Bar-Mordecai v AMIL

20280/2002 - MICHAEL BAR-MORDECAI v AUSTRALASIAN MEDICAL INSURANCE LIMITED

JUDGMENT (Leave to file statement of claim against defendant in liquidation) 1 MASTER: There are two motions before the Court. Firstly, by notice of motion filed 18 July 2002, the defendant seeks an order that the plaintiff's statement of claim filed 29 June 2002 be set aside pursuant to Part 11 r 8 of the Supreme Court Rules (SCR) and that the time for making this application be extended to the date of filing of the motion. The defendant relies on the affidavits of David Ian Brown sworn 19 August 2002, 24 February 2003 and 23 May 2003. This motion has been superseded by the plaintiff's motion which appears below. 2 Secondly, by notice of motion filed 2 August 2002, the plaintiff seeks an order that leave be granted to file an amended statement of claim against the defendant while the defendant is in liquidation, and that leave be granted to adjourn the proceedings for two weeks. The plaintiff relied on his affidavit sworn 2 August 2002, 16 December 2002, 30 December 2002, 24 February 2003 and two sworn 31 March 2003. On 24 February 2003, the plaintiff filed an ASC. The name of the defendant should read "The Australasian Medical Insurance Limited" not United Medical Protection. It may be that there are other entities involved in what is known as United Medical Protection and should the plaintiff be given leave to proceed it will be necessary for him to determine the correct identity of the defendant or defendants. 3 The plaintiff has been involved in what he described as a "plethora of litigation" which he says arose from his practice as a medical practitioner. The plaintiff was not legally represented at this hearing but demonstrated a good knowledge of court procedure. He was articulate. 4 The issue in these proceedings is whether leave should be granted under s 471B of the Corporations Act 2001. Section 471B provides: "Stay of proceedings and suspension of enforcement process While a company is being wound up in insolvency or by the Court, or a provisional liquidator of a company is acting, a person cannot begin or proceed with: (a) a proceeding in a court against the company or in relation to property of the company; or (b) enforcement process in relation to such property; except with the leave of the Court and in accordance with such terms (if any) as the Court imposes. 5 The defendant submitted that the plaintiff does not have a serious dispute or solid foundation and for that reason leave should be refused. For the purposes of this application only, the defendant does not present any evidence that it has insufficient funds to meet the plaintiff's claim should it proceed. A provisional liquidator has been appointed to the defendant. There is an arrangement between the Commonwealth Government and the provisional liquidator whereby the provisional liquidator is able to meet certain claims. However claims by pre-liquidation creditors such as the plaintiff are not being met under that arrangement. Nevertheless, the plaintiff has provided enough evidence that, in the absence of evidence to the contrary, establishes that the defendant could meet this claim should leave be granted. 6 The relevant cases on the principles to be considered in granting leave under the now s 471B of the Corporations Act 2001 appear below. 7 In Re A J Benjamin Ltd (in Liq) and The Companies Act (1969) 90 WN 107 Street J stated at 109: "Where a company is being wound up as an insolvent company it is recognized that the legislative policy contemplates the assets of the company being taken under the control of a liquidator and administered with due regard to the rights inter se of the creditors of the company. Independent actions by creditors are not encouraged in a winding up. Responsibility for satisfying the rights of creditors is placed upon the liquidator. If the grant of this leave could be seen to be likely to lead to attempts on the part of the applicant to reopen anything already done in the winding up, then it is probable that if leave were to be granted it would be hedged about with conditions. Leave is not to be withheld simply and solely as a punishment: the primary consideration is the enabling of an orderly winding up. If no prejudice, procedural or substantive, will flow to those having interests in the winding up, an applicant has a strong case for gaining leave he seeks. The wide power of the court to impose conditions will ordinarily be exercised to prevent the risk of prejudice." 8 In Capita Financial Group Ltd v Rothwells Ltd 15 ACLR 348, Roger CJ in Comm Div of NSWSC stated at 350: It is necessary to understand the rationale which buttresses the requirement for showing the existence of a prima facie case. The provisional liquidators and liquidator, respectively, are entitled to be protected from involvement in court proceedings which may be perhaps only of a nuisance nature, or which may be thought to be totally devoid of any substance. The resources of the company in liquidation should not be frittered away in defending baseless claims. It seems to me that it is considerations of this nature which have led the courts uniformly over the years to demand that there be evidence showing a prima facie case. …" 9 In Vagrand Pty Limited (In Liquidation) v Fielding & Ors (1993) 41 FCR 550, the Full Court of the Federal Court (Wilcox, Burchett and Beazley JJ) in considering the interpretation of s 371(2) of the then Companies Code, (a predecessor to s 471B) for leave to proceed against a company in liquidation, expanded on the meaning of "prima facie" case as espoused by Rogers J in Capita, and stated at 536:

"So far as we are aware, the most recent discussion of the relevant test is that contained in the judgment of Rogers CJ in Comm D in Capita Financial Group Ltd v. Rothwells Ltd (No.2) [footnote given]. At 636 his Honour referred to the courts "uniformly over the years" demanding "that there be evidence of a prima facie case". But it is apparent that he was not using the term "prima facie case" in its technical sense; that is, evidence of all the elements of the cause of action. His Honour cited in support of his statement a number of cases, including all those mentioned above, in which there was no prima facie case, in the technical sense of the word; and no requirement of it. At 637 Rogers CJ in Comm D. said that it is "quite clear from the evidence (which he identified) that there is a real dispute between the parties". He referred to the course taken by Street J in Re A.J. Benjamin and followed a similar course himself. He directed that the plaintiff's statements of evidence be verified on oath. He said that this material "will then stand, no doubt, as adequate evidence of a prima facie case"; but, as an experienced commercial judge, he would have realised that the statements would not necessarily prove every element in the case. They might well need to be supplemented by documentary evidence. Upon a close reading of the relevant authorities, it is apparent to us that the courts have not in fact required applicants for leave to demonstrate a prima facie case against the company in liquidation, in the technical sense of that term. They have required to be affirmatively satisfied that the claim has a solid foundation and gives rise to a serious dispute. Having regard to the course actually taken by the courts, the term "prima facie case" is misleading. Perhaps it should be avoided in the future. The test which has actually been applied is akin to that now used in considering whether interlocutory relief should be granted: "a serious question to be tried". See Castlemaine Tooheys Limited v. The State of South Australia (1986) 161 CLR 148 at 153, where Mason ACJ made it clear, with reference to the very same question which arose in the context of an interlocutory debate, that the test of "a serious question to be tried" is generally to be preferred to that of "a prima facie case". It is appropriate that the same standard of proof of the merits should be required for each of these forms of relief. In a particular case an applicant may need both orders. We would think it anomalous if an applicant had to meet a higher requirement merely to commence an action than that necessary to obtain an order potentially imposing a substantial burden on the respondent." 10 Thus it is necessary to determine whether the plaintiff's claim has a solid foundation and gives rise to a serious dispute.

The pleading 11 The amended statement of claim pleads that the defendant was at all material times a medical indemnity insurer which provided the plaintiff with medical indemnity insurance cover in his former capacity as a vocationally register medical practitioner in general practice and specifically for his professional indemnity in the event of patient litigation from 1 May 1994 to 1 January 1999 for a prescribed fee that the plaintiff had paid the defendant. 12 The plaintiff was a practising general practitioner. The defendant's records disclose that the plaintiff applied for membership of the NSW Medical Defence Union Ltd (the Union) on 11 May 1994. After the merger of operations of the Union and other medical defence organisations with United Medical Protection Limited (United) in the middle of 1997, members of the Union, including the plaintiff, became members of United. The plaintiff continued as a member of United until 31 December 1998 at which time the plaintiff was excluded from membership due to non-payment of his annual membership subscription. The plaintiff applied for reinstatement of his membership in August 1999. That application was declined on 27 August 1999. 13 During 1995, when the plaintiff held membership with the defendant, the defendant provided legal advice to the plaintiff in relation to the stance he should adopt with the police investigation into the death of the late Eveline Hillston and a possible coronial inquiry. 14 Prior to 1 January 1996, members of the Union were not issued with a policy of insurance by or on behalf of the Union but the Board of the Union had an absolute discretion pursuant to its memorandum and articles of association to provide assistance or indemnity to its members. Clauses 57 to 61 of the articles of association deal with grants of discretionary assistance. Thus when the defendant rendered assistance to the plaintiff in 1995 it did so under a grant of discretionary assistance. 15 From 1 January 1996, following the merger of operations, members of United, including the plaintiff, obtained any entitlement to indemnity or assistance in two forms, namely discretionary assistance pursuant to the memorandum and articles of association of United or insurance under a medical insurance policy issued by the AMIL. Under each of the policy wordings AMIL provided cover for, among other things, the legal costs of representing the insured at an inquiry, inquest or disciplinary proceedings which were first instituted during the period of insurance before a Board, Tribunal, Royal Commission, Professional Body or Coronial Court and which arose directly out of the insured's profession. 16 The plaintiff referred to a number of legal proceedings in which he was a party. They are, firstly, proceedings 40021/98 in the Medical Tribunal, where he was the defendant and where the complainant was the Health Care Complaints Commission (the Medical Tribunal proceedings). (I shall refer to these complaints in more detail later in this judgment). The second set of proceedings referred to were the probate proceedings 12000/94 in which the plaintiff alleges that the he had to defend himself against the forfeiture or unlawful killing issue (ASC para 6). According to paragraph 34 of the ASC, the plaintiff alleges that he was the late Eveline Hillston's de facto husband within the meaning of s 32G(1) of the Wills, Probate & Administration Act 1898 from 24 August 1983 until 25 June 1994. The plaintiff lived with the deceased to the exclusion of all other de facto relationships for over decade and as such the relationship was not subject to ethical consideration (the probate proceedings). In the third set of proceedings, the equity proceedings 3240/98, the plaintiff alleged involved an undue influence presumption against him. 17 In the ASC, the subject of these proceedings, the plaintiff alleges that as a result of the defendant failing to honour its commitment to defend him in those three proceedings referred to above, he was obliged to appear as a litigant in person with no legal representation or advice and by doing so, had the effect of being detrimental to his cases. He claims that he was insured by contract, ie, his medical indemnity insurance policy contract, with the defendant for all litigation arising from his practice of medicine as per the articles of association of the defendant. He alleges that the defendant refused to honour its contractual commitment to him, when requested by the plaintiff to provide legal assistance in 1998, and thus was in breach of its contractual commitment when it failed to represent or provide legal representation to him in various jurisdictions for untoward events that stemmed from his practice of medicine. In oral argument, the plaintiff expanded on his breach of contract claim by stating that the defendant by virtue of having assisted him in 1995 was bound to further assist him or alternatively if it chose to refuse further assistance it should have informed him of the fact so he could seek alternative insurance. The plaintiff also pleads that the defendant was negligent in refusing to accept liability and breached its legally enforceable contract to medically indemnify him (para 41 ASC). 18 The plaintiff claims damages for severe depression which he alleges that he suffered as a partial consequence of the rejection of assistance to him; secondly, a loss of professional standing - he was deregistered as a medical practitioner for a period of seven years as of 6 September 2000; thirdly, loss of standing in the community; fourthly, ridicule by the media which impacted on the community; fifthly, a loss of seven years of earnings as a medical practitioner as a result of the Medical Tribunal judgment; sixthly, loss of 20 years of earning as a result of the plaintiff's resultant depression, attempted suicide, and loss of reputation with ridicule which has impacted on his future ability to practice as a medical practitioner; loss of potential to invest future earnings; and allowing the judiciary to "play tricks" on the plaintiff, a litigant in person never having been educated in law. 19 In paragraph 37 of the ASC, the plaintiff declares that if he was represented legally, the Medical Tribunal would have been guided to identify the plaintiff's relationship to the late Eveline Hillston as a de facto relationship, because it complied with the Roy v Stergeon criteria; the de facto husband/wife criteria as defined by the Wills, Probate and Administration Act 1898 and the Properties Relationship Amendment Act 1999. The plaintiff says that if it was held that he was in a de facto relationship with Mrs Hillston he was not subject to ethical considerations by the Medical Tribunal, and as a consequence the plaintiff on that issue was not guilty of any lack of ethics, having had a personal and sexual relationship with his de facto wife for over a decade. It follows, according to the plaintiff that no case would have been sustainable against him at the Tribunal hearing pressed by the Health Care Complaints Commission (HCCC). 20 However, it is common ground that the plaintiff never requested legal assistance in either the equity or the probate proceedings. Hence the plaintiff's pleading in relation to not providing assistance in the probate and equity proceedings cannot be sustained. The defendant cannot be obliged to provide assistance if it was never put on notice that it was requested to do so. It would have been impossible for the defendant to advise the plaintiff in 1995, that they were not going to grant him assistance for subsequent events of which they had no forewarning. Leave should not be granted in relation to these claims.

The plaintiff's requests to defendant for assistance 21 On 27 October 1998, the plaintiff sought for legal representation in relation to the complaints before the Medical Tribunal from the defendant. 22 In a complaint, dated 2 September 1998, to the Medical Tribunal it was alleged: "At all relevant times the practitioner was a general practitioner. 1. Between August 1983 and 25 June 1994 the medical practitioner treated Patient A whilst at the same time having a personal and sexual relationship with that patient. 2. Between August 1983 and about 25 June 1994 the practitioner, while treating Patient A, obtained financial advantages from that patient. 3. On or about 25 June 1994 the practitioner inappropriately signed the medical certificate of cause of death for patient A in circumstances where the practitioner: a. was treating the patient; and b. considered himself to be a potential beneficiary from the estate of Patient A; and c. was at the time engaged in a personal relationship with the patient. Complaint 2 At all relevant times the practitioner was a general practitioner and treated Patient B and Patient C. 1. In about April 1995 the practitioner whilst treating Patient B disclosed to the husband of Patient B (Patient C) in a consultation confidential information provided to the practitioner by Patient B. 2. In about April 1995 the practitioner in a consultation gave inappropriate advise to Patient C concerning his relationship with patient B." 23 The defendant responded by letter dated 3 November 1998 stating that the events which were the subject of Complaint 2 occurred in April 1995, and that the plaintiff was entitled to assistance for this but the position in relation to Complaint 1 was more complicated. The events which were the subject of that complaint spanned a period from August 1983 to June 1994. Ultimately on 11 November 1998, the New South Wales administrative committee decided to contribute up to $5,000 towards the plaintiff's legal defence costs in the Medical Tribunal. The plaintiff was advised of this decision and declined to accept the sum of $5,000. 24 On 6 December 2000, the Tribunal made orders that the plaintiff be deregistered, that an application for review of these orders could not be made until after the expiration of 7 years from the date of judgment and that the plaintiff pay the costs of HCCC. 25 On 15 February 2001, the plaintiff wrote to the defendant and requested legal assistance with the application to appeal the decision of the Medical Tribunal in the New South Wales Court of Appeal. On 21 February 2001, the defendant advised the plaintiff that his request was declined. The plaintiff did not hold a policy with the defendant in 2001, but taking the plaintiff's case at its highest it may be arguable that the incident arose in 1998 when the complaints were being heard by the Tribunal.

The 1998 policy 26 In 1998, the plaintiff had a policy and discretionary cover with the defendant. Under the policy the insurer would pay insured, or on their behalf, up to the amounted stated in the schedule for the inquiry, inquest or disciplinary proceedings, and the legal costs of representation at an inquiry, inquest or disciplinary proceeding which was first instituted during the period of insurance before a Board, Tribunal, Royal Commission, professional body or Coronial Court. The insured was obliged to inform the insurer in writing during the period of insurance and the proceedings had to arise directly in connection with his or her profession. 27 The policy did not cover all practitioners including employed practitioners. The policy did not cover for any claim(s) against the policyholder or the legal costs of any inquiry, inquest or disciplinary proceedings which arose out of or in connection with any act, error, omission or dispute which did not occur during the period of insurance; engaging in inappropriate practices within the meaning of the Health Insurance Act 1973 (Cth) (as amended); and claims arising from actual or alleged sexual harassment, sexual misconduct or unlawful discrimination of any type. 28 In 1998, the defendant continued to provide unlimited discretionary cover to members. The discretionary cover supplemented the medical insurance policy through AMIL which in general covered payment of damages awarded to claimants and legal costs resulting from claims, including legal representations; and assistance and representation before a Medical Board and Tribunals, the HCCC or its equivalent, Coronial Inquests and disciplinary hearings to a limit of $5 million. Other benefits of membership included discretionary assistance for claims that were not covered under the medical insurance policy, including claims by members retiring from practice, taking leave of absence or resigning their memberships, and claims arising out of incidents that occurred during financial membership of United, irrespective of when the claim was reported. 29 The articles of association of the insurer provided: "61. The Board (or any committee of the Board authorised in that behalf, referred to here as the Delegate) may in its absolute discretion and either in whole or in part and upon such terms and conditions as to the Board (or its Delegate) may deem proper determine that the Company will assist a Member with respect to liability, or potential liability, (a) by undertaking, or assisting in, the conduct of any matter or proceedings whether of a legal nature or otherwise; and/or (b) by paying such amount as the Board (or its Delegate) determines towards meeting any difference between the indemnity provided by any insurance policy referred to in Article 60 and the liability of a Member, in respect of any action, proceedings, claim or demand. arising in the course of a Member's practice: 26. Without limiting the generality of Article 61: (a) the Board may make determinations under Article 61: (i) that differ according to different circumstances; or (ii) that are subject to compliance with conditions imposed by the Company, or that do both; (b) the Board may under Article 61: (i) divide Members into classes and make a different determination for each of the classes; and (ii) make a different determination for individual Members (whether or not in a class of Members). … 64. The Board or any committee of the Board authorised in that behalf may at any time in its absolute discretion by notice in writing terminate or vary any grant of assistance any Member in whose favour a determination has been made under Article 61 without assigning any reason provided that such notice shall not affect the payment of moneys which have become immediately payable before the service of such notice." 30 The plaintiff's request dated 27 October 1998 was responded to by the defendant on 3 November 1998 and 11 November 1998. These events took place before the resolution (referred to below) was made. 31 The articles stipulated that any grant of assistance by the defendant was in its absolute discretion. By articles 61 and 62 of its constitution, the defendant's board had the power to refuse assistance in any legal matter or proceedings. Under article 64 the board or an authorised committee did not need to assign a reason for terminating or varying any grant of assistance to a member. As a member in 1998, the plaintiff was subject to this discretion so that any grant of assistance in the proceedings that arose before the Medical Tribunal in that year could be terminated or varied. 32 The plaintiff's next request was made on 15 February 2001 and is subject to the resolution of 17 November 2000. A resolution in respect of discretionary assistance was adopted by the defendant's board on 17 November 2000. It stated that: "6.2 DISCRETIONARY ASSISTANCE The Board unanimously resolved that:

6.2.1 All previous resolutions of the Board on and concerning discretionary grants of assistance are revoked including but not limited to: Resolutions of Board dated 26 July 1997.

6.2.2 The authority to make discretionary grants of assistance on a case by case basis is delegated to the Underwriting Committee subject to the guidelines dated 17th day of November 2000, a copy of which is attached to this resolution and tabled to the meeting.

6.2.3 Members who apply for discretionary assistance for incidents occurring after the commencement of a member's 2001 renewal, in order to qualify for assistance, must have continuous membership of United, and be a member of UNITED both at the time the incident occurred and at the time the incident is reported.

6.2.3.1 The following categories of member are exempt from the requirement set out in resolution 6.2.3: (a) a member who retires permanently from clinical practice and becomes a retired member of UNITED;

(b) a member who suffers a total permanent disability and retires permanently from clinical practice and becomes a retired member of UNITED;

(c) a deceased member of UNITED who dies whilst in clinical practice (d) a member resident and practising in Singapore. 6.2.3.2Members who are exempt under resolution 6.2.3.1 in order to qualify for assistance must be a member at the time the incident occurs, except where the member, when joining UNITED was granted retrospective membership.

6.2.4 Members who apply for discretionary assistance for incidents occurring prior to the commencement of a member's 2001 renewal, in order to qualify for assistance, must be a member of UNITED at the time the incident occurred.

6.2.5 The Board specifically reserves to itself the power to exercise its discretion absolutely to refuse or withdraw assistance to any individual member in any circumstances." 33 As indicated by cl 6.2.2 of the resolution, written guidelines for the making or declining to make a grant of discretionary assistance were also formulated as part of a "general policy" by the board. Under the heading "guidelines on granting assistance a general policy" it was provided that: "These guidelines are intended to assist in formulating and deciding delegated grants of assistance to members. Although the discretion must be exercised on the merits of each case, the Board would expect to depart from these guidelines only rarely.

1.1 The Board has delegated to the Underwriting Committee the responsibility for considering and granting discretionary assistance within the terms of the Constitution.

1.2 Each request for discretionary assistance must be considered on a case by case basis, and the discretion must be exercised before a member can be assisted.

1.3 Where the Underwriting Committee considers that assistance should not be granted it may not determine the matter but may only make a recommendation to the Board.

1.4 The Underwriting Committee may otherwise grant assistance to a member, either in whole or in part and/or upon such terms and conditions as the Committee may deem proper. In the event that the Committee decides to grant assistance in part and/or with terms and conditions it shall report its decision to the Board.

1.5 The State Advisory Committee (SAC) shall act as an advisory body to the Underwriting Committee on medical aspects of this delegated exercise of discretion.

1.6 The member must be entitled to qualify for assistance and the member's financial category membership will be confirmed by the Underwriting manager, or his delegate, before the request for assistance is considered. Each request must be referred to the Underwriting manager for advice on the member's entitlement to seek assistance, prior to consideration by SAC

1.7 For incidents on and after the 2001 membership renewal, a former member, other than a retired or deceased member does not qualify for discretionary assistance.

2. The following general guidelines should be used on a rebuttable presumption basis.

2.1 Where it is likely that assistance will be granted for matters arising in the course of the members professional practice: (i) Civil claims; (ii) Anti-discrimination board matters where the complaint arises from a members profession

(iii) Criminal matters where the complaint arises from a member's professional practice however assistance should be limited to legal costs incurred and not extend to any penalties to be paid for compensation to the victim; or for civil claims arising therefrom; (iv) Coronial Inquests;

(v) Disciplinary and other Complaints Authority matters;

(vi) Claims involving the member for the defence of a defamation proceeding against the member in relation to the members professional practice or conduct where the issues relate to the interests of the membership as a whole.

2.2 Cases where it is unlikely that assistance will be granted. (i) When the matter has no direct connection with clinical practice;

(vi) Professional indemnity claims that occur as a result of an alleged negligent act by a doctor's employee except where that employee is a receptionist or practise nurse acting under the direct supervision of the member;

(xi) Where a claim arises out of an event that would have been covered under AMIL's legal expense policy, had one been effected by the member namely inappropriate practices, tax audit, criminal prosecution, employment disputes, trade practice issues and defamation. 4. Criminal Cases (i) In general UNITED does not assist with criminal charges except where the charges arise directly from management of an individual patient;

(ii) However, care must be taken when the patient is the member himself, a member of his family or a family friend and assistance is not likely to be granted. "Management" includes history, examination and treatment but does not include the financial arrangements;

(iii) … 7. Assistance Can be Reviewed Assistance may be granted or withdrawn by the Board upon recommendation of the UC, at any stage. If previous refusal to assist is overturned, the Board may grant retrospective financial support from the date of the request for assistance."

34 It is at least arguable that the plaintiff was a member of United at the time the incident occurred - see cl 6.2.4. The guidelines delegated to the Underwriting Committee the responsibility for considering and granting discretionary assistance (cl 1.1). But where it determines that assistance is not to be granted it can only make a recommendation to the Board - cl 1.3. The guidelines should be used on a rebuttable presumption basis. Guideline 2.1(v) indicates that it is likely that assistance will be granted for a disciplinary matter which arose in the course of the member's professional practice. The guidelines do not specifically refer to a grant of assistance for an appeal from the decision of the Disciplinary Tribunal. However, under both the Articles of Association (article 61) and the resolution of the Board dated 17 November 2000 (cl 6.2.5), the Board has the power to exercise its discretion absolutely to refuse or withdraw assistance to any individual member in any circumstances. The articles and the resolution override the guidelines. Thus, the Board was not obliged to assist the plaintiff with his appeal from the Disciplinary Tribunal. 35 The Board was not obliged to advise the plaintiff, after the grant it made in 1995, that they would not provide any further assistance to him in the future. It is my view that the plaintiff's claims have no solid foundation nor do they give rise to a serious dispute. Leave to file the amended statement of claim against the defendant is refused. The notices of motions filed 18 July 2002 and 2 October 2002 are dismissed. 36 Costs are discretionary. Normally costs follow the event. The plaintiff is to pay the defendant's costs as agreed or assessed.

(1) Leave to file the amended statement of claim is refused.

(2) The notices of motions filed 18 July 2002 and 2 October 2002 are dismissed.

(3) The plaintiff is to pay the defendant's costs as agreed or assessed. **********

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