Judgments, ordered by case name

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FAI General Insurance Company Limited v Australian Hospital Care Pty Ltd [2001] HCA 38

204 CLR 641
Gleeson CJ, McHugh, Gummow, Kirby, Hayne JJ
Date: 27 Jun 2001 Case Number: B23/2000
Insurance – Professional indemnity insurance - Claims made and notified policy - Term of policy deeming claim against insured made after expiry of period of cover to be covered by policy if, during period of cover, insured became aware of occurrence which gave rise to the claim and gave written notice to insurer - Claim by third party made after expiry of period of cover - Insured became aware of occurrence which gave rise to claim during period of cover but failed to notify insurer - Whether insurer entitled to refuse indemnity for failure to give notice - Whether s 54 of Insurance Contracts Act 1984 (Cth) applicable.

Insurance Contracts Act 1984 (Cth) – s 54.

Fair Work Ombudsman v Quest South Perth Holdings Pty Ltd [2015] HCA 45

French CJ, Kiefel, Bell, Gageler, Nettle JJ
Date: 2 Dec 2015 Case Number: P38/2015
Employment law – Employer and employee – Independent contractor – Sham arrangements – Fair Work Act 2009 (Cth), s 357(1) prohibits representation by employer to employee that contract of employment under which individual is employed is contract for services – First respondent represented that employees performed work as independent contractors under contracts for services with second respondent – Whether first respondent contravened s 357(1).

Words and phrases – "contract for services", "independent contractor", "sham arrangement".

Fair Work Act 2009 (Cth) – s 357.

Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22

230 CLR 89; 81 ALJR 1107; 236 ALR 209
Gleeson CJ, Gummow, Callinan, Heydon, Crennan JJ
Date: 24 May 2007 Case Number: S461/2006 S347/2006
Equity – Fiduciary duties - Joint venture to redevelop property between first appellant and respondent - Second appellant learnt that redevelopment would gain Council approval only if the property was amalgamated with adjoining properties - Adjoining properties purchased by the second appellant, his wife and children and another company controlled by the second appellant - Whether first appellant had an obligation to disclose to the respondent opportunities to purchase adjoining properties and information concerning the Council's attitude to redevelopment - Whether first appellant fulfilled any such obligation of disclosure.

Equity – Recipient Liability - Whether property acquired through misuse of information by a fiduciary should be treated as trust property - Whether second appellant's wife and children were liable under the first limb of Barnes v Addy - Whether wife and children had notice of any breach of duty by the second appellant -Whether second appellant's knowledge could be imputed to wife and children - Whether second appellant was the agent of wife and children and, if so, whether information acquired outside scope of agency - Duty of principal to investigate conduct by agent.

Equity – Assistance-based liability - Whether second appellant's wife and children were liable under the second limb of Barnes v Addy - Whether second appellant's wife and children were liable as knowing participants in a dishonest and fraudulent design - Knowledge requirement in the second limb of Barnes v Addy.

Equity – Tracing - Whether property was the traceable proceeds of second appellant's breach of fiduciary duty - Whether wife and children of second appellant were volunteers.

Equity – Remedies - Account of profits - Whether wife and children of second appellant were liable to account for profits made through their acquisition of the properties.

Unjust enrichment – Restitutionary liability - Whether wife and children held their properties on constructive trust for the joint venture by reason of liability to make restitution based on unjust enrichment - Whether the notice test in the first limb of Barnes v Addy should be abandoned - Application of concept of unjust enrichment to recipient liability for breach of trust or fiduciary duty - Whether unjust enrichment at the expense of the respondent.

Real Property – Indefeasibility - Second appellant's wife and children were registered proprietors - Whether their title was indefeasible pursuant to s 42 of the Real Property Act 1900 (NSW) - Whether registered title subject to an in personam claim - Whether registered title subject to a constructive trust - Whether title obtained by fraud within the meaning of s 42(1).

Courts – Evidence - Appellate intervention - Whether Court of Appeal erred in reversing findings of fact made at trial - Weight to be given to trial judge's assessment of witness credibility by an intermediate court of appeal.

Courts – Practice and procedure - Whether Court of Appeal erred in deciding the appeal on a ground not argued in that court - Whether Court of Appeal erred in deciding the appeal on a matter not pleaded by the respondent at trial.

Words and Phrases – "dishonest and fraudulent design", "fraud", "in personam", "knowing receipt", "knowledge", "stock-in-trade", "unjust enrichment".

Real Property Act 1900 (NSW) – s 42.

Fardon v Attorney-General for the State of Queensland [2004] HCA 46

223 CLR 575; 78 ALJR 1519; 210 ALR 50
Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan, Heydon JJ
Date: 1 Oct 2004 Case Number: B104/2003 B105/2003
Constitutional law (Cth) – Judicial power of Commonwealth - Vesting of federal jurisdiction in State courts - Act empowering State court to order continuing detention of persons convicted of serious sexual offences after expiry of their sentence where there is an "unacceptable risk" of the prisoner committing a serious sexual offence in the future - Whether criterion for order of continuing detention devoid of content - Whether order for continuing detention to protect the community an exercise of judicial power - Whether powers conferred by Act on State court incompatible with State court being a suitable repository of judicial power of the Commonwealth - Whether powers conferred by Act on State court compromise the institutional integrity of State court.

Constitutional law (Q) – Powers of State Parliament - Separation of powers - Act empowering State court to order continuing detention of persons convicted of serious sexual offences after expiry of their sentence where there is an "unacceptable risk" of the prisoner committing a serious sexual offence in the future - Whether a law - Whether incompatible with State court being suitable repository of federal judicial power - Whether public confidence in integrity or impartiality of judiciary compromised.

Words and phrases – "unacceptable risk".

Constitution – Ch III.

Dangerous Prisoners (Sexual Offenders) Act 2003 (Q) – s 8, Pt 2, Div 3.

Favell v Queensland Newspapers Pty Ltd [2005] HCA 52

221 ALR 186;79 ALJR 1716;
Gleeson CJ, McHugh, Gummow, Kirby, Heydon JJ
Date: 27 Sep 2005 Case Number: B19/2005
Defamation – Pleading and practice - Application for summary judgment or alternatively to strike out part of a pleading - Test to be applied - Whether matter published capable of conveying defamatory imputations.

Words and phrases – "defamatory meaning".

Fellowes v Military Rehabilitation and Compensation Commission [2009] HCA 38

240 CLR 28; 83 ALJR 1113; 259 ALR 416
Hayne, Heydon, Crennan, Kiefel, Bell JJ
Date: 23 Sep 2009 Case Number: B8/2009
Workers' compensation – Injury resulting in permanent impairment - Under s 24 of Safety, Rehabilitation and Compensation Act 1988 (Cth), where "an injury to an employee results in a permanent impairment", respondent liable to pay compensation "in respect of the injury" - Amount of compensation fixed by degree of permanent impairment resulting from injury as assessed under Guide to the Assessment of the Degree of Permanent Impairment ("Guide") - Guide provides that "[w]here two or more injuries give rise to the same impairment a single rating only should be given" - Appellant previously compensated for injury to left knee resulting in permanent impairment - Whether appellant entitled to compensation for separate injury to right knee resulting in permanent impairment to same degree - Whether "degree of permanent impairment" refers to impairment of whole person or impairment to particular part of person's body.

Words and phrases – "degree of permanent impairment", "impairment", "injury", "permanent impairment", "resulting from".

Safety – Rehabilitation and Compensation Act 1988 (Cth), ss 4(1), 24, 28, 142, 147.

Guide to the Assessment of the Degree of Permanent Impairment – 1st ed (1989).

Ferdinands v Commissioner for Public Employment [2006] HCA 5

225 CLR 130; 80 ALJR 555; 224 ALR 238
Gleeson CJ, Gummow, Kirby, Hayne, Callinan JJ
Date: 2 Mar 2006 Case Number: A15/2005
Industrial law – Police – Termination of appointment – Appellant member of South Australia Police – Appellant convicted of assault contrary to s 39 Criminal Law Consolidation Act 1935 (SA) – Appellant's appointment as member of SA Police terminated – Appellant applied to Industrial Relations Commission for relief against dismissal – Appellant alleged termination of appointment harsh, unjust or unreasonable – Jurisdiction of Industrial Relations Commission to entertain appellant's application.

Police – Termination of appointment – Appellant member of SA Police – Appellant convicted of assault – Appellant's appointment as member of SA Police terminated – Whether Police Act 1998 (SA) impliedly repealed provisions of the Industrial and Employee Relations Act 1994 (SA) providing for unfair dismissal.

Statutes – Implied repeal.

Statutes – International law – State statute – Incorporation of reference in State statute to international convention – Relevance of such incorporation – Whether such incorporation favours adoption of an interpretation favourable to the availability of the convention remedies in the particular case.

Statutes – Successive State statutes – Suggested inconsistency between statutory remedies for dismissal of police officers – Whether any such inconsistency or ambiguity resolved by the time sequence of enactment of the statutes – Whether resolved by reference to generality of language and identity of the particular and general character of the legislation – Whether beneficial character of statutory provisions relevant – Whether reference to international convention in a State statute a relevant consideration.

Words and phrases – "harsh, unjust or unreasonable".

Industrial and Employee Relations Act 1994 (SA).

Police Act 1998 (SA).

Police (Complaints and Disciplinary Proceedings) Act 1985 (SA).

Fergusson v Latham [2008] HCA 24

82 ALJR 1524; 246 ALR 463
Gleeson CJ, Kirby, Hayne, Heydon, Crennan JJ
Date: 20 May 2008 Case Number: S47/2008
Negligence – Causation - Pedestrian struck by motor vehicle - Possibility of a differential chance of injuries - Possibility not raised in argument in the courts below.

Motor Accidents Compensation Act 1999 (NSW) – s 83.

Festa v The Queen [2001] HCA 72

208 CLR 593; 76 ALJR 291; 185 ALR 394
Gleeson CJ, McHugh, Kirby, Hayne, Callinan JJ
Date: 13 Dec 2001 Case Number: B39/2001
Criminal law – Evidence - Admissibility - Exclusion of evidence - Identification evidence - Usual precautions for identifying suspects not followed - Whether probative value of identification evidence outweighed danger of unfair prejudice to the accused - Whether admission of identification evidence resulted in a miscarriage of justice.

Criminal law – Evidence - Identification evidence - Whether trial judge adequately directed the jury about the deficiencies of identification evidence.

Criminal law – Evidence - Weapons and ammunitions found at the unit of co- accused were of the same character as those used in the robberies but were not purchased until after the robberies - Whether evidence of weapons was admissible as "propensity" evidence - Whether the trial judge adequately directed the jury in relation to the discovery of weapons and ammunitions.

Criminal law – Evidence - Admissibility - Whether evidence of an association between the accused and co-accused was admissible - Whether direction by the trial judge about the association was a material misdirection.

Criminal law and practice – Appeal against conviction - Application of "proviso" - Whether errors by trial judge constituted a substantial miscarriage of justice - Whether evidence was so strong that no reasonable jury could fail to convict the accused.

Words and phrases – "circumstantial identification evidence" - "positive- identification evidence" - "unfair prejudice".

Criminal Code (Q) – ss 408, 668E.

Filippou v The Queen [2015] HCA 29

French CJ, Bell, Gageler, Keane, Nettle JJ
Date: 12 Aug 2015 Case Number: S59/2015
Criminal law – Appeal – Appeal against conviction – Trial by judge alone – Application of Criminal Appeal Act 1912 (NSW), s 6(1) in appeal from trial by judge alone – Application of "proviso".

Criminal law – Appeal – Appeal against sentence – Aggravating and mitigating circumstances – Onus and standard of proof – Where not proved beyond reasonable doubt that appellant brought murder weapon to scene and not proved on balance of probabilities that deceased brought murder weapon to scene – Whether sentencing judge bound to take view of facts most favourable to offender.

Words and phrases – "miscarriage of justice", "substantial miscarriage of justice".

Crimes Act 1900 (NSW) – s 23.

Criminal Appeal Act 1912 (NSW) – ss 5, 6(1).

Criminal Procedure Act 1986 (NSW) – s 133.

Crimes (Sentencing Procedure) Act 1999 (NSW) – s 21A.

Finch v Telstra Super Pty Ltd [2010] HCA 36

242 CLR 254; 84 ALJR 726; 271 ALR 236
French CJ, Gummow, Heydon, Crennan, Bell JJ
Date: 20 Oct 2010 Case Number: M5/2010
Superannuation – Construction of superannuation trust deed - Applicant applied for total and permanent invalidity ("TPI") benefit under superannuation trust deed - Definition of TPI required continuous absence from "all active Work" for six months - Whether "all active Work" limited to work for employer responsible for superannuation fund ("Telstra") - Whether period of absence assessed at date applicant left Telstra or date of trustee's determination.

Trusts – Superannuation - Review of decisions of trustees of superannuation trusts - Trustee required to determine whether applicant was "unlikely ever to engage in any gainful Work" - Whether Karger v Paul [1984] VR 161 applies to superannuation trusts - Whether trustee's decision discretionary - Whether trustee gave genuine consideration to application - Whether trustee failed to comply with duties to make inquiries.

Practice and procedure – Whether Court should remit matter to trustee - Whether trustee incapable of forming opinion satisfactorily - Whether only one decision open.

Words and phrases – "all active work", "genuine consideration", "total and permanent invalidity".

Superannuation Industry (Supervision) Act 1993 (Cth) – ss 3, 52.

Superannuation (Resolution of Complaints) Act 1993 (Cth) – s 14.

Fingleton v The Queen [2005] HCA 34

227 CLR 166; 216 ALR 474
Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Heydon JJ
Date: 23 Jun 2005 Case Number: B58/2004
Courts and judicial system – Magistrates – Judicial officers' immunities – Immunity conferred upon magistrates in the performance or exercise of an administrative function or power conferred under an Act – Appellant Chief Magistrate proposed to remove Co-ordinating Magistrate from that position – Whether immunity extends to a criminal charge against appellant of unlawful retaliation against a witness.

Criminal law – Unlawful retaliation against a witness – "Without reasonable cause" – Whether trial judge misdirected jury as to the meaning of "reasonable cause" in s 119B of the Criminal Code (Q) – Relevance of the meaning of the terms "detriment" and "retaliation" to an assessment of "without reasonable cause".

Constitutional law (Cth) – Federal judicial power – Appellate jurisdiction of the High Court – Criminal matter – Grounds of appeal – Point not taken at trial or before Court of Criminal Appeal – Whether new ground of appeal can be raised before the High Court – Whether following trial point waived or spent – Whether raising new ground deprives proceedings of the character of an "appeal" for purposes of s 73 of the Constitution.

Words and phrases – "appeal", "without reasonable cause", "detriment", "retaliation", "under an Act".

Magistrates Act 1991 (Q) – ss 10, 21A.

Criminal Code (Q) – ss 30, 119B, 620.

Constitution – s 73.

Firebelt Pty Ltd v Brambles Australia Ltd [2002] HCA 21

76 ALJR 816; 188 ALR 280
Gleeson CJ, McHugh, Gummow, Hayne, Callinan JJ
Date: 23 May 2002 Case Number: B52/2001
Patents – Petty Patent - Revocation - Inventive step or obviousness - Combination patents - Proper construction of ss 7(2) and 7(3) of the Patents Act 1990 (Cth) - Whether evidence supported conclusion that it had been shown to be obvious to place known integers in the interactive combination claimed in the Petty Patent - Whether trial judge and Full Court, in focusing upon the incorporation of particular integers, gave inadequate weight to whether the selection in combination of the integers was obvious at the priority date - Relevance of commercial success of Petty Patent to question of obviousness.

Patents Act 1990 (Cth) – ss 7(2), 7(3).

Firebird Global Master Fund II Ltd v Republic of Nauru [2015] HCA 43

French CJ, Kiefel, Gageler, Nettle, Gordon JJ
Date: 2 Dec 2015 Case Number: S29/2015
Public international law – Foreign State immunity – Immunity from jurisdiction – Proceedings for registration of a foreign judgment – Where appellant obtained judgment in Tokyo District Court against first respondent as guarantor of certain bonds – Where appellant obtained order from Supreme Court of New South Wales that the foreign judgment be registered under Foreign Judgments Act 1991 (Cth) – Whether first respondent entitled to foreign State immunity from jurisdiction under s 9 of Foreign States Immunities Act 1985 (Cth) – Whether exception in s 11(1) of Foreign States Immunities Act for proceedings concerning "commercial transactions" applies.

Public international law – Foreign State immunity – Immunity from execution – Where appellant obtained garnishee order against Australian bank where first respondent held bank accounts – Whether first respondent entitled to foreign State immunity from execution under s 30 of Foreign States Immunities Act – Whether property "in use" or "set aside" – Whether exception in s 32(1) of Foreign States Immunities Act for "commercial property" applies.

Statutory interpretation – Implied repeal – Where Foreign States Immunities Act provides for foreign State immunity from jurisdiction in certain proceedings and Foreign Judgments Act requires a foreign judgment be registered on satisfaction of applicable criteria – Whether the operations of the two statutes are inconsistent such that the earlier statute is impliedly repealed to the extent of inconsistency.

Procedure – Service – Registration of foreign judgments – Where judgment debtor in registration proceedings is a foreign State – Whether Pt III of Foreign States Immunities Act requires service of summons prior to registration order being made under Foreign Judgments Act.

Words and phrases – "commercial property", "commercial purposes", "commercial transactions", "concerns", "in use", "proceeding", "restrictive doctrine", "set aside".

Foreign Judgments Act 1991 (Cth) – ss 6, 7, 17.

Foreign States Immunities Act 1985 (Cth) – ss 9, 11(1), 11(3), 27(1), 30, 32(1), 32(3), 38, 41, Pt III.

Uniform Civil Procedure Rules 2005 (NSW) – Pt 53.

Firebird Global Master Fund II Ltd v Republic of Nauru [No 2] [2015] HCA 53

French CJ, Kiefel, Nettle, Gordon JJ
Date: 23 Dec 2015 Case Number: S29/2015
Civil procedure – Costs – Where appellant succeeded on certain issues on appeal but unsuccessful in overall outcome – Whether costs order apportioning costs between parties or order that each party bear their own costs appropriate.

Words and phrases – "costs follow the event".

Fischer v Nemeske Pty Ltd [2016] HCA 11

French CJ, Kiefel, Bell, Gageler, Gordon JJ
Date: 6 Apr 2016 Case Number: S223/2015
Trusts – Trustees' powers – Power of advancement – Where trust property included shares in a company – Where value of shares recorded in "asset revaluation reserve" – Where trustee made resolution to distribute entire asset revaluation reserve to specified beneficiaries – Where trustee covenanted to pay specified beneficiaries on demand – Whether valid exercise of power to "advance" and "apply" trust capital or income – Whether trustee indebted to specified beneficiaries – Whether action for money had and received maintainable.

Words and phrases – "advance", "apply", "pay", "pay or apply", "raise".

Trustee Act 1925 (NSW) – s 44.

Trustee Act 1925 (UK) – s 32.

Fish v Solution 6 Holdings Limited [2006] HCA 22

225 CLR 180; 80 ALJR 959; 227 ALR 241
Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon, Crennan JJ
Date: 18 May 2006 Case Number: S206/2005
Industrial law (NSW) – Industrial Relations Commission - Jurisdiction - Power given to the Commission by s 106(1) of the Industrial Relations Act 1996 (NSW) to declare wholly or partly void, or to vary, any contract whereby a person performs work in any industry if the contract is an unfair contract - Share purchase agreement which stipulated that the first appellant's entering an employment contract with a related company of the purchaser was a condition precedent to completion of the share purchase - Application to Commission for orders declaring share purchase agreement unfair, harsh and unconscionable, and contrary to the public interest, and orders varying the agreement - Whether the share purchase agreement was a "contract whereby a person performs work in any industry" - Whether share purchase agreement formed part of the arrangement between the parties - Relevance of changing nature of employment relationships - Relevance of availability of other remedies.

Industrial law (NSW) – Industrial Relations Commission - Writ of prohibition sought to restrain the Commission from exercising jurisdiction - Entitlement of the Commission to determine its own jurisdiction in first instance - Absence of objection to jurisdiction raised before Commission - Whether trial held by Commission in Court Session.

Prerogative writs – Prohibition - Excess of jurisdiction - Industrial Relations Commission (NSW) - Whether writ lies in the circumstances - Commission in Court Session a superior court of record of limited jurisdiction equivalent in status to the Supreme Court - Whether application for prohibition premature - Likelihood or danger of order being made in excess of jurisdiction - Relevance of privative provision purporting to exclude issue of writ - Relevance of failure of respondents to make jurisdictional objection before the Commission - Relevance of specialist subject-matter of disputes before the Commission.

Statutes – Construction - Interpretation - Remedial statute - Purposive approach to construction - Objects of statute.

Statutes – Privative clause - Industrial Relations Commission (NSW) - Whether privative provision applicable - Relevance of exclusion of the right to appeal to the Supreme Court and hence to the High Court.

Statutes – Construction - Interpretation - Composite phrase incorporating technical words - Extrinsic matters - Legislative history - Minister's second reading speech - Relevance of Parliament's purpose of successive re-enactment in increasingly ample terms - Relevance of interpretation afforded to equivalent provisions in other jurisdictions.

Words and phrases – "any contract whereby a person performs work in any industry", "any related condition or collateral arrangement", "arrangement", "decision or purported decision", "industry".

Constitution – s 79.

Industrial Relations Act 1996 (NSW) – ss 105-109A, 152, 179, 187-188.

Supreme Court Act 1970 (NSW) – s 48.

Fittock v The Queen [2003] HCA 19

217 CLR 508; 77 ALJR 961; 197 ALR 1
Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan, Heydon JJ
Date: 10 Apr 2003 Case Number: D7/2001
Constitutional law (Cth) – Indictable offence – Trial by jury – Whether law enacted by the Legislative Assembly of the Northern Territory a "law of the Commonwealth" – Whether s 80 of the Constitution applies to trials on indictment in the Supreme Court of the Northern Territory for offences against a law of the Commonwealth – Whether Territory law permitting reserve jurors, who are discharged prior to commencement of jury deliberations, is inconsistent with s 80 of the Constitution.

Constitution – s 80.

Criminal Code (NT) – ss 162, 165, 348.

Judiciary Act 1903 (Cth) – s 70A.

Juries Act 1962 (NT) – ss 6, 37, 37A.

Northern Territory (Self –Government) Act 1978 (Cth), Pt III, Div 1.

Fitzgerald v The Queen [2014] HCA 28

88 ALJR 779
Hayne, Crennan, Kiefel, Bell, Gageler JJ
Date: 13 Aug 2014 Case Number: A9/2014
Criminal law − Evidence − DNA evidence − Where appellant's DNA obtained from object found at crime scene − Whether DNA evidence sufficient to establish beyond reasonable doubt appellant's presence at – and participation in, crime committed.

Words and phrases − "DNA evidence" – "joint enterprise", "primary transfer", "secondary transfer".

Criminal Law Consolidation Act 1935 (SA) – s 353(1).

Foots v Southern Cross Mine Management Pty Ltd [2007] HCA 56

234 CLR 52; 82 ALJR 173; 241 ALR 32
Gleeson CJ, Gummow, Kirby, Hayne, Crennan JJ
Date: 7 Dec 2007 Case Number: B26/2007
Bankruptcy – Provable debt – Costs order – Trial judge gave judgment and awarded damages in favour of second respondent against first respondent and appellant – After judgment appellant became bankrupt upon presentation of own petition – After appellant's bankruptcy trial judge made order for indemnity costs against appellant – Whether costs order was a provable debt within the meaning of s 82 of the Bankruptcy Act 1966 (Cth) – Whether costs order was a debt or liability arising from an obligation before bankruptcy – Whether costs order was a contingent liability – Whether costs order was "incidental" to a provable debt.

Bankruptcy – Stay of proceedings – Whether proceedings in which costs order was sought should have been stayed pursuant to s 58(3) of the Bankruptcy Act 1966 (Cth) – Whether leave to proceed should have been granted pursuant to r 72(1) of the Uniform Civil Procedure Rules 1999 (Q).

Statutes – Interpretation – Relevance of legislative history and antecedent statutes – Relevance of decision in In re British Gold Fields of West Africa [1899] 2 Ch 7.

Words and phrases – "contingent liability", "costs order", "incidental", "liability", "provable debt".

Bankruptcy Act 1966 (Cth) – ss 58(3), 82, 153.

Uniform Civil Procedure Rules 1999 (Q) – r 72(1).

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