Varasdi v State of Victoria

Federal Court of Australia|2018-11-01|Before: Mr J, O'Callaghan J

The applicant has leave to file and serve a Third Consolidated Amended Statement of Claim substantially in the form of the document attached to the applicant's reply submissions dated 17 October 2018, excluding paragraphs [45U] to [45Y] (the Eleventh Allegation) and paragraphs [46] to [50] (the Fourteenth Allegation).
The applicant pay the respondent's costs of and incidental to the application heard on 19 October 2018. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Introduction 1 The applicant needs leave to file and serve a document substantially in the form of a "Proposed Third Consolidated Amended Statement of Claim" (the proposed amended pleading). 2 The respondent objects to paragraphs [45U] to [45Y] (the Eleventh Allegation) and paragraphs [46] to [50] (the Fourteenth Allegation), contending that the allegations contained in those paragraphs fail to disclose a reasonable cause of action and/or are likely to cause prejudice, embarrassment or delay in the proceeding.

Eleventh Allegation 15 The Eleventh Allegation purports to found a cause of action based on ss 5(2) and 22 of the DD Act. It contends that the applicant required a safe environment and protection from bullying/teasing/ assault "comprising the reasonable adjustments" set out in paragraphs 66.4(a)-(u) (paragraph 66) and the respondent failed to provide these reasonable adjustments (paragraph 67; and see too paragraphs 71-73). 16 The respondent submitted that the Eleventh Allegation fails to disclose a proper cause of action based on ss 5(2) and 22 of the DDA because it fails to identify: (1) an "adjustment" under the DDA to be made for a person with a disability; (2) any causal nexus between the alleged failures and the applicant's disability; and (3) less favourable treatment. 17 Taking each in turn:

Failure to identify an adjustment under the DDA 18 A "reasonable adjustment" defines conduct that may constitute a species of discrimination: DDA, s 5(2) (direct discrimination) and s 6(2) (indirect discrimination). What constitutes a "reasonable adjustment" is defined as that which does not impose an "unjustifiable hardship": DDA, ss 4 and 11; Watts v Australia Postal Corporation (2014) 222 FCR 220 at 240, [27]. 19 A pleading, such as the one propounded here, must precisely identify the reasonable adjustments that ought to have been made: Wade v State of Victoria [2012] FCA 400 at [6]; Lambert v State of Victoria [2014] FCA 1064 at [35]-[36] (Davies J). 20 A reasonable adjustment must be an adjustment or modification for a person with a disability: Watts v Australian Postal Corporation (2014) 222 FCR 220 at [23]-[24]. 21 In this case, the matters relied in paragraph [66.4] of the proposed amended pleading are, as was submitted, matters of general application relating to the responses to bullying. They are not identified as reasonable adjustments for the applicant as a person with a disability. 22 Further, the nature of an adjustment under the DDA must be "enabling or facultative": Watts v Australia Postal Corporation (2014) 222 FCR 220, 228 at [23]. A reasonable adjustment is an adjustment made for a person with a disability that is to be enabling or facultative to enable a person to obtain "any benefit provided by the educational authority" or the absence of which subjects the student "to any other detriment": Watts v Australia Postal Corporation (2014) 222 FCR 220 at [23], [27]. It is not an outcome in itself. 23 The applicant's pleading that there was a failure to provide a safe environment and protection from bullying/ teasing/ assault (paragraph [66] and 66.4-(u) of the proposed amended pleading) cannot be allowed because it does not describe a reasonable adjustment to be made for a person with a disability. Rather, it is impermissibly expressed as an absolute outcome without identification of the adjustments that the applicant alleges were not made, and that should have been made. 24 The proposed amended pleading alleges that the applicant "required a safe environment and protection from bullying/teasing/assault" (paragraph [66]) and that the applicant's disabilities "in and of themselves made it more likely that [the applicant] would be a target for bullying" (paragraph [66.2]). The sole particular for this pleading is a report of the Victorian Equal Opportunity and Human Rights Commission dated 2012. 25 That cannot possibly be probative of an allegation that the applicant was more likely to be a target for the alleged bullying on the ground of her disability.

Failure to identify any causal nexus between alleged failure and the applicant's disability 26 Section 5(2) of the DDA provides that a failure by a purported discriminator to make a "reasonable adjustment" because of an aggrieved person's disability may, in itself, constitute direct discrimination. 27 Section 5(2) of the DDA is contained in Part 1, which contains the preliminary provisions of the DDA. As the respondent submitted: … it must be read with the provisions of Part 2, the part of the DDA which prohibits disability discrimination in various areas, including, pursuant to s 22, in education. That is to say, the definition of direct discrimination contained in s 5(2) informs the operative prohibition contained in s 22. Conduct does not breach s 5(2), it merely falls within that section's definition of direct discrimination. It is a breach of s 22 that must be shown. 28 The various paragraphs comprising the Eleventh Allegation do not allege any breach of s 22, nor any other section of the DDA which prohibits discrimination, other than in an "in the premises" afterthought in paragraph [73]. 29 Section 22(2) of the DDA provides: "(2) It is unlawful for an educational authority to discriminate against a student on the ground of the student's disability: (a) by denying the student access, or limiting the student's access, to any benefit provided by the educational authority; or (b) by expelling the student; or (c) by subjecting the student to any other detriment". 30 Section 5 of the DDA defines direct disability discrimination: (1) For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if, because of the disability, the discriminator treats, or proposes to treat, the aggrieved person less favourably than the discriminator would treat a person without the disability in circumstances that are not materially different. (2) For the purposes of this Act, a person (the discriminator) also discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if: (a) the discriminator does not make, or proposes not to make, reasonable adjustments for the person; and (b) the failure to make the reasonable adjustments has, or would have the effect that the aggrieved person is, because of the disability, treated less favourably than a person without the disability would be treated in circumstances that are not materially different. (3) For the purposes of this section, circumstances are not materially different because of the fact that, because of the disability, the aggrieved person requires adjustments. 31 As counsel for the respondent submitted, it is the combination of ss 5 and 22 of the DDA that prohibits a person from discriminating against a person. The failure to make reasonable adjustments cannot, alone, be the less favourable treatment. What is required is for the applicant to demonstrate that a failure to make the reasonable adjustments has or had the effect that she was treated less favourably because of the disability. 32 In Sklavos v Australian College of Dermatologists (2017) 256 FCR 247 at [30], [38] (Bromberg J, with whom Griffith J and Bromwich J agreed on this issue: see [179], [213]) the Full Court made clear that s 5(2) of the DDA will only be contravened if the alleged contravener's failure to make the reasonable adjustment "has, or would have, the effect that the aggrieved person is, because of the disability, treated less favourably than a person without the disability would be treated in circumstances that are not materially different." (Emphasis added.) 33 There must, in other words, be a causal nexus between the alleged failures to provide reasonable adjustments and the aggrieved person's disability. 34 It is not sufficient to assert that something is a reasonable adjustment and allege, without more, that it was not provided. The paragraphs comprising the Eleventh Allegation do no more than that. They cannot therefore be allowed on that ground alone. 35 Paragraph [66.3] pleads that the applicant has been the target of "bullying/teasing/assault" as set out in paragraph [67], and pleads in particulars that the respondent's staff "were informed of" a large number of incidents. But there is no pleading of any material facts going to the allegation that any incident occurred because of the applicant's disabilities, or that there was a failure to protect her because of her disabilities. 36 Paragraph [67] also pleads that the applicant was not provided with the reasonable adjustments set out in paragraph [66.4]. However, even if the applicant could, contrary to the respondent's case, make good the allegation that it provided none of the measures identified, and that they are capable of being characterised as reasonable adjustments under the DDA, the proposed amended pleading does not otherwise plead that the applicant's disability was a reason for the alleged failure to provide these measures. 37 Paragraph [72] says that "[t]he reasonable adjustments were not provided due to and/or because of [the applicant's] disabilities". However, no particulars or material facts are relied on. The mere assertion of causation cannot establish causation. Paragraph [71], which posits the situation of a student without disability, likewise does not provide the missing links. 38 Further, the allegations contained in the Eleventh Allegation fail to plead, with any sufficient specificity, how the applicant was treated, because of her disability, less favourably than another student without her disabilities in circumstances not materially different. The proposed amended pleading does not identify the less favourable treatment occasioned by the alleged failure to provide the alleged reasonable adjustments. 39 The failure to identify how the applicant was treated less favourably than a student without her disabilities in circumstances that are not materially different has the consequence that there is no proper cause of action pleaded.

Fourteenth Allegation 40 Paragraphs [76] to [81] of the proposed amended pleading allege unlawful direct discrimination under s 5(1) of the DDA and contravention of s 22(2)(a) of the DDA by reason of a "refusal to apply policies and procedures". 41 Paragraph [76] of the proposed amended pleading contends, relevantly, that the respondent "…has put in place various policies and procedures, which were and are in existence and operative throughout the relevant period, and which were and are designed to protect students from bullying, harassment and mistreatment, which it failed to provide to [the applicant], as follows…" 42 It is also alleged in paragraph [76.3] of the proposed amended pleading that treatment by the respondent alleged in paragraph [76.2] "does not comply with any bullying or harassment policies or procedures the Respondent has had, or does have". 43 It is this treatment - the alleged failure to comply with policies - that is then alleged in paragraph [76] of the proposed amended pleading to constitute "less favourable treatment" within the meaning of s 5(1) of the DDA. 44 Fundamentally, the pleading alleges that the respondent discriminated against the applicant by failing to comply with its policies or procedures. By its pleading, the applicant seeks to enforce various policies or procedures (both in operation now, and those previously in force, none of which are particularised). These attempts are misconceived. In Walker v State of Victoria [2012] FCAFC 38, the Full Court considered an appeal from a judgment concerning allegations of direct and indirect discrimination in a school environment. The Full Court emphasised that it was the terms of the DDA itself that identified when conduct would or would not be unlawful. Policies and procedures do not have the force of law, and cannot be given that force in the manner contemplated by the applicant. As Gray J observed in Walker v State of Victoria [2012] FCAFC 38 at [73]: No provision of the [DDA] empowers the court to undertake a general enquiry into the best interests, or the vulnerability, of a child with disabilities. Whatever provisions guidelines adopted by a State with respect to students with disabilities might make, and whatever benefits or expectations such guidelines might create, they are not the subject of enforcement under the [DDA]. 45 The proposed amended pleading also suffers from further deficiencies due to its high level of generality. Paragraph [76.2] of the proposed amended pleading refers generally to "reports by [the applicant] of bullying which were not taken seriously by school staff, or believed at all" and particularises a number of reports. However, the pleading does not state material facts addressing the subjective element of the pleading (that the reports "were not taken seriously…or believed at all"). Nor does it provide the particulars, required by r 16.43 of the Federal Court Rules 211 (Cth), of that alleged state of mind. These evaluative formulations are inconsistent with established authority for the requirement of pleadings in DDA cases. See, for example, Kiefel v State of Victoria [2013] FCA 1398 at [210]. 46 Finally, paragraph [78] of the proposed amended pleading alleges that "[t]he grounds upon which [the applicant] was treated less favourably by the Respondent are that during her enrolment at IEPS when the segregation occurred". It does not stipulate what less favourable treatment is intended to be the subject of this reference, nor does the paragraph explain what "segregation" is referred to, nor when it occurred. 47 For these reasons, the Fourteenth Allegation is defective and does not identify a cause of action under the DDA.

Disposition 48 Accordingly, I will not allow the Eleventh and Fourteenth Allegations in the proposed amended pleading. The applicant has leave to file and serve the new pleading with those allegations excised. 49 In circumstances where this pleading is the fourth iteration of an already lengthy pleading, and the allegations which I decline to allow are misconceived, I decline to grant leave to re-plead. 50 The applicant must pay the costs of the application. I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice O'Callaghan.

ANNEXURE A Eleventh Allegation: Reasonable Adjustment - Safe Environment and Protection from Bullying/Teasing/Assault - Section 5(2) 66. Mimi required a safe environment and protection from bullying/teasing/assault, comprising the reasonable adjustments set out in paragraphs 66.4 (a)-(u). 66.1 Mimi's disabilities impacted on her social interaction as set out in paragraph 61.1 hereof. 66.2 Mimi's disabilities, in and of themselves, made it more likely that Mimi would be a target for bullying. PARTICULARS The Applicant refers to the Victorian Equal Opportunity and Human Rights Commission finding of "significant and widespread" bullying of students with disabilities in Victorian schools in its "Held Back" Report dated 2012. 66.3 Mimi had been the target of bullying/teasing/assault for a significant period of time as set out below in paragraph 67 hereof. 66.4 Protection from bullying/teasing/assault contained the following elements, each constituting reasonable adjustments on their own: (a) take reports of bullying of Mimi seriously; (b) acknowledge that bullying of Mimi is unacceptable; (c) develop and implement an active anti-bullying programme containing disability-specific bullying elements and apply that to all schools, including Mimi's, for her protection; (d) track improvements to the collection of data, in the prevention of, and responses to, targeted bullying, including at Mimi's school in order that analysis of that data could assist Mimi; (e) requiring teachers at Mimi's school to undertake specific training on identifying, preventing and responding to bullying based on disability; (f) initiate clear report procedures at Mimi's school; (g) have a formal Student Support Group meeting regarding the bullying; (h) have a formal meeting with parents of the victim (namely Mimi) and the bullies; (i) address whether the child (Mimi) is being bullied due to a disability, and arrange, in consultation with her parents, disability awareness training for students at her school; (j) formally review effectiveness of her school's bullying response every time bullying is reported; (k) provide formal updates to Mimi's parents regarding the management of bullying incidents; (l) seek to identify and respond to patterns of bullying of Mimi; (m) ensure proactive education at Mimi's school is put in place in order to prevent bullying based on disability; (n) formal annual review of policy at Mimi's school; (o) target those bullying Mimi and ensure the behaviour has stopped; (p) formally document all reports of bullying in relation to Mimi; (q) formal meeting with victim (namely Mimi) and her parents to identify safety procedures; (r) establish with her parents whether counselling is required, and if so, arrange it; (s) restorative justice meeting after discussion with Mimi's parents; (t) amend Student Support Group guidelines and guidelines for individual learning plans to include consideration of proactive anti-bullying strategies for students with disabilities who are at risk of bullying, and then apply those guidelines to Mimi's bullying situation at her school; (u) have a school anti-bullying policy which is provided to Mimi's parents. 67. Notwithstanding the matters set out at paragraph 8 herein, Mimi was not provided with a safe environment and protection from bullying/teasing/assault by way of the reasonable adjustments set out in 66.4: PARTICULARS The Respondent's staff, at the school, the regional office and Legal Division levels, were informed of the bullying/teasing/assault occurring on the following dates: (a) 5 October 2016, involving students throwing mud at Mimi; (b) 17 October 2016, involving students taking Mimi's food, laughing at her, teasing her, and putting mud on her school hat; (c) 19 October 2016, involving a student teasing Mimi, Mimi running after her, and a group of girls forcing Mimi onto the ground, restraining her and sitting on her; (d) 21 October 2016, involving a student destroying a "bug city" that Mimi had made; (e) 4 November 2016, where Mimi had been excluded by students from rehearsing for a school talent show; (f) November 2016, involving ongoing teasing from a student sitting next to Mimi, advised to the school on 22 November 2016, and exclusion; (g) 22 November 2016, involving Mimi's teacher yelling at her and calling her a "liar" in front of the class; (h) 16 December 2016, involving boys teasing Mimi and trying to expose her by pulling her swimming towel away from her; (i) 19 December 2016, involving Mimi's parents finding a drawing of Mimi by another student, ridiculing her; (j) February 2017, involving Mimi being yelled at and a student hitting her with a stick on areas where she had had a skin graft; (k) February 2017, involving a student telling Mimi to ask a boy for sex, and students goading Mimi to say inappropriate things to others; (l) March 2017, involving boys chasing Mimi, pulling on herclothing and spinning her around; (m) 14 March 2017, involving a student allowing others to sign her cast, but not Mimi (n) 15 March 2017, involving students teasing Mimi, pinning her to the ground and digging their fingernails into her arms; (o) 21 March 2017, involving students holding a ball over Mimi's head so she could not reach it, and Mimi being surrounded by students, becoming a physical altercation involving Mimi (p) 27 March 2017, involving a student refusing to speak to Mimi (q) and further acts of bullying reported to the Respondent as set out in the particulars under paragraph 76.2. 68. Despite the notification to the Respondent's staff of the above incidents, and Mimi's parents' requests for urgent assistance for Mimi (a) no structured social skills programme was provided to her; (b) no formal assistance was provided to her to develop an alternative friendship group; (c) on a number of occasions, Mimi was asked by IEPS staff to write apology notes to others, but received none; (d) in March 2017, one of the main students who had instigated violence against Mimi was awarded "pupil of the week" by IEPS staff; (e) the bullying/teasing/assaults did not cease; no system or policy was put in place to address the bullying/teasing/assaults of Mimi. 69. The provision of the adjustments in 66.4 herein a safe environment and protection from bullying/teasing/assault constituted a reasonable adjustment, as: 69.1 they were available to be made; 69.2 they would not have caused the Respondent unjustifiable hardship; 69.3 the provision of the adjustments is was commensurate with the Respondent's obligations pursuant to: (a) the Occupational Health & Safety Act; (b) its own anti-bullying policies and stated approaches; (c) its duty of care to students; 69.4 The provision of the adjustments would have protected Mimi from psychological and physical harm; 69.5 many of the reasonable adjustments were recommended by the Victorian Equal Opportunity and Human Rights Commission in response to findings that bullying was a significant and widespread problem for students with disabilities in Victoria. 70. The failure to provide Mimi with the reasonable adjustments in 66.4 herein a safe environment and protection from bullying/teasing/assault had the effect that Mimi was, because of the disabilities set out in paragraph 7 hereof, treated less favourably than students: (a) without disabilities or without Mimi's disabilities; (b) who were being subjected to bullying, teasing and assault; (c) who had been physically and psychologically injured at the hands of other students; (d) who were already vulnerable to bullying; (e) whose parents had contacted the school on multiple occasions asking for urgent assistance to provide a safe environment and protection from bullying/teasing/assault; (f) attending a government school; would be treated, being circumstances not materially different. 71. A student without a disability would have: (a) had bullying of themselves taken seriously; (b) received the benefit of relevant departmental policies, procedures and guidelines designed to support him or her as a victim of bullying; (c) benefited from the implementation of policies, procedures and guidelines created by the Respondent in direct response to recommendations by statutory authorities finding flaws in the manner in which they were treated in regard to bullying; (d) had the reasonable adjustments applied to/provided to them. PARTICULARS The Applicant refers to paragraphs 78 (d), (e) and (f) below 72. The reasonable adjustments were not provided because of Mimi's disabilities. 73. In the premises, the Respondent unlawfully discriminated against Mimi on the ground of her disabilities by failing to provide her with the reasonable adjustments set out in 66.1 herein of a safe environment and protection from bullying/teasing/assault, thereby limiting/denying her access to the benefits set out in paragraphs 11.2 and 11.3 hereof, and the Respondent thereby breached section 22(2)(a) of the DDA. Fourteenth Allegation - Less Favourable Treatment - Refusal to apply policies and procedures on the basis of disability, Section 5(1) 76. The Respondent has put in place various policies and procedures, which were and are in existence and operative throughout the relevant period, and which were and are designed to protect students from bullying, harassment and mistreatment, which it failed to apply to Mimi, as follows: 76.1 The cornerstone of all internal policies and procedures, and various anti- bullying programmes put in place by the Respondent, was that bullying should be taken seriously and acted upon, and that victims should receive support. 76.2 Throughout the relevant period: (a) reports by Mimi of bullying were not taken seriously by school staff, or believed at all. PARTICULARS OF REPORTS • in February/March 2015 on several occasions verbally to teacher Sally Calvert; • in the Ivanhoe East Primary School communication book 2 and 3 March 2015; • on or about 3 March 2015 verbally to aide Prue Jeffries; • 27 July 2015 by email to Ms Sally Calvert; • 29 July 2015 in the Ivanhoe East Primary School communication book; • 6 October 2016 verbally to Ms Susan Coward; • 17 October 2016 by email to Ms Susan Coward; • 19 October 2016 verbally to Ms Susan Coward; • 21 October 2016, verbally to Ms Justine Mackey; • 3 November 2016, by email to Ms Susan Coward; • 22 November 2016, verbally to Ms Susan Coward; • 23 November 2016, verbally to Ms Susan Coward; • 23 November 2016, by email to Ms Susan Coward; • 19 December 2016, by email to Ms Justine Mackey; • 9 February 2017, verbally to Ms Humaira Chaudhry; • 3 March 2017, verbally to Ms Humaira Chaudhry; • 8 March 2017, by email to Ms Humaira Chaudhry; • 15 March 2017, verbally to Ms Humaira Chaudhry and Ms Kaylene Adams; • 16 March 2017, by email to Ms Humaira Chaudhry; • 17 March 2017, by email to Ms Humaira Chaudhry; • 20 March 2017, by email to Ms Humaira Chaudhry; • 21 March 2017, by email to Ms Kaylene Adams; • March 2017, by email to Mr Christopher Thompson, Regional Director and Ms Lucy Guthrie, Legal Division; • 27 March 2017, in a meeting attended by Ivanhoe East Primary School staff; • 28 March 2017, by email to Ms Humaira Chaudhry; • 29 March 2017, verbally to Ms Kaylene Adams; • 30 March 2017, by email to Ms Humaira Chaudhry; • 6 April 2017, by email to Ms Humaira Chaudhry; • May 2017, by email to Ms Humaira Chaudhry; • 22 June 2017, by email to Ms Humaira Chaudhry; • 22 June 2017, by email to Mr Christopher Thompsand the Legal Division; • 26 June 2017, by email to Ms Humaira Chaudhry; • 25 July 2017, by email to Ms Humaira Chaudhry; • 11 August 2017, by email to Ms Humaira Chaudhry; • 20 September 2017, by email to Ms Humaira Chaudhry; • 9 and 11 October 2017, in the Ivanhoe East Primary School Communication Book; • 1 November 2017, by email to Ms Humaira Chaudhry; • 20 November 2017, by email to Ms Justine Mackey; • 28 November 2017, by email to Ms Humaira Chaudhry; (b) the bullying of Mimi continued unabated; (c) consequences for those individuals accused of bullying, if they occurred, were insufficient to change the behaviour of such individuals; (d) Mimi was requested to undertake behaviour analytical treatment for her treatment of others, in the absence of those individuals accused of bullying being asked to do so; (e) Mimi failed to receive support/adequate support, by reason of sub Paragraph (a) directly above. 76.3 The treatment described in paragraph 76.2 above does not comply with any bullying or harassment policies or procedures the Respondent has had, or does have. 77. The treatment of Mimi outlined in paragraph 76-76.3 hereof constitutes less favourable treatment within the meaning of s.5(1) of the DDA, as: (a) the treatment made Mimi feel anxious, excluded and depressed; (b) the treatment resulted in the ongoing bullying of Mimi. 78. The grounds upon which Mimi was treated less favourably by the Respondent are that, during her enrolment at IEPS when the segregation occurred: (a) Mimi had the disabilities set out in paragraph 7; (b) the Respondent was aware of such disabilities; (c) the Respondent knew that as a student with a disability Mimi needed, more than students without disabilities but at least equally, the protection of any bullying policies, procedures and programmes; (d) students without disabilities received the benefit of the Respondents policies, procedures and programmes; (e) students without disabilities accused of bullying were not requested through their parents to undergo behaviour analytical treatment; (f) students without disabilities who report bullying are believed, and the reports taken seriously. 79. The treatment of Mimi by refusing to apply the anti-bullying policies, procedures and guidelines to her, was because of her disabilities. 80. In the premises, by failing to apply and/or adhere to bullying and harassment policies, procedures and guidelines, the Respondent treated Mimi less favourably than the Respondent would treat a student: (a) without disabilities attending the school; (b) reporting bullying and harassment over a lengthy period of time; (c) requiring counselling as a victim of bullying; (d) needing support to obtain and maintain successful relationships with peers; (e) attending a government school; (f) to whom it would have applied the relevant policies and procedures. being circumstances not materially different. 81. In the premises, the Respondent unlawfully discriminated against Mimi by not applying its bullying and harassment policies, procedures and guidelines, denying her the benefits described in paragraphs 11.2 and 11.3 hereof, contrary to s.22(2)(a) of the DDA.

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Judgment (9 paragraphs)

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