Perre v Apand Pty Ltd
[2005] FCA 542
•6 MAY 2005
FEDERAL COURT OF AUSTRALIA
Perre v Apand Pty Ltd [2005] FCA 542
PRACTICE AND PROCEDURE – application to issue a subpoena – whether relevant documents were in the possession, custody or control of the second or third respondents – whether application constituted a ‘fishing expedition’.
Fruit and Plant Protection Act 1968 (SA)
Crown Proceedings Act 1992 (SA)Sparnon & Ors v Apand Pty Ltd & Ors (unreported, von Doussa J, 20 December 1996) referred to
The Commissioner for Railways v Small (1938) 38 SR(NSW) 564 applied
Hennessy v Wright (No 2) (1890) 23 QBD 445 citedFRANK PERRE & ORS v APAND PTY LTD & ORS
SAD 28 of 1994
LANDER J
6 MAY 2005
MELBOURNE
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
SAD 28 OF 1994
BETWEEN:
FRANK PERRE, CATERINA PERRE, PASQUALE PERRE, MARY PERRE, GUISEPPE DOMENICO PERRE, MARIA PERRE, JIM PERRE, FRANCES PERRE, WARRUGA FARMS PTY LTD, PERRE’S VINEYARDS PTY LTD, PASQUALE PERRE AND GRACE PERRE
FIRST TO ELEVENTH APPLICANTSRANGARA PTY LTD, FRANCESCO PERRE AND MARIA PERRE
TWELFTH TO FOURTEENTH APPLICANTSAND:
APAND PTY LTD
FIRST RESPONDENTTHE MINISTER OF PRIMARY INDUSTRIES
SECOND RESPONDENTTHE STATE OF SOUTH AUSTRALIA
THIRD RESPONDENTJUDGE:
LANDER J
DATE OF ORDER:
6 MAY 2005
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1. Leave to issue a subpoena directed to Dr Scholefield refused.
2. The applicant to pay the second and third respondents’ costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
SAD 28 OF 1994
BETWEEN:
FRANK PERRE, CATERINA PERRE, PASQUALE PERRE, MARY PERRE, GUISEPPE DOMENICO PERRE, MARIA PERRE, JIM PERRE, FRANCES PERRE, WARRUGA FARMS PTY LTD, PERRE’S VINEYARDS PTY LTD, PASQUALE PERRE AND GRACE PERRE
FIRST TO ELEVENTH APPLICANTSRANGARA PTY LTD, FRANCESCO PERRE AND MARIA PERRE
TWELFTH TO FOURTEENTH APPLICANTSAND:
APAND PTY LTD
FIRST RESPONDENTTHE MINISTER OF PRIMARY INDUSTRIES
SECOND RESPONDENTTHE STATE OF SOUTH AUSTRALIA
THIRD RESPONDENT
JUDGE:
LANDER J
DATE:
6 MAY 2005
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
In 1994 the applicants in these proceedings brought proceedings against Apand Pty Ltd, the Minister for Primary Industries and the State of South Australia.
The matter came on for hearing on the question of the respondents’ liability before von Doussa J.
On 20 December 1996 von Doussa J dismissed the action against the Minister for Primary Industries (the Minister) and the State of South Australia (the State). Judgment was accordingly entered for those two respondents: Sparnon & Ors v Apand Pty Ltd & Ors (unreported, von Doussa J, 20 December 1996). The applicants were ordered to pay those respondents their costs.
On 25 February 1998 the respondents’ costs were agreed at $625,000. It was agreed that interest would run on that amount from the date of order until the costs were paid.
The respondents agreed to defer payment of those costs, whilst the applicants’ proceedings continued against the first respondent.
The applicants’ claim against the respondents was for damages for loss suffered as a result of bacterial wilt. It was alleged that the bacterial wilt was caused by infected potatoes supplied by Apand Pty Ltd. The Minister was responsible for the administration of the Fruit and Plant Protection Act 1968 (SA). The third respondent was sued under the Crown Proceedings Act 1992 (SA).
The case relevantly raised against the Minister and the State was summarised by von Doussa J in his reasons for judgment:
‘It is alleged that by reason of the involvement of the Minister and a Development Officer, Ms Lanz, in a project entitled “Development of the Potato Processing Industry in South Australia” (“the project”), and by the conduct of Ms Lanz in monitoring a crop of Saturna potatoes grown on the property of Virgara Bros from which the seed planted by the Sparnons came, the Minister and the State, by their agent Ms Lanz, were guilty of negligence. In particular, it is alleged that Ms Lanz was negligent in not investigating the history of the Saturna seed, and in not diagnosing the presence of bacterial wilt in the Virgara Bros crop.’
It was conceded at trial that the Minister and the State would be vicariously liable for Ms Lanz’s conduct.
Sandra Lanz was called on behalf of the second and third respondents in relation to events prior to April 1992. In particular, it was her evidence that she did not monitor a potato crop grown by the Virgara Bros prior to April 1992. Ms Lanz’s credibility became an issue in the trial. The trial judge said:
‘It is the evidence of both Mr Hughes and Ms Lanz that not only did Ms Lanz not make the statements alleged to have been made by her, but that she did not attend the Sparnon property until 8 January 1992 at which time the Sparnon partnership had already agreed to grow the experimental crop, and had selected the plot where it was to be planted.
It is difficult to envisage what motive Ms Lanz could have had before the Sparnon partnership decided to grow the experimental crop to tell a blatant lie about her participation in the growing of the first Saturna crop at Virgara Bros. It was a matter of indifference to her whether they participated. But once the decision had been made there could be no conceivable reason for her to do so. There was nothing about her evidence or her demeanour when giving it that provides any reason for disbelieving her. On the contrary I think her evidence should be accepted, and I do so.’
Later he relied on Ms Lanz’s records for rejecting some aspects of Messrs Pat and Dominic Virgara’s evidence.
On 14 April 1998 the first applicant wrote to the then Attorney-General, the Honourable K T Griffin, enclosing a document which he said established perjury on Ms Lanz’s part and the offence of perverting the course of justice.
The document consisted of two pages. The first page was a facsimile cover sheet under the header ‘Department of Agriculture’. It was dated 22 March 1992 and addressed to ‘Pat Virgara’ and sent by ‘Sandra Lanz’. The message on the first page was ‘Petiole result for Saturna’. The second page consisted of a graph headed ‘Petiole Sap Nitrate’ and underneath the graph was written ‘Saturna’, ‘Sap Petriole level O.K.’.
It was said, contrary to Ms Lanz’s evidence, that the document established that she was involved with the monitoring of the Saturna crop and the Virgara Bros before April 1992.
The Attorney-General forwarded that letter and that document to the Commonwealth Director of Public Prosecutions (the DPP) for investigation and any action that the DPP considered appropriate. The DPP referred the matter to the Australian Federal Police (the AFP).
It is not clear whether an investigation was carried out by the AFP.
In an undated letter written by a Federal Agent to the DPP it was reported:
‘In light of the advice given by you to the South Australian Attorney General and information contained within the referral documents, it was considered that the issue of the perjury complaint was clearly addressed by the trial Judge in his reasons for judgement and rejected by him at that time. It is considered that any investigation/prosecution action taken would not be successful and therefore an investigation will not be conducted into this allegation.’
The author of that letter must have misunderstood the question posed to the AFP. However, the steps that were taken, or not taken, by the AFP and the DPP are not relevant to these proceedings.
Correspondence was exchanged between the first applicant and Ministers of the South Australian Government between 14 April 1998 and 1 May 1999 in relation to those matters.
The first applicant alleged that the document which had been provided established the untruthfulness of that witness. He also complained that the State had failed to give discovery of that document.
During that period and in that correspondence, the applicants indicated that they would pursue appropriate applications to re-open the trial, but nothing was done.
Eventually, the Minister and the State took steps to enforce the orders for costs. On 17 September 2004 Selway J made the following order:
‘1Leave be granted to the Minister for Primary Industries and State of South Australia to issue a warrant against the first to eleventh and the thirteenth and fourteenth applicants in terms of the warrant annexed to the affidavit of David Ray Ades filed herein on 1 June 2004, such leave to be conditional upon the warrant not being issued until after the 30th day of November, 2004.’
The warrant referred to in his Honour’s order was a warrant for sale of the applicants’ land.
The applicants did not make any attempt to re-open the trial until after the warrant issued when they issued the Notice of Motion in these proceedings seeking the following orders:
‘1).That the warrant of sale over the Perre properties be stayed until final determination of this application.
2).That the order of the Honourable Justice von Doussa made on the 20th day of December 1996 dismissing the applicants’ application against the second and third respondents (“the respondents”) be set aside.
3).That the order of the Honourable Justice von Doussa made on the 25 day of February 1998 and 27th July 1998 that the applicants pay the respondents’ costs be set aside.
4).That there be a new trial of the application against the second and third respondents.
5).Such further or other orders as this Honourable Court deems fair and just.’
The Notice of Motion nominates as respondents, Apand Pty Ltd, the Minister and the State.
The Notice of Motion was accompanied by an affidavit of the first applicant in which he said, ‘that fresh evidence has come to light since the judgment was handed down in the principle [sic] action and upon the advice of those who represented me, an application to set aside the primary judgment should be made at the appropriate time based on that evidence’.
In that affidavit, Mr Perre also said that he would be relying upon a Mr Ian Brookfield for the purpose of progressing the action.
Also accompanying the Notice of Motion was a document entitled ‘Points of Claim’.
After referring to the history of the matter it was alleged in the Points of Claim:
‘8). At trial Lanz gave evidence (inter alia) that:
a).She had no knowledge of and had taken no part in the trial crops of the saturna potatoes grown by Virgara Bros.
b).She had not monitored any crops of saturna potatoes grown by Virgara Bros.
c).She was first aware of being in the area in which the saturna potatoes were grown by Virgara Bros in April 1992, after outbreaks of bacterial wilt had been discovered in other locations.
9).Contrary to her evidence, Lanz had been involved in monitoring the trial crops of saturna potatoes grown by Virgara Bros.
10).Contrary to their obligations as parties to the proceedings and to their assertions in the Lists of Documents referred to in paragraph 6 hereof, the respondents did and had had in their possession custody or power documents which were relevant to the matters in issue between the applicants and the respondents and which were not and have not yet been discovered by the respondents.
11).The documents referred to in paragraph 10 include documents which relate to Lanz’s monitoring of the saturna potatoes grown by Virgara Bros.
12).The applicants are unable to particularise those documents further (because the respondents have not given full and proper discovery) than to say that they include a handwritten facsimile from the respondents to Virgara Bros written by Lanz and sent on 23 March 1992 showing results of petiole sap nitrate testing by Lanz on Virgara Bros’ saturna potato crop.
13).The existence of the documents referred to in paragraph 10 hereof has been and continues to be concealed from the Court and the applicants and the failure to discover remains unexplained by the respondents.
14).Had the documents referred to in paragraph 10 hereof been available to the Court during the trial there is high probability that;
a).The applicants would have been alerted to lines of inquiry, which would have resulted in them proving their case against the respondents.
b).Adverse findings on Lanz’s credibility would have been made.
c).The evidence of Messrs Pat and Dominic Virgara would have been preferred to that of Lanz; and
d).The applicants’ action against the respondents would have succeeded.
15).In the premises the orders dismissing the applicants’ application against the respondents and for the applicants to pay the respondents’ costs were obtained by:
a).The respondents proffering a defence they new [sic] or ought to have known was untenable.
b).Material non-disclosure and a failure by the respondent to comply with a court order for discovery.
c).Failure to make full and proper discovery of all relevant material relating to the cause of action and the issues at hand.
d).An abuse by the respondents of the process of the Court.’
Although in paragraph 10 of the Points of Claim reference is made to ‘documents’, the only document then known to exist was the document which I have described in [12] of these reasons although that was not then exhibited to any affidavit sworn in support of the motion.
Eventually, and in compliance with directions which I gave, the first applicant filed an affidavit in support of the Notice of Motion in which he exhibited the document which had been provided to the Attorney-General on 14 April 1998. He also said in that affidavit that he had arranged for the document to be examined by a handwriting expert and exhibited the handwriting expert’s opinion.
He claimed that the document should have been discovered because it established, contrary to Ms Lanz’s evidence, that Ms Lanz had carried out work monitoring the Virgara Bros potato crop prior to April 1992.
It is asserted in these proceedings that that is a relevant and material matter.
The second and third respondents have filed an affidavit of a solicitor employed in the Crown Solicitor’s Office, Ms Virginia Martindale, who had conduct of the matter on their behalf as principal solicitor from some time in 1994. She was also junior counsel during the course of the trial.
She has asserted that the second and third respondents made discovery of all documents in accordance with their obligations under the rules and under the law generally.
The second and third respondents have also filed an affidavit of Ms Lanz who has deposed that the document, which is the subject matter of this application, is not, in her opinion, genuine. She has referred to a number of facts in support of that opinion.
The matter is listed for hearing on 25 July 2005 for the purpose of determining whether the second and third respondents failed in their obligations to make discovery by failing to discover this document.
That hearing will necessitate an inquiry as to whether or not the document is genuine and, if genuine, relevant and, if genuine and relevant, whether it should have been discovered. If it should have been discovered it will be necessary to determine the consequences of the failure to discover that document.
On 7 April 2005 the applicants’ solicitors wrote to the Registry seeking leave to issue a subpoena, pursuant to O 27A of the Federal Court Rules, directed to Dr Peter Scholefield of Scholefield Robinson Horticultural Services Pty Ltd (S & R) requiring him to produce at the hearing of this matter, ‘[a]ny documents in relation to the trial and development of the potato processing industry in South Australia between June 1990 and June 1992’.
No information was provided in support of the application.
The application was brought to my attention and I advised the parties that I would require argument upon the application.
I heard the application for leave on 22 April 2005. At the conclusion of that hearing I refused leave to issue the subpoena. The applicants requested that I give reasons for that refusal and these are those reasons.
After the applicants were notified that I required argument they filed affidavits in support of the application.
Mr Perre said that in February this year he made inquiries with the South Australian Farmers’ Federation about magazine publications relating to potatoes. In response to his inquiry, he received an e-mail from an officer of that organisation which contained a link to the ‘Potato Internet Starter Pak’. He accessed that site and found that there were five Australian potato consultants, one of whom was resident in South Australia. He said:
‘7.On or about 18 February 2005 I rang Peter Scholefield from S & R having first obtained his contact details from S & R’s website. I called him because I sought information about past potato trials in South Australia. I asked him whether S & R performed analysis on potatoes. He said yes it did. I then asked him whether he was involved in the potato project from 1989 to 1993. He said yes and said that he was aware that the project was for potato crisp growers. I then asked him whether he held any documents in relation to that project. He said yes, he held a mountain of documents regarding the project. He asked me whether I was calling about a legal matter. I said that I was. I said that they were documents which should have been discovered in a court proceeding and that I wanted to see those documents. I then asked Mr Scholefield whether S & R had performed any “Petiole Sap Nitrate” tests on the Saturna potato variety at the Virgara property at Virginia, South Australia. He told me that S & R had performed such testing. He said that he knew the Virgaras as he was monitoring their property and being paid by the crisping group to do so. He said that the Horticulture & Research Development Corporation (HRDC) had funded the project.’
He said that, subsequently, he telephoned Dr Scholefield and asked him for access to the documents in S & R’s possession. Dr Scholefield told him that his solicitor should make a request. That was done. Mr Perre also asked his cousin to approach Dr Scholefield to ask for access to the document.
In due course, he was advised that S & R would not allow access to the documents without a subpoena.
In an affidavit sworn on 21 April 2005 the applicants’ solicitor, Mr Michael Czechyra, exhibited a draft subpoena which, it was asserted, more precisely identified the documents which were sought. The documents sought in that subpoena were:
‘(a)crop monitoring of Saturna seed potatoes by Sandra Lanz or any other agent of the Minister for Primary Industries (MPI) which occurred at the Virgara property at Virginia, South Australia (Virgara property), between 1989 and 1993, pursuant to the Potato Industry Development Project established by the MPI in or about January 1999 (the Project);
(b)“Petiole Sap Nitrate” tests performed on Saturna seed potatoes at the Virgara property between 1989 and 1993 pursuant to the Project;
(c)bacterial wilt infection of Saturna seed potatoes between 1989 and 1993 or any symptoms suggestive of such infection which were apparent in that period; and
(d)requests by the MPI that crop monitoring and/or testing of Saturna seed potatoes between 1989 and 1993 occur.’
Mr Czechyra faxed that draft subpoena to Dr Scholefield and asked him to look at the description of the documents and advise him whether S & R could assist.
During a telephone conversation with Dr Scholefield, which preceded the sending of that draft subpoena to him, Dr Scholefield informed Mr Czechyra that S & R’s project with Horticultual and Research Development Corporation began in the 1992/1993 financial year and finished in about 1996/1997. He said that, on that basis, S & R might not hold documents of the type sought by the applicants.
The second and third respondents also filed a further affidavit of Ms Martindale. She said that she wrote to Dr Scholefield on 21 April 2005 in which she asked Dr Scholefield the following questions:
‘1.Did your firm undertake any monitoring, testing or otherwise in relation to the two Virgara saturna crops in late 1991 and early 1992?
2.If your answer is yes to question 1, who engaged you, who sent the samples to you and what tests were carried out and who did you report to?
3.If your answer is yes to question 1, to whom were the accounts sent and who paid the accounts for your services?
4.Do you still hold copies of documents with respect to the above, particularly for the financial year 1 July 1991 to 30 June 1992?’
She later spoke to Dr Scholefield and she deposed:
‘5.At approximately 11.50 Mr Scholefield returned my call. I introduced myself and explained that I was acting for the Minister for Primary Industries and the State of South Australia in relation to an application by Mr Perre to set aside judgement and in relation to an application for a subpoena against his firm. He replied words to the effect that they had very little documentation. I said that Mr Perre had alleged that his firm had a large amount of documentation.
6.I read my letter to him which I had previously faxed to his firm exhibit VM1 and when I got to the questions on Page 2 of my letter the answer to question 1 was no. He advised me that their project at Virgara’s had started in the second half of 1992. He said that Sandra Lanz’s project pre-dated the project that his firm was involved in.
7.He said that they had two to three potato projects at Virgara’s from July 1992 to July 1996 which involved monitoring irrigation and nutrition, although he could not remember the potato variety. He advised me that when he had been asked about the period 1991-1992 by Slater and Gordon he had told them that their project was after that time.
8.He advised me that their firm took over the potato project that Sandra Lanz had been involved in with the Department of Agriculture from the Department of Agriculture as a private project after Sandra Lanz had left and a woman by the name of Pam Strang then supervised the project on their behalf.’
When this application came on before me, counsel for the second and third respondents asserted that the evidence established that S & R had no documents relevant to the principal application and that leave to issue the subpoena should be refused on that ground alone. It was also argued that the application to issue the subpoena was a fishing expedition.
In support of those submissions, Document 793, discovered in the principal proceedings, was handed to me and the applicants’ counsel. The second and third respondents’ counsel submitted that document tended to establish that S & R had not commenced their work in relation to potato disease until after May 1992. In those circumstances, it was put that Dr Scholefield’s assertions to both the applicants’ and the second and third respondents’ solicitors that he had no documents of the kind should be accepted.
The letter is written by S & R on 19 May 1992 to the Chief Quarantine Officer who was an employee in the Minister’s department. In that letter Mr Robinson wrote:
‘SUBJECT: Potato variety trials
1Many thanks for the opportunity to discuss potato disease in relation to our negotiations with CCA Snack Foods to carry out their variety trials.
I was particularly grateful for the information you were able to give me on sensible measures to minimise any possible spread of root disease or pests which might occur inadvertently, as a consequence of our actions.
2To date no site has been negotiated and we have not committed ourselves to proceeding.
…
5We will be discussing the proposed trial in detail with the CCA people late on Thursday afternoon, so any response you are able to give me on point 4 above by then will be important.’
CCA Snack Foods is apparently a reference to Apand Pty Ltd.
I agree with counsel’s submission that the letter indicates that S & R had not done any work for Apand Pty Ltd in relation to potato variety trials prior to May 1992. That letter does support Dr Scholefield’s assertion to the parties’ solicitors that their project with Apand Pty Ltd commenced in the second half of 1002.
It would follow that S & R could not have any relevant documents.
For that reason alone, it was my opinion that leave should be refused.
However, counsel for the applicants, Mr Harrison, asserted that the conversation deposed to by Mr Perre in his affidavit was inconsistent with Dr Scholefield’s assertions to his instructors and the second and third respondents’ solicitor.
In my opinion, there is no inconsistency between what Dr Scholefield said to Mr Perre and what he has subsequently said to the parties’ solicitors.
It must be remembered that Mr Perre’s conversation with Dr Scholefield occurred, without any warning to Dr Scholefield, 13 years after his firm had been involved in its work in relation to potato disease. Clearly, he spoke to Mr Perre without reference to his records or documents.
He did not say that he was involved in a potato project in 1993. He said he was involved between 1989 and 1993. That was correct. As it happened, and as he later confirmed, he commenced that work in the second half of 1992.
The evidence is all one way and that is, that S & R have no documents relevant to the matter.
Even if S & R did have some documents relating to its work with Apand Pty Ltd prior to May 1992 there is no evidence that those documents are relevant to the issues that I have to decide which I have identified in [37].
Any documents S & R had could possibly be relevant to some other claim that the Minister and the State failed to make discovery of some other documents, but that only goes to establish that this is, as the second and third respondents’ counsel submitted, a fishing expedition.
A party is not entitled to use a subpoena duces tecum to fish for evidence to support the party’s case. A fortiori a party is not entitled to use a subpoena to investigate whether the party has any case: Hennessy v Wright (No 2) (1890) 23 QBD 445.
The subpoena which the applicants originally sought leave to issue demonstrated the fishing nature of the application. It could not issue for the reasons given by Jordan CJ in The Commissioner for Railways v Small (1938) 38 SR(NSW) 564 at 573:
‘A writ of subpoena duces tecum may be addressed to a stranger to the cause or to a party. If it be addressed to a stranger, it must specify with reasonable particularity the documents which are required to be produced. A subpoena duces tecum ought not to be issued to such a person requiring him to search for and produce all such documents as he may have in his possession or power relating to a particular subject matter. It is not legitimate to use a subpoena for the purpose of endeavouring to obtain what would be in effect discovery of documents against a person who, being a stranger, is not liable to make discovery. A stranger to the cause ought not to be required to go to trouble and perhaps to expense in ransacking his records and endeavouring to form a judgment as to whether any of his papers throw light on a dispute which is to be litigated upon issues of which he is presumably ignorant: Lee v Angas (1866) LR 2 Eq 59; Burchard v Macfarlane [1891] 2 QB 241 at 247; A.-G. v Wilson (1839) 9 Sim. 526; Newland v Steer (1865) 13 LT 111; 13 WR 1014. And if a subpoena duces tecum is issued to such a person in an objectionable form, the witness may apply to the court to have it set aside.’
The revised subpoena cannot issue because the applicants have not established that the proposed addressee has any relevant documents.
Even if they could, there is no evidence that the Minister and the State thereby failed to make discovery of any relevant documents.
Whatever work was done by S & R was done on behalf of Apand Pty Ltd and, perhaps, the Horticulture and Research Development Corporation. That Corporation is not an agency of the State of South Australia but is an agency of the Commonwealth.
There is no evidence that the documents were ever in the possession, custody or control of the Minister or the State.
There is therefore no evidence of any documents relevant to the issues at trial are in the hands of S & R. There is no evidence that even if those documents did exist that the second or third respondents thereby had an obligation to discover those documents and failed in that obligation.
Those documents are not relevant in any way to the claim in the Notice of Motion, which is that the document of 21 March 1992 should have been discovered.
For all of those reasons, I refused the application to issue a subpoena.
I certify that the preceding seventy-three (73) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander. Associate:
Dated: 6 May 2005
Counsel for the First to Eleventh Applicants: Mr C W R Harrison Solicitor for the First to Eleventh Applicants: Slater and Gordon Counsel for the Twelfth to Fourteenth Applicants: The Twelfth to Fourteenth Applicants did not appear Counsel for the First Respondent: The First Respondent did not appear Counsel for the Second and Third Respondents: Mr M Bell Solicitor for the Second and Third Respondents: Crown Solicitor’s Office Date of Hearing: 22 April 2005 Date of Judgment: 6 May 2005
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