Bernard v Seltsam Pty Ltd
[2010] VSC 305
•21 June 2010 (revised 6 July 2010)
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
No. S CI 2009 10281
| JAMES JOSEPH BERNARD | Plaintiff |
| V | |
| SELTSAM PTY LTD | Defendant |
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JUDGE: | BELL J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16, 17, 18 and 21 June 2010 | |
DATE OF RULING: | 21 June 2010 (revised 6 July 2010) | |
CASE MAY BE CITED AS: | Bernard v Seltsam Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2010] VSC 305 | |
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PRACTICE AND PROCEDURE – trial by jury – negligence – cancer – alleged exposure to asbestos - no evidence of cause of plaintiff’s cancer – no evidence of plaintiff’s exposure to defendant’s asbestos products - defendant’s submission of no case to answer – verdict for defendant by direction – procedure for doing so – plaintiff self-represented – duty of judge to ensure fair trial with a jury.
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APPEARANCES: | Counsel | Solicitors | |
| For the plaintiff | Ms Caroline Kenny SC and Ms Kathleen Foley of counsel on 17 June 2010; the plaintiff was otherwise self-represented | ||
| For the defendant | Mr R Harris | Monahan and Rowell | |
HIS HONOUR:
James Joseph Bernard is aged 68 years and is dying of lung cancer. His life expectancy is about two years. He worked in the building industry for over 30 years. He alleges his cancer was caused by exposure to asbestos which was manufactured and distributed by Selstam Pty Ltd.
By a writ seeking trial by judge and jury, Mr Bernard issued proceedings in negligence against Amaca Pty Ltd (formerly the James Hardie company) and Seltsam (formerly the Wonderlich company). In view of Mr Bernard’s medical condition, the court made an order for a speedy trial.
Before the trial commenced, the proceeding against Amaca was settled. Orders dismissing the claim against that company were made accordingly. The proceeding against Seltsam was not settled. By its defence, the company has admitted none of Mr Bernard’s allegations. Alternatively, it has alleged Mr Bernard is not mitigating his loss by obtaining appropriate medical treatment. Mr Bernard prefers his cancer to be treated by alternative, and not by conventional, medical therapies. For that reason, he has refused to have it removed by surgery or tested by biopsy.
Under r 47.02(1) the Supreme Court (General Civil Procedure) Rules2005, where the proceeding is commenced by writ and founded on tort, the plaintiff has a right to have it tried with a jury. That is the character of the proceeding issued by Mr Bernard.
The courts have repeatedly stressed the importance of trial by jury in civil cases based on the common law. For example, this is Jordan CJ in Commissioner for Railways v Corben:[1]
Trial by jury is an institution of great value. It enables the direct participation by a large body of citizens in the important branch of the business of government which is constituted by the administration of justice. And it confers upon litigants the advantage of the knowledge and experience possessed by their fellow citizens of the affairs of ordinary workaday life, which are of great value in dealing with the type of case with which a Court of common law is in the main concerned.
[1](1938) 39 SR (NSW) 55, 58.
Mr Bernard issued the writ personally. For most of the trial, he represented himself. The significance of trial by jury is no less when a party is self-represented. In the ordinary course, a party has a right to represent themselves in legal proceedings.[2] That must include trials with a jury, although this case demonstrates the serious challenges for the party who chooses to do so.
[2]Tomasevic v Travaglini (2007) 17 VR 100, [84].
Under r 47.02(3), the right to trial by jury under r 47.02(1) can be defeated only if the other party persuades the court that, for some special reason, the proceeding should not be tried before a jury.[3] Whether it is viable to conduct a trial with a jury in which a party is self-represented may be an issue for consideration under r 47.02(3). It may or it may not be viable. I would not approach the matter from a negative starting point. Nor would I lightly interfere with the right of a self-represented party to trial with a jury. I refused the defendant’s application to interfere with Mr Bernard’s right in this case. At some points in the trial, the circumstances required me to inform and remind him that I could order it to be conducted before me as a judge alone. But Mr Bernard made a reasonable effort to observe the applicable rules of procedure and, with my assistance, he generally did.
[3]Gunns Ltd v Marr (No 5) [2009] VSC 284, [9].
On the issue of assistance, in Tomasevic v Travaglini[4] I held (by reference to the leading authorities) that it was the duty of a judge to ensure a self-represented party obtains a fair trial. That obligation applies equally to a party representing themselves in a trial before a judge and jury. While the judge must be fair to all parties and cannot become the advocate for the self-represented party, their duty requires them to give such assistance as is appropriate in the circumstances. That can include guidance in relation to the procedures to be followed and the substantive legal issues involved, tailored to the needs of trial before a judge with a jury.
[4](2007) 17 VR 100, [138]-[142].
Therefore, before the jury was empanelled I explained to Mr Bernard the procedures for empanelling a jury, his rights in that regard and the procedures which are normally followed in a trial by judge and jury. I also explained to him the elements of the tort of negligence which it was his onus to establish. I specifically explained that it was his onus to establish, by admissible evidence, that he had a cancer which was caused by exposure to the defendant’s asbestos. I provided such explanations on various occasions during the course of the trial. Before empanelling the jury, I also informed him that, at the end of his case, the defendant could move for a directed verdict in its favour if he had not established a case for it to answer. Mr Bernard said that he understood what I had told him. His submission was that the decision was for the jury to make and that I should not interfere with it in any way.
On a number of occasions during the trial, Mr Bernard submitted that the States of Australia had been rendered void by the passing of the Australia Act 1986 (Cth). He submitted the judges of the Supreme Court of Victoria, including myself, were therefore defunct. I did not accept that submission.
On my invitation, Seltsam conceded that it had manufactured asbestos products which were used in the building industry between 1956 and July 1977. Soon after the jury were empanelled, I informed them of this concession.
I did not allow Mr Bernard to give an account of his work and medical history from the bar table. I required him to give that history, if he wanted to rely on it, as evidence from the witness box. To assist him to do so, I arranged for Mr Bernard to be represented by Ms Caroline Kenny SC and Ms Kathleen Foley of the pro bono legal representation service operated by the Victoria Bar. Mr Bernard accepted this representation when he was giving oral evidence about his exposure to asbestos and the impact of his cancer upon him, but not otherwise.
Besides giving evidence himself, Mr Bernard called two of the defendant’s consultant medical experts to give evidence on his behalf, and tendered certain exhibits. He presented no other evidence.
At the close of Mr Bernard’s case, Seltsam announced it would call no evidence and submitted it had no case to answer. I ruled in favour of that submission and directed the jury to bring in a verdict for the defendant. Before doing so, I satisfied myself, by asking questions of Mr Bernard, that he had no other evidence to lead and did not intend to conduct any different case if I gave him the chance to do so. In particular, I satisfied myself that he did not intend to have a biopsy performed on his cancer so that its nature and cause could be identified.
On my analysis of the evidence, at the end of his case Mr Bernard had established that he had lung cancer, from which he expected to die in about two years. He also established that he had been exposed to asbestos products when working in the building industry over some 30 years. But according to the legal principles which the High Court applied in Amaca Pty Ltd v Ellis,[5] Mr Bernard had to establish that it was more probable than not that Selstam’s negligence was a cause of his cancer. For the case to go to the jury, there had to be evidence on which it could it so find.
[5][2010] HCA 5, [40].
As to Mr Bernard’s lung cancer, there was no evidence that it was caused by exposure to asbestos. Mr Bernard had refused to have any of the cancer removed for a biopsy. His strong belief, which was genuinely held, was that this would cause the cancer to spread. Moreover, the medical evidence was that the lung cancer did not present with the normal features or stigmata of a cancer caused by asbestos. Thus, on Mr Bernard’s evidence, the nature and cause of the lung cancer was unknown.
The medical evidence actually pointed in another direction. Mr Bernard had a melanoma on his stomach about five years ago. Because of this cancer, and the medical evidence about the presentation of his lung cancer, there was evidence from which a jury might have inferred that the lung cancer was a metastasized secondary of that melanoma. But there was no evidence from which it might be inferred that the lung cancer was caused by asbestos.
As to Mr Bernard’s exposure to asbestos, his evidence in this regard was in general terms. He was not able to say himself who manufactured and distributed the asbestos products to which he was exposed. The products he used were not labelled. He could point to no direct evidence about their origin. He could not depose that the products were manufactured or distributed by the defendant. In the result, there was no evidence connecting Mr Bernard’s work in the building industry with Seltsam’s asbestos products. There was no evidentiary basis for his allegation that his cancer was caused by that company’s asbestos products. The company’s concession plainly did not supply that connection although, with some other evidence, it might have supplied part of it. There was no such other evidence.
Mr Bernard strongly opposed me directing the jury to bring in a verdict for the defendant. He submitted it would undermine the primary role of the jury and go beyond the limited function which I should perform as the trial judge. I will therefore explain here why I gave that direction.
I had thought I should consider giving Mr Bernard the chance to be non-suited. The advantage to Mr Bernard would have been that a non-suit against a plaintiff did not shut them out forever. In the days when non-suit was available, it was not a verdict or judgment on the merits.[6] The plaintiff could have brought another action.[7] Non-suits were a feature of jury-trial procedure under the practice in England before the Judicature Act 1873 (UK) was enacted. A non-suit could be obtained against a party bearing the onus who had not made out any case on their evidence. In those days, trials before a judge and jury were enquiries into facts. Judgment was only entered by the whole court sitting “in banc” after the trial was completed.[8] The whole court so sitting could enter a non-suit.[9]
[6]Humphrey v Collier [1946] VLR 391, 404 per Gavan Duffy J, Herring CJ agreeing at 396.
[7]Prestinenzi v Steel Tank and Pipe Consolidated Pty Ltd [1981] VR 421, 439 per McGarvie J.
[8]See generally Jones v Dunkel (1959) 101 CLR 298, 323-331 per Windeyer J; Prestinenzi v Steel Tank and Pipe Consolidated Pty Ltd [1981] VR 421, 425-439 per Kaye J and 439-441 per McGarvie J.
[9]Phillips v Ellinson Brothers Pty Ltd (1941) 65 CLR 221, 228-229 per Rich J; Prestinenzi v Steel Tank and Pipe Consolidated Pty Ltd [1981] VR 421, 439 per McGarvie J.
But after the Judicature Act was enacted, non-suit vanished. Under the trial procedures which are now followed in common law jurisdictions, including Victoria, non-suit is not given. Writing in 1941, Rich J said in Phillips v Ellinson Brothers Pty Ltd[10] that in ‘the State of Victoria there is now no such thing as a judgment of non-suit’. In 1946, Macfarlan J said in Humphrey v Collier[11] that ‘it has been well settled for many years that there is no such thing as a non-suit.’ In 1981, Kaye J said in Prestinenzi v Steel Tank and Pipe Consolidated Pty Ltd[12] that plaintiffs in Victoria had ‘lost [their] right to a direction for the entry of non-suit.’ In the same case, McGarvie J said ‘non-suit was abolished’.[13]
[10](1941) 65 CLR 221, 228.
[11][1946] VLR 391, 402.
[12][1981] VR 421, 436.
[13]Ibid, 439.
According to the procedures now followed, and subject to the judge’s overall management of the trial under rr 1.14 and 49.01 the Supreme Court (General Civil Procedure) Rules2005,[14] the options available to a party contending it has no case to answer are to seek a verdict from the jury at the judge’s direction or leave to move for judgment notwithstanding the verdict (non obstante veredicto) after it has been given.[15] For the judge to do either would be exceptional and requires the clearest case.
[14]See generally The Herald and Weekly Times Ltd v Popovic (2003) 9 VR 1.
[15]Prestinenzi v Steel Tank and Pipe Consolidated Pty Ltd [1981] VR 421, 439 per Kaye J (Young CJ agreeing) and McGarvie J at 439-441.
In trial by jury, ‘the jury is the constitutional tribunal for deciding issues of fact’. When Latham CJ made that statement in Hocking v Bell,[16] his Honour was emphasising the importance of not interfering with juries in the discharge of their fact-finding function. In particular, judges must not misuse their power to rule that there is no evidence to support a particular verdict. Thus, in Phillips v Ellinson Brothers Pty Ltd,[17] Rich J said ‘unless the control of the court of the jury is regulated in accordance with the law and confined within the proper limits, trial by jury would have no meaning’. The same point was made by Kirby J in Naxakis v West General Hospital:[18]
the bias of the common law appears to be strongly in favour of receiving the verdict of the jury, this should cause neither surprise nor offence. Centuries of experience before this present age taught the general wisdom and reasonableness of the verdicts of civil juries. In respect of the perverse verdict considered to be against the evidence and the weight of the evidence[19] or for a verdict alleged to rest on an absence of evidence, or on mere speculation[20], conjecture[21] or inadmissible hypothesis[22], appellate relief is now available in the appropriate case. But only in a clear case should the judge assume the responsibility of depriving all parties of the jury’s verdict and directing or entering judgment in favour of one party.
[16](1945) 71 CLR 430, 440.
[17](1941) 65 CLR 221, 228.
[18](1999) 197 CLR 269, 293-294.
[19]The difference is explained by Latham CJ in Hocking v Bell (1945) 71 CLR 430 at 440. See also Precision Plastics Pty Ltd v Demir (1975) 132 CLR 362.
[20]Fraser v Victorian Railways Commissioners (1909) 8 CLR 54 at 56, applying Wakelin v London and South Western Railway Co (1886) 12 App Cas 41.
[21]Bell v Thompson (1934) 34 SR (NSW) 431; Jones v Dunkel (1959) 101 CLR 298 at 319, per Windeyer J; Luxton v Vines (1952) 85 CLR 352 at 358; Holloway v McFeeters (1956) 94 CLR 470 at 471
[22]Neill v NSW Fresh Food & Ice Pty ltd (1963) 108 CLR 362.
Giving every respect to the jury which their ‘constitutional’ role demands, trial by jury is still trial according to law. The function of the jury is to decide the facts and the function of the judge is to apply and direct the jury on the law.[23] Returning to Jordan CJ in Commissioner for Railways v Corben, his Honour went on to say:[24]
since the jurors who determine the issues of fact possess no legal knowledge, it is essential, if a jury is to be an efficient instrument in the administration of justice, that the guidance and control of the presiding judge in all matters of law should be steadily maintained.
[23]McDonnell and East Ltd v McGregor (1936) 56 CLR 50, 57 per Dixon J.
[24](1938) 39 SR (NSW) 55, 58.
So that judges can steadily maintain matters of law, they remain at all times in control of the trial.[25] Whether a case is fit for the jury to decide is a matter of law. The judge must determine that matter when it is raised, as it has been here. As Jordan CJ also said in De Gioia v Darling Island Stevedoring & Lighterage Co Ltd,[26] ‘[t]o deny this power to the Judge, in cases of this type, would be to allow the jury to usurp functions which are not theirs but his.’
[25]Jones v Dunkel (1958-1959) 101 CLR 298, 328 per Windeyer J.
[26](1941) 42 SR (NSW) 1, 4.
The test for determining whether a jury should be directed to return a particular verdict was discussed by the High Court in Naxakis v West General Hospital.[27] Gleeson CJ[28] referred to the judgment of Jordan CJ in De Gioia. Kirby J listed the various elements of the test,[29] which I have applied in this case. Gaudron J[30] expressed the test in the following oft-cited terms:
It is well settled that, where there is a jury, the case must be left to them “[i]f there is evidence upon which [they] could reasonably find for the plaintiff”[31], or, as was said by Hayne JA in the Court of Appeal, the case can be taken away only if ‘there was no evidence on which the jury could properly conclude that the plaintiff had made out his case’[32]. That does not mean that the case must be left to the jury if the evidence is ‘so negligible in character as to amount only to a scintilla’[33]. However, if there is evidence on which a jury could find for the plaintiff, it does not matter that there is contradictory evidence or, even, as was said by Harper J at first instance, ‘that the overwhelming body of evidence points to the [contrary]’[34]
Moreover, when considering whether there is some evidence upon which a jury could find for a plaintiff, it is important to bear in mind that the jury may properly accept parts of a witness’s evidence and reject others[35]. Thus, for example, a jury may believe what is said by a witness in examination in chief and reject apparent modifications or qualifications elicited in cross-examination.
[27](1999) 197 CLR 269, 293.
[28]Ibid [1].
[29]Ibid [58].
[30]Ibid [16].
[31]Hocking v Bell (1945) 71 CLR 430 at 441, per Latham CJ.
[32]Naxakis v Victoria (unreported; Supreme Court of Vict (Court of Appeal); 5 September 1997) at 8.
[33]Hocking v Bell (1945) 71 CLR 430 at 441, per Latham CJ; at 486-487, per Starke J; at 503, per McTiernan J. See also Ryder v Wombwell (1868) LR 4 Exch 32 at 38-39; Bell v Thompson (1934) 34 SR (NSW) 431 at 436-437, per Jordan CJ (with whom Street J agreed); McKenzie v Mergen Holdings Pty Ltd (1990) 20 NSWLR 42 at 52, per Clarke JA (with whom Mahoney and Meagher JJA agreed).
[34]See Hocking v Bell (1945) 71 CLR 430 at 443-444, per Latham CJ, and the cases there cited.
[35]Leotta v Public Transport Commission (NSW) (1976) 50 ALJR 666 at 669; 9 ALR 437 at 449, per Murphy J. See also Cooper v Slade (1858) 6 HLC 746 at 795 [10 ER 1488 at 1507]; Barker v Charley [1962] SR (NSW) 296 at 303-304, per Evatt CJ, Herron and Sugerman JJ, and the cases there cited.
Applying this test to the present case, I must conclude there is no evidence on which Mr Bernard has made out his case against Seltsam. This is a very clear case. The nature and cause of his cancer is not known. The indications in the evidence are that it is a secondary metastasis of the primary melanoma which was removed from his stomach five years ago, not that it was caused by exposure to asbestos. Further, even if the cancer was caused by exposure to asbestos, the evidence would not permit a reasonable jury to find that it was the defendant’s asbestos. In the absence of some evidence that Mr Bernard was exposed to the defendant’s asbestos products, the jury could not draw that inference, even taking the concession into account. There is also a third insuperable difficulty, which is that there is no evidence that the defendant should have known, in the relevant period, that its asbestos products were potentially harmful.
Having so decided, I had to determine the procedure to be followed. The authorities recognise two courses which a judge in a trial by jury may take after upholding a submission of no case to answer. Both are open.
The first course is for the judge to enter judgment without taking the verdict of the jury. After the judge has entered judgment in favour of the moving party, the jury is discharged.
The authorities have recognised this course in the context of discussing a different question - whether a judge could enter a judgment notwithstanding the verdict of a jury without first reserving leave to the moving party and on the basis of the express or implied consent of all of the parties.[36] I will deal only with the issue of procedure which is relevant here.
[36]On that question, the Court of Appeal has held rules 1.14 and 49.01 of the Supreme Court Rules empower the trial judge to enter a judgment notwithstanding the verdict of the jury without first obtaining the consent of the parties: The Herald and Weekly Times Ltd v Popovic (2003) 9 VR 1, [181]-[182] per Gillard AJA (Winneke ACJ agreeing at [1]) and [494] per Warren AJA (who held ‘the modern Rules were intended to be ‘remedial and facilitative’).
That issue was considered by the Full Court in Humphrey v Collier.[37] Gavan Duffy J held (Herring CJ agreeing)[38] that the judge could ‘enter judgment without taking a verdict’.[39] To the contrary, Macfarlan J said the ‘strictly proper course ... is to direct the jury to return a verdict for the defendant before entering judgment’. But his Honour admitted this course was sometimes not followed as it was ‘a mere formality’.[40]
[37][1946] VLR 391.
[38]Ibid 396.
[39]Ibid 408.
[40]Ibid 402.
The procedure stipulated by the majority was noted with approval by the Full Court in Prestinenzi v Steel Tank and Pipe Consolidated Pty Ltd.[41] Kaye J said (Young CJ agreeing):[42]
The practice to be followed in those circumstances recognised by the Court in Humphrey v Collier enables the trial judge to avoid the formality of taking the jury’s verdict as directed by him if he finds that the plaintiff’s case is not supported by the evidence.
McGarvie J referred to this as a ‘permissible shortening of procedure, by which the formality of directing and obtaining a verdict is omitted.’[43] It was the ‘equivalent of directing and obtaining a verdict and then giving judgment.’[44] A judge who decided a plaintiff had made out no case ‘would give judgment for the defendant (or direct a verdict for the defendant)’ (emphasis added).[45]
[41][1981] VR 421.
[42]Ibid 436 and 422.
[43]Ibid 440.
[44]Ibid.
[45]Ibid 441. Kirby J also spoke of ‘directing or entering judgment in favour of one party’ (emphasis added) in Naxakis v Western General Hospital (1999) 197 CLR 269, 294.
The second possible course for the trial judge is the ‘strictly proper’ one of directing the jury to bring in a verdict for the party having no case to answer, and then entering judgment. In Thompson v Amos,[46] Dixon J said this was the ‘old-fashioned manner’. This course had its origin in the procedures followed before the Judicature Acts were enacted in the nineteenth century. Under those procedures, and putting non-suit to one side, the judge did not have power to enter judgment without first obtaining a verdict by direction from the jury.[47] An example is Stancliffe v Clarke,[48] where the plaintiff had not made out a case. Parke B said: ‘if there is no case to warrant a verdict for him, it is the duty of the judge to direct a jury to find for the defendant’.[49]
[46](1949) 23 ALJ 98, 103.
[47]Ibid 104.
[48](1852) 155 ER 1020
[49]Ibid 1024.
While this course had it origin in procedures which have long since been modernised, there are reasons in principle for it which run much deeper. In Hocking v Bell,[50] Latham CJ said the ‘giving of a verdict is the function of jurors, not judges.’[51] In McDonnell and East Ltd v McGregor,[52] Dixon J said the ‘constitutional theory was that judgment could be founded only on a verdict.’[53] Those statements recognise the fundamental position of the jurors in a trial by jury and their responsibility for the verdict. In Phillips v Ellinson Brothers Pty Ltd,[54] Rich J brought the theory and this issue of procedure together. His Honour said ‘in a jury trial at common law, the jury’s verdict is the basis of the judgment, and consequently where there is no evidence to support a verdict for the plaintiff or where the evidence is all one way the judge should so direct the jury’.[55]
[50](1945) 71 CLR 430.
[51]Ibid 441.
[52](1936) 56 CLR 50.
[53]Ibid 56.
[54](1941) 65 CLR 221.
[55]Ibid 231.
That is the course I adopted in the present case. I did not find it at all inconvenient. Nor did I find it to be a ‘mere formality’. I think it engaged the jury in the process in a more satisfactory and engaged way than the first course.
I will explain the procedure which I followed. But I am not seeking to be prescriptive. The proper procedure is for the judge to determine. That is so under the general principles which I have discussed here, as it is under the broad discretionary scope of rr 1.14 and 49.01 of the Supreme Court Rules which, according to Warren AJA in The Herald and Weekly Times Ltd v Popovic, [56] are ‘remedial and facilitative’.
[56](2003) 9 VR 1, [494].
After determining Seltsam’s no-case submission in the absence of the jury, the jurors were brought into court. I explained to them my ruling that, as a matter of law, there was no evidence on which they could find for the plaintiff. I summarised my reasons for reaching that conclusion by reference to the material evidence, and the want of it. I then explained that I would be directing them, as a matter of law, to bring in a verdict for the defendant. Due to my opening remarks at the start of, and certain rulings I had given during, the trial the jury where familiar with the role of the judge in relation to matters of law.
I formulated a general verdict for their attention, which was in these terms: ‘Was there negligence by the defendant Selstam Pty Ltd which was a cause of injury, loss and damage to the plaintiff’? I directed them to answer ‘no’ to that question when it was put to them. I explained to them the procedure which would be followed. The procedure was the same for taking a verdict in normal circumstance, except this was one by my direction. According to that procedure and speaking generally, the jurors come into court, stand in the jury box and give a verdict in answer to questions asked by the judge’s associate. The foreperson first answers the question which has been formulated by the judge. This is followed by the other jurors nodding their consent. The result is the verdict of the jury.
After giving the explanation, I gave the jury a few minutes in the jury room to acquaint themselves with the procedure to be followed. Then they were called into court to give their verdict, which they did, according the procedure I have described, for the defendant and in accordance with my direction. After taking that verdict and discharging the jury, the defendant moved for judgment, which I gave in its favour.
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