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Johns v Marmalade Australia Pty Ltd[2023] QDC 222

Reported at (2023) 3 QDCR 454

Johns v Marmalade Australia Pty Ltd[2023] QDC 222

Reported at (2023) 3 QDCR 454

DISTRICT COURT OF QUEENSLAND

CITATION:

Johns v Marmalade Australia Pty Ltd [2023] QDC 222

PARTIES:

GRANT DAVID JOHNS

(applicant)

v

MARMALADE AUSTRALIA PTY LTD

(ABN 56637723196)

(respondent)

FILE NO:

D10/2023

DIVISION:

Appellate

PROCEEDING:

Civil

ORIGINATING COURT:

Gympie District Court

DELIVERED ON:

17 November 2023 (Order 1 below)

29 November 2023 (Order 2 below and publication of reasons)

HEARING DATE:

17 November 2023

JUDGE:

Long SC

ORDER:

  1. The application for extension of time to file and serve the Notice of Appeal is refused and the ‘Notice of Appeal Subject to Leave’ filed on 3 July 2023 is set aside;
  2. No order as to costs.

CATCHWORDS:

APPLICATION FOR EXTENSION OF TIME TO APPEAL – Where the applicant applied for an extension of time to appeal an order made in the Magistrates Court at Gympie for default judgment – Where the applicant is an undischarged bankrupt and has no standing to make an application – Where the appeal was not competently brought in engaging the jurisdiction of the District Court to hear and decide it or to grant any relief to the applicant.

LEGISLATION:

Uniform Civil Procedure Rules 1999 (Qld) rr 19, 283, 290, 748, 782, 783, 785, 967, 969A, 975A, 975D

Magistrates Courts Act 1921 (Qld) s 45

CASES:

Commonwealth Bank of Australia v Jorgensen [2011] QCA 376

Cummings v Claremont Petroleum NL

Di Iorio v Wagener [2016] QCA 97

Di Pan v Macarthur Central Shopping Centre Pty Ltd [2022] QCA 150

Horne v Commissioner of Main Roads [1991] 2 Qd R 38

Hunter Valley Developments v Cohen (1984) 3 FCR 344

Jorgensen v Body Corporate for Cairns Central Plaza Apartments [2020] QDC 300

Oliver v Samios Plumbing Pty Ltd [2016] QCA 236

Wren v Mahoney (1972) 126 CLR 12 (1996) 185 CLR 124

COUNSEL:

A Edmonds (sol) on behalf of the Respondent

No appearance on behalf of the Applicant

SOLICITORS:

Kerrs on behalf of the Respondent

Introduction

  1. [1]
    In this matter the jurisdiction of this Court is potentially engaged pursuant to a form entitled “Notice of Appeal Subject to Leave”, filed by the applicant on 3 July 2023 in seeking to appeal an order made in the Magistrates Court at Gympie on 10 June 2022.  As is discussed in further detail below, this is effectively an application for an extension of time in which to make such an appeal. 
  2. [2]
    That appeal is one sought to be brought against a default judgment entered pursuant to rule 283 of the Uniform Civil Procedure Rules 1999 (“UCPR”).  It is therefore sought to be brought pursuant to s 45 of the Magistrates Courts Act 1921, which relevantly provides:
  1. “(1)
    Subject to this Act, any party who is dissatisfied with the judgment or order of a Magistrates Court—
  1. (a)
    in an action in which the amount, value or damage involved is more than the minor civil dispute limit; or
  1. ….
  1. may appeal to the District Court as prescribed by the rules.”
  1. Here and as will be seen, the amount involved exceeds the minor civil dispute limit.[1]
  1. However, it is also provided in s 45(3) that:
  1. “(3)
    Within the time and in the way prescribed by the rules, the appellant must give to the other party or the other party’s lawyer notice of the appeal, briefly stating the grounds of the appeal.
  1. UCPR 748 is therefore engaged,[2] and requires that:
  1. “A notice of appeal must, unless the Court of Appeal orders otherwise—
  1. (a)
    be filed within 28 days after the date of the decision appealed from; and
  1. (b)
    be served as soon as practicable on all other parties to the appeal.”
  1. [3]
    Accordingly and unless this Court orders otherwise, by relevantly extending the time for the filing of the Notice of Appeal, the appeal is not competently brought in engaging the jurisdiction of this Court to hear and decide it or to grant any relief to the applicant.
  2. [4]
    On 17 November 2023 it was ordered that:

“The application for extension of time to file and serve the Notice of Appeal is refused and the ‘Notice of Appeal Subject to Leave’ filed on 3 July 2023 is set aside.”

 At that time, the respondent’s application for costs was reserved to be determined with the publication of these reasons for the order then made.

The Circumstances

  1. [5]
    It is convenient to first set out the circumstances leading to the making of the order in the Magistrates Court.  By claim and statement of claim filed in the registry of the Magistrates Court at Gympie, on 29 March 2022, the respondent claimed relief in respect of debt, in the amount of $32,523.65, against the applicant.
  2. [6]
    The statement of claim pleads that this debt arose pursuant to written agreements between the respondent and two corporations, of which the applicant was a director, allowing for the “factoring” of invoices issued to clients or customers of each company.  However, it is to be noted that apart from identifying the applicant as a director of each company, it is not pleaded as to how the applicant was contended to be personally liable for the debts arising under the contractual arrangements with each corporation. 
  3. [7]
    Nevertheless, on 10 June 2022, and upon purported request and the absence of a notice of intention to defend, default judgment was entered by a registrar against the applicant, in the amount of $34,880.53 including interest and costs.  For present purposes, two things may be noted:
    1. Once the electronically filed documents were accepted as filed in the registry and subject to the apparently then unidentified deficiency in respect of an affidavit of service or relevant prescribed information in that respect, pursuant to UCPR 283(10) the registrar was “not required to consider the merits of the plaintiff’s claim against the defendant”; and
    2. The precipitation of this situation lay in the absence of any notice of intention to defend.
  4. [8]
    The reference to the purported request for default judgment is because there appears to be some deficiencies in the electronically filed request and accompanying documents.  The allowance for electronic filing of documents is by UCPR 967 and 969A and particular provisions for filing such documents are to be found in Division 4 of Part 1 of Chapter 22 of the UCPR.  Although these documents were accepted and acted upon as electronically filed:
    1. it may be noted that the request for default judgment is not signed by the solicitor for the plaintiff but has the notification “Signature not required for electronically lodged documents”.  The source of such contention is at least unclear.  Whilst UCPR 975A(1) provides that UCPR 19 (requiring signature upon originating process) does not apply to an electronically filed document, the request for default judgment is not an originating process. In any event, the exemption in UCPR 975A(1) applies only “if it is not reasonably practicable to comply with that rule in relation to an originating process”.  Further, UCPR 975A(2) provides:

“(2) Without limiting subrule (1), it is reasonably practicable for a person to comply with rule 19 in relation to an originating process that is electronically filed if the originating process is an imaged document.”

  1. More significantly, the request is accompanied by an unsworn form of affidavit of debt, which purports to annexe what is described as an affidavit of personal service on the defendant, on 3 May 2022.  However, the paper copy of the electronic filing on the Magistrates Court file, does not include any such affidavit and it is understood to have been confirmed that neither does the electronic record of the filing.

It must immediately be noted that the second difficulty may be complicated by the provisions of UCPR 975D and Approval 2 of 2018, of the Principal Registrar (Magistrates Court), in respect of the provision of “prescribed information” in respect of an “exempt affidavit”.  Relevantly, for the application of UCPR 975D, Approval 2 was given on 27 September 2018 pursuant to UCPR 975D(3) and includes the following terms:

  1. “1.
    In relation to requests for default judgment under rule 283 UCPR:
  1. (i)
    Document:  Affidavit of service of the claim on the defendant
  1. Prescribed information for the document:
  1. (a)
    the full name of person who served the claim;
  1. (b)
    the time, day, date and place of service of the claim on the defendant;
  1. (c)
    the manner of service on the defendant;
  1. (d)
    how the defendant was identified;
  1. (e)
    the name of the person before whom the affidavit was sworn;  and
  1. (f)
    the date and place the affidavit was sworn.
  1. (ii)
    Document: Affidavit of debt
  1. Prescribed information for the document:
  1. (a)
    the full name of the person who made the affidavit;
  1. (b)
    whether the debt is still owing;
  1. (c)
    if some payment has been made, when payment was made, the amount of the payment and how much of the debt is still owing;
  1. (d)
    the name of the person before whom the affidavit was sworn; and
  1. (e)
    the date and place the affidavit was sworn.”
  1. [9]
    On the face of the materials on the court file, there does not appear to be all of the prescribed information relating to the affidavit of service and there may be a difficulty in respect of the information provided in respect of the affidavit of debt being in respect of an exempt affidavit (as is required to be retained pursuant to UCPR 975D(2)), when the unsworn form of affidavit variously represents that it was sworn or affirmed at “Surry Hills on 3 June 2022” by a deponent who is identified as “Dylan Burgess of 1/1 Breakfast Creek Road Newstead Queensland 4006”. Although, such a situation may be feasible.
  2. [10]
    However and whilst such issues may have been relevant to the applicant’s response to the default judgment, as might have been expected to have been made to have it set aside pursuant to UCPR 290, it is not, for the reasons which follow, for this Court to now determine any of them.
  3. [11]
    The essential problem now for the applicant is that he did not bring any such application pursuant to UCPR 290.  Instead and on 7 November 2022, the applicant emailed to the registry at the Magistrates Court at Gympie, a bundle of documents headed “Notice of Rebuttal of any and all Presumptions of Law”.  It suffices to note that this material was addressed “To the living man/woman acting as ‘Registrar’ ‘MAGISTRATES COURT GYMPIE’” and without descending to any of the detail of it, is to be noted as stamped with a notation “The People’s Court of Terra Australis”, to have a stamp attached and what appears to be thumb prints in red ink.  It would appear that those documents were later received by registered post and date stamped as received by post on 10 November 2022.
  4. [12]
    From what has already been noted, this ill-conceived approach in submission of materials which are not designed to engage any legal principles which are to be applied by Australian courts and, as will be noted, some reversion to a similar approach in this Court, has not been of any assistance to the applicant in seeking to resolve his current predicament.
  5. [13]
    That predicament arises from what may be understood to be a matter of common ground in the materials provided by the parties in respect of this matter. That is, that on 6 December 2022 the estate of the applicant was sequestrated under the Bankruptcy Act 1966, upon the application of the respondent as judgement creditor pursuant to the default judgement.[3] As is specifically later noted in materials submitted by the applicant, that order is the subject of his application for review of it, which remains pending in the Federal Circuit and Family Court of Australia (Division 2) at Brisbane.
  6. [14]
    In this context and on 23 June 2023, the applicant emailed the registry at Gympie in the following relevant terms:
  1. “Please find our attached;
  1. 1.
    From 96
  1. 2.
    Magistrates Judgement and copy of Claim
  1. We further seek an extension of time, we have a matter before the Federal Circuit and Family Court of Australia, SYG1515/2022 and have been granted the right to seek justice via the District Court as to impugn the judgment made by the Magistrates Court Gympie. 
  1. I have copied in the respondent and associate for matter SYG1515/2022 with this application.
  1. Please let me know if you require anything else to proceed with filing.”[4]

The response, by way of email on 26 June 2023, was to advise that as 28 days had passed since judgment there would be a need to file a “Notice of Appeal Subject to Leave (Form 97)”, together with the appropriate filing fees.  Following this and on 3 July 2023, the applicant filed the document headed “Notice of Appeal Subject to Leave” directed at the judgment made in the Magistrates Court on 10 June 2022 and stating that:

  1. “If leave is granted, the Appeal will be on the grounds that:
  1. 1.
    This is an appeal pursuant to section 45 Magistrates Court Act 1921 (Qld) against the Default Judgement made by the Registrar of a Magistrate sitting at Gympie.
  1. 2.
    On the hearing of the Appeal the Appellant will seek to adduce fresh evidence to the following effect:
  1. (a)
    Evidence of account payment/s made by the Defendant Grant David Johns prior to the ‘Default Judgement’ being made against the sum claimed by the plaintiff, removing the liability from the Defendant.”

It may also be noted that the filed notice is endorsed to the effect that a sum of $1,443 was paid by way of filing fees.

  1. [15]
    The proceedings upon that notice were then progressed by the filing, on 26 July 2023, of the applicant’s outline of argument, effectively containing the assertions that there was relevantly no outstanding debt to the respondent, so as to support the claim upon which the judgment had been entered and that there was no personal guarantee involved between the applicant and the respondent; leaving the applicant’s position only as a director of the companies with whom the respondent contracted, without personal liability to the respondent’s claim.  The following is also asserted:
  1. “21.
    The Default Summary Judgement 0050032/22 has formed the sole basis of a Creditors Petition in Matter SYG1515/2022 before the ‘Federal Court of Australia’, resulting in Registrar ‘Ditton’ making order/s for the sequestration of the estate on the 06 December 2022.
  1. 22.
    The matter has now progressed in an ‘Application for Review’ being heard by Judge Vasta, We refer to attached ‘Annexure D’ being the most recent court order for Matter SYG1515/2022, for the respondent has previously challenged the appellants power to take this matter before the ‘District Court’ and has been noted by the Federal Circuit and Family Court of Australia in the Order/s that the appellant has the right to do so.”

The document annexed and marked “D” is a sealed copy of orders made by the named judge on 22 May 2023.  In the context of orders made for further listing of that matter in the Federal Circuit and Family Court of Australia (Division 2), there are the following further notations:

  1. “IT IS NOTED THAT:
  1. A.
    The Applicant company brought the matter on today on the grounds that they were of the view that Mr Johns had no power to go to the Magistrates Court or the District Court.
  1. B.
    The Court made it clear that this was a review application and that Mr Johns had the right to review.
  1. C.
    The actions of the Applicant company in bringing the matter back to Court has derailed the timetable for Mr Johns to go to the Magistrates Court or District Court.
  1. D.
    If it is that Mr Johns can show the Applicant and the Court that the Magistrates Court or District Court have received the matter and will deal with it at a date later than 26 June 2023, then upon Mr Johns emailing Chambers and the Applicant company with proof to that effect, the matter will be administratively adjourned until after the Magistrates Court or District Court deals with the matter.”

It may be observed that upon the hearing of this matter, it remained the respondent’s position that the applicant’s remedies, if any, remained in the federal jurisdiction upon the review of the sequestration order and not in the State Courts but that the proceedings upon that review remained adjourned, pending the outcome of the proceedings before this Court.

  1. [16]
    On 18 September 2023, the respondent filed a written outline of submissions which contended for the dismissal of the application for extension of time, with costs. Particularly and apart from any considerations as to explanation for delay in bringing the application, there was contended to be an absence of merit in relation to the proposed appeal because of what was contended to be the applicant’s lack of standing or ability to maintain it, due to his bankrupt status.
  2. [17]
    The matter then came before the Court on 16 October 2023, at which time it was further listed for mention on 13 November 2023.  It is noted that on 16 October, the applicant appeared himself, with a legal representative of the respondent appearing by telephone. 
  3. [18]
    On 13 November 2023 and in accordance with leave earlier granted, the legal representative for the respondent appeared by telephone but there was no appearance for, or by, the applicant.  It was then noted that, on 10 November 2023, a sizeable bundle of documentation (MFI-A) had been sent to the registry and also copied to the associate for Judge Vasta.  And further, that on that morning, a copy of a document in that bundle and headed “Endorsed Orders”, had been filed, or at least received and date stamped in the registry at Gympie.  The matter was then adjourned and listed for hearing on 17 November 2023, in order to allow for notice of that listing to be given to the applicant.
  4. [19]
    From that point, the applicant’s engagement in this matter only occurred through the provision of written materials, in reversion to the ill-conceived approach already noted as involving attempts to resort to contentions not cognisable under the laws to be applied by this Court.  In that respect, it suffices to note that the document headed “Endorsed Orders” and which was date stamped on 13 November 2023 in the registry,[5] purports to be an astonishingly self-serving and unilateral resolution of all of the legal issues confronting the applicant in the proceeding before this and also the other Court, together with him being accommodated a compensation payment in the sum of AUD$3,000,000:

“ … to be paid by an employee of the FEDERAL CIRCUIT AND FAMILY COURT OF  AUSTRALIA acting as ‘Public Trustee’ of the ‘Defendant’ from the estates ‘GRANT DAVID JOHNS’ ‘CQV’ Trust account by Electronic Funds Transfer into [a nominated bank account in the name of Grant Johns] with immediate effect.”

  1. [20]
    On 17 November 2023, the applicant did not appear at the time appointed for the hearing of this matter and the legal representative of the respondent was heard in accordance with leave earlier granted, by telephone.  Further documents which had been filed in the registry on 14 November 2023 (MFI-C) and also sent to the registry by email on 15 November 2023 (MFI-D and MFI-E) in reference to the applicant’s position in relation to this matter, were marked for identification.  Notably and in response to the notification provided as to the listing of this matter for hearing, the response was in terms of “declining your offer”.  Otherwise, the applicant purported to rely upon the “Endorsed Orders”, including the assertions that:

“‘Judge Vasta’ has allowed remedy by allowing the ‘Defendant’ take the ‘Appeal’ to the ‘District Court’ to impugned the ‘Default Judgement’ of the ‘MAGISTRATES COURT OF GYMPIE’ to correct the matter that originally lead to the proceedings in matter SYG1515/2022 rather than looking behind the ‘Default Judgement’; Should the ‘Rules of a Court’ being a ‘technical argument’ supersede the ‘Appellants position of standing’ which in this matter would see an injustice done, then our position stands in ‘Equity’ to provide remedy by way of the now sealed ‘Endorsed Orders’”.

Consideration

  1. [21]
    As is pointed out for the respondent, an application of this type which seeks an exercise of discretion to allow an extension of time in which to bring an appeal, usually involves consideration of the explanation for delay, the merits of the appeal, any prejudice to the respondent and general considerations of fairness.[6]  In this instance, the appropriate primary focus is upon the merits and more particularly, the contended inutility of the proposed appeal having regard to the legal inability or incapacity of the applicant, as an undischarged bankrupt, to pursue it, or indeed to have made this application.
  2. [22]
    That situation and the applicable principles to be applied in dealing with a similar situation, were explained by Bond JA in Di Pan v Macarthur Central Shopping Centre Pty Ltd.[7]  In that case, his Honour noted the problem which confronts the applicant here, in the following terms:
  1. “[7]
    The problem facing her is that the fact of a sequestration order has certain legal consequences. The respondent has submitted to me that the judgment debt that they have obtained is a debt provable in the appellant’s bankruptcy; that the effect of her bankruptcy divests her of her interests in property and her liability for provable debts; and in those circumstances, the Court is bound to conclude that she has no interest such as would confer upon her the necessary standing to appeal against the judgment obtained in the District Court. As the High Court observed in Cummings v Claremont Petroleum NL (1996) 185 CLR 124 at 138 (citations omitted):
  1. ‘…
    it is fundamental to the law of bankruptcy that the bankrupt is divested of both his interest in his property and liability for his provable debts.’”[8]

Subsequently, reference was made to the noted observations of the High Court having been followed in Commonwealth Bank of Australia v Jorgensen[9] and Oliver v Samios Plumbing Pty Ltd.[10]

  1. [23]
    Accordingly, and as correctly submitted for the respondent, it would be inutile to grant any extension of time to appeal in this instance, because to adapt the finding made in the Commonwealth Bank of Australia v Jorgensen[11] matter:

“The critical, insurmountable difficulty for [the applicant] is that, as a bankrupt, he has no standing to appeal from a judgment of the kind entered against him.”

The basis for such conclusion is more fulsomely explained in Cummings v Claremont Petroleum NL, as follows:

“So far as a judgment entered in an action against a bankrupt creates or evidences a provable debt, we respectfully agree that the bankrupt has no financial interest which would confer locus standi to appeal in his own name against the judgment. That is because it is fundamental to the law of bankruptcy that the bankrupt is divested of both his interest in his property and liability for his provable debts.

Of course, a money judgment entered against a bankrupt has the effect of increasing the amount of the debts provable in his estate. But it is immaterial that, if an appeal against the judgment were successful, there would or might be a surplus in the estate after the remaining creditors are paid. A bankrupt's contingent interest in a surplus does not give him an interest which would allow him to sue to enforce proprietary rights and, that being so, it cannot give him an interest to appeal to minimise liabilities.”[12]

  1. [24]
    Further and as was noted by Bond JA in Di Pan, (at [12]-[14]), the applicant’s remedies, if any, lie in the proceedings instituted in the Federal Circuit and Family Court of Australia (Division 2) and pursuant to the bankruptcy legislation, as may be engaged upon the review of the sequestration order which has been instituted in that Court. And in this Court, the respondent drew attention to Wren v Mahoney,[13] in confirmation of the ability of a court exercising jurisdiction pursuant to the Bankruptcy Act 1966, to go behind the judgment upon which a creditor’s petition may be premised. Also and similarly to the further observation in Di Pan (at [12]), the course of events which have been noted above, may remain as relevant to any future need to consider any delay in seeking any extension of time in which to appeal the decision made in the Magistrates Court and it would be doubtful that any further delay would operate to the prejudice of the applicant.

Costs

  1. [25]
    Understandably and upon the order made on 17 November 2023 to set aside the Notice of Appeal Subject to Leave, the respondent sought an award in respect of the costs which it has incurred in responding to it and vindicating its position as taken,  on 22 May 2023, in respect of the bankruptcy review.
  2. [26]
    The facts of the applicant’s lack of legal representation and an implication that his motivation to file that Notice may have been influenced by what occurred in the bankruptcy proceedings on 22 May 2023, are not of themselves sufficient reason to deny the respondent the compensation it seeks.
  3. [27]
    However and in the light of the albeit, at this stage, unresolved nature of the issues noted above in respect of the basis upon which the judgment debt, which underpins the sequestration order, was obtained and particularly the questions which appear to arise in respect of the unpleaded basis of the claim made personally against the applicant, there are some additional broader considerations. Any award of costs in favour of the respondent would only give rise to a further provable debt in the bankruptcy, should the current proceedings for review of the sequestration order be unsuccessful. Otherwise, it is to be expected that any success in that review will be upon issues which involve going behind and as to the basis upon which the judgment debt arose and therefore as to the very foundation of the applicant’s bankruptcy and his personal inability to now engage the jurisdiction of this Court.
  4. [28]
    In these circumstances, the more appropriate exercise of discretion is to make no order as to costs.

Footnotes

[1]  Minor civil dispute limit means the amount that is prescribed by sch 3 of the Queensland Civil and Administrative Tribunal Act 2009, being $25,000.

[2]  See UCPR 782, 783 and 785.

[3]   See Annexure A to the Respondent’s written submissions, filed 18/9/23.

[4]  Reproduced as it appears.

[5]  This was subsequently, on 17/11/23, marked MFI-B.

[6]  See Jorgensen v Body Corporate for Cairns Central Plaza Apartments [2020] QDC 300 at [8], in reference to Di Iorio v Wagener [2016] QCA 97 at 28, Hunter Valley Developments v Cohen (1984) 3 FCR 344 at 349 and Horne v Commissioner of Main Roads [1991] 2 Qd R 38 at 41.

[7]  [2022] QCA 150.

[8]  Ibid at [7].

[9]  [2011] QCA 376 at [10] and [11].

[10]  [2016] QCA 236.

[11]  [2011] QCA 376 at [10].

[12]  (1996) 185 CLR 124 at 137-8.

[13]  (1972) 126 CLR 12.

Close

Editorial Notes

  • Published Case Name:

    Johns v Marmalade Australia Pty Ltd

  • Shortened Case Name:

    Johns v Marmalade Australia Pty Ltd

  • Reported Citation:

    (2023) 3 QDCR 454

  • MNC:

    [2023] QDC 222

  • Court:

    QDC

  • Judge(s):

    Long SC DCJ

  • Date:

    29 Nov 2023

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Commonwealth Bank of Australia v Jorgensen [2011] QCA 376
3 citations
Cummings v Claremont Petroleum NL (1996) 185 CLR 124
3 citations
Di Iorio v Wagener [2016] QCA 97
2 citations
Horne v Commissioner of Main Roads [1991] 2 Qd R 38
2 citations
Hunter Valley Dev Pty Ltd v Cohen (1984) 3 FCR 344
2 citations
Jorgensen v Body Corporate For Cairns Central Plaza Apartments [2020] QDC 300
2 citations
Oliver v Samios Plumbing Pty Ltd [2016] QCA 236
2 citations
Pan v Macarthur Central Shopping Centre Pty Ltd [2022] QCA 150
2 citations

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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