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Kaldas v Barbour

[2017] NSWCA 275, (2017) 350 ALR 292 view link
Administrative and constitutional
NSW Court of Appeal
Separate questions arising in an application by Mr Kaldas, former Deputy Commissioner of NSW Police, for judicial review of a report of the NSW Ombudsman. Raised issues of administrative law (scope of judicial review of the report in light of ss 35 and 35A of the Ombudsman Act 1974) and constitutional law (validity of those provisions if they preclude review)

Spencer v Commonwealth of Australia

[2018] FCAFC 17, (2018) 353 ALR 682 view link
Administrative and constitutional
Federal Court of Australia
Constitutional law. State laws restricting native vegetation clearance did not effect an acquisition of property within the meaning of s 51(xxxi) of the Constitution. Certain federal laws, intergovernmental agreements and related conduct did not amount to joint action of the Commonwealth and NSW State governments by which the appellant's property had been acquired. The Full Court also affirmed the rejection of claims for unjust enrichment and for damages for an action on the case.

Malek Fahd Islamic School v Minister for Education and Training

[2018] FCAFC 37, (2018) 260 FCR 212 view link
Administrative and constitutional
Federal Court of Australia
Appeal from a decision of the AAT confirming that a school was conducted for profit and was ineligible for Federal funding under the Australian Education Act 2013.

Australian Coal Alliance v Wyong Coal

[2019] NSWLEC 31 view link
Administrative and constitutional
Land and Environment Court
Judicial review of development consent issued by the NSW Planning Assessment Commission for the Wallarah 2 Coal Project. Grounds included alleged failure to consider downstream greenhouse gas emissions and ecologically sustainable development.

BK, CO and DE and their families complaints against the Commonwealth

[2018] AusHRC 128 view link
Administrative and constitutional
Other courts and tribunals
Report into the practice of the Australian Government of sending to Nauru families with young children who arrived in Australia seeking asylum. Investigation and report under the Australian Human Rights Commission Act 1986 as the delegate of the President of the AHRC. Report completed December 2018 and tabled in Parliament September 2019.

Council of the NSW Bar Association v ECC

[2019] NSWCATOD 171 view link
Administrative and constitutional
NSW tribunals
Application for disciplinary findings and orders against a barrister - operation of statutory provisions providing for delegation from Legal Services Commissioner of power to commence proceedings - absence of power of the Bar Council to commence proceedings in NCAT under former delegation to the NSW Bar Association

Rirratjingu Aboriginal Corporation

Commercial arbitration 2022-2023
Administrative and constitutional
Other courts and tribunals
Commercial arbitration and related proceedings in respect of the traditional Aboriginal ownership of land under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) in the Gove peninsula in north east Arnhem Land. Appeared for the RAC, instructed by Minter Ellison, Darwin.

Ivankovic v Western Australian Planning Commission

[2020] WASC 401 view link
Administrative and constitutional
Other courts and tribunals
Application for judicial review and application under s 34 of the Commercial Arbitration Act 2012 (WA) in respect of an Arbitrator's award that determined nil compensation due to claimant in respect of land injuriously affected by a road reservation in a planning scheme for Perth's North-West corridor. Issues included scope of judicial review and nature of s 34 application. Appeared for WAPC, instructed by State Solicitors Office WA.

The Environment Centre NT Inc v Minister for Resources and Water (No 2)

[2021] FCA 1635 view link
Administrative and constitutional
Federal Court of Australia
Administrative law - judicial review of a Commonwealth legislative instrument issued under the Industry, Research and Development Act 1986 (Cth) and of Commonwealth decisions to make grants supporting gas exploration under the Beetaloo Cooperative Drilling Program. Appeared for Imperial Oil & Gas instructed by Baker McKenzie

Raghubir v Nicolopoulos

[2022] FCAFC 97, (2022) 402 ALR 532 view link
Administrative and constitutional
Federal Court of Australia
Scope of the jurisdiction of the Federal Court of Australia - want of jurisdiction in respect of a claim for damages for defamation by publications made wholly within NSW. Appeared as amicus curiae.

Jam Land v Minister for the Environment

[2022] FCA 1058, (2022) 178 ALD 406 view link
Administrative and constitutional
Federal Court of Australia
Administrative law - application for judicial review of remediation determination under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) - alleged invalidity of instrument listing an endangered ecological community - alleged failure to comply with implied obligation of certainty - admissibility of expert evidence on judicial review

Opinion - Constitutional Recognition of the First Peoples of Australia by establ ...

April 2023 view link
Administrative and constitutional
High Court of Australia
Opinion attached to a submission made by Gilbert + Tobin (Submission 189) to the Joint Select Committee on the Aboriginal and Torres Strait Islander Voice Referendum

The Next Generation (NSW) v State of New South Wales

[2023] NSWCA 159 view link
Administrative and constitutional
NSW Court of Appeal
Appeal alleging Thermal Energy from Waste Regulation is beyond the regulation-making power in s 323 of Protection of the Environment Operations Act 1997 or inconsistent with the licensing scheme or with the EP&A Act. Appeared for the State

Palmanova Pty Ltd v Commonwealth of Australia

[2023] FCA 1391 view link
Administrative and constitutional
Federal Court of Australia
Cultural heritage - application under the Protection of Movable Cultural Heritage Act 1986 (Cth) for recovery of Bolivian archaeological artefact seized by the Commonwealth after importation into Australia

National Parks Association of NSW Inc v Minister for Environment and Heritage

[2023] NSWLEC 149 view link
Administrative and constitutional
Land and Environment Court
Judicial review of decision of the Minister to amend the Kosciuszko National Park Plan of Management, so as to permit the implementation of the Snowy 2.0 Hydro Project. The grounds of review alleged failure to comply with the amendment process required by the National Parks and Wildlife Act 1974 (NSW) and failure to take relevant considerations into account. Appeared for the Minister.

ASIC v Hellicar; Shafron v ASIC (James Hardie case)

(2012) 247 CLR 347 and (2012) 247 CLR 465 view link view link
Commercial law and class actions
High Court of Australia
Senior counsel (with Bret Walker SC) for Mr P Shafron at trial in the NSW Supreme Court, and on appeal to the NSW Court of Appeal and the High Court of Australia, in civil penalty proceedings brought by ASIC against the directors and officers of James Hardie for contraventions of s 180 of the Corporations Act 2001. Trial and NSWCA appeal reported in (2011) 83 ACSR 620; (2010) 81 ACSR 85; (2009) 256 ALR 199.

HIH Royal Commission

Dec 2001, Feb to Jul 2002, Sep to Dec 2002, Jan 2003
Commercial law and class actions
Other courts and tribunals
Counsel for Arthur Andersen, instructed by Baker & McKenzie. The Royal Commission sat for more than 200 days and took oral evidence from 128 witnesses. The issues included the effect of, and proper accounting for, a number of reinsurance arrangements; the adequacy of numerous aspects of the audits of FAI and HIH over a number of years; and the general management and corporate governance practices of HIH.

Pavlovic v Universal Music Australia

(2015) 90 NSWLR 605, [2015] NSWCA 313 view link
Commercial law and class actions
NSW Court of Appeal
Contracts - whether binding agreement in existence from solicitors' email exchanges. Agency - whether solicitors had actual authority or ostensible authority to bind client to a contract for settlement of dispute.

Attwells v Jackson Lalic Lawyers

(2016) 259 CLR 1, (2016) 331 ALR 1, [2016] HCA 16 view link
Commercial law and class actions
High Court of Australia
Appeared for the Law Society of New South Wales, intervening in an appeal concerning the scope of an advocate's immunity from suit for conduct of a case in court, in particular for advice in respect of consent orders effecting the settlement of the proceedings.

Wigmans v AMP Limited

[2019] NSWSC 603 view link
Commercial law and class actions
NSW Supreme Court
Representative proceedings in NSW Supreme Court. Multiplicity of proceedings - whether commencement of subsequent proceedings an abuse of process - application of case management principles - consideration of relevant factors to determine what is in best interest overall of group members

Smith v Commonwealth of Australia (No 2)

[2020] FCA 837 view link
Commercial law and class actions
Federal Court of Australia
Representative proceedings – applications for approval of settlements of three class actions pursuant to s 33V of the Federal Court of Australia Act 1976 (Cth) – three class actions commenced against the Commonwealth involving claims in nuisance, negligence and for contraventions of Environment Protection and Biodiversity Conservation Act 1999 (Cth) – claims alleged damage in relation to land and business value diminution caused by use of firefighting foam containing PFAS at Defence bases in Katherine (NT), Oakey (Qld) and Williamtown (NSW). Appeared for the Commonwealth instructed by KWM and AGS.

Fakhouri v Secretary, NSW Ministry of Health

[2022] NSWSC 233 view link
Commercial law and class actions
NSW Supreme Court
Representative proceedings - whether a claim by junior medical officers for the payment of overtime and other award entitlements can be pursued as a class action - whether scheme for recovery under Part 2 of Chapter 7 of the Industrial Relations Act 1996 (NSW) is incompatible with Part 10 of the Civil Procedure Act 2005 (NSW)

Forest Carbon Methodology Pty Ltd v Schultz

[2023] FCA 943
Commercial law and class actions
Federal Court of Australia
Derivative proceedings alleging breaches of fiduciary duty in the conduct of businesses involved in projects and methods for Australian carbon credits - application for security for costs

Optus Mobile v Telstra Corporation

[2018] FCA 745 view link
Competition and consumer law
Federal Court of Australia
Federal Court found contravention by Telstra of the Australian Consumer Law in respect of the "Unlimited" advertising campaign for Telstra's mobile network. Appeared for Optus Mobile, instructed by Clayton Utz.

Unilever Australia v Beiersdorf Australia

[2018] FCA 2076 view link
Competition and consumer law
Federal Court of Australia
Claims under the Australian Consumer Law in respect of representations about the efficacy of antiperspirant deodorants. Appeared for the respondent, instructed by Allens.

F45 Training v Body Fit Training Company

[2020] NSWSC 1879 view link
Competition and consumer law
NSW Supreme Court
Refusal of application to transfer proceedings to the Federal Court involving claims for misleading or deceptive conduct, passing off and infringement of a registered trade mark.

Merrick v R

[2017] NSWCCA 264 view link
Criminal law
NSW Court of Criminal Appeal
Appeared for the Crown - Appeal against conviction for offence of manslaughter by unlawful and dangerous act - Appeal against sentence on multiple grounds including no discount for conditional offer to plead guilty

Herron v HarperCollins Publishers Australia

[2018] FCA 1495 view link
Defamation
Federal Court of Australia
Publisher brought application for summary dismissal of claims for defamation commenced by the applicants, who were formerly doctors practising at Chelmsford Private Hospital, in respect of a chapter of the book "Fair Game" by Steve Cannane. Appeared for applicants instructed by Kennedys.

Warkworth Mining v Bulga Milbrodale Progress Association

(2014) 86 NSWLR 527, [2014] NSWCA 105 view link
Environmental, local government and planning
NSW Court of Appeal
Appeal from decision refusing development application for major infrastructure project under Part 3A of the Environmental Planning and Assessment Act 1979 to extend the Warkworth coal mine in the Hunter Valley, on grounds including relevant and irrelevant considerations, and denial of procedural fairness. Senior counsel for the Minister for Planning, the second respondent and cross-appellant.

Community Housing Limited v Clarence Valley Council

(2015) 90 NSWLR 292, [2015] NSWCA 327 view link
Environmental, local government and planning
NSW Court of Appeal
Charitable trusts - whether providing housing for low income persons is charitable - whether providing vocational training is charitable. Local government - whether land owner was a public charity and exempt from rates. Courts - whether the supervisory jurisdiction of the LEC was impliedly excluded by a specific right of appeal.

4nature Inc v Centennial Springvale

[2017] NSWCA 191, (2017) 224 LGERA 301 view link view link
Environmental, local government and planning
NSW Court of Appeal
Appeared for the appellant, instructed by EDO NSW, in challenge to validity of State significant development consent for proposed extension of Springvale Mine - application of clause 10 of Sydney Drinking Water Catchment SEPP 2011 - consent authority must be satisfied the development will have a neutral or beneficial effect on water quality - decision of Planning Assessment Commission invalid

Roads and Maritime Services v United Petroleum

(2019) 99 NSWLR 279, (2019) 236 LGERA 389, [2019] NSWCA 41 view link
Environmental, local government and planning
NSW Court of Appeal
Land law - compensation for compulsory acquisition of an interest in land terminable on one month’s notice - claim for loss attributable to disturbance - termination of business - claim for loss of ongoing profits of business - claim for additional rental paid to acquiring authority for period between compulsory acquisition and vacant possession.

Muswellbrook Shire Council v Hunter Valley Energy Coal

[2019] NSWCA 216, (2019) 372 ALR 695, (2019) 238 LGERA 295 view link
Environmental, local government and planning
NSW Court of Appeal
Administrative law - claim for judicial review of decision of Secretary of Department of Planning in respect of rehabilitation plan for Mt Arthur coal mine - “jurisdictional facts” - whether conditions of project approval specified objective criteria, satisfaction of which was a precondition to the exercise of the decision-maker’s powers - unreasonableness - whether decision-maker’s satisfaction with a mining strategy was legally unreasonable

Alexandria Landfill v Roads and Maritime Services

[2019] NSWLEC 98 view link
Environmental, local government and planning
Land and Environment Court
Determination of compensation for the compulsory acquisition of land at St Peters, Sydney for the purposes of the WestConnex road project. Site used for landfilling and waste operations. Claim made for over $500 million based on claims for market value of hypothetical development concepts, valued by discounted cash flow methodology; claims for loss attributable to disturbance under s 59, including loss of future profits; and a claim for special value. Court determined compensation in the amount of $50 million.

G Capital Corporation v Roads and Maritime Services

[2020] HCASL 14
Environmental, local government and planning
High Court of Australia
Application for special leave to appeal dismissed. Applicant sought to raise questions concerning the Court of Appeal's determination that, as lessor of commercial property in the CBD, the applicant did not make "actual use of the land" within the meaning of s 59(1)(f) of the Land Acquisition (Just Terms Compensation) Act 1991

Alexandria Landfill v Transport for NSW

[2020] NSWCA 165, (2020) 103 NSWLR 479, (2020) 243 LGERA 102 view link
Environmental, local government and planning
NSW Court of Appeal
JUDGMENTS AND ORDERS – reasons – compulsory acquisition of land – assessment of compensation by Land and Environment Court – allegations of constructive failure to exercise jurisdiction and inadequacy of reasons – highly complex discounted cash flow exercise undertaken in protracted hearing – appeal confined to questions of law – minimum acceptable standard of reasons LAND LAW – compulsory acquisition of land – compensation for disturbance and special value – ss 57 and 59(f) Land Acquisition (Just Terms Compensation) Act 1991

Coffs Harbour City Council v Noubia

[2020] NSWCA 142, (2020) 246 LGERA 56 view link
Environmental, local government and planning
NSW Court of Appeal
CIVIL PROCEDURE – hearings – procedural fairness – judge preferring evidence of one expert over another – earlier role of expert addressed during proceedings – basis of preference based on earlier role – no unfairness ENVIRONMENT AND PLANNING – consent – conditions – construction – transfer of land to Council – public purpose JUDGMENTS AND ORDERS – reasons – duty to give reasons – failure to give reasons – constructive failure to exercise jurisdiction distinguished

AQC Dartbrook Management v Minister for Planning and Public Spaces

[2021] NSWCA 112, (2021) 105 NSWLR 152, (2021) 247 LGERA 318 view link
Environmental, local government and planning
NSW Court of Appeal
Joinder of parties - neither s 8.15(2) EP&A Act nor r 6.24 UCPR permitted joinder of party to proceedings under s 34(3) Land and Environment Court Act

North Parramatta Residents' Action Group v Infrastructure NSW (No 2)

[2021] NSWCA 146, (2021) 248 LGERA 54 view link
Environmental, local government and planning
NSW Court of Appeal
Challenge to the validity of the development consent for the Powerhouse Parramatta, on the ground that the EIS did not address feasible alternatives to the deconstruction and relocation of the heritage item Willow Grove.

Mullaley Gas and Pipeline Accord Inc v Santos NSW (Eastern)

[2021] NSWLEC 110 view link
Environmental, local government and planning
Land and Environment Court
Judicial review in the Land and Environment Court of a decision to grant development consent to the Narrabri gas project. Issues included consideration of the greenhouse gas emissions of project, whether misconstruction or failure to consider impacts of project under the Mining SEPP, and whether the impacts of a future gas pipeline are impacts of gas project.

Tahmoor Coal v Visser

[2022] NSWCA 35, (2022) 250 LGERA 408 view link
Environmental, local government and planning
NSW Court of Appeal
Energy and resources - civil procedure - proprietor of active coal mine is a necessary party to an appeal by landowner under s 16 of the Coal Mine Subsidence Compensation Act 2017

Olde English Tiles Australia v Transport for NSW

[2022] NSWCA 108, (2022) 108 NSWLR 503 view link
Environmental, local government and planning
NSW Court of Appeal
Land law - compensation for compulsory acquisition of land - whether the applicant had an interest in land - five judge bench considers the meaning of "privilege over, or in connection with, the land"

Olde English Tiles Australia v Transport for New South Wales

[2023] HCATrans 12
Environmental, local government and planning
High Court of Australia
Land law - compulsory acquisition of land - whether applicant had an interest in land - application for special leave to appeal

Valuer-General v Sydney Fish Market Pty Ltd

[2023] NSWCA 52, (2023) 255 LGERA 415 view link
Environmental, local government and planning
NSW Court of Appeal
Valuation of land - Crown land - Crown lease restricted - whether lease granted in 1994 over Crown land used as the site of the Sydney Fish Market resulted in land being 'Crown lease restricted' for purposes of Valuation of Land Act 1916 (NSW), s 14I

Ausbao (286 Sussex Street) Pty Ltd v Registrar General of NSW

[2023] NSWCA 18 view link
Environmental, local government and planning
NSW Court of Appeal
Torrens title - Torrens assurance fund - circumstances in which compensation for loss of interest is not payable - where the loss or damage arises because of an error or miscalculation in the measurement of land - developer discovered that true total site area of land purchased for $55 million in the Sydney CBD was lower than recorded on deposited plan - Real Property Act 1900 (NSW), s 129. Appeared for the Registrar General.

North East Forest Alliance Inc v Commonwealth of Australia

[2024] FCA 5 view link
Environmental, local government and planning
Federal Court of Australia
Judicial review of intergovernmental agreement - whether the Regional Forest Agreement for the North East Region of NSW was effective - whether forestry operations undertaken in accordance with the agreement were exempt from the approval processes under Part 3 of the Environment Protection and Biodiversity Conservation Act 1999 (Cth). Appeared for the Commonwealth.

Macedonian Orthodox Community Church St Petka Inc

(2008) 237 CLR 66 view link
Equity, charities and trusts
High Court of Australia
Trustees - judicial advice - charitable trusts. Lead counsel for the State of NSW in the High Court of Australia.

The Estate of Nicholas Paul Enright

[2017] NSWSC 1646 view link
Equity, charities and trusts
NSW Supreme Court
Determination of separate questions concerning the construction of the Will of the playwright Nick Enright and the appointment of David Marr as "Literary Executor" of the copyright and other intellectual property in his work. Appeared for Mr Marr.

EMI Songs Australia v Larrikin Music Publishing (Kookaburra case)

[2011] HCATrans 284; (2011) 191 FCR 444; (2010) 188 FCR 321; (2010) 263 ALR 155 view link
Intellectual property
High Court of Australia
Senior counsel for the applicant at trial, on appeal to the Federal Court and for the respondent in an application for special leave to appeal to the High Court. Claim under the Copyright Act 1968 and Trade Practices Act 1974 in respect of the reproduction of a substantial part of "Kookaburra sits in the old gum tree" in the song "Down Under" by Men at Work.

Roadshow Films v iiNet

(2012) 248 CLR 42 view link
Intellectual property
High Court of Australia
Senior counsel for iiNet (with R Cobden SC) at trial and on appeal. Claims under the Copyright Act 1968 that iiNet authorized its subscribers or users to infringe copyright by downloading movies using BitTorrent. The primary decisions in the Federal Court are [2011] FCAFC 23, (2011) 194 FCR 285 and [2010] FCA 24, (2010) 263 ALR 215.

Apple Inc v Samsung Electronics Co

(hearing in 2013 over 55 days; international settlement of claims in Aug 2014)
Intellectual property
Federal Court of Australia
Senior counsel for Samsung in defence of Apple's claims of patent infringement in respect of 11 Samsung devices, involving 19 standard and innovation patents for mobile phone user interface features and touchscreen technology. Samsung cross-claimed for invalidity of each of the patents. Heard by Bennett J and Yates J sitting together. Separate proceedings commenced by Samsung sought judicial review of decisions of the Commissioner of Patents. Apple and Samsung discontinued their respective claims as part of the August 2014 international settlement of existing proceedings.

Dallas Buyers Club LLC v iiNet

[2015] FCA 1437, 838, 422 and 317; (2015) 112 IPR 1, 114 IPR 297, 115 IPR 544 view link view link view link
Intellectual property
Federal Court of Australia
Appeared for the respondent ISPs in a series of applications brought against six internet service providers for preliminary discovery of information about account holders for the purposes of a potential claim against individuals alleged to have used the connection provided by the ISPs to infringe copyright in the film "Dallas Buyers Club"

Roadshow Films v Telstra Corporation (site blocking - film and tv)

(2016) 248 FCR 178, (2016) 122 IPR 81, [2016] FCA 1503 view link
Intellectual property
Federal Court of Australia
Appeared for the owners of copyright in films and tv series (Roadshow, US movie studios and Foxtel) in proceedings for site blocking orders under section 115A of the Copyright Act 1968.

Sigma Pharmaceuticals and Alphahparm v Wyeth Australia

[2018] FCA 1556, (2018) 136 IPR 8 view link
Intellectual property
Federal Court of Australia
Patents - enforcement of undertakings as to damages after interlocutory injunctions wrongly granted - assessment of loss of opportunity for generic pharmaceutical suppliers to sell venlafaxine anti-depressant on the PBS and the private market. Appeared for Alphapharm instructed by King & Wood Mallesons.

Application by Copyright Agency Limited

[2018] ACopyT 3 view link
Intellectual property
CTH tribunals
Application by Copyright Agency Limited under s 183A of the Copyright Act 1968 (Cth) against the State of New South Wales for equitable remuneration of authors for the State's use of copyright material under s 183. Appear for CAL instructed by Banki Haddock Fiora

Phonographic Performance Company of Australia v Copyright Tribunal of Australia

[2019] FCAFC 95, (2019) 368 ALR 203, (2019) 141 IPR 406 view link
Intellectual property
Federal Court of Australia
Application for judicial review of a decision of the Copyright Tribunal that made an order for a copyright licensing scheme under Part VI of the Copyright Act for the subscription television industry. Appeared for Foxtel Management.

Merck KGaA v Merck Sharp Dohme Corp

[2019] FCA 1084, (2019) 145 IPR 72 view link
Intellectual property
Federal Court of Australia
Preliminary question as to whether the respondents are precluded, by issue estoppel or the principles of abuse of process, from denying that the proper law of an agreement is German law. Claim for damages for breach of contract and trade mark infringement.

Allergan Australia v Self Care IP Holdings

[2020] FCA 1530, (2020) 156 IPR 413 view link
Intellectual property
Federal Court of Australia
Appeared for respondent, the makers of Freezeframe cosmetic products including FREEZEFRAME PROTOX, in claims brought by the owner of the trade mark BOTOX for infringement of the Trade Marks Act 1995 and contraventions of the Australian Consumer Law and the Therapeutic Goods Act 1989.

Hashtag Burgers v In-N-Out Burgers

[2020] FCAFC 235, (2020) 385 ALR 514, 159 IPR 186 view link
Intellectual property
Federal Court of Australia
Proceedings for trade mark infringement, consumer law contraventions and passing off in a burger business by reason of DOWN-N-OUT being deceptively similar to IN-N-OUT BURGER

Application by Isentia Pty Limited (No 2)

[2021] ACopyT 3 view link
Intellectual property
CTH tribunals
Decision of the Copyright Tribunal in respect of contested terms and conditions of the copyright licence between publishers (represented by Copyright Agency) and media monitoring organisations (Isentia and Meltwater).

Allergan Australia v Self Care IP Holdings

[2021] FCAFC 163, (2021) 393 ALR 595, 162 IPR 595 view link
Intellectual property
Federal Court of Australia
Trade marks - claim for infringement of the appellant’s BOTOX mark by using PROTOX as a trade mark - whether the respondents used the composite phrase “instant Botox alternative” as a trade mark - whether "defences" under s122 of the TM Act applied

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