G10 (Costs)
[2022] FCWA 29
•11 FEBRUARY 2022
JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW ACT 1975
LOCATION: PERTH
CITATION: G10 (Costs) [2022] FCWA 29
CORAM: DUNCANSON J
HEARD: WRITTEN SUBMISSIONS
DELIVERED : 11 FEBRUARY 2022
PUBLISHED : 10 NOVEMBER 2022
FILE NO/S: [Redacted]
BETWEEN: G10
Applicant
AND
DEPARTMENT A
First Respondent
AND
THE MOTHER AND FATHER
Second Respondents
Catchwords:
COSTS - where the parents of a child who commenced proceedings against them and [Department A] seek costs from Legal Aid WA - where the child and the Independent Children's Lawyer were in receipt of a grant of legal aid - where the parents' submission that LAWA's conduct was improper or unreasonable is not made out - where the circumstances do not justify a departure from the usual rule that each party to proceedings shall bear his or her own costs - where LAWA seeks an order for costs from the parents - where the circumstances do not justify a departure from the usual rule - case turns on its own facts
Legislation:
Family Court Act 1997 (WA) s 202, s 202(3)
Family Law Act 1975 (Cth) s 69ZK, s 117, s 117(1), s 117(2), s 117(2A)
Family Court Rules 2021 (WA) r 331(1), r 333(1), r 333(2)
Category: Reportable
Representation:
Counsel:
| Applicant | : | Ms A |
| First Respondent | : | N/A |
| Second Respondents | : | Mr B |
| Independent Children's Lawyer | : | Ms C |
Solicitors:
| Applicant | : | Legal Aid Western Australia |
| First Respondent | : | Law Firm A |
| Second Respondents | : | Law Firm B |
| Independent Children's Lawyer | : | Law Firm C |
Bant & Clayton (Costs) (2016) 56 Fam LR 31
Collins and Collins (1985) FLC 91-603
Fitzgerald (As Child Representative for A (Legal Aid Commission of Tasmania)) v Fish and Anor (2005) 33 Fam LR 123
Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112
Graham and Law Firm A and Ors [2020] FCWA 155
Iand I (No 2) (1995) FLC 92-625
Levick v Deputy Commissioner of Taxation (2000) 102 FCR 155
M & D; Australian Capital Territory (1995) FLC 92-584
Pagliarella and Pagliarella (No 3) [1994] FLC 92-460
Parke & The Estate of the Late A Parke (2016) FLC 93-748
WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES' NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED
IT IS NOTED that publication of this judgment by this Court under the pseudonym Re: G10 has been approved by the Family Court of Western Australia pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
This copy of the Court's Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 312(b) Family Court Rules 2021 (WA)), or to record a variation to the order pursuant to r 311 Family Court Rules 2021 (WA).
1The second respondents, the mother and father, seek orders for costs arising from proceedings between their child [G10], the applicant, [Department A], the first respondent, and themselves. In these reasons I shall refer to the applicant using the male pronoun.
BACKGROUND
2The applicant was born [in] November 2003. At the time he commenced proceedings in this Court in November 2020 he was a minor, having just turned 17 years of age. He was in the care of the first respondent pursuant to a protection order (until 18) made by the [Children's Court] on 23 October 2020. The first respondent was a necessary party to the proceedings by reason of this order.
3The applicant has a diagnosis of Gender Dysphoria. He was estranged from the second respondents who did not accept his diagnosis.
4The applicant desired to commence gender affirming treatment. The first respondent did not consent to such treatment.
5The applicant brought his application without a case guardian. He relied on the opinions of various medical practitioners that he was Gillick competent to conduct the proceedings himself and to make medical decisions with respect to the treatment of his Gender Dysphoria.
6The applicant applied for and was granted legal aid to proceed with his application and he was represented by [Ms A] who at that time was a solicitor employed by Legal Aid WA ("LAWA").
7The applicant filed an initiating application on 9 November 2020. He sought various orders including an order that he have leave to authorise treatment for himself with respect to Gender Dysphoria.
8The second respondents opposed the application. They questioned the applicant's competency. They opposed all interim and final orders sought by the applicant.
9On 1 December 2020 an order was made that the applicant be independently represented at the further hearing of the proceedings and [Ms C] was appointed Independent Children's Lawyer.
10The first respondent filed a response on 9 December 2020. The first respondent consented to the continuation of the proceedings and neither consented to nor opposed any of the interim or final orders sought. The first respondent sought to have the matter determined by the Court with orders considered to be in the best interests of the applicant.
11The parties attended a conciliation conference with a view to agreeing programming orders. That was not possible. The Registrar recorded that no agreement could be reached by reason of the polarised positions held and because timeframes for filing of documents could not be agreed. It was reported that consideration should be given to whether the proceedings should have an interlocutory/jurisdictional hearing first or whether one lengthy trial should be listed.
12The applicant formed the view that his application would not be dealt with until he was close to turning 18 years of age. He saw little utility in proceeding in those circumstances and made the decision, although not lightly, to discontinue his application.
13On 19 January 2021 the applicant's application and the responses of the first and second respondents were dismissed.
THE ORDERS SOUGHT
14The second respondents filed an application in a case on 17 February 2021 in which they sought orders as follows:
1The Applicant pays the costs of the Second Respondent in the matter;
2Further, or in the alternative, the lawyer for the Applicant pays the costs of the Second Respondents in the matter;
3The Second Respondents' costs be fixed in the sum of $10,000.
(as per the original)
15In their submissions filed 28 July 2021 the second respondents submit they seek orders for costs against the applicant's solicitor LAWA, and not against the applicant personally, noting that the applicant was at that time a minor and was subject to a grant of legal aid in respect of the conduct of the proceedings.
16On 23 June 2021 the applicant and LAWA filed a response to the application in a case. The applicant seeks the following orders:
1The Form 2 Application filed by the Second Respondents on 17 February 2021 ("costs application") be dismissed.
2The Second Respondents meet the costs associated with Legal Aid's response to their cost application fixed in the sum of $1,750.
(as per the original)
17The second respondents relied on:
•affidavit of [Mr B] filed 17 February 2021;
•schedule of costs dated 28 June 2021;
•Campbell and Louis (Sentencing) [2021] FCWA 64;
•Duffell and Gregory (Costs) [2020] FCWA 153; and
•submissions in support of application for costs filed 28 July 2021.
18The applicant relied on:
•affidavit of Ms A filed 23 June 2021 in which she deposed to also relying on:
•the applicant's case information affidavit filed 9 November 2020;
•affidavit of Ms A filed 9 November 2020;
•affidavit of Ms A affirmed 27 November 2020;
•transcripts of evidence in the trial at the [Children's Court] in relation to the first respondent's application for a protection order;
•the National Commonwealth Legal Aid Guidelines; and
•the submissions as to costs filed by LAWA on 30 July 2021.
19The first respondent did not participate in the proceedings for costs. No orders were sought against the first respondent.
THE LAW
20Section 117(1) of the Family Law Act 1975 (Cth) ("the Act") provides that, subject to s 117(2) each party to proceedings shall bear his or her own costs.
21Section 117(2) provides that if the Court is of the opinion there are circumstances that justify doing so, the Court may, subject to s 117(2A) make such order as to costs as it considers just. Section 117(2A) provides as follows:
In considering what order (if any) should be made under subsection (2), the court shall have regard to:
(a)the financial circumstances of each of the parties to the proceedings;
(b)whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;
(c)the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;
(d)whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;
(e)whether any party to the proceedings has been wholly unsuccessful in the proceedings;
(f)whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and
(g)such other matters as the court considers relevant.
22The Full Court in Collins and Collins (1985) FLC 91-603 described the discretion conferred by s 117 of the Act as being a "broad" one and noted that the s 117(2A) factors are not to be read in a restrictive way. The Full Court said in I and I (No 2) (1995) FLC 92-625 at 82,277, the relevant matters in s 117(2A) "must all be taken into account and all balanced in order to determine whether the overall circumstances justify the making of an order for costs". The Full Court in Fitzgerald (As Child Representative for A (Legal Aid Commission of Tasmania)) v Fish and Anor (2005) 33 Fam LR 123 also made clear that any one of the factors referred to in s 117(2A) may be the sole foundation for an order for costs.
23It is necessary for me to take into account all of the relevant matters in s 117(2A) and balance them to determine whether the overall circumstances justify making an order as to costs.
Costs against a non-party
24In Graham and Law Firm A and Ors [2020] FCWA 155 Tyson J set out the legal principles with respect to orders for costs against a non-party as follows:
45.The Court has the power to make an order against a third party, in certain circumstances. Those circumstances include, but are not limited to, where:
•The party to the litigation is insolvent or a 'man of straw';
•Where the non-party has played an active part in the conduct of the litigation;
•Where the non-party, or some person on whose behalf s/he is acting or by whom s/he has been appointed, has an interest in the subject of the litigation; or
•Where that person plays an active part in the litigation and has an interest in the subject of the litigation.
46.An order against a non-party is only to be made "if the interests of justice require that it be made".
47.The Full Court in M v D (1995) FLC 92-584 found there were three pre-requisites to make an order for costs against a non-party:
(a)A sufficient connection between the non-party and the proceedings to provide a proper basis upon which to award costs against it or, that the non-party must be the "real party" to, or the real instigator of, the litigation;
(b)There must be a causal connection between the non-party and the incurring of costs; and
(c)The interests of justice and reason demand that such an order be made.
48.The jurisdiction is unlimited. It remains a matter within the discretion of the Court, with such discretion to be exercised sparingly and with great caution. The Full Court of the Federal Court observed:
…unreasonable conduct must be more than acting on behalf of a client who has little or no prospect of success. There must be something akin to abuse of process; that is, using the proceeding for an ulterior purpose or without any, or any proper, consideration of the prospects of success.
49.The Legal Aid Commission, as a non-party, may be ordered to pay costs, provided the conditions contained in s 45 of the Legal Aid Commission Act are met. Section 45 provides:
(1)Where a court or tribunal, having finally decided a proceeding in favour of an unassisted person, considers that an order for costs should be made against a party who is an assisted person and determines his liability in that regard, the court or tribunal may order that the whole or any part of the costs of the unassisted person be paid to him by the Commission; but such an order shall not be made, -
(a)unless the proceeding is such that an order for costs would be made in favour of the unassisted person, if this section were not enacted; and
(b)in respect of costs incurred by the unassisted person at first instance, unless the proceeding was initiated by the assisted person at first instance; and
(c)in any event, unless the court or tribunal is satisfied that —
(i)in all the circumstances of the case, it is just and equitable that the order should be made; and
(ii)the unassisted person would suffer undue financial hardship if the order were not made.
(citations omitted)
Costs against a lawyer
25Rule 331(1) of the Family Court Rules 2021 (WA) provides that a party may apply for an order that another person pay costs.
26Rule 333(1) provides that a person may apply for an order under subrule (2) against a lawyer for costs thrown away during a case, for a reason including:
(a)the lawyer's failure to comply with these rules or an order; and
(b)the lawyer's failure to comply with a pre‑action procedure; and
(c)the lawyer's improper or unreasonable conduct; and
(d)undue delay or default by the lawyer.
27Rule 333(2) sets out the various orders the Court may make against a lawyer which include that a lawyer not charge for work specified, repay money which the client has already paid towards those costs or any costs the client has been ordered to pay to another party, pay the costs of a party or repay another person's costs found to be incurred or wasted.
Second respondents' case
28The second respondents seek costs on the following grounds:
•the application was made without prior conferral with either the first or second respondents;
•the application was premature without a second opinion from a psychiatrist having been obtained;
•the application contravened s 202 of the Family Court Act 1997 (WA).
29The second respondents provided a schedule of costs. Their total costs are $14,421. They seek costs fixed in the sum of $10,000.
LAWA's case
30LAWA is not a party to the proceedings and there was no application for LAWA to intervene or to be joined to them. The order is sought against "the applicant's solicitor, Legal Aid WA".
31Ms A deposed that at the time of filing his application the applicant was in the care of the first respondent pursuant to the protection order made. He had just turned 17 years of age. He was considered Gillick competent by medical practitioners. The applicant was estranged from the second respondents and Ms A deposed he was frightened of them and distressed by their failure to accept his Gender Dysphoria diagnosis.
32Ms A deposed she was instructed by the applicant that he could not wait until he turned 18 years to access the medically recommended treatment he sought, and he felt the delay in commencing treatment was far more likely to impact his mental health than the risks associated with the treatment itself.
33The first respondent would not consent to gender affirming treatment. The applicant instructed Ms A to commence Family Court proceedings and his application for legal aid was successful.
34Ms A gave notice to the first and second respondents of the applicant's intention to commence proceedings on 5 November 2021. The second respondents' solicitor informed Ms A, in their opinion the application was premature. The first respondent did not oppose the applicant having leave to authorise the treatment for himself with respect to Gender Dysphoria and consented to other orders sought.
35On the first return date of the application the first respondent consented to the Court dealing with it. As discussed above the applicant decided to discontinue his application as his view was that while he might have been ultimately successful, he would be close to turning 18 years of age before the matter was dealt with on a final basis. On his instructions Ms A discontinued the application.
THE SECTION 117(2A) FACTORS
the financial circumstances of the parties
36In the second respondent father's affidavit filed 27 November 2020 he deposed to being unemployed.
37The second respondents submit that in the circumstances of this case, it is appropriate that the same public purse which funded the application should pay their costs thrown away by reason of the application being discontinued.
38As to the financial circumstances of LAWA, in Pagliarella and Pagliarella (No 3) (1994) FLC 92-460 Hannon J observed at 80,757:
It seems to me that in considering whether an order should be made against the Commission the Court should have regard to the public interest in not having Legal Aid Commissions at risk of becoming liable for costs so as to diminish the funds available for the purpose for which they are established nor to cause them to act with such caution that indigent persons involved in litigation may be prejudiced by assistance being refused. This was adverted to in Collins and Collins (supra) where the Court said that if consideration was being given to making a costs order against a Legal Aid Commission, consideration would also need to be given to the public role of Legal Aid Commissions in supporting litigation by indigent persons. To this may be added the potential reluctance of the relevant Commission to act in accord with the Court's request to appoint and fund a separate representative.
whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party
39The applicant was in receipt of legal aid. The ICL was funded by LAWA. The second respondents were not in receipt of legal aid.
the conduct of the parties in relation to the proceedings
40The second respondents submit LAWA's conduct was improper and/or unreasonable.
41The second respondents submit that LAWA failed to adequately confer with the other parties, including themselves, prior to initiating proceedings in this Court, for the purpose of ascertaining whether they were likely to oppose any such application brought by the applicant. The second respondents submit the initiating application included an expression of safety concerns, both interim and final applications for injunctions, restraining orders and orders with respect to the Australian Federal Police Watchlist, which ultimately were not necessary or proceeded with.
42The second respondents submit that the evidence of [Dr D] in the Children's Court trial was that obtaining a second opinion from an outside professional was welcomed. They submit the evidence of the first respondent’s caseworker was that the first respondent would obtain a second opinion prior to proceeding with treatment and it would "definitely have a discussion" with the second respondents as to the identity of that psychiatrist. The second respondents submit the application was premature in the absence of a second opinion and pending the outcome of the care and protection proceedings appeal in the Supreme Court. In their response the second respondents sought an order that the proceedings be adjourned pursuant to s 202(3) of the Family Court Act 1997 (WA) pending the outcome of the appeal.
43LAWA advised the second respondents' solicitor by email on 11 January 2021 that the applicant intended to discontinue the proceedings in this Court. LAWA advised the Court on 18 January 2021 that the applicant had reconsidered whether he wished to proceed with the application based on the second respondents' position as to how the applicant's application should be managed. The second respondents submit their position was unchanged, being that they wished to obtain a second psychiatric opinion with respect to the diagnosis and treatment of the applicant's condition. The second respondents submit their position is reasonable.
44The second respondents submit LAWA failed to properly advise their client in the context of those circumstances. The second respondents submit it was plainly premature for such an application to be brought given that ultimately the fact of their insistence on a second opinion occasioned the dismissal of the application.
45LAWA submits conferral is generally not required in urgent child related matters, particularly where the primary issue of concern is one related to a young person's health. In this case the Court was provided with material from Dr D, [Dr E] and the transcript of their oral evidence in the Children's Court proceedings about, amongst other things, their respective opinions that the applicant was Gillick competent and he met the diagnostic criteria for Gender Dysphoria. LAWA submits the applicant, as a mature minor with the support of [Service A] has a right to make decisions in his best interests and in that regard, pursue the legal remedies available to him.
46LAWA submits time is of the essence in Gender Dysphoria cases and the ongoing delay in the applicant accessing gender affirming hormone treatment was having a significant adverse impact upon his mental health, which had already been compromised by the lack of family support with respect to his gender preference and Gender Dysphoria diagnosis. The applicant was admitted to [Hospital A] in November 2019 as a result of an active suicidal ideation and his mental health had reportedly improved "with hope and a plan for future access to gender affirming hormone treatment".
47As to the merits of a further psychiatric assessment as sought by the second respondents LAWA submits this can amount to systems abuse and there was no obvious reason for the applicant to be required to participate in a further assessment. Further the impact of ongoing delay was likely to have compounded the applicant's mental health difficulties.
48LAWA submits nothing in s 202 of the Family Court Act 1997 (WA), (s 69ZK of the Act), requires the first respondent’s written consent to be provided prior to the institution of Family Court proceedings and that consent only needs to be provided prior to an order being made. LAWA submits during all meetings between the applicant and his solicitor, the applicant was accompanied by his Departmental caseworker. The first respondent was thus clearly aware of the applicant's foreshadowed application and at no time did the caseworker say the Family Court application would be opposed, nor did she indicate that the first respondent’s consent would be withheld. Further, on 1 December 2020 the first respondent's solicitor consented to the Family Court dealing with the application.
49The ICL supported the applicant's application being heard without delay and the orders sought by him.
50LAWA submits it funded the application which was brought in good faith and for a legitimate purpose. It was supported by appropriate evidence having regard to the background of the matter and the nature of the orders sought, namely medical treatment for a mature minor.
51LAWA submits the applicant's decision to discontinue his application was not based on a concern about merit but more about his parents’ position that preliminary matters could only be dealt with at a trial, as opposed to an expedited interim hearing on the papers, prior to the Court even considering the substantive issues to be determined. The applicant's decision to discontinue his application was also based on Law Firm A's decision that it was necessary to undertake a review of how Gender Dysphoria cases were managed by Service A, which only became known to LAWA between December 2020 and January 2021. LAWA submits it was given little to no information about the proposed review, and in particular, how it might impact on young people making applications to the Court for treatment orders.
52I do not consider the conduct of LAWA is a factor to found an order for costs. I am satisfied the application was brought as a matter of urgency, with good reason having regard to the health and wellbeing of the applicant.
whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court
53The proceedings were not necessitated by the failure of a party to the proceedings to comply with previous orders of a Court.
whether any party to the proceedings has been wholly unsuccessful in the proceedings
54The second respondents submit the applicant was wholly unsuccessful in seeking to obtain leave to authorise treatment with respect to Gender Dysphoria. The second respondents submit the applicant has further been unsuccessful in that the other orders sought pursuant to the application were not granted "to the extent that they did not relate to interim procedural matters or operated in excess of or in addition to the usual practice and procedure of this Court".
55LAWA submits this factor refers to cases where a party has been wholly unsuccessful.
56It cannot be said the applicant was wholly unsuccessful because the evidence was not heard and the issues not determined (Bant & Clayton (Costs) (2016) 56 Fam LR 31 and Parke & The Estate of the Late A Parke (2016) FLC 93-748).
whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer
57This factor is not applicable.
such other matters as the court considers relevant
58LAWA provided a grant of aid to the applicant to commence Family Court proceedings. The grant was assigned to Ms A, who at that time was employed by LAWA and worked in [Division A].
59LAWA also provided a grant for the applicant to be represented by an ICL, pursuant to orders made on 1 December 2020. The grant was assigned to Ms C.
60The grants were made in accordance with LAWA's financial and other eligibility guidelines. LAWA submits it did not act unreasonably in funding the applicant's application. LAWA submits that given the applicant was a vulnerable young person seeking to use legal avenues available to him to access medical treatment recommended by a specialist medical team, from an access to justice and public policy perspective, there was considerable merit in the grants of legal aid which obviated the need for the applicant to attempt to represent himself in complex Family Court proceedings, particularly in circumstances where he had expressed fear of his parents and were likely to prevent him from becoming desperate enough to seek access to hormones on the "dark web".
61LAWA submits neither Ms A nor LAWA had an interest in the litigation, or an interest in the subject of the litigation.
62LAWA submits the second respondents' claimed legal costs of $10,000 are unreasonable and the schedule of costs is not clear in ascertaining what work was undertaken by which practitioner.
CONCLUSION AS TO SECOND RESPONDENTS' APPLICATION FOR COSTS
63I have taken into account all of the matters referred to above and balanced them. I am not satisfied there are circumstances which justify the making of an order for costs.
64LAWA provided a grant of legal aid to the applicant as his application had merit. The applicant deposed to the risk to himself posed by the second respondents and the delay in accessing treatment as per his strong wishes. The applicant's application was well supported with comprehensive medical evidence provided by practitioners of Service A of Hospital A. When the applicant decided to discontinue his application, LAWA acted promptly upon his instructions.
65As to the three pre-requisites referred to by the Full Court in M & D; Australian Capital Territory (1995) FLC 92-584 and set out above at [24], I find:
•the second respondents have not established a sufficient connection between LAWA and the proceedings to provide a proper basis upon which to award costs against it or, that LAWA was the "real party" to, or the real instigator of, the litigation;
•the second respondents have not established a causal connection between LAWA and the incurring of costs; and
•the second respondents have not established, and I am not satisfied, that the interests of justice and reason demand that an order for costs against LAWA be made.
66The second respondents have not established unreasonable conduct on the part of LAWA akin to an abuse of process. (Levick v Deputy Commissioner of Taxation (2000) 102 FCR 155).
67I shall dismiss the second respondents' application.
LAWA'S APPLICATION FOR COSTS
68LAWA seeks costs fixed in the sum of $1,750 plus GST if the second respondents' application for costs is dismissed, on the basis that the second respondents were wholly unsuccessful in their application. It is submitted that it is just to make such an order noting the resources that have been expended in dealing with their cost application.
69LAWA submits that costs are sought in respect of counsel's fees, which have been charged at the Legal Aid rate of $175 per hour, which is well below the scales the subject of the Legal Profession (Family Court of Western Australia) Determination 2020 (WA) or the Legal Professional (Magistrates Court) (Family Law) Determination 2020 (WA).
70The factors under s 117(2A) which I am required to have regard to have been set out above. LAWA relies on s 117(2A)(e) which requires me to take into account whether any party to the proceedings has been wholly unsuccessful in the proceedings. The second respondents have been unsuccessful in their application for costs against LAWA.
71The proceedings were of considerable importance to both the applicant and the second respondents. The difficult circumstances of this matter involve the second respondents' inability to accept the applicant's diagnosis of Gender Dysphoria. They sought a second opinion. On the other hand, the applicant's mental health suffered. He sought treatment and brought an application supported by medical evidence.
72I am not persuaded that there are circumstances which justify a departure from the usual rule that each party to proceedings shall bear his or her own costs. In the exercise of the broad discretion which I have, I shall order that the application of LAWA for costs be dismissed.
THE ORDER
1The application of the second respondents filed 17 February 2021 and the response of the Applicant/LAWA filed 23 June 2021 dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.
RM
Associate
11 FEBRUARY 2022
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