Chi v Roger Fuller Pty Limited

NCAT Appeal Panel|2018-03-22

REASONS FOR DECISION

By notice of appeal filed on 10 January 2018 the appellant appeals a decision of the Tribunal delivered on 28 November 2017. The hearing below occurred on 5 October 2017 before a Senior Member of the Tribunal. The Senior Member reserved the decision, and a decision with written reasons was published dated 28 November 2017. The decision and reasons comprised of 19 pages.
The dispute involves the sale of 28 head of cattle at auction, and the appellant's belief that he did not obtain a fair price for the cattle because the respondent (who was his agent) and others conspired to manipulate unfairly the market. The auction occurred on 29 January 2014 at Singleton Saleyards, NSW.
At the Appeal Panel hearing on 22 March 2018, the appellant sought an adjournment, because he believed the matter had only been listed to determine whether he should be granted leave to appeal and not hearing of the substantive appeal. The appellant stated he had not brought all materials with him. The appellant further stated he was disadvantaged because he spoke English as a second language, and had only sought assistance from NSW Legal Aid approximately 2 weeks prior to the hearing of the appeal.
An interpreter was present at the Appeal Panel hearing for the assistance of the appellant. Rarely during the hearing did the appellant indicate he needed the assistance of the interpreter. The appellant made extensive oral submissions and appeared to have no difficulty in expressing himself, or understanding any issue raised during the hearing by the Appeal Panel.

SCOPE AND NATURE OF INTERNAL APPEAL

Internal appeals may be made as of right on a question of law, and otherwise with leave of the Appeal Panel: s 80(2) Civil and Administrative Tribunal Act 2013 ('the NCAT Act'). Under s 80 (3) of the NCAT Act, the Appeal Panel may deal with an internal appeal by way of a new hearing if warranted and may permit fresh evidence.
The circumstances in which the Appeal Panel may grant leave to appeal from decisions made in the Consumer and Commercial Division are limited to those set out in cl 12(1) of Schedule 4 of the NCAT Act. In such cases, the Appeal Panel must be satisfied that the appellant may have suffered a substantial miscarriage of justice on that basis that: 1. the decision of the Tribunal under appeal was not fair and equitable; or 2. the decision of the Tribunal under appeal was against the weight of evidence; or 3. significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).
In Collins v Urban [2014] NSWCATAP 17 (Collins v Urban), the Appeal Panel stated at [76] that a substantial miscarriage of justice for the purposes of cl 12(1) of Schedule 4 may have been suffered where: "... [T]here was a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved for the appellant had the relevant circumstance in para (a) or (b) not occurred or if the fresh evidence under para (c) had been before the Tribunal at first instance."
Even if an appellant from a decision of the Consumer and Commercial Division has satisfied the requirements of cl 12(1) of Schedule 4, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b).
In Collins v Urban, the Appeal Panel stated at [84] that ordinarily it is appropriate to grant leave to appeal only in matters that involve: 1. issues of principle; 2. questions of public importance or matters of administration or policy which might have general application; or 3. an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; 4. a factual error that was unreasonably arrived at and clearly mistaken; or 5. the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed.
The Appeal Panel's powers in determining an appeal are set out in s 81 of the NCAT Act, which states: 81 Determination of internal appeals (1) In determining an internal appeal, the Appeal Panel may make such orders as it considers appropriate in light of its decision on the appeal, including (but not limited to) orders that provide for any one or more of the following: (a) the appeal to be allowed or dismissed (b) the decision under appeal to be confirmed, affirmed or varied (c) the decision under appeal to be quashed or set aside (d) the decision under appeal to be quashed or set aside and for another decision to be substituted for it (e) the whole or any part of the case to be reconsidered by the Tribunal, either with or without further evidence, in accordance with the directions of the Appeal Panel. (2) The Appeal Panel may exercise all the functions that are conferred or imposed by this Act or other legislation on the Tribunal at first instance when varying, or making a decision in substitution for, the decision under appeal.

Errors of law Giving Rise to an Appeal as of Right

In John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 the Appeal Panel considered what is required to establish a question of law that would give rise to an appeal as of right. Without providing an exhaustive list of possible questions of law, the Appeal Panel referred at [13] to the following: 1. Whether there has been a failure to provide proper reasons 2. Whether the Tribunal identified the wrong issue or asked the wrong question 3. Whether a wrong principle of law has been applied 4. Whether there was a failure to afford procedural fairness 5. Whether the Tribunal failed to take into account a relevant (mandatory) consideration 6. Whether the Tribunal took into account an irrelevant consideration 7. Whether there was no evidence to support a finding of fact. 8. Whether the decision was so unreasonable that no reasonable decision-maker would have made it.
For the appellant to succeed, he must demonstrate an error of law and that such an error had a material effect on the decision (Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 14); or that leave should be granted due to the factors set out in cl 12(1) of Sch 4 of the NCAT Act.
An appeal is not simply an opportunity for the losing party to run their case again (Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10]).

THE CLAIM BELOW AND REASONS OF THE TRIBUNAL FOR DISMISSAL

The decision rejected the appellant's claim for damages arising out of a sale by auction of cattle. The appellant was the owner of 28 head of cattle comprising: six bulls, two cows, six steers and 14 heifers. The gross sale price was $2189.40 and the net proceeds amount was $1352.91. The sale was an unreserved sale at public auction. The respondent is the agent who sold the appellant's cattle at the auction. There were multiple respondents in the proceedings below, but the appellant's Notice of Appeal only identified Roger Fuller Pty Ltd ('Fuller') as the respondent to the appeal.
In respect of the proceedings below, the appellant had brought proceedings not only against his agent (Fuller) but also Mr C. Cagney (who was a livestock carrier, but not the carrier who was engaged to transport the appellant's cattle); Killarney Partnership (who purchased some of the appellant's cattle at the auction); and E. C. Throsby Pty Ltd (who operates an abattoir and purchased some of the appellant's cattle at the auction). Mr D Wicks was a partner of Killarney Partnership and appeared at the hearing. There was an allegation by the appellant that Mr Cagney had provided a "buyers book" to Mr Wicks prior to the auction.
The appellant claimed he did not receive a fair market value for the sale of his cattle and that the value the cattle should have been over $15,000. During the course of the hearing it is evident that the appellant relied upon, in support of his claims, various publications including an Australian Competition and Consumer Commission ('ACCC') report and a report of a Senate Committee, which were unrelated to the sale in question. The appellant claimed that the respondents below conspired to engage in unfair practices and manipulate the cattle sale market at the auction, in breach of provisions of the Competition and Consumer Act 2010.
The proceedings were brought pursuant to the provisions of the Fair Trading Act 1987. ('the FTA'). Relevantly, Part 6A of the FTA gives the Tribunal jurisdiction in certain consumer claims, and s 28 of the FTA adopts the Australian Consumer Law 2010 ('the ACL') as a law of NSW.
The Tribunal found that the Fuller was a supplier of services as defined in s 79D of the FTA. Further, the claim constituted a "consumer claim" under s 79E of the FTA so far as the claim against Fuller was concerned.
The Tribunal found that the services were provided by Fuller on 29 January 2014 and that the claim was filed on 4 January 2017. Accordingly the cause of action arose within three years prior to the commencement of the proceedings and the value of the claim was less than $40,000. The Tribunal was satisfied that it had jurisdiction under s 79J of the FTA in respect of the claim by the appellant against Fuller.
In respect of the claim against Fuller, the Tribunal relevantly found: 1. The appellant had not adduced evidence to prove any breach of s 18 of the ACL. The reports the appellant relied upon from the ACCC and a Senate Enquiry report into the cattle market were insufficient to prove any misleading or deceptive conduct, or conduct likely to mislead or deceive, by Fuller. 2. The appellant had not proved any breach of any other relevant provision of the ACL by Fuller. Relevantly, the Tribunal found (at [83] of the reasons): "Fuller fulfilled the provision of the service it provided. The complaint that a higher price was not achieved for the cattle ignores the vagaries of the market dependent on supply and demand and taking into account he effect that lack of pasture and diminishing water for stock can have during regional drought conditions. In the absence of evidence of fraud or misrepresentation or evidence of failure to use due care and skill in delivery of its services, the applicant has not satisfied the onus on him. The applicant's reliance on stock reports of prices achieved for other cattle sold at the sale on 29 January 2014 and other than recent sales does not establish comparative prices for his cattle. His cattle were sold at public auction for prices that purchasers were prepared to pay on their own assessment of the type, quality and condition of the cattle on the day of the sale."
The Tribunal also considered the provisions of s 45 of the Competition and Consumer Act 2010. The Tribunal found that it had "no jurisdiction to conduct and enquiry into whether the activities of participants in a market substantially lessening competition as seems to be the thrust of the remedy sought by the applicant" (at [79] of the Tribunal's decision).
Further, the Tribunal dismissed the proceedings against Mr Cagney as misconceived as there was no agreement to supply goods or services by Mr Cagney to the appellant. The Tribunal also dismissed the proceedings against Killarney Partnership and E.C. Throsby Pty Ltd as misconceived, as the proceedings were based on "mere speculation of involvement of a perceived conspiracy" (paras [68] and 74] of the Tribunal's reasons).
The appellant had also issued Summons to Produce Documents returnable at the hearing. One was issued to "Edward Throsby, Throsby Pty Ltd". The Tribunal dismissed the Summons as it was issued on the wrong entity and was oppressive and irrelevant in any event. A second Summons was issued to Killarney Partnership. Killarney Partnership produced documents. A third Summons was issued on "Roger Fuller". The Tribunal dismissed the Summons as it was issued on the wrong entity, and was oppressive due to its broad scope in any event. It was also noted that Fuller had sought to obtain agreement from the appellant for the reasonable cost of extracting the information sought, and no agreement regarding conduct monies had been reached.
Importantly, irrespective of any alleged breach by any of the respondents to the proceedings below, the appellant had filed and served no evidence of any actual loss. The only evidence of loss was the appellant's oral evidence that, approximately 1 year prior to the auction he had sold a similar number of cattle at auction and received approximately $15,000.
The appellant had filed and served no evidence from any expert, such as an expert in the valuation of cattle sold at auction, to verify that he would have received a higher price had Fuller, or any of the respondents in the proceedings below, acted differently.

GROUNDS OF APPEAL

The appellant's notice of appeal attached a 5 page document setting out grounds of appeal. The appellant filed submissions in support of the appeal on 26 February 2018. The appellant filed a further 6 pages of submissions in reply on 22 March 2018. Such documents contain grounds of appeal and purported grounds of appeal that are difficult to comprehend. However, we discern the grounds of appeal to be: 1. Denial of procedural fairness. 2. Apprehended bias. 3. Jurisdictional error. 4. Not fair and equitable. 5. Against the weight of evidence. 6. The appellant had fresh and significant new evidence.
Denial of procedural fairness; jurisdictional error; and real or apprehended bias are alleged errors of law for which leave to appeal is not required. The other grounds require leave to appeal being granted.

HAS THE APPEAL BEEN FILED WITHIN TIME AND IF NOT, SHOULD LEAVE BE GRANTED TO EXTEND THE TIME PERIOD TO APPEAL?

The date of the decision was 28 November 2017. The Tribunal's file indicates that: (i) a copy of the decision was sent to the parties on 28 November 2017; and that: (ii) on 8 December 2017, the appellant was sent a copy of the decision by the Tribunal Registry, together with a Notice of Appeal application form and a copy of the NCAT Internal Appeals Guidelines. We infer that the letter of the Tribunal dated 8 December 2017 was in response to an enquiry form the appellant as to how he could appeal the decision of 28 November 2017.
The appellant submitted that he did not receive the decision dated 28 November 2017 until 13 December 2017
The notice of appeal was filed on 10 January 2018, and is dated 9 January 2018.
Under r 25(4)(c) of the Civil and Administrative Tribunal Rules 2014 ('the NCAT Rules'), an appeal in this type of matter must be filed within 28 days from the day on which the appellant was notified of the decision or given reasons for the decision (whichever is the latter). However, this limitation period can be extended under s 41 of the NCAT Act. The relevant principles for extending the limitation period are set out in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [22].
For the appeal to be within time, the appellant must have been notified of the decision or given reasons for the decision on or before 10 December 2017 (taking into account public holidays).
We are prepared to accept the appellant's assertion that he did not receive a copy of the full decision until after 10 December 2017, taking into account the letter of the Tribunal Registry dated 8 December 2017. In any event, even if the written reasons were sent by mail to the appellant on 28 November 2017 and he received them in early December 2017, we would extend the limitation period to file the appeal in any event due to the very short period of any required extension and the absence of any obvious prejudice to the respondent by reason of the extension.

THE MERITS OF THE APPEAL

Leave to appeal is required in respect of the alleged errors which do not fall within the category of errors of law. It follows that a threshold question is whether the Appeal Panel is satisfied that the claims of the appellant satisfy the requirements of cl 12 Schedule 4 of the NCAT Act. This in turn requires a consideration of the appellant's submissions, both in respect of the alleged errors of law, and the alleged errors that require the grant of leave to appeal.

Appellant's Submissions

The appellant has provided extensive written submissions as discussed previously. In those submissions he refers to 9 different issues. They are, doing our best to encapsulate the submissions, as follows: -
Procedural unfairness: the appellant submits that there has been procedural unfairness relating to the joinder of a party; there has been in irregularity with the issue of a summons; that "NCAT's solicitor (sic) was only assisted the respondent, but it has also instructed the Tribunal Member to finish the case"; that the Senior Member should have taken action "to monitor and take action to correct this bad behaviours"; that there was "ambush" in the process at the hearing on 5 October 2017 when a summonsed witness did not produce a document; and that NCAT failed to resolve an issue concerning these matters.
Bias is alleged, the appellant claiming that: "the hearing was set up with the suspicious intention before at listing"; that the Senior Member "performed all the way in favour to the respondent's"; that the Senior Member "was instructed by the solicitor to conduct the hearing by the way of the pre-judgement with the arranged determination"; that the Senior Member "accepted all the bad behaviours from the respondent's" which included. "statutory declaration"; the Senior Member misconstrued the evidence concerning a Summons; that the Senior Member intended to mislead the appellant; that "this is his pattern of the bias"; and that the Senior Member "deconstructed story about the unreasonable in the conduct money from Mr Fuller and Mr Throsby". The submission refers to prejudgement, because the Senior Member allegedly stated: "he was acted by the instructed solicitor" (sic); that the Senior Member accepted the evidence of a Mr Wicks; that the Senior Member accepted "everything" in a statement and argument from Mr Throsby and his buyer Mr Russell; and that the Senior Member accepted the evidence of Mr Fuller. It is also alleged there is "Biases (racial)" in the decision making process.
The Tribunal exceeded its jurisdiction. Under this heading reference is made to the issue of a Summons to produce documents; the failure of the appellant to pay for conduct money and of the apparent dismissal of the Summons.
Other errors are alleged namely jurisdictional error, error in the jurisdictional fact, and error within the jurisdiction. Documents of Mr Wicks and Mr Throsby and the transcript are referred to.
The Appeal Panel finds that much of the material provided and submissions are unintelligible.

Has an Error of Law Been Established?

In respect of errors of law, none have been established by the appellant. We cannot discern any error of law in the matter in which the Senior Member conducted the hearing; made factual findings; and applied legal principles.
Further, as to the merits of the appeal, we are not satisfied that even if an error of law was established, there is any basis to suggest that a different result is likely to be achieved if the matter was remitted. Essentially, the appellant's complaints relate to the factual findings made by the Tribunal. We cannot discern any error of law in the process by which the Tribunal made factual findings. Further, as was pointed out by the Senior Member, even if the appellant had established breach, there was no sufficient evidence of the breach causing any loss.
In essence, separate to the issue of jurisdiction, the claims regarding breach of the Competition and Consumer Act 2010 and breach of the ACL were rejected because there was no evidence of any conspiracy as claimed between the carrier, the auctioneer and the purchasers. The auctioneer and the purchaser and the carrier provided evidence which was accepted by the Tribunal. Further, there was clearly a lack of any evidence to suggest that the cattle were ever valued, at the time of their unreserved auctions sale in the amount claimed by the appellant, namely $15,000.
The appellant has produced no evidence, or shown any error of law, which would throw doubt upon the findings of the Tribunal.
Further, in respect of the complaints of bias, it is not clear whether actual bias or apprehended bias is alleged. Irrespective, a claim of bias must be "distinctly made and clearly proved": see Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 at [61] - [63] and [99) per Gleeson CJ and GummowJ. This is the test for actual bias. However there must be evidence of a reasonable apprehension in respect of this ground of bias: see Ebner v Official Trustee in Bankruptcy [2000] HCA 63(2000) 205 CLR 337 at [ 6] per Gleeson CJ, McHugh, Gummow and Hayne JJ.
As discussed in Ebner, the necessary consideration involves two stages: firstly what is claimed to be the material upon which it is said the decision-maker may decide a case other than on its legal and factual merits; secondly establishing the logical connection between such matter and the feared deviation from such course of deciding the case on its merits: see Ebner at [8]. Such principle is were applied by the Federal Court of Australia in Coutts v Close [2014) FCA 19.
The appeal panel is unable to find any logical basis upon which a ground of apprehension of bias or actual bias is raised.
The appeal panel is unable to find any basis upon which there has been jurisdictional error or excess of jurisdiction. The factual findings were matters in the discretion of the Tribunal: only of such finding is without foundation could the Tribunal intervene: see House v the King [1936] HCA 40; (1936) 55 CLR 499. There is also no error of law in the manner in which the Tribunal dealt with the Summons to Produce Documents that had been issued by the appellant on the various parties.

Has an Error Other Than an Error of Law Been Established to Justify the Grant of Leave to Appeal?

As discussed previously, the principles to be applied in considering a grant of leave well-established: see Collins v Urban [2014) NSWCAP 17. The Appeal Panel is required to consider whether there has been a substantial miscarriage of justice. As provided by cl 12 of Pt 6 of Schedule 4 to the NCAT Act, the Tribunal must consider whether there has been a "significant possibility" or a "chance which was fairly open" that are different and more favourable result would have been achieved had the events referred to in cl 12 (1) (a) or (b) not occurred.
The Tribunal must also take into consideration whether the preponderance of the evidence is so strongly against the conclusion found by the tribunal at first instance that the conclusion was not one that was reasonably open to it: see Calin v The Greater Union Organisation Pty Ltd (1991) 173 CLR 33 at 41 - 42; Anderson v Armitage [2014] NSWCATAP 72 at [54]-58] and the principles discussed therein.
The Appeal Panel is not satisfied that any substantial miscarriage of justice has occurred; or that the decision was against the weight of evidence; or that there was evidence not reasonably available that is now available and may have changed the outcome.
The Appeal Panel is not satisfied that the grounds of appeal and issues raised by the appellant have any substance beyond the subjective belief of an unsuccessful litigant that he should have won his case, and the appeal is, in essence, an attempt by the appellant to re-argue the case presented below.

THE APPELLANT'S APPLICATION TO ADJOURN AND GENERAL COMPLAINT AT THE APPEAL PANEL HEARING THAT HE WAS BEING TREATED UNFAIRLY

The appellant maintained that he did not understand that his appeal was fixed for hearing before the Tribunal today, namely on 22nd of March 2018 at 10:15 AM. The appellant submitted that he understood that the hearing fixed for the stay was only for the purposes of determining leave to appeal. The appellant stated that he had left some of his submissions at home. The appellant also submitted that he wanted to obtain legal advice.
In O'Neill v T and I Engines Pty Ltd [2015] NSWCATAP 77 at [22], the Appeal Panel identified the following principles governing applications for an adjournment: "(1) matters should almost always proceed on the date fixed for hearing, for the reasons enunciated above, (2) an application for an adjournment should be seen as the exceptional rather than the ordinary course; (3) where the adjournment is caused, at least in part, by the delay of the party seeking the adjournment, or non-compliance by that party with an extant order of the Tribunal, adequate explanation is called for, and its absence weighs heavily, and sometimes decisively against the grant of an adjournment."
Refusing an adjournment may be inappropriate if it has the effect of depriving a party from adequately presenting the parties case: Armee v Brearley [2017] NSWCATAP 141 at [121] and [135]. However, in considering an adjournment application, the Appeal Panel must take into account all the relevant facts and circumstances of the matter, in the context of its guiding principle under s 36 of the Civil and Administrative Tribunal Act 2013.
The appellant's submission is inconsistent with a history of these proceedings. On 30 January 2018 directions were made requiring inter alia, the appellant to submit his written submissions in respect of the appeal by 26 February 2018. The appellant then sought to have the time in which to prepare his submissions extended. By letter dated 16 February 2018 such request was refused. Thereafter the appellant filed his written submissions on 26 February 2018.
The Tribunal, at the directions hearing on 30 January 2018 also fixed 22 March 2018 for the purpose of the hearing of the appeal as is clear from the written direction that were issue to the parties. In these circumstances, since the appellant must have been aware that his submissions were required for the appeal, and he provided such submissions. The Appeal Panel does not accept that the appellant was not aware that his appeal would be heard on 22 March 2018.
Further, the appellant stated that he had only recently sought assistance from NSW Legal Aid. The Appeal Panel is not satisfied that, considering the time between the filing of the appeal and the Appeal Panel hearing, the appellant has not had a reasonable opportunity to obtain advice, or to prepare and present his case. Further, the Appeal Panel is not satisfied that the refusal of an adjournment deprived the appellant from adequately presenting his case for the following reasons: 1. The appellant had filed and served extensive written submissions setting out his arguments and grounds of appeal. Those documents have been considered by the Appeal Panel. 2. The grounds of appeal were manifestly weak in any event, and adjourning the matter so that the appellant could have a further opportunity to obtain legal advice, or to bring a copy of his submissions with him, would have made no difference to the outcome of the appeal. 3. The appellant had no apparent difficulty at the Appeal Panel hearing arguing his case, or responding to questions and issues raised by the Appeal Panel. 4. The appellant claimed to have an invoice at home supporting his oral evidence that had been given at the hearing below that he had sold a similar amount of cattle at a previous auction for an amount of approximately $15,000. Such a document, even if the Appeal Panel granted leave for the appellant to tender it as evidence, would have made no difference to the outcome of the appeal.
The Appeal Panel also notes that in the weeks preceding the hearing date, the appellant wrote to the Tribunal on two occasions seeking to have the appeal adjourned. Such applications were refused.
In the circumstances, the Appeal Panel rejects any submission that the appellant has been treated unfairly, as he claimed.
At the conclusion of the Appeal Panel hearing after the Appeal Panel stated that it was reserving its decision, the appellant sought to tender a photograph of cattle that were previously sold. That document was not admitted into evidence as (i) the hearing had concluded; and (ii) it was irrelevant to any fact in issue in the appeal in any event.
The Appeal Panel refuses leave to appeal and the appeal is otherwise dismissed.

COSTS

If there is any application by the respondent for costs, it is to be made in the following manner: 1. The respondent is to file with the Tribunal and serve on the appellant any submissions on the issue of costs on or before 14 days from the date of publication of this decision. 2. The appellant is to file with the Tribunal and serve on the respondent any submissions in reply on the issue of costs on or before 14 days from the date of service of the respondent's submissions. 3. The submissions of the parties are to include whether any further oral hearing is required on the issue of costs. Subject to the submissions of the parties, the Appeal Panel may determine the issue of costs on the papers, in accordance with s 50(2) of the NCAT Act.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 April 2018

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