Civil procedure - adjournment application - whether a Notice of Motion should be further adjourned as sought by the plaintiff
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Civil procedure - adjournment application - whether a Notice of Motion should be further adjourned as sought by the plaintiff
Judgment (6 paragraphs)
[1]
Solicitors:
Plaintiff - Self-Represented (before 22 November 2019; and from mid-April 2020);
Nash Allen Williams & Wotton (Plaintiff)
Makinson & d'Apice Lawyers (Defendants)
File Number(s): 2017/00067477
[2]
Judgment
Before the court for determination are two applications: (1) an oral application by the plaintiff for a further adjournment of the hearing of a Notice of Motion filed on 26 April 2019; and (2) an application by the defendants for orders dismissing the proceedings for breach by the plaintiff of Part 31.36 of the Uniform Civil Procedure Rules (UCPR) pursuant to the Notice of Motion filed on 26 April 2019.
The plaintiff in the present proceedings has generally appeared for himself in matters before the court. He has, however, also retained a firm of solicitors to attempt to obtain a further medical expert report to assist his case in the proceedings. The evidence establishes that this firm ceased acting for the plaintiff in relation to obtaining the further medical expert report, it appears, in mid-April 2020.
On 28 February 2020, the plaintiff sought and was granted an adjournment in relation to the further hearing of the Notice of Motion filed by the defendants on 26 April 2019: Schwerdtfeger v Western NSW Local Health District [2020] NSWDC 30 ("the first adjournment Judgment"). On 28 February 2020, the hearing of the Notice of Motion filed on 26 April 2019 was adjourned for further hearing to 9 April 2020. The principal basis for the adjournment application was that the solicitors acting for the plaintiff had retained Associate Professor Kleinman to provide an expert medical report for the purposes of the proceedings and to establish belated compliance with Part 31.36 of the UCPR. The report was said to be expected to be provided by Associate Professor Kleinman by about mid-March 2020: see paragraphs 35-37 and 46-49 of the first adjournment Judgment.
On 30 March 2020, the court received an email from the plaintiff seeking a further adjournment of the hearing of the Notice of Motion filed on 26 April 2019: see Exhibit A on the adjournment application. My Associate informed the parties by email that the plaintiff's 30 March 2020 email would be treated as a formal application to adjourn the 9 April 2020 hearing date. The defendants opposed the further adjournment sought by the plaintiff. In paragraph 51 of the first adjournment Judgment, I noted that the plaintiff should make every attempt to have Associate Professor Kleinman's report served by the end of March 2020. I indicated in paragraph 51 that the plaintiff should not assume further adjournments would be readily granted by the court.
The plaintiff's 30 March 2020 email was not accompanied by any affidavit evidence on behalf of the plaintiff. By emails dated 31 March 2020 and 3 April 2020, the plaintiff was invited to file and serve any affidavit evidence on which he wished to rely for the purposes of the adjournment application made by him: see Exhibit A on the adjournment application. In an email dated 6 April 2020, the plaintiff stated that he did not have access to any relevant person to finalise an affidavit. Why his solicitor Mr Nash could not prepare an affidavit on information and belief, including as to the status of the Kleinman report, was unclear. The plaintiff's solicitor Mr Nash had previously prepared affidavits which were relied upon by the plaintiff in other applications. It was unclear whether Mr Nash had ceased acting for the plaintiff in relation to obtaining the medical report before 9 April 2020.
On 9 April 2020, the plaintiff's oral adjournment application was heard and, after submissions were made, was granted. The plaintiff gave oral evidence by telephone that a delay had been caused by the need to obtain hospital records from Orange Hospital. The defendants submitted that those records had been previously provided to the plaintiff's former solicitors and thus a further delay was not warranted. The defendants relied on Dickens (a pseudonym) v State of New South Wales [2018] NSWCA 222 at [11] where the Court of Appeal referred to the trial judge's reliance on the comments of Nettle and Osborn JJA in Karam v Palmone Shoes Pty Ltd [2012] VSCA 97 at [36] to the effect that a self-represented litigant "cannot be allowed forever to stand behind the shield of his own ignorance; especially when it continues to subject other parties to cost and inconvenience…" The hearing of the Notice of Motion filed 26 April 2019 was adjourned to 22 April 2020.
The background to the proceedings and the defendants' application is set out in some detail in the first adjournment Judgment. There is a lengthy history of appearances in relation to the plaintiff's expert evidence. It is assumed that a reader of these reasons for decision is familiar with the first adjournment Judgment. I refer in particular to paragraphs 5-39 of the first adjournment Judgment.
In his email dated 30 March 2020, the plaintiff referred to seeking an adjournment "until the current situation has eased" and to problems with his immune system. I took the reference to "the current situation" to refer to the Covid-19 pandemic.
On 22 April 2020, the plaintiff again sought an adjournment. An adjournment was sought for a period of one-two months to enable the plaintiff to obtain a report from Associate Professor Kleinman or anther medical expert. The basis for the adjournment was set out in an email from the plaintiff dated 21 April 2020 which became Exhibit C on the application. The plaintiff adopted as correct the matters in this email in oral evidence. In essence, the plaintiff stated that his solicitors had ceased acting for him and the expert referral entity concerning Associate Professor Kleinman had refused to refer material to Associate Professor Kleinman for a report if the plaintiff was acting for himself as opposed to acting through his previous solicitors. The plaintiff submitted that this amounted to discrimination against him and was a circumstance involving a delay in obtaining a report which was beyond his control. He said that he had done his best to obtain a report. This was in substance the seventh adjournment of the hearing of the defendants' Notice of Motion sought by the plaintiff.
The defendants opposed the further adjournment application. In substance, the defendants submitted that the plaintiff had been given more than a reasonable opportunity to file and serve an expert's report or reports complying with Part 31.36 of the UCPR and had failed to do so. The comments in Karam, above, were again relied on. It was submitted that the adjournment application should be rejected as no proper basis for it had been established by the plaintiff. It was submitted that the time had come when further adjournments should not be granted having regard to the lengthy history of the hearing of the Notice of Motion. It was submitted that the evidence showed that the plaintiff now had no solicitor acting for him in obtaining a report and there was no indication when or if any report would be available in the near future. Further, the plaintiff's email (Exhibit C) indicated that he had been instructed not to make any further contact with Associate Professor Kleinman directly. Ms Deng, a solicitor acting for the defendants, orally confirmed the contents of a draft affidavit prepared by her stating that following the hearing on 9 April 2020, she had sent by email to the plaintiff copies of his clinical records from Orange Heath and Westmead Hospital: see Exhibit 1 on the application.
In my view, I must first consider the adjournment application and then consider, if appropriate, the defendants' Notice of Motion.
[3]
Adjournment application
I set out the principles relevant to the plaintiff's application for an adjournment in paragraphs 40 to 45 of the first adjournment Judgment. Importantly, the application must be considered in the light of the matters referred to in ss 56-58 of the Civil Procedure Act 2005 (NSW), including the "dictates of justice" referred to in s 58(2): see Roach v Malsave Pty Ltd [2020] NSWSC 364 at [40].
The evidence on the application consisted of:
1. Oral evidence from the plaintiff;
2. Exhibit A being emails between the parties and the court relating to the previous adjournment application;
3. Exhibit B being an email dated 9 April 2020 from my Associate forwarding the orders made on that day to the parties;
4. Exhibit C being Mr Schwerdtfeger's 21 April 2020 email explaining the difficulties in obtaining a report from Associate Professor Kleinman;
5. Oral evidence from Ms Deng confirming the contents of her draft affidavit dated 21 April 2020;
6. Exhibit 1 being the draft 21 April 2020 affidavit together with an email from Ms Deng to the plaintiff referring to a link to download the Orange Health and Westmead Hospital records.
In my view, the following matters are relevant to the plaintiff's latest adjournment application:
1. The delay by the plaintiff since the filing of the Statement of Claim in serving his relevant medical expert reports within Part 31.36(1)(a) of the UCPR;
2. The many opportunities already given to the plaintiff by the court to obtain appropriate medical expert reports;
3. The evidence that the plaintiff had been instructed not to contact Associate Professor Kleinman directly and that the referral entity would not seek a report from him if the plaintiff was acting for himself. There was no evidence as to when the foreshadowed report of Associate Professor Kleinman which formed the principal basis of the 28 February 2020 successful adjournment application would be obtained;
4. The absence of any evidence as to whether and when a report from another medical expert will be served on the defendants complying with Part 31.36;
5. The decision of the referral agency being a matter beyond the control of the plaintiff;
6. The plaintiff's ongoing health problems arising from the accident;
7. The plaintiff's general health problems and difficulties set out in his 30 March 2020 email, which I assume for the purposes of the application are correct. I also take judicial notice of the current Covid-19 coronavirus pandemic and its general impact upon parties to ongoing legal proceedings in this State;
8. Sections 56-58 of the Civil Procedure Act 2005 (NSW) especially the factors in s 58(2) which I take into account;
9. The further costs and delay to the defendants if the plaintiff's latest adjournment application is granted. However, I note that no specific matter of prejudice was raised in evidence by the defendants;
10. The defendants' Notice of Motion was filed on 26 April 2019 and has been adjourned several times on the plaintiff's application;
11. The plaintiff is now self-represented; and
12. That I warned the plaintiff in paragraph 51 of the first adjournment Judgment and on 9 April 2020 that he should not assume further adjournments would be readily granted.
In my opinion, having considered all of these matters, it is not in accordance with the dictates of justice to grant the plaintiff a further adjournment as requested. The history provided in the first adjournment application Judgment and as set out above, establishes that the plaintiff has been granted numerous indulgences by the court in relation to obtaining further expert medical reports. No proper basis has been given or established for the latest adjournment application. No evidence has been tendered or read in relation to the likely receipt of Associate Professor Kleinman's foreshadowed report. The defendants' Notice of Motion was filed nearly one year ago. In coming to my conclusion, I have taken into account the matters in the plaintiff's recent emails which are in Exhibit A and Exhibit C, including his 30 March 2020 email. Accordingly, for these reasons the plaintiff's further adjournment application is rejected.
Having refused the adjournment application, in my view there is no proper basis not to proceed to determine the Notice of Motion filed on 26 April 2019. Full submissions have been received already from all parties in relation to the Notice of Motion, particularly on 22 November 2019 and 28 February 2020. No further submissions were made at the hearing on 22 April 2020.
[4]
Principles applicable under Part 31.36
I first set out the principles applicable to an application under Part 31.36 of the UCPR. I set out the relevant rule in the first adjournment Judgment. I repeat it here for convenience:
"31.36 Service of experts' reports in professional negligence claims
(1) Unless the court orders otherwise, a person commencing a professional negligence claim (other than a claim against a legal practitioner) must file and serve, with the statement of claim commencing the professional negligence claim, an expert's report that includes an opinion supporting -
(a) the breach of duty of care, or contractual obligation, alleged against each person sued for professional negligence, and
(b) the general nature and extent of damage alleged (including death, injury or other loss or harm and prognosis, as the case may require), and
(c) the causal relationship alleged between such breach of duty or obligation and the damage alleged.
(2) In the case of a professional negligence claim against a legal practitioner, the court may order the plaintiff to file and serve an expert's report or experts' reports supporting the claim.
(3) If a party fails to comply with subrule (1) or (2), the court may by order made on the application of a party or of its own motion dismiss the whole or any part of the proceedings, as may be appropriate.
(4) Without limiting subrule (1) or (2), the court may, on the application of any of the parties, give directions as to the expert evidence to be adduced at trial.
(5) Directions under subrule (4) may be sought at any directions hearing or case management conference or by notice of motion.
(6) Unless the court otherwise orders, no party may adduce any expert evidence at trial unless the evidence -
(a) has been filed and served under subrule (1) or (2), or
(b) has been served pursuant to directions given under subrule (4)."
In Salzke v Khoury [2009] NSWCA 195; (2009) 74 NSWLR 580 the Court of Appeal considered a case where proceedings had been dismissed against the appellant because of a failure to comply with Part 31.36 of the UCPR.
Ipp JA stated as follows at paragraph 59-64:
"59. UCPR 31.36 is basically a rule that serves case management purposes and is designed to assist in achieving the overriding purpose of s 56(1) of the Civil Procedure Act 2005, namely, "to facilitate the just, quick and cheap resolution of the real issues in the proceedings" (see also ss 57, 58 and 59).
60. UCPR 31.36(1) requires a plaintiff in a professional negligence action to disclose, when the Statement of Claim is filed, the expert opinion on which the claim is based. The rule, however, is not inflexible. UCPR 31.36(1) expressly provides that the court may order "otherwise". UCPR 31.36(4), (5) and (6) contemplate that orders may be made after the claim has been commenced relating to expert evidence not filed and served at the time the claim was commenced.
61. Other aspects of the rule are to be noted. Firstly, the rule cannot be construed to mean that an individual expert's report must include an opinion supporting all the matters referred to in sub-rule 1(a), (b) and (c). Those matters would usually involve fundamentally different categories of expertise. The rule could not be intended to preclude the case of an expert's report relevant only to one or two of those matters. Accordingly, the fact that opinions in an expert's report support only one or even part of one of the matters in paragraphs (a), (b) and (c) does not detract from the use that may be made of that report to support a plaintiff's claim for the purposes of UCPR 31.36(1). The opinions expressed in an expert's report as to any one or part of the elements of breach of duty of care, or damages or causation, may assist in providing the support contemplated by the rule. The opinions may only support a single link in the chain that constitutes the plaintiff's case. Opinions of that kind are nevertheless relevant in determining whether there has been compliance with UCPR 31.36(1).
62. Secondly, the opinions in the expert's report merely have to "support" one or more of the matters referred to in sub-rule 1(a), (b) or (c). The opinions do not have to "prove" anything. A report, at the stage that it is considered for the purposes of UCPR 31.36, is not evidence.
63. Thirdly, due regard must be had to the fact that UCPR 31 (the rule dealing with expert evidence) contemplates that experts will prepare their own reports (see, for example, UCPR 31.23(3) and clause 5(2) of the Expert Witness Code of Conduct (schedule 7 to the UCPR). This is consistent with the principle that expert evidence presented to the court should be the independent product of the expert: National Justice Compania Naviera SA v Prudential Assurance Company Limited (the "Ikarian Reefer") [1993] 2 Lloyds Rep 68. Thus, the report should be construed benevolently and not as if it were a pleading or an affidavit or even a statement of a witness prepared by a lawyer.
64. Fourthly, the power under UCPR 31.36(3) to dismiss the whole or any part of the proceedings is based on non-compliance with sub-rule (1). The court, in dealing with an application under UCPR 31.36(3), is not concerned with an application for dismissal of the proceedings for want of prosecution or an application for summary judgment by the defendant."
Basten JA agreed with Ipp JA and stated as follows at paragraphs 115-116 and 122-123:
"115. A rule which has operation in a specific class of cases must be applied with careful attention to its underlying purpose. It has the potential to operate differentially so as to raise a hurdle in the path of those with legitimate claims against health professionals, thus providing a degree of protection against such claims which other groups in the community do not enjoy. Such differential treatment, which may impede access to the courts for injured persons, should have a clear and rational justification. In Pell v Hodges [2007] NSWCA 234, in discussing the justification for an extension of time for service after the expiration of a limitation period in a professional negligence suit, Handley AJA stated at [45]:
"Proceedings for professional negligence differ from the general run of personal injury cases as they affect the defendant personally and his or her professional reputation. One may reasonably infer that considerations such as this prompted the reduction in the time for service of the Statement of Claim for cases in the Professional Negligence List and the warnings in the Practice Direction."
116. Without doubting the accuracy of that inference, its scope must be treated with caution. Rule 31.36 applies only to health professionals, whereas adverse effects of negligence claims on professional reputation are likely to affect any person whose livelihood depends upon the exercise of particular skills and expertise. Nor will the courts readily adapt fundamental principles to protect professional reputations, where such protection would not otherwise be provided to members of the community: see, eg,Raybos Australia Pty Ltd v Jones (1985) 2 NSWLR 47 at 59-60 (Kirby P), 61 (Samuels JA) and 63 (Priestley JA). In the present case, the rule was applied in relation to a claim against a body responsible for the operation of a public hospital pursuant to the Health Services Act 1997 (NSW). A concern for personal reputation could not apply with respect to such a statutory corporation."
Gzell J agreed with Ipp JA.
It seems clear from this case that the following general principles are applicable:
1. Part 31.36 is basically a rule that serves case management purposes;
2. The rule is not to be applied inflexibly and the court retains a discretion in the matter;
3. The requirements of Part 31.36(1) can be satisfied by a number of different expert reports. The rule also contemplates reports being served after the Statement of Claim is filed;
4. The reports merely have to "support" one of the matters in Part 31.36(1). They do not have to prove anything or establish a prima facie case;
5. Any reports served should be construed "benevolently";
6. The primary purpose of Part 31.36 is to discourage the commencement of unmeritorious litigation;
7. Part 31.36 is one-sided and does not require a health professional to file expert evidence supporting the defence case;
8. Part 31.36 is not a mere formality but early expenditure on the quantification of damage may well be unjustifiable. An expert report should not be scrutinised too finely.
In Zakaria v Dr Noyce [2012] NSWSC 981 Davies J at [43] held that an expert report in order to comply with Part 31.36 must satisfy the definition of "expert's report" in Part 31.18 and comply with the requirements of the Expert Code of Conduct. I note the report of Dr Thomas dated 17 November 2018 (Annexure C to Mr Schwerdtfeger's 18 November 2019 affidavit) does not comply with this requirement. It also does not state that there was any failure by the defendants to comply with reasonable standards applicable to hospital professionals or hospital staff at the time.
In McGarry v Southern NSW Local Health Network [2013] NSWSC 1109, Adamson J considered an application to amend a Statement of Claim. Her Honour stated the following at paragraph 16:
"In my view it is not appropriate, at this stage of the proceedings, to allow an amendment to add an allegation of negligence when the allegation is not substantiated by any expert evidence or necessary inference from the evidence. The circumstances in the instant case are to be contrasted with the requirements for filing and service of expert reports in professional negligence claims when proceedings are commenced: UCPR 31.36. When proceedings are commenced, the threshold is lower; it is not necessary that an expert's report address each of breach of duty, damage and causation: Salzke v Khoury [2009] NSWCA 195; 74 NSWLR 580 (Salzke) at [61] per Ipp JA, Gzell J agreeing. Nor is it appropriate in those circumstances that an unduly technical approach be taken to the requirements of the rule which would have the effect of turning it into an obstacle to a plaintiff having his or her case determined on the merits: Salzke at [123] per Basten JA."
In Barker (Thomas) v Hodgkinson [2013] NSWSC 1404, Barr AJ stated as follows at paragraphs 25-26:
"25. In an application of this kind experts' reports are to be construed benevolently. Moreover, to the extent that they fail to provide the support required by the rule - one or more of paras (1) (a), (b) and (c) - the Court must bear in mind that it might be open to a plaintiff to adduce evidence of a non-expert nature in such a way as to prove the case. The rule, designed to diminish the number of cases commenced without any reasonable prospect of success, should not be turned into an unreasonable hurdle to be surmounted by a plaintiff with legitimate claims: see generally the judgments of Ipp and Basten JJA and Gzell J in Salzke v Khoury [2009] NSWCA 195; (2009) 74 NSWLR 580.
26. In my opinion this case is not of such a nature as to permit proof of the defendant's breach by any other than expert neurological evidence."
In my view, this is a case similar to that considered by Barr AJ in Barker. This case is not a case of such a nature as to permit proof of a breach of duty of care by one or other of the defendants other than through expert medical reports. The injury to the plaintiff was serious and required timely and careful expert medical attention.
As stated above, it is clear from Part 31.36(1) of the UCPR that the requirement for a plaintiff commencing a professional negligence claim (other than a claim against a legal practitioner) to file and serve with the Statement of Claim commencing the professional negligence claim an expert's report or reports which includes an opinion supporting inter alia the breach of duty of care alleged against each defendant, has as its objective, the prevention of unsubstantiated claims of negligence being filed and the provision of proper particularisation of the breach of duty of care relied upon so that the defendant can understand the case which it must meet.
For the reasons given in paragraphs 17-27 of the first adjournment Judgment, in my view the plaintiff has not served expert medical reports so far complying with Part 31.36.
I am satisfied from my review of the opinions of Dr Sekel and Dr Gayagay, even when read "benevolently" as required, that neither report includes an opinion "supporting" a breach of duty of care by one or other or both of the defendants.
I should make further reference to the plaintiff's 18 November 2019 affidavit which he has previously relied upon. In my view, whilst the material annexed to his 18 November 2019 affidavit on one view raises issues in relation to the first x-ray at Orange Hospital, it does not support a breach of duty of care as pleaded.
The 18 November 2019 affidavit of Mr Schwerdtfeger annexed two reports from the plaintiff's general practitioner, Dr Thomas, dated 17 November 2018 and 6 October 2019. There was no evidence Dr Thomas had any expertise in relation to radiology practice or trauma surgery. The two reports did not comply with the Expert Code of Conduct on their face. Whilst the email report letter dated 6 October 2019 from Dr Thomas (Annexure E) expressed opinions in the last two paragraphs as to the alleged failure at Orange Hospital to detect the presence of metallic bodies in the plaintiff's foot, there is no opinion supporting the contention that the x-ray was conducted in breach of duty of care or that if the metallic bodies had been detected there would have been a materially different surgical approach adopted in relation to the plaintiff's foot. I accept the defendants' submissions on this point.
Accordingly, I do not think the reports from the plaintiff's general practitioner, Dr Thomas, dated 17 November 2018 and 6 October 2019 relevantly assist him on the application.
For these reasons, in my opinion, Part 31.36(1) of the UCPR has not been complied with by the plaintiff. Whilst I would have been open to "otherwise order" within Part 31.36(1), in my view no reports complying with the rule in relation to the breach of duty issue have been served by the plaintiff since the filing of the Statement of Claim.
The next issue is whether, as sought by the defendants, I should dismiss the proceedings under Part 31.36(3) in the exercise of my discretion. A relevant factor is that the plaintiff has been recently self-represented as pro bono legal assistance for the plaintiff has not been able to be located. The plaintiff has retained a solicitor to assist him since August 2019. However, it seems that solicitor has ceased to act from about mid-April 2020. A further factor is the plaintiff's extensive health problems, including arising from the accident.
The plaintiff has been given a number of opportunities to obtain such an expert report or reports complying with the rule. Such opportunities have been provided to the plaintiff on several occasions over more than a year.
The court has sympathy for the plaintiff in the light of the serious injury which he has suffered and the ongoing problems which he has had following the injury. It appears that the plaintiff, whilst acting for himself, has made a number of attempts to obtain an expert report or reports complying with Part 31.36(1) without success. His previous solicitor Mr Nash had also not been successful. The plaintiff submits in summary that the negligence of the defendants is clear and obvious and his reports served so far should suffice. I do not accept that submission is established on the evidence on the Notice of Motion.
There has therefore been a continuing failure by the plaintiff to comply with Part 31.36 of the UCPR. Relevant to the exercise of the discretion is the ongoing cost of the proceedings to the defendants and the very extensive delay which has occurred both to the proceedings and in determining the Notice of Motion. I refer to and follow the comments of the majority of the Victorian Court of Appeal in Karam, above, which I have quoted which were referred to by the New South Wales Court of Appeal in Dickens (a pseudonym), above, in relation to the position of self-represented litigants. See also Aldous v State of New South Wales [2018] NSWCA 261 at [63] per Payne JA (with whom Basten and Macfarlan JJA agreed). I also take into account that the negligence alleged occurred in 2014 and a dismissal of the proceedings may raise limitation issues for the plaintiff in relation to any newly commenced proceedings.
In my view:
1. The defendants have established that the plaintiff has not complied with the requirements of Part 31.36 of the UCPR;
2. There is no evidence establishing when if ever any further relevant expert medical report may be served by the plaintiff;
3. The plaintiff has been given numerous opportunities to obtain further expert medical reports;
4. There are no compelling discretionary reasons established not to dismiss the proceedings;
5. The current Covid-19 issues did not prevent a telephone hearing of the remaining aspects of the application.
Accordingly, in my view the proceedings should be dismissed as sought in the Notice of Motion. There is no apparent reason why the usual order as to costs should not be made. However, I will give the parties an opportunity to raise the issue of costs if they consider it appropriate.
[5]
Determination
In relation to the plaintiff's oral application made on 22 April 2020 for a further adjournment, I make the following orders:
1. The adjournment application is refused.
2. The plaintiff is to pay the costs of the defendants of the adjournment application as agreed or assessed.
In relation to the Notice of Motion filed on 26 April 2019, I make the following orders:
1. The proceedings are dismissed.
2. The plaintiff is to pay the costs of the defendants of the proceedings as agreed or assessed.
3. Any application for a different costs order to that in (2) above should be made within 14 days.
4. The exhibits are to remain with the file until further order.
[6]
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Decision last updated: 30 April 2020