Staker v Kemp
[2018] VSC 367
•4 July 2018
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MILDURA
COMMON LAW DIVISION
CIVIL CIRCUIT LIST
S CI 2016 04420
| JESSE STAKER | Plaintiff |
| v | |
| RALPH KEMP & ORS (according to the attached schedule) | Defendants |
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JUDGE: | JUDICIAL REGISTRAR CLAYTON |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 27 June 2018 |
DATE OF JUDGMENT: | 4 July 2018 |
CASE MAY BE CITED AS: | Staker v Kemp & Ors |
MEDIUM NEUTRAL CITATION: | [2018] VSC 367 |
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PRACTICE AND PROCEDURE – Subpoena to treating psychologist in personal injury claim - Records disclose allegations of sexual abuse – Sexual abuse not the subject of proceeding but relevant to psychiatric impairment claimed – Whether psychologist records are ‘confidential communications’ pursuant to Evidence (Miscellaneous Provisions) Act 1958 Div 2A– Whether leave to issue subpoena required - KR v BR & Anor [2018] VSCA 159, R v Lyons [2018] VSC 256.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | No appearance | |
| For the Defendants | Mr Ajzensztat | Norris Coates |
| The Objector, Ms Newman, appeared on her own behalf |
JUDICIAL REGISTRAR CLAYTON:
Introduction
The first and second defendants, Ralph and Debra Kemp, are the owners of a property at 6 Delta Court, Mildura. The third defendant, John Kemp, leased the property from them and lived in the property with the plaintiff’s sister, Krystle Staker.
The plaintiff, Mr Staker, alleges that on 16 November 2013 John Kemp asked him to help move some furniture. In the course of moving a TV cabinet, Mr Staker says he suffered an injury. In addition to his back injury which required surgery, Mr Staker claims psychological injury, depression and anxiety.
Mr Staker alleges that his injuries arose as a result of the negligence of the three defendants.
On 1 March 2018 the defendants filed a subpoena to Merbein Family Medical Practice seeking ‘all your file and clinical notes relating to Mr Jesse Staker’.
Mr Staker’s lawyers were notified of this subpoena and no objection was taken.
Among the documents subpoenaed from Merbein Family Medical Practice was a letter from Ms Rebecca Newman, registered psychologist, to Dr Phillis Jebron dated 10 September 2014. In that letter Ms Newman noted that Mr Staker had attended three sessions with her and that his case had ‘been suspended due to non-attendance to the last three scheduled appointments’. She then set out a clinical summary which detailed her assessment of Mr Staker and her recommendations. She refers to a ‘background marked by significant trauma and grief and loss’. She recommends that Mr Staker continue counselling and notes that ‘as he is a victim of crime under NSW jurisdiction he may be eligible to access counselling under Victims of Crime NSW’. She also notes that he had a problem with his back ‘which is under control with medication, stretching, massage and reported to commence physiotherapy’.
There is no mention in this letter of any sexual abuse suffered by Mr Staker.
On 4 May 2018 Mr Staker’s lawyers served a report of Dr David Weissman, a consultant psychiatrist who assessed Mr Staker for medico legal purposes. Dr Weissman’s report details childhood sexual abuse of Mr Staker and the impact this abuse had on his mental health.
On 29 May 2018 the defendants filed a subpoena for production addressed to Ms Newman’s practice, Life Resolutions Mildura. The subpoena sought ‘all your clinical file and notes relating to Mr Jesse Staker’.
The Objection
On 11 June 2018 Ms Newman wrote to the Supreme Court to object to the subpoena. She sets out a number of grounds of objection which can be summarised as follows:
(a) her documents are not relevant to the matters in dispute and the subpoena constitutes a fishing expedition;
(b) the documents are sensitive and disclosure could pose a serious threat to the health of Mr Staker;
(c) disclosing the documents could undermine the relationship of trust between Mr Staker and his medical practitioners generally;
(d) disclosure would conflict with her duties under privacy and health records legislation in relation to the privacy of persons other than Mr Staker;
(e) seeking the documents may be an abuse as there may be some collateral purpose;
(f) the documents contain confidential information regarding alleged sexual offences perpetrated on Mr Staker and may not be compellable documents having regard to the provisions of ‘the appropriate Evidence Act’.
The plaintiff had also subpoenaed Ms Newman to attend to give evidence, but withdrew that subpoena on 21 June 2018. The plaintiff was informed of the objection hearing but elected not to attend and made no submissions.
Defendants’ response to the objection
In summary, the defendants responded to the objections as follows:
(a) The documents are relevant because Ms Newman provided psychological treatment to Mr Staker. Mr Staker claims a psychological injury. At issue in the trial will be the contribution made to Mr Staker’s psychological injury by his back injury. Mr Staker attended Ms Newman after the back injury, but it appears that his need for psychological treatment had little if anything to do with his back injury. The defendants would be prejudiced in their defence if they cannot put the contents of Ms Newman’s records to the plaintiff.
(b) Mr Staker has not asserted that the records are sensitive or that he will suffer any damage if they are disclosed. Some of Mr Staker’s medical records have already been disclosed.
(c) There is no evidence that disclosure of the records would undermine Mr Staker’s therapeutic relationship with any medical practitioner and he does not have an ongoing relationship with Ms Newman.
(d) Health and privacy legislation does not prohibit the disclosure of such records.
(e) Ms Newman has not identified any collateral purpose and there is no other collateral purpose for the subpoena.
(f) The ‘appropriate Evidence Act’ referred to by Ms Newman is, presumably, the Evidence (Miscellaneous Provisions) Act 1958, (EMP Act) Division 2A of Part II. Where 2A applies, the Court’s leave must be obtained before a document can be disclosed to the Court. Pursuant to the reasoning of Riordan J in R v Lyons[1] a ‘confidential communication’ which would attract the application of Division 2A must be a confidential communication that relates to a sexual offence and there must be a relationship between the relevant litigation and the sexual offence. In this case there is no relationship between the sexual offence and the relevant litigation and therefore Ms Newman’s records do not fall within the definition of ‘confidential communication’. No leave is therefore required.
[1][2018] VSC 256.
I accept the defendants submissions and reasoning in relation to the objections (a) to (e) inclusive. A discussion of the objection taken at (f) follows below.
The Legislation
Division 2A of the Act regulates the production and adducing of evidence of confidential communications. A confidential communication is defined to mean:
a communication, whether oral or written, made in confidence by a person against whom a sexual offence has been, or is alleged to have been committed to a registered medical practitioner or counsellor in the course of the relationship of medical practitioner and patient or counsellor and client, as the case requires, whether before or after the acts constituting the offence occurred or are alleged to have occurred.
15 Section 32AB sets out the guiding principles with respect to the Division:
32AB Guiding principles
It is the intention of Parliament that in interpreting and applying this Division in any legal proceeding that relates (wholly or partly) to a charge for a sexual offence, courts are to have regard to the fact that—
(a) there is a high incidence of sexual violence within society; and
(b) sexual offences are significantly underreported; and
(c)a significant number of sexual offences are committed against women, children and other vulnerable persons including persons with a cognitive impairment; and
(d) offenders are commonly known to their victims; and
(e)sexual offences often occur in circumstances where there is unlikely to be any physical signs of an offence having occurred.
With respect to the production of documents and the granting of leave, ss 32C and 32D provide:
32C Exclusion of evidence of confidential communications
(1) In a legal proceeding—
(a)a party cannot seek to compel another party to produce a document containing a confidential communication;
(b)a document is not to be produced if it would disclose a confidential communication;
(c) evidence is not to be adduced if it would disclose—
(i) a confidential communication; or
(ii)the contents of a document recording a confidential communication—
unless the court grants leave to compel the production of the document or to produce it or to adduce the evidence, and the party seeking to have the document produced or to produce it or to adduce the evidence has given notice of their intention in accordance with subsection (2).
(2)A party seeking to compel the production of, or to produce or adduce, protected evidence must, not less than 14 days before the evidence is proposed to be compelled to be produced, produced or adduced, give notice in writing of their intention to—
(a) each other party to the proceeding; and
(b) in the case of a criminal proceeding, the informant; and
(c)the medical practitioner or counsellor, as the case requires, if not a party.
(3) The court may—
(a)fix a period of notice shorter than that referred to in subsection (2); or
(b) waive the requirement to give notice under subsection (2).
(4)On receipt of a notice under subsection (2)(b), the informant must give a copy of the notice to the protected confider within a reasonable time after its receipt.
(5)Whether or not notice has been given under subsection (2) or (4), the medical practitioner or counsellor, as the case requires, and the protected confider may, with the leave of the court, appear in the proceeding and make submissions.
(6)For the purpose of determining an application for leave under subsection (1) or (5), the court may order that the document be produced to it and may inspect it but must not make the document available, or disclose its contents, to the applicant for leave.
(7)Evidence that, because of subsection (1), is not to be compelled to be produced, produced or adduced in a legal proceeding is not admissible in the proceeding.
32D Restriction on granting leave
(1)A court must not grant leave to compel the production of, to produce or to adduce protected evidence unless it is satisfied, on the balance of probabilities, that—
(a)the evidence will, either by itself or having regard to other evidence produced or adduced or to be produced or adduced by the party seeking leave, have substantial probative value to a fact in issue; and
(b)other evidence of similar or greater probative value concerning the matters to which the protected evidence relates is not available; and
(c)the public interest in preserving the confidentiality of confidential communications and protecting a protected confider from harm is substantially outweighed by the public interest in admitting, into evidence, evidence of substantial probative value.
Discussion
Two recent decisions deal with the operation of Division 2A of the Act. The decisions cited by the defendants above, of Riordan J in R v Lyons, and the decision of the Court of Appeal in KR v BR & Anor.[2] In both cases documents were sought which disclosed accounts of alleged sexual assault. That is where the similarities end.
[2][2018] VSCA 159.
In R v Lyons, Lyons was accused of murder. He applied to inspect medical and psychological records of a Crown witness in his trial, Arthur, who had given evidence to the police that Lyons had been involved in the murder plot. The medical and psychological records of Arthur disclosed that Arthur had been a victim of sexual abuse. Lyons sought access to those documents on the basis that the material was relevant in assessing Arthur’s credibility and reliability, and that Arthur’s credibility would be the subject of serious attack. The Crown initially argued that Lyons had not fulfilled the requirements of the test upon which leave should be granted – that is that they were confidential communications and Lyons needed to prove that they would have substantial probative value, that better evidence was not available, that the public interest in disclosure outweighed public interest in preserving confidentiality, and that the subpoena was not a fishing expedition. Ultimately the Crown withdrew its objection to the subpoena.
Riordan J found that, as a matter of statutory interpretation, a broad definition of ‘confidential communication’ would extend the protections offered by Division 2A well beyond the purposes intended. He preferred an interpretation that limited the definition and doubted that, under the more limited definition, the subpoenaed material constituted ‘confidential communications’ as defined.[3]
[3]At [42].
In KR v BR & Anor the first respondent, BR, alleged that the applicant, KR had sexually assaulted her. She claimed damages for injuries arising from that assault. The issue of whether KR required leave to subpoena the records of BR’s treating psychiatrist was referred to a judge of the County Court. The judge at first instance found that leave was required and that the statutory provisions override any common law privilege in relation to the waiver of medical privilege in this case. He found that the grounds for leave were not made out and accordingly refused to grant leave for the subpoena.
KR appealed to the Court of Appeal. The Court of Appeal agreed with the trial judge that KR did require leave to issue the subpoena. The ‘threshold requirement for leave to issue a subpoena gives effect to the purpose of reassuring victims of sexual assault that no unwarranted access to their records will occur’.[4]
[4]At [51]-[60].
The Court of Appeal also found that the trial judge had not erred in refusing to grant leave, and that the conclusions he reached as to the initial preconditions set out in 32D(1)(a) and (b) were open to him.[5]
[5]At [75].
A relevant distinction between these two cases is whether they involved confidential communications, which would enliven the provisions of Division 2A. In Lyons, the trial was a murder trial. Arthur’s history of sexual abuse was not relevant to anything but his reliability and credibility as a Crown witness. The fact that he had a history of sexual abuse which had been disclosed to medical providers was held to be unlikely to render the documents ‘confidential communications’. In KR the claim against KR was that he had sexually assaulted the plaintiff. The records sought were from BR’s treating psychiatrist and were known to disclose communications about the sexual offence claimed. Applying Riordan J’s interpretation of Division 2A, the documents in KR would fulfil the requirements that a ‘confidential communication’ is a communication relating to the subject matter of the sexual offence and that there is a relationship between the relevant litigation and the sexual offence. There was no dispute that the records amounted to ‘confidential communications’.
This Court has recently seen a significant increase in claims arising from sexual abuse, particularly of children in an institutional setting. On a literal interpretation of Division 2A of the EMP Act, a confidential communication includes any communication made by a person against whom a sexual offence has been committed to a medical practitioner or counsellor. The EMP Act does not specify that the communication needs to include information about or details of the sexual offence. If the protected confider has had a sexual offence committed against them, then, on a literal interpretation of the EMP Act, every communication to a medical practitioner or a counsellor, whether before or after the sexual offence, is a confidential communication.
This literal interpretation presents a practical difficulty for parties to litigation, and the Court. It would mean that leave must be sought to subpoena any medical or counselling record in a claim arising from a sexual offence, regardless of whether it contains any disclosure about a sexual offence.
Further, in cases that do not relate to a sexual offence, the unfortunate prevalence of sexual abuse means that parties cannot know for certain that a claimant is not a person against whom a sexual offence had been committed. If a literal interpretation was to be applied, arguably leave would be required for every subpoena of every medical or counselling record in every personal injury claim, lest the claimant had ever had a sexual assault committed against them.
This cannot be the intention of the EMP Act. It would create a significant additional burden for the parties and the Court, and would substantially add to the costs and delays in the resolution of personal injury claims.
In circumstances where one could reasonably suppose that the subpoenaed documents would contain confidential communications, such as a subpoena to a treating psychiatrist in a claim arising from sexual abuse, then the EMP Act would apply and leave would need to be sought.
However for the reasons set out by Riordan J[6] in Lyons I adopt his preliminary view that the definition of a confidential communication should be limited to:
(a) a communication about a matter related to a sexual offence; and/or
(b) an allegation of a sexual offence in the relevant proceeding.[7]
[6]At [33]-[37].
[7]At [36].
I agree that an interpretation which limits the definition to:
(a) confidential communications relating to the subject matter of the sexual offence; and
(b) requires a relationship between:
(i) the relevant litigation; and
(ii) the sexual offence or the allegation of a sexual offence
sits more comfortably with the purpose of Division 2A.[8]
[8]At [37].
The present case illustrates the practical difficulties of a literal interpretation. The defendants first became aware of Ms Newman and the sexual abuse after subpoenaing the records of Mr Staker’s general practitioner. There was nothing in Mr Staker’s claim that put them on notice that he was a person against whom a sexual offence had been committed.
The defendants were not in a position to know, at the time of subpoenaing Merbein Family Medical Practice, that the documents would contain disclosure of a sexual offence. Mr Staker would have known but took no objection to that subpoena. If a literal interpretation of Division 2A is applied, the defendants would need leave to issue the subpoena to Merbein Family Medical Practice prior to having any knowledge of a sexual offence having been committed against Mr Staker.
The defendants were in a position to know, or at least assume, based on the contents of the GP records, that the subpoena to Ms Newman might involve communications about a sexual offence.
The defendants submit that the documents sought do not amount to confidential communications and therefore do not enliven the provisions of Division 2A.
As the claim is not one in which there is an allegation of a sexual offence in the proceeding, nor is there any relationship between the litigation and the sexual offence, other than the impact of the sexual offence on Mr Staker’s medal health, I agree.
The requirements of s32 D
In the event that Ms Newman’s documents are confidential communications, my preliminary view is that I would be satisfied of the elements of s32D(1)(a), (b) and (c) and would have granted leave.
Mr Staker alleges that, as a result of his back injury, he has suffered the following injuries:
· Injury to the lumbar spine
· L4/L5 disc protrusion
· L5/S1 disc extrusion
· Internal derangement to the structures of the lumbar spine necessitating surgery
· Radiculopathy
· Scarring
· Psychological injury
· Depression; and
· Anxiety
No further particulars of the psychological injury, depression and anxiety have been provided in filed documents. The defendants interrogated Mr Staker but did not ask any questions about his psychological injury.
The report of medico legal psychiatrist Dr David Weissman dated 5 April 2017 details Mr Staker’s family, medical and psychiatric history. That report says that Mr Staker had received treatment as an outpatient at the Mildura mental health unit and had seen a psychologist called Tom. Mr Staker told Dr Weissman that, prior to the back injury, he had suffered from depression, anxiety, agoraphobia, panic attacks and lowered self-esteem and that these symptoms were ‘mild’ and ‘under control’ at the time of the back injury. Dr Weissman summarises his diagnosis of Mr Staker as follows:
I conducted a psychiatric assessment of the claimant Mr Staker and concluded that he is suffering from:
1. premorbid, chronic depressive and anxiety syndrome;
2. premorbid requirement for antidepressant medication;
3. pre-existing chronic Post-Traumatic Stress Disorder, now quiescent/in remission;
4. no Post-Traumatic Street Disorder component directly related to the circumstances of the injury;
5. recurrence or aggravation of chronic Adjustment Disorder with Dressed and Anxious Mood, now of mild to moderate intensity of severity.
Ms Newman’s letter to Dr Jebron of 10 September 2014 provides her opinion of Mr Staker’s psychological state. The report mentions a background marked by trauma, grief and loss and mentions his back injury as being ‘under control with medication’.
Probative Value
Ms Newman saw Mr Staker after his back injury. Her letter to Dr Jebron sets out matters that are relevant to the claim Mr Staker makes about his psychological condition, for example that he has a background ‘marked by trauma’ and that his back injury is ‘under control’.
That he was seeking psychological counselling in 2014 is relevant to his claim and the impact of his back injury on his psychological state is clearly a fact in issue. The records of Ms Newman will have substantial probative value.
Other evidence available
The report of Dr Weissman indicates that Mr Staker received outpatient treatment from a Mildura mental health unit over a period around 2012 to 2013 but that at the time of the back injury he had been discharged from the unit. He had also seen a psychologist named ‘Tom’ but no dates of attendance were given. He gave a history to Dr Weissman that he was not seeing a psychologist or psychiatrist at the time of Dr Weissman’s assessment and had not seen one since the back injury, although he received a lot of support from his doctor, Dr John Buckley.
While Dr Buckley, ‘Tom’ and the Mildura mental health unit may be able to provide evidence about Mr Staker’s psychological condition, as far as the Court is aware, there is no other source of evidence of a treating psychologist after the back injury. Dr Weissman does not appear to have been aware of Ms Newman’s treatment of Mr Staker and therefore evidence about that treatment cannot come from him. Ms Newman’s record is the only evidence available.
Public Interest
The ‘Guiding Principles’ require Courts to have regard to the fact that there is a high incidence of violence within society, that sexual offences are significantly under-reported, that sexual offences are often committed against women, children and vulnerable people, offenders are commonly known to their victims and there are often no physical signs of an offence having occurred. The Court is to have regard to these factors because there is a public interest in ensuring that people against whom a sexual offence has been committed are able to disclose that offence to medical providers and counsellors without fear that there will be unwarranted disclosure of those records. The public has an interest in ensuring that people against whom a sexual offence is committed get treatment and counselling, and are not dissuaded from seeking medical treatment or counselling for any reason, including fear of disclosure of their records.
Balanced against the public interest in maintaining confidentiality is the public interest in ensuring that any trial that proceeds is fair to both sides.
In the present case, Mr Staker’s psychological condition is a fact in issue. The public has an interest in ensuring that the defendants have every reasonable opportunity to cross examine Mr Staker about the cause of his condition and the factors that may have contributed to it. The public has an interest in ensuring that the Court has the best available information upon which to assess Mr Staker’s claim for psychological injury.
Further, the sexual offence has been disclosed by Mr Staker’s own expert, Dr Weissman.
In considering the relative weight of the public interest in disclosure against the public interest in preserving confidentiality I have considered the following matters:
The likelihood and nature or extent of harm to Mr Staker if evidence is adduced
There is no evidence that Mr Staker would suffer harm from the disclosure of Ms Newman’s records. Whilst the Court accepts, as a general principle, that the disclosure of confidential communications in a legal proceeding could cause a person harm, such as a loss of trust in the medical provider or counsellor, in this case Mr Staker has no ongoing relationship with Ms Newman. When asked, Ms Newman could not say that disclosure of her records would cause Mr Staker any specific harm, but might cause him to have a general distrust of the medical profession.
Mr Staker was not present and made no submissions. However Dr Weissman’s report indicates that Mr Staker has a supportive relationship with his treating doctor, Dr Buckley, and there is nothing in that report which suggests that Mr Staker has, or is likely to develop, a distrust of the medical profession. In his instructions to Dr Weissman he presents as a man who suffered a significant traumatic event, sought treatment and felt that he had largely overcome that trauma. According to Dr Weissman he is not displaying any features of trauma arising from the sexual offence. Whilst Dr Weissman attributes a percentage of his psychological injury to events that predate the back injury, there is no suggestion in any material before the Court that disclosure of those events will aggravate his condition.
The extent to which the protected evidence is necessary to allow the [defendant] to make a full defence
The protected evidence is not relevant to the liability of the defendants in this case. However causation and quantum are also in issue. If the defendants are found to be liable for Mr Staker’s injuries, it is open to them to argue that the negligent act did not cause the injuries, or the injuries are not as severe as claimed. As this is the only evidence of Mr Staker’s psychological treatment after the back injury, it is necessary to allow the defendants to fully defend the claims made against them by Mr Staker.
The need to encourage victims of sexual offences to seek counselling and the extent to which victims may be discouraged to do so
The extent to which victims of sexual offences may be discouraged from seeking counselling, or the extent to which the effectiveness of counselling may be diminished by the disclosure of Ms Newman’s records in this case is likely small to non-existent. This is not a high profile case which is likely to attract significant publicity. The case is not about sexual abuse and the sexual abuse is relevant only to the assessment of his psychological injury, which is itself a secondary injury to the primary injury claimed, being a back injury. Whilst it is unfortunately the case that victims of sexual abuse often do not seek counselling, it is hard to imagine that the possible disclosure of medical records in an unrelated personal injury claim would be a primary cause of a victim of sexual abuse deciding not to pursue treatment. It is equally unlikely that the theoretical possibility of disclosure of such records would render the counselling ineffective. It is highly unlikely that disclosure of records in Mr Staker’s particular claim would have a generally chilling effect on victims of sexual abuse seeking counselling.
Whether a party seeking to compel production is doing so on the basis of a discriminatory belief or bias
There is no indication and no evidence of any discriminatory belief or bias on the part of the defendants. They propose to put the documents into evidence for the following purposes:
(a) to challenge Mr Staker’s credibility given that he told Dr Weissman that he had not had any psychological treatment since the back injury;
(b) to attack the reliability of Dr Weissman’s assessment if he was proceeding in that assessment on an inaccurate basis; and
(c) to enable the Court to assess the relative weight to be given to Mr Staker’s pre-existing psychological injury.
These are all legitimate purposes and none is based in a discriminatory or biased belief about Mr Staker.
Whether the protected confider objects to the disclosure of the protected evidence; and the nature and extent of the reasonable expectation of confidentiality and the potential prejudice to the privacy of any person
Mr Staker did not object to the disclosure of the protected evidence. He is entitled to a reasonable expectation that his communications with Ms Newman would be kept confidential in the ordinary course. For example he could reasonably expect that she would not discuss those communications with his family or other people. Having put his psychological injury in issue in his pleading, I do not consider that he has a reasonable expectation that those records will not be disclosed in the course of, and for the purpose of, his litigation. Disclosure of the records remains subject to the implied undertakings upon solicitors.
For the reasons outlined above I am satisfied that the public interest in preserving confidentiality of the documents is outweighed by the public interest in admitting, into evidence, evidence of substantive probative value.
The subpoena objection is dismissed and records of Ms Newman will be made available for inspection and copying by all parties.
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SCHEDULE OF PARTIES
S CI 2016 04420
JESSE STAKER Plaintiff - and - RALPH KEMP First Defendant DEBRA KEMP Second Defendant JOHN KEMP Third Defendant
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