Judgments, ordered by date

Browsing By Year (2018)

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AB (a pseudonym) v CD (a pseudonym) [2018] HCA 58

Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon, Edelman JJ
Date: 5 Nov 2018 Case Number: M73/2018 M74/2018
Criminal law – Prosecution's duty of disclosure – Public interest immunity – Where legal counsel for several accused ("EF") was enlisted as police informer – Where EF provided information to police that had potential to undermine each accused's defences to criminal charges – Where each accused convicted of criminal offences – Where first respondent proposed to disclose to each convicted person information about EF's conduct – Whether information subject to public interest immunity – Whether first respondent permitted to make proposed disclosures.

Practice and procedure – High Court – Special leave to appeal – Whether special leave to appeal ought to be revoked.

Words and phrases – "adequately protect", "disclosure", "police informer", "integrity of the criminal justice system", "public interest immunity", "witness protection".

Witness Protection Act 1991 (Vic) – s 3B(2)(b).

The Republic of Nauru v WET040 [2018] HCA 56

Gageler, Nettle, Edelman JJ
Date: 7 Nov 2018 Case Number: M154/2017
High Court – Practice and procedure – Original jurisdiction – Appeal from Supreme Court of Nauru – Where High Court had original jurisdiction under s 5 of Nauru (High Court Appeals) Act 1976 (Cth) to hear and determine appeals from Supreme Court of Nauru provided for in Agreement between Government of Australia and Government of Republic of Nauru – Where Agreement terminated on 13 March 2018 – Where termination of Agreement did not affect hearing and determination of appeals "instituted" in High Court before date of termination – Where appellant filed notice of appeal before date of termination but one day outside period fixed by r 42. 03 of High Court Rules 2004 (Cth) – Where appellant filed summons seeking order under r 4. 02 of High Court Rules enlarging time for filing of notice of appeal – Where affidavit accompanying summons explained delay in filing notice of appeal – Where notice of appeal, summons and affidavit served on solicitors who acted for respondent in Supreme Court of Nauru – Where notice of appeal, summons and affidavit later served personally on respondent – Where order enlarging time for filing of notice of appeal not made before date of termination of Agreement – Where respondent did not enter appearance and did not appear at hearing of High Court appeal – Whether appeal "instituted" before date of termination of Agreement – Whether, if appeal instituted, High Court should exercise jurisdiction to hear and determine appeal.

Words and phrases – "appeal", "institute", "irregularity", "jurisdiction", "notice of appeal", "rule-making power", "service", "with such variations as are necessary".

High Court Rules 2004 (Cth) – rr 2. 03. 1, 4. 02, 9. 01. 5, 42. 03, Pts 42, 43.

Judiciary Act 1903 (Cth) – ss 77T, 86.

Nauru (High Court Appeals) Act 1976 (Cth) – ss 5, 6, 10(3).

SAS Trustee Corporation v Miles [2018] HCA 55

Kiefel CJ, Bell, Gageler, Nettle, Edelman JJ
Date: 14 Nov 2018 Case Number: S260/2017
Superannuation and pensions – Police pension – Disabled member of police force – Entitlement to additional allowance – Where respondent certified by appellant as incapable of personally exercising functions of police officer due to specified infirmities determined by Commissioner of Police to have been caused by being hurt on duty – Where respondent received annual superannuation allowance as disabled member of police force – Where s 10(1A)(b)(ii) of Police Regulation (Superannuation) Act 1906 (NSW) provided that annual superannuation allowance might increase by additional amount commensurate with member's incapacity for work outside police force – Where respondent sought additional amount by reason of supervening infirmity increasing respondent's incapacity for work outside police force – Where supervening infirmity increasing respondent's incapacity for work outside police force not subject of certification by appellant or determination by Commissioner of Police – Whether respondent entitled to additional amount of annual superannuation allowance.

Statutes – Interpretation – Principles – Context – Cognate terms – Choice between textually available constructions – Where cognate terms "incapable", "incapacity" and "totally incapacitated" appearing in Act – Where alternative textual constructions as to whether infirmity increasing incapacity for work outside police force required to be caused by being hurt on duty – Whether cognate terms to be construed as bearing same meaning.

Words and phrases – "additional amount", "annual superannuation allowance", "certified", "commensurate", "disabled member of the police force", "hurt on duty", "incapable of personally exercising the functions of a police officer", "incapacity for work outside the police force", "infirmity of body or mind", "member of the police force", "specified infirmity", "supervening infirmity or incapacity".

Police Regulation (Superannuation) Act 1906 (NSW) – ss 1, 1A, 3, 4, 5, 5A, 7, 8, 10, 10B, 14, 21.

Superannuation Administration Act 1996 (NSW) – s 57.

Comptroller General of Customs v Zappia [2018] HCA 54

Kiefel CJ, Bell, Gageler, Nettle, Gordon JJ
Date: 14 Nov 2018 Case Number: S91/2018
Customs and excise – Customs control – Dutiable goods – Possession, custody or control of dutiable goods – Where company held warehouse licence under Customs Act 1901 (Cth) – Where dutiable goods stolen from company's warehouse before goods entered for home consumption – Where respondent employed by company as general manager and warehouse manager – Where s 35A(1) of Customs Act relevantly provided that a person who "has, or has been entrusted with, the possession, custody or control" of dutiable goods subject to customs control and who fails to keep goods safely shall, on demand by Collector, pay amount equal to customs duty which would have been payable if goods had been entered for home consumption on day of demand – Where respondent served with demand by Collector under s 35A(1) – Where respondent applied to Administrative Appeals Tribunal for review of Collector's demand – Where Tribunal found respondent directed what was to happen to goods on day-to-day basis – Whether respondent was person who "has, or has been entrusted with, the possession, custody or control" of dutiable goods subject to customs control.

Words and phrases – "authority to deal with", "Collector", "customs control", "dutiable goods", "employee", "fails to keep the goods safely", "has, or has been entrusted with", "home consumption", "management or control", "operational control", "owner", "possession, custody or control", "power or authority", "warehouse licence".

Customs Act 1901 (Cth) – ss 30, 35A, 36, 37, Pt V.

Tony Strickland (a pseudonym) v Commonwealth Director of Public Prosecutions [2018] HCA 53

Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon, Edelman JJ
Date: 8 Nov 2018 Case Number: M168/2017 M174/2017 M175/2017 M176/2017
Criminal practice – Abuse of process – Where Australian Crime Commission ("ACC") received information concerning allegations that company involved in criminal activity – Where allegations referred to Australian Federal Police ("AFP") – Where appellants declined to participate in cautioned record of interview with AFP – Where appellants compulsorily examined by ACC – Where examiner aware that appellants were suspects who may be charged with an offence – Where examiner permitted AFP officers to watch examinations from nearby room without disclosing their presence to appellants – Where examiner permitted dissemination of examination material to AFP and Commonwealth Director of Public Prosecutions – Where appellants subsequently charged with Commonwealth and Victorian offences – Where appellants sought permanent stay of prosecutions for abuse of process – Where primary judge permanently stayed prosecutions – Where Court of Appeal of Supreme Court of Victoria allowed appeals from orders of primary judge – Whether ACC conducted special investigation under Australian Crime Commission Act 2002 (Cth) – Whether examinations unlawful – Whether prosecution derived forensic advantage from examinations – Whether appellants suffered forensic disadvantage as result of examinations – Whether examinations unlawful infringement upon appellants' right to silence – Whether examiner's conduct reckless – Whether permanent stay necessary to prevent administration of justice falling into disrepute.

Words and phrases – "abuse of process", "administration of justice", "coercive powers", "compulsive powers", "compulsory examination", "derivative use", "direct use", "dissemination of examination product", "fair trial", "forensic advantage", "forensic choice", "forensic disadvantage", "illegally obtained evidence", "improper purpose", "integrity of the court", "locked in", "may be charged", "non-publication directions", "permanent stay", "prejudice", "prosecution brief", "prosecutorial team", "reckless", "right to silence", "special investigation", "suspect", "trial directions", "unlawfully obtained evidence".

Australian Crime Commission Act 2002 (Cth) – ss 7C, 46A, Pt II Div 2.

McPhillamy v The Queen [2018] HCA 52

Kiefel CJ, Bell, Keane, Nettle, Edelman JJ
Date: 8 Nov 2018 Case Number: S121/2018
Evidence – Criminal trial – Sexual offences – Tendency evidence – Admissibility – Where appellant acolyte and complainant altar boy – Where appellant alleged to have followed complainant into church's public bathroom and committed offences – Where evidence that appellant, while working as an assistant housemaster, sexually offended against homesick boarding students who sought out appellant in private bedroom led as tendency evidence – Where tendency expressed as appellant having sexual interest in young teenage boys under his supervision and to act on that interest – Where tendency evidence of acts occurring ten years before offences charged – Where no evidence other than complainant's evidence that appellant had offended again in ten year period – Where tendency evidence unchallenged in cross-examination – Whether tendency evidence possessed significant probative value.

Words and phrases – "sexual interest", "significant probative value", "tendency evidence", "tendency expressed at a high level of generality", "tendency to act in a particular way", "tendency to have a particular state of mind".

Evidence Act 1995 (NSW) – ss 97, 101.

Plaintiff S164/2018 v Minister for Home Affairs [2018] HCA 51

Edelman J
Date: 7 Nov 2018 Case Number: S229/2018
High Court – Appellate jurisdiction – Leave to appeal – Circumstances when leave necessary – Distinction between interlocutory and final judgment – Where Judiciary Act 1903 (Cth) s 34(2) requires leave to appeal from interlocutory judgment of High Court exercising original jurisdiction – Where single Justice dismissed application for order to show cause – Where appellant filed notice of appeal without seeking leave to appeal – Whether judgment appealed from interlocutory or final – Whether appeal incompetent.

Courts – Jurisdiction – Different dimensions of jurisdiction – Where respondent entered unconditional appearance to the appeal – Whether submission to personal dimension of jurisdiction precludes respondent from impugning competency of appeal based on lack of subject matter jurisdiction.

Words and phrases – "application for an order nisi", "application for an order to show cause", "finally determines", "incompetent", "interlocutory judgment", "leave to appeal", "personal dimension of jurisdiction", "subject matter dimension of jurisdiction".

Judiciary Act 1903 (Cth) – s 34(2).

High Court Rules 1952 (Cth) – O 55 r 1(2).

High Court Rules 2004 (Cth) – r 25. 03. 3(a).

Wehbe v Minister for Home Affairs [2018] HCA 50

Edelman J
Date: 7 Nov 2018 Case Number: S217/2018
Administrative law – Judicial review – Jurisdictional error – Usual requirement that error must be material – When error will be material – Where visa criterion that there is no evidence that plaintiff has given bogus document – Where delegate of Minister for Home Affairs refused visa application because plaintiff provided bogus document – Where plaintiff accepted that document is bogus – Where plaintiff's migration agent made errors in communications with delegate – Whether agent's errors fraudulent – Whether agent's errors material.

Words and phrases – "bogus document", "compassionate or compelling circumstances", "deprived the plaintiff of the possibility of a successful outcome", "false or misleading statement", "jurisdictional error", "material", "materiality", "privative clause decision".

Migration Regulations 1994 (Cth) – Sch 2, cl 820. 226, Sch 4, public interest criterion 4020.

Nobarani v Mariconte [No 2] [2018] HCA 49

Kiefel CJ, Gageler, Nettle, Gordon, Edelman JJ
Date: 17 Oct 2018 Case Number: S270/2017
Practice and procedure – Costs – Wills, probate, and administration – Where respondent sought and obtained grant of probate in solemn form – Where respondent resisted appeals to set aside grant of probate – Where grant of probate set aside on appeal – Where respondent applied for order that appellant's costs of trial and appeals be paid out of estate of deceased and on trustee basis – Where costs not shown to be other than properly and reasonably incurred by respondent in connection with administration of estate – Whether order sought by respondent should be made.

Words and phrases – "administration of the estate", "costs payable from the estate", "executor", "litigation expenses", "properly and reasonably incurred".

Johnson v The Queen [2018] HCA 48

Kiefel CJ, Bell, Gageler, Nettle, Gordon JJ
Date: 17 Oct 2018 Case Number: A9/2018
Criminal law – Appeal against convictions − Where appellant convicted of five counts of sexual offending against single complainant being his sister − Where counts joined − Where s 34P of Evidence Act 1929 (SA) provided for admission of discreditable conduct evidence for permissible use − Where applications to have counts one and two tried separately and to prevent Crown from leading evidence of discreditable conduct against complainant dismissed − Where Crown relied upon evidence of appellant's other alleged sexual misconduct to rebut presumption of doli incapax and to show relationship between appellant and complainant − Where verdicts on counts one and three quashed on appeal − Whether evidence of appellant's other alleged sexual misconduct admissible on trial of each remaining count − Whether joinder occasioned miscarriage of justice.

Evidence – Criminal trial − Sexual offences − Propensity evidence − Admissibility − Where Crown relied on uncharged acts as relationship or context evidence − Where evidence of one uncharged act improperly admitted − Whether miscarriage of justice.

Words and phrases – "admissibility", "context evidence", "contextual use", "discreditable conduct evidence", "effluxion of time", "impermissible use", "non-propensity use", "other alleged sexual misconduct", "permissible use", "prejudicial effect", "probative value", "relationship evidence", "uncharged act".

Evidence Act 1929 (SA) – Pt 3 Div 3, s 34P.

WET052 v The Republic of Nauru [2018] HCA 47

Gageler, Keane, Edelman JJ
Date: 17 Oct 2018 Case Number: S267/2017
Nauru – Appeal as of right from Supreme Court of Nauru – Refugees – Where Secretary of Department of Justice and Border Control determined appellant not refugee and not owed complementary protection – Where Refugee Status Review Tribunal affirmed Secretary's determination – Where Tribunal made adverse finding as to credibility of appellant – Where Supreme Court of Nauru affirmed Tribunal's decision – Whether Tribunal's adverse finding made without logical foundation – Whether Tribunal failed to properly consider appellant's claims relating to treatment in Iran as a returned asylum seeker.

Words and phrases – "adverse credibility finding", "country information", "failed asylum seeker", "political profile", "well-founded fear of persecution".

Refugees Convention Act 2012 (Nr) – ss 3, 5, 6, 31.

ETA067 v The Republic of Nauru [2018] HCA 46

Bell, Keane, Gordon JJ
Date: 17 Oct 2018 Case Number: M167/2017
Immigration – Nauru – Refugees – Application for refugee status – Where Secretary of Department of Justice and Border Control determined appellant not refugee – Where Refugee Status Review Tribunal affirmed Secretary's determination – Whether Tribunal failed to act according to principles of natural justice – Whether Tribunal failed to assess evidence provided by appellant in relation to his claim to have a well-founded fear of persecution by reason of his political opinion – Whether Tribunal failed to give appellant an opportunity to comment on evidence concerning membership of political party – Whether Supreme Court of Nauru erred in affirming Tribunal's determination.

Words and phrases – "evidence material to assessment", "principles of natural justice", "well-founded fear of persecution".

Refugees Convention Act 2012 (Nr) – ss 5, 22(b), 40(1).

UBS AG v Tyne [2018] HCA 45

Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon, Edelman JJ
Date: 17 Oct 2018 Case Number: B54/2017
Practice and procedure – Permanent stay of proceedings – Abuse of process – Where respondent (in personal capacity) was controlling mind of former trustee and related company – Where respondent (in personal capacity), former trustee and related company commenced proceedings in Supreme Court of New South Wales – Where respondent (in personal capacity) and former trustee discontinued as parties in Supreme Court proceedings – Where Supreme Court proceedings permanently stayed – Where respondent (as trustee) pursued substantially same claims in Federal Court of Australia – Where primary judge permanently stayed proceedings for abuse of process – Whether on appeal Full Court erred in finding no abuse of process and setting aside permanent stay – Whether Full Court failed to consider overarching purpose of conduct of civil litigation.

Words and phrases – "abuse of process", "administration of justice", "conduct of civil litigation", "discontinue", "final determination", "just resolution", "overarching purpose of the conduct of civil litigation", "permanent stay", "related parties", "unconditional discontinuance", "unjustifiably oppressive".

Federal Court of Australia Act 1976 (Cth) – ss 23, 37M, 37N.

Federal Court Rules 2011 (Cth) – r 26. 14.

Uniform Civil Procedure Rules 2005 (NSW) – rr 12. 3(1), 12. 4.

Rodi v Western Australia [2018] HCA 44

Kiefel CJ, Bell, Keane, Nettle, Gordon JJ
Date: 10 Oct 2018 Case Number: P24/2018
Criminal law – Prohibited drug – Appeal against conviction – Fresh evidence – Miscarriage of justice – Where appellant convicted of possession of prohibited drug with intent to sell or supply it to another – Where expert witness gave evidence at trial casting doubt on credibility of appellant's testimony – Where expert witness gave evidence in earlier proceedings inconsistent with evidence given in appellant's proceedings – Where earlier inconsistent evidence not disclosed to appellant at trial – Where Court of Appeal of Supreme Court of Western Australia admitted expert witness's earlier inconsistent evidence as fresh evidence but determined that no miscarriage of justice had occurred – Whether miscarriage of justice occurred.

Words and phrases – "credible and cogent", "fresh evidence", "miscarriage of justice", "new evidence", "onus of proof", "significant possibility of acquittal", "yield".

Misuse of Drugs Act 1981 (WA) – ss 6(1)(a), 11(a).

Ancient Order of Foresters in Victoria Friendly Society Limited v Lifeplan Australia Friendly Society Limited [2018] HCA 43

Kiefel CJ, Gageler, Keane, Nettle, Edelman JJ
Date: 10 Oct 2018 Case Number: A37/2017
Equity – Knowing assistance in breach of fiduciary duty – Remedies – Account of profits – Causation – Where employees of first respondent breached fiduciary duties to respondents by assisting appellant, and then joined appellant – Where appellant knowingly assisted in breaches of fiduciary duty – Where primary judge found profits of appellant's business not direct result of appellant's knowing assistance – Whether account of profits available.

Equity – Knowing assistance in breach of fiduciary duty – Remedies – Account of profits – Assessment of quantum – Whether knowing assistant obliged to account for entire capital value of business acquired – Whether account of profits may be ordered in respect of anticipated profits.

Words and phrases – "account of profits", "actual profits", "anticipated profits", "as a result of", "but for", "causation", "disgorgement" "knowing assistance", "material contribution".

QLN146 v Republic of Nauru [2018] HCA 42

Bell, Keane, Gordon JJ
Date: 11 Sep 2018 Case Number: M26/2018
Nauru – Appeal as of right from Supreme Court of Nauru – Refugees – Where Secretary of Department of Justice and Border Control determined appellant not refugee and not owed complementary protection – Where Refugee Status Review Tribunal affirmed Secretary's determination – Where Tribunal made adverse findings as to credibility – Whether error in Tribunal's reasons.

Words and phrases – "appeal", "credibility", "error".

Refugees Convention Act 2012 (Nr).

Convention relating to the Status of Refugees (1951) as modified by the Protocol relating to the Status of Refugees (1967).

QLN147 v The Republic of Nauru [2018] HCA 41

Kiefel CJ, Gageler, Nettle JJ
Date: 11 Sep 2018 Case Number: M27/2018
Nauru – Appeal as of right from Supreme Court of Nauru – Refugees – Where Secretary of Department of Justice and Border Control refused application for complementary protection – Where Refugee Status Review Tribunal affirmed Secretary's decision – Where appellant claimed he would be subject to cruel, inhuman or degrading treatment if returned to Sri Lanka – Where basis for claim was that appellant may be remanded in prison if returned to Sri Lanka and prison conditions in Sri Lanka are poor – Whether Tribunal had regard to material before it concerning prison conditions in Sri Lanka – Whether reasons of Tribunal met standard required by s 34(4) of Refugees Convention Act 2012 (Nr).

Words and phrases – "cruel, inhuman or degrading treatment", "duty to give reasons", "prison conditions".

Refugees Convention Act 2012 (Nr) – ss 5(1), 6(1), 34(4).

The Queen v Dennis Bauer (a pseudonym) [2018] HCA 40

Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon, Edelman JJ
Date: 12 Sep 2018 Case Number: M1/2018
Evidence – Criminal trial – Sexual offences with child under 16 years – Tendency evidence – Admissibility – Severance – Where evidence of complainant as to 17 sexual acts and several uncharged sexual acts admitted as tendency evidence – Where evidence of third party as to Charge 2 admitted as tendency evidence – Whether evidence of complainant and third party admissible as tendency evidence – Whether evidence of each charged act and uncharged act cross-admissible as tendency evidence in proof of each charge – Whether tendency evidence had significant probative value – Whether possibility of risk of contamination, concoction or collusion relevant to determination of probative value – Whether probative value substantially outweighed any prejudicial effect – Whether tendency notice defective – Whether Charge 2 should have been severed from indictment.

Evidence – Criminal trial – Recording of evidence – Admissibility – Where evidence of complainant recorded at previous trial admitted – Where prosecutor told court that complainant had strong preference not to give evidence at trial based on advice from counsellors – Where defence counsel did not challenge complainant's preference not to give evidence – Whether in interests of justice to admit recording.

Evidence – Criminal trial – Hearsay – Admissibility – Where complainant made representations to third party that she was sexually assaulted by respondent – Where representations made in response to leading questions from third party – Where inconsistencies between complainant's representations and other evidence given by complainant – Whether occurrence of asserted facts fresh in complainant's memory at time of representations – Whether probative value of evidence outweighed by danger of unfair prejudice.

Words and phrases – "charged act", "collusion", "complaint", "concoction", "contamination", "credibility", "cross-admissible", "discreditable acts", "fresh in the memory", "improper prejudice", "jury directions", "previously recorded evidence", "propensity", "recording", "reliability", "severance", "sexual attraction", "sexual interest", "sexual offence", "significant probative value", "single complainant", "special feature", "tendency", "uncharged act", "unfair prejudice", "willingness".

Criminal Procedure Act 2009 (Vic) – ss 194, 379, 380, 381, 385.

Evidence Act 2008 (Vic) – ss 66, 97, 99, 101, 135, 137.

Jury Directions Act 2015 (Vic) – ss 61, 62.

Evidence Regulations 2009 (Vic) – reg 7.

Pipikos v Trayans [2018] HCA 39

Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon, Edelman JJ
Date: 12 Sep 2018 Case Number: A30/2017
Equity – Doctrine of part performance – Where respondent sole registered proprietor of property purchased by respondent and her husband – Where respondent and her husband made improvements to property – Where appellant claimed agreement between appellant and respondent entitled appellant to half-interest in unimproved land – Where alleged agreement did not meet formality requirements of s 26(1) of Law of Property Act 1936 (SA) – Where s 26(2) of Law of Property Act provides that s 26 does not affect law relating to part performance – Whether acts of part performance entitled appellant to specific performance of alleged agreement – Whether acts of part performance must be unequivocally, and in their own nature, referable to agreement of kind alleged – Whether sufficient for purposes of doctrine of part performance to establish that contracting party has knowingly been induced or allowed by counterparty to alter his or her position on faith of contract.

Words and phrases – "enforcement of equities", "equitable estoppel", "equitable fraud", "equity of the statute", "fraud", "parol contract", "part performance", "specific performance", "Statute of Frauds", "unequivocally referable".

Law of Property Act 1936 (SA) – s 26.

Mighty River International Limited v Hughes [2018] HCA 38

Kiefel CJ, Gageler, Nettle, Gordon, Edelman JJ
Date: 12 Sep 2018 Case Number: P7/2018 P8/2018
Companies – Voluntary administration – Deed of company arrangement – Where administrator required to form opinion about certain matters as soon as practicable after administration begins – Where administrator required to convene meeting of creditors within convening period – Where convening period may be extended by court order – Where company executed deed which imposed moratorium on creditors' claims while administrators conducted further investigations – Where deed provided no property of company available for distribution to creditors – Whether deed impermissibly extended convening period – Whether administrators formed the requisite opinions – Whether deed should have specified some property available for distribution to creditors – Whether deed a valid deed of company arrangement – Whether deed should be declared void.

Words and phrases – "arrangement alternative to liquidation", "convening period", "deed of company arrangement", "DOCA", "holding DOCA", "in the interests of creditors", "moratorium on claims", "property of the company available for distribution to creditors", "to be available to pay creditors' claims", "voluntary administration".

Corporations Act 2001 (Cth) – Pt 5. 3A, ss 438A, 439A, 444A, 445G.

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