. These issues had already been adequately identified, as was effectively acknowledged by Senior Counsel for Mr Adib.
59Two of the defendants had completed their cross-examination of Mr Adib.
60Mr Genc’s evidence had already been completed.
61There was a risk of further delay and costs in recalling Mr Genc and further cross-examination of Mr Adib if the proposed amendments were allowed. Such delays potentially impact the Court and other litigants. Court time is not an unlimited resource.
62Mr Adib had been given a sufficient opportunity to identify the issues he wished to agitate by the time his Senior Counsel opened his case.
63The possible unfair prejudice to the defendants was difficult to measure.
64Upon consideration of the various relevant factors, and in the exercise of my discretion, I determined that Mr Adib had not established that the interests of justice required the amendments to add breach of Part 3.5 of the Regulations.
65On the contrary, the submissions made by Senior Counsel on his behalf suggested Mr Adib’s case would be adequately addressed by the existing pleadings of negligence, together with a particular alleging breach of the Standard, and breaches of Parts 3.3 and 5.1 of the Regulations.
Pleading breach of the Standard as a cause of action
66I did not permit the proposed addition of paragraphs 14, 15 and 16. There is no cause of action for damages for breach of the Standard. The proposed amendment is so obviously futile that it would be liable to be struck out if it appeared in an original pleading.
Conclusion
67Mr Adib was granted leave to further amend the Further Amended Statement of Claim to plead breach of the Standard as a particular of negligence. I refused leave for the remaining proposed amendments.
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