Karen Lesley Jeske v Noosa Confidential Pty Ltd
[2024] FWC 2041
•31 JULY 2024
| [2024] FWC 2041 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
s.400A - Application for costs
Karen Lesley Jeske
v
Noosa Confidential Pty Ltd
(U2024/857)
| DEPUTY PRESIDENT DOBSON | BRISBANE, 31 JULY 2024 |
Applications for costs under s 400A – costs against parties – unfair dismissal in relation to costs - unreasonable act or omission – Calderbank offer – application dismissed
On 25 January 2024, Ms Karen Lesley Jeske (Applicant/Costs Respondent) made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (the Act) alleging she had been unfairly dismissed from her employment with Noosa Confidential Pty Ltd (Respondent/Costs Applicant).
The Respondent raised a jurisdictional objection that the Applicant was not dismissed as she was not an employee protected from unfair dismissal. The matter was listed for hearing on 17 June 2024 to determine the objection. I provided an ex-tempore decision at hearing upholding the Respondent’s jurisdictional objection and dismissing the Application as the Applicant was an independent contractor and not an employee.[1]
On 28 June 2024, the Respondent lodged a Costs Application under s.400A of the Act seeking a recovery of costs from the Applicant. The Costs Applicant is seeking $65,000 on an indemnity basis taking into account the Costs Applicant’s legal fees, charges, disbursements, expenses and remuneration.
I am satisfied that the Costs Application is validly made having been filed within 14 days of the decision being issued. Directions were issued on 1 July 2024 to determine whether costs should be awarded, and the matter was listed for hearing on 30 July 2024.
Background
The background pertains to the costs incurred by the Costs Applicant.
The Costs Applicant notified the Commission that they had engaged a representative, Mr Brendan Leighton and another solicitor from NewEra Lawyers on 31 January 2024 and the matter was listed for staff conciliation on 28 February 2024. They sought a 3-week extension upon receiving notice of the staff conciliation so they could ‘take [their] client’s instructions and prepare a proper response’, The Costs Applicant sought to file a Form F3 response by 28 February 2024 and wished to undertake a conciliation on 20 March 2024. The adjournment request was refused by the Commission.
On 7 February 2024, the Costs Applicant filed their Form F3 – Employer Response as scheduled.
On 28 February 2024, the staff conciliation was cancelled as the Costs Respondent provided a medical certificate stating that she was unable to attend. The conciliation was adjourned and was relisted to be held on 12 March 2024.
On 11 March 2024, Mr Leighton sought an adjournment as the other solicitor on file left and was seeking for the conciliation to be rescheduled on 19 March 2024. This adjournment request was refused by the Commission.
On 12 March 2024, the staff conciliation was facilitated but no resolution was reached. The Costs Applicant’s legal representative was in attendance, however no one from the Costs Applicant was present at the conciliation.
The matter was then subsequently allocated to me, and I issued Directions on 28 March 2024. The matter was listed for conciliation on 15 April 2024 upon the receipt of the Costs Respondent’s submissions regarding the jurisdictional objection. The hearing of the jurisdictional objection was scheduled to be heard on 3 May 2024. The hearing of the merits was scheduled on 13 June 2024, on the basis should the jurisdictional objection be dismissed.
On 12 April 2024, the Commission was notified by the Costs Applicant that they sought an additional representative, Mr Michael White to appear as Counsel.
On 15 April 2024, upon confirming the programming of the matter, I provided an opportunity for the parties to resolve the matter through a member assisted conciliation. The parties did not resolve the matter.
On 17 April 2024, the Costs Respondent sought an adjournment of the jurisdictional objection hearing on 3 May 2024 as she was working overseas and could not be in Brisbane to attend a hearing. The Respondent also sent a letter to the Commission on 18 April 2024 seeking an adjournment of the jurisdictional objection hearing.
Given that both parties were seeking to adjourn the matter, my Chambers issued amended directions and adjourned the jurisdictional objection hearing to 29 May 2024.
On 24 April 2024, the Costs Respondent sought to reject the Costs Applicant having leave to be represented at hearing under s.596 of the Act. The Costs Respondent acknowledged in her submissions the complexity of the matter but noted that it was unfair for the Costs Applicant to be represented by a lawyer and a barrister at hearing. The Costs Respondent noted that the Costs Applicant had deployed significant legal representation in preparing the submissions.
The Costs Applicant was granted leave to be represented by a lawyer on the basis that the matter would be dealt with more efficiently, taking into account the complexity of the matter and that complexity included, inter alia, the Costs Respondent being self-represented.[2]
On 3 May 2024, an email was sent to the parties in determining whether the merits and the jurisdictional objection in the same hearing date given the numerous delays created by the parties. The Costs Respondent did not have an objection to this course of action. The Costs Applicant did not object to the jurisdictional objection and merits being heard on the same hearing date, but wished to be heard on the jurisdictional objection as they required cross-examination of the Costs Respondent.
During this period, it appeared that the parties engaged in without prejudice discussions in an attempt to resolve the matter prior to hearing.
On 16 May 2024, the Costs Respondent sought to resolve the matter with an offer of $5,000. This was rejected by the Costs Applicant given that legal costs were incurred since the member assisted conciliation on 15 April 2024. The Costs Applicant offered a without prejudice save as to costs settlement offer of $2,500.[3]
In this letter, the Costs Applicant’s representative noted to the Costs Respondent that it appeared that her application was ‘doomed to fail’ and foreshadowed that they would seek a Costs Order should the matter proceed to hearing. The costs incurred by the Costs Applicant as at 16 May 2024 was stated to be around $23,431. The Costs Respondent appeared to have rejected the offer as the matter progressed to hearing.
On 20 May 2024, my Chambers adjourned the matter from 13 June 2024 to 17 June 2024. The Costs Applicant sought an adjournment upon receiving notification that the hearing date would be moved on the basis that Mr White of Counsel would not be available on 17 June 2024.
The Costs Applicant also sought an adjournment to file their materials by 31 May 2024. The adjournment request was rejected given that previous extensions and adjournments had been granted and the Commission’s timeliness obligations.
On 28 May 2024, the Costs Applicant again sought for the hearing to be adjourned given that Mr White of Counsel was granted leave to appear and that the short extension would not cause prejudice to the parties. This adjournment request was not granted.
The merits of the matter and the jurisdictional objection were heard on 17 June 2024. I provided my decision ex-tempore with the below findings:
The parties committed to the terms of their relationship in writing through a Services Agreement on 20 November 2017, although the Costs Applicant and Costs Respondent had a prior working relationship starting from January 2014.[4]
In assessing the specific terms of the contract, there was no indicia demonstrating that the Costs Respondent did not have control of her working arrangements.[5]
There was no vitiating factor which indicated that the Services Arrangement was a sham contract.[6]
The Costs Respondent had engaged in her own business, and although not being the determinative factor, supported the notion that she was an independent contractor.[7]
In considering the above, the Costs Respondent was an independent contractor and did not have jurisdiction to make an unfair dismissal application. The jurisdictional objection was upheld, and the Application was dismissed.[8]
The Costs Applicant sought costs for the above proceedings on 20 June 2024. I provide my consideration below in determining whether costs should be awarded.
Costs under s.400A of the Act
Section 400A of the FW Act is a general provision for the awarding of costs against a party, which applies to unfair dismissal and other matters. This section is a departure from the usual rule that parties must bear their own costs in relation to a matter before the Commission and provides as follows:
“400A Costs orders against parties
(1) The FWC may make an order for costs against a party to a matter arising under this Part (the first party) for costs incurred by the other party to the matter if the FWC is satisfied that the first party caused those costs to be incurred because of an unreasonable act or omission of the first party in connection with the conduct or continuation of the matter.
(2) The FWC may make an order under subsection (1) only if the other party to the matter has applied for it in accordance with section 402.
(3) This section does not limit the FWC’s power to order costs under section 611.“
This section was inserted into the Act by virtue of the Fair Work Amendment Act 2012. It is useful to outline the following from the Explanatory Memorandum to the Fair Work Amendment Bill 2012:
“168. Item 4 inserts a new section 400A to enable the FWC to order costs against a party to an unfair dismissal matter (the first party) if it is satisfied that the first party caused the other party to the matter to incur costs by an unreasonable act or omission in connection with the conduct or continuation of the matter.
169. As with the new power to dismiss applications under section 399A, the power to award costs under section 400A is not intended to prevent a party from robustly pursuing or defending an unfair dismissal claim. Rather, the power is intended to address the small proportion of litigants who pursue or defend unfair dismissal claims in an unreasonable manner. The power is only intended to apply where there is clear evidence of unreasonable conduct by the first party.
170. The FWC’s power to award costs under this provision is discretionary and is only exercisable where the first party (whether the applicant or respondent) causes the other party to incur costs because of an unreasonable act or omission. This is intended to capture a broad range of conduct, including a failure to discontinue an unfair dismissal application made under section 394 and a failure to agree to terms of settlement that could have led to the application being discontinued.
171. However, the power to award costs is only available if the FWC is satisfied that the act or omission by the first party was unreasonable. What is an unreasonable act or omission will depend on the particular circumstances but it is intended that the power only be exercised where there is clear evidence of unreasonable conduct by the first party.”
In Baxter Healthcare Pty Ltd v Portelli[9] (Baxter Healthcare), the Full Bench of the Commission stated:
“[50]Item 4 of the Fair Work Amendment Bill 2012 inserted a new section 400A into the FW Act to enable the Fair Work Commission to order costs against a party to an unfair dismissal matter (the first party) if it is satisfied that the first party caused the other party to the matter to incur costs by an unreasonable act or omission in connection with the conduct or continuation of the matter. The explanatory memorandum provides as follows:
169. As with the new power to dismiss applications under section 399A, the power to award costs under section 400A is not intended to prevent a party from robustly pursuing or defending an unfair dismissal claim. Rather, the power is intended to address the small proportion of litigants who pursue or defend unfair dismissal claims in an unreasonable manner. The power is only intended to apply where there is clear evidence of unreasonable conduct by the first party.
170. The FWC’s power to award costs under this provision is discretionary and is only exercisable where the first party (whether the applicant or respondent) causes the other party to incur costs because of an unreasonable act or omission. This is intended to capture a broad range of conduct, including a failure to discontinue an unfair dismissal application made under section 394 and a failure to agree to terms of settlement that could have led to the application being discontinued.
171. However, the power to award costs is only available if the FWC is satisfied that the act or omission by the first party was unreasonable. What is an unreasonable act or omission will depend on the particular circumstances but it is intended that the power only be exercised where there is clear evidence of unreasonable conduct by the first party.” [2]
In Gugiatti v SolarisCare Foundation Ltd[10](Gugiatti), the Full Bench outlined the preconditions to the exercise of discretion in relation to an application made under s.400A, as follows:
“[43] Section 400A(1) establishes two pre-conditions for the making of an order for costs under the subsection (in addition to the requirement in s.400A(2)). The first is that the Commission must be satisfied that a party engaged in an unreasonable act or omission in relation to the conduct or continuation of a matter. The second is that such act or omission caused the other party to the matter to incur costs. Once these preconditions are satisfied, a discretionary power to order the payment of such costs is enlivened.[11]“
The power to make an order for costs against a party is a discretionary power and it does not automatically follow that an order for costs will follow notwithstanding the satisfaction of the preconditions set out in s.400A(1). In Baxter Healthcare, the Full Bench stated:
“[95] We note at the outset that the relevant sections provide that if the requisite jurisdictional facts are established (relevantly, ss. 400A(1) and (2), and s.611(2)) then the Commission may make an order for costs. A costs order does not automatically follow upon a finding of the requisite jurisdictional fact. It is clear from the use of the word ‘may’ that the Commission retains a discretion as to whether or not to make an order for costs. In that regard these provisions may be contrasted with ss. 418(1) and 424(1), which provide that the Commission must make certain orders if certain jurisdictional facts are present.”
Commissioner Bissett further considered s.400A in Emma Sidney v Employsure Pty Ltd (Sidney).[12] In that decision she distilled a number of the principles that the Full Bench had recently considered in Roy Morgan Research v Baker[13] as follows:
·“A failure to inform another party of an inability to attend proceedings would be, if intentional, unreasonable and if accidental, an unreasonable omission;
·a failure to advise the other party of the first party’s intentions, if deliberate or reckless, would be unreasonable and if an omission could be equally unreasonable;
·very strong prospects of success will not always justify a failure to participate in settlement negotiations;
·a reasonable person will determine if and how to respond to an offer of settlement after considering all of the circumstances of the case including the terms of settlement in relation to the relief sought; the relative strength of the parties cases; the likely length and cost of proceeding to hearing if the matter does not settle; and adverse consequences of acceptance of a settlement rather than prosecuting or defending the primary application.”[14]
In respect of the principles of Calderbank,[15] which are relevant where submissions are made that a reasonable offer to settle was not accepted, I note that in Post for NTI Limited,[16] the Full Bench considered:
“[45] The jurisdiction of the Commission is not one where costs ordinarily follow the cause and there are no rules in the Commission dealing with formal offers such as offers of compromise. It is not a jurisdiction where the only remedy is monetary. An arrangement of the kind followed in the courts involving offers of compromise or Calderbank offers is therefore not necessarily appropriate where reinstatement is a possible remedy. An applicant may also pursue an application where there is no financial gain possible to seek to overturn a finding of misconduct on which their termination of employment was based and which affects their prospects of ongoing employment.”
Submissions
Submissions of the Costs Applicant
The basis for which the Costs Applicant seeks costs have been summarised as below. In my summary, I don’t repeat every submission made however all of the submissions made have been considered.
The Costs Respondent had applied for relief from unfair dismissal without reasonable cause and with no reasonable prospect of success. Citing Kanan,[17] the Costs Applicant contended that the Costs Respondent stated in her material that she was a contractor, and not an employee. Therefore, it should have been clear that there was no basis for making the Application.[18]
An offer to settle the matter was made at the conciliation conference. That offer included a monetary payment in return for a discontinuance of these proceedings and the Costs Respondent relinquishing a minor shareholding in another company jointly owned with the Costs Applicant. A further Calderbank offer, or an ‘offer without prejudice save as to costs’ was made by the Costs Applicant on 16 May 2024. and that the Applicant acted unreasonably by rejecting these offers. Prior to this offer, the Costs Applicant stated that they offered to settle the matter without prejudice initially through the conciliations listed with the Commission. As a result, the Costs Respondent had unreasonably prolonged the matter by rejecting the settlement offers.[19] The Costs Applicant cited Cugura[20] where Federal Magistrate O’Sullivan ordered costs on an events-based costs scale where an employee had rejected an offer made.
Furthermore, the Costs Applicant submits that there were no reasonable prospects of success given that the indicia indicated that Costs Respondent was an independent contractor, and she always operated under a contractor arrangement.[21]
The Costs Applicant cited Muzzicato v New Aged Cleaning Services Pty Ltd,[22] where the Federal Magistrates Court considered the operation of s 570 of the Act where Federal Magistrate O’Dwyer ordered costs finding that an employee had both instituted proceedings “without reasonable cause” and had acted unreasonably in rejecting a settlement offer.
The Costs Applicant also contended in the hearing, that the Costs Applicant had acted unreasonably by refusing to have the matter heard on its papers, instead by demanding a hearing so she could cross-examine witnesses she again caused the Costs Applicant to be exposed to additional unreasonable costs.
The quantum of costs that the Costs Applicant is seeking is not less than $65,000 on an indemnity costs basis and in the alternative on a scale of costs basis. The Costs Applicant submitted that an itemised schedule of costs was attached however they were not filed in accordance with the directions before the hearing and at hearing the Costs Applicant representative submitted that he had not himself prepared those submissions.[23]
Submissions of the Costs Respondent
The Costs Respondent provided a response to the Costs Application which has been summarised below. In my summary, I don’t repeat every submission made however all of the submissions made have been considered.
The Costs Respondent stated that she was unable to afford legal representation and believed that the Commission was a low or no costs jurisdiction and sought to object to legal representation of the Costs Applicant throughout the matter history. It was the Costs Respondent’s understanding that it was usual or normal for parties to attend and give their side of the story.[24]
The Costs Respondent contends, that on the advice that she was given by the Fair Work Ombudsman, it appeared to her that she was in an employment relationship. There were factors that the Costs Respondent took into account including her length of the arrangement with the Costs Applicant, and that she genuinely believed that she was an employee.[25]
When the Costs Respondent sought legal advice prior to the staff conciliation on 12 March 2024, the Costs Respondent stated that the preliminary assessment of the law firm she consulted, was that she would be an employee and the law firm was prepared to represent her. However, the quote was $3,000 up front, and a minimum payment of $10,000 which she could not afford.[26]
The Costs Respondent was not satisfied with the settlement offers provided by the Costs Applicant as she believed that there was significant underpayment, lack of superannuation and other entitlements paid. The Costs Respondent was seeking 4 weeks’ notice, considering her length of service, and was seeking for her shares to be purchased back from the Costs Respondent from whom she had bought them. She further contends that the settlement process was not assisted by the Costs Applicant as their director did not attend the staff conciliation, and the issues of shares was not addressed.[27]
The Costs Respondent submitted that the Costs Applicant’s representative had already performed legal work in preparing submissions for the Respondent before providing notice to the Costs Respondent that she intended to be represented by a legal practitioner. The Costs Respondent further contended that she should not have to be responsible for costs the Costs Applicant chose to incur without her knowledge or awareness. The Costs Respondent in defending her request for a hearing, explained that she thought that cross-examination would help her to establish what her working arrangement was.[28]
The Costs Respondent states that she failed to put forward the appropriate legal arguments which she attributed to not being represented by a lawyer, rather than lacking merit in her matter, and believed that there was a reasonable prospect of success. The Costs Respondent is seeking that Costs are not granted given its financial impact on her and her family and the impact on future Applicant’s who would fear ‘pursuing the truth and upholding fairness, despite where the law does not find in our favour”.[29]
The Costs Respondent cited Baker v Salver Resources,[30] where the Full Bench found that any finding that an application had no reasonable prospects of success should be “reached with extreme caution and should only be reached where an application is ‘manifestly untenable or groundless’”.[31]
The Costs Respondent submits that she sought advice from the Fair Work Ombudsman, an unnamed lawyer and her support person who is a HR professional. She contends that these three parties and even the Fair Work Commission could have told her that her case was doomed to fail but that they did not.
Consideration
Having had regard to the submissions and the case history, I turn my mind to the section under which the Costs Applicant seeks costs. I repeat it here for convenience:
“The FWC may make an order for costs against a party to a matter arising under this Part (the first party) for costs incurred by the other party to the matter if the FWC is satisfied that the first party caused those costs to be incurred because of an unreasonable act or omission of the first party in connection with the conduct or continuation of the matter.”[32] (Emphasis Added)
In respect of the contentions that the Costs Respondent ought to have known that she had poor prospects of success and highlighting where findings had been made that the Applicant’s case failed in certain elements on her own evidence or pertaining to the relevant indicia, that it was unreasonable that the Applicant (Costs Respondent) pursued her case, I note that there were other contested elements of the Applicant’s case that required further probity at the hearing in order for findings to be made.[33] In this respect I find that the Applicant’s case does not quite reach Deane v Paper Australia’s “ manifestly untenable or groundless”[34] a bar considerably higher than “without reasonable prospects,”[35] but a bar that is appropriate in a low or no costs jurisdiction such as this one.
In making these comments about the Applicant’s prospects, I must respond to her contentions in respect of the advice she sought. I am unable to comment on the advice provided by the Fair Work Ombudsman, the unnamed lawyer or the HR person from whom she sought guidance. I do not know what the Applicant told these parties in order to obtain that advice. It is difficult to convey all of the facts in a phone call or email. Neither is it the role of the Fair Work Commission to provide the Applicant with advice on her prospects. That said, parties should be very cautious to take advice on complex issues of law from parties not qualified to give it. I would expect that an appropriately briefed advisor would be obligated to advise the Applicant of the risks involved in instigating these proceedings given her specific circumstances. The Commission seeks to provide some guidance to parties on where they might find proper advice on its Legal advice webpage.
Having regard to the Costs Applicant’s submission that the Costs Respondent acted unreasonably by pressing the matter to proceed to hearing instead of permitting the matter to be heard on the papers, I reject this contention. The Act requires the Commission to conduct a conference or hearing where the matter involves issues of contested facts.[36] The matter did involve contested facts and it is self-evident that this contention must fail.
I am satisfied that the Costs Respondent failed to accept two offers (one at the conciliation conference and one that was put in writing on 16 May 2024) that resulted in costs being incurred because of those acts of refusal and I accept it was unreasonable to do so, inter alia, given those offers were both considerably more generous than the outcome that eventuated.[37]
However, even though I am satisfied that the relevant circumstances in s.400A exist, I am not obliged to order costs. I retain a discretion and for the reasons that follow, in the particular circumstances of this case I have decided to exercise my discretion not to award costs.
(a)Granting the Respondent costs when the Applicant had a case to argue, albeit a very weak one, would be inconsistent with Deane v Paper Australia[38] and would discourage parties from seeking justice;
(b)It was always open to the Respondent to self-represent as the Applicant did, however the Respondent chose to be represented despite the Applicant objecting. I granted the Respondent leave to be represented despite that objection for the reasons set out in the substantive decision.[39] In all of the circumstances, including this application being brought under a low costs/no costs jurisdiction and the conduct of both parties in this proceeding,[40] it is my view it would be unjust to make a costs order in favour of the Costs Applicant; and
(c)I accept the submissions of the Costs Respondent in respect of the financial impact on her family of making such orders.
Conclusion
For the reasons outlined above, I am not satisfied that I should exercise my discretion and make an order for costs against Ms Jeske pursuant to s.400A of the Act, accordingly, the costs application of Noosa Confidential is dismissed.
DEPUTY PRESIDENT
Appearances:
Mr Leighton for the Costs Applicant.
Ms Jeske self-representing.
Hearing details:
Hearing in Brisbane
29 July 2024
Microsoft Teams Video
[1] Karen Lesley Jeske v Noosa Confidential PtyLtd[2024] FWC 1572.
[2] Ibid 23.
[3] Digital Court Book for the Costs Application p.20.
[4] Ibid 47 – 50.
[5] Ibid 51 – 54.
[6] Ibid 55 – 57.
[7] Ibid 58 – 65.
[8] Ibid 67,
[9] [2017] FWCFB 3891.
[10] [2016] FWCFB 2478.
[11] Ibid.
[12] [2016] FWC 2659.
[13] [2024] FWCFB 1175 at [10]-[14].
[14] [2016] FWC 2659 at [28].
[15] [1975] 3 All ER 333.
[16] [2016] FWCFB 6765 at [45].
[17] Re Joseph Michael Kanan v Australian Postal and Telecommunications Union [1992] FCA 366 at [29].
[18] Submissions by Costs Applicant 1 – 4.
[19] Ibid 5 – 11.
[20] Cugura v Frankston City Council (No 2) (2012) 64 AILR 101-669; [2012] FMCA 530.
[21] Submissions by Costs Applicant 12 – 13.
[22] [2011] FMCA 1044.
[23] Submissions by Costs Applicant 14 – 16.
[24] Submissions by Costs Respondent 1 – 2.
[25] Ibid 7-8.
[26] Ibid 9 -10.
[27] Ibid 14 -15.
[28] Ibid 16 – 18.
[29] Digital Court Book p.100 from [19] to the end of the page.
[30] [2012] FWAFB 4014 at [10] citing Deane v Paper Australia Pty Ltd, PR932454 (AIRCFB, Guidice J, Williams SDP, Simmonds C, 6 June 2003) at [7].
[31] Ibid.
[32] Fair Work Act 2009 (Cth) s. 400A.
[33] Karen Lesley Jeske v Noosa Confidential Pty Ltd – [2024] FWC 1572 at [54](b),(g), [57], [59]-[65].
[34] G.H. Deane v Paper Australia Pty Ltd, PR932454, (2003) AIRCFB, Guidice J, Williams SDP, Simmonds C, 6 June 2003 at [8].
[35] [2011] FMCA 1044; see also Re Joseph Michael Kanan v Australian Postal and Telecommunications Union [1992] FCA 366 at [29].
[36] Fair Work Act 2009 (Cth) s.397.
[37] Cugura v Frankston City Council (No 2) (2012) 64 AILR 101-669; [2012] FMCA 530; see also [2016] FWCFB 6765 at [45].
[38] G.H. Deane v Paper Australia Pty Ltd, PR932454, (2003) AIRCFB, Guidice J, Williams SDP, Simmonds C, 6 June 2003 at [8].
[39] Karen Lesley Jeske v Noosa Confidential Pty Ltd – [2024] FWC 1572.
[40] See paragraphs [5]-[26] of this decision.
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