New South Wales Supreme Court CITATION : Rouvinetis v Varady & Ors [2009] NSWSC 109 HEARING DATE(S) : 24 February 2009 JUDGMENT DATE : 5 March 2009 JUDGMENT OF : Schmidt AJ CATCHWORDS : NEGLIGENCE - duty of care - strike out application - no reasonable cause of action - proceedings dismissed Civil Liability Act 2002 LEGISLATION CITED : Civil Procedure Act 2005 Uniform Civil Procedure Rules 2005 CATEGORY : Principal judgment Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem [2009] NSWCA 29 Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 Dennis v Australian Broadcasting Corporation [2008] NSWCA 37 General Steel Industries Inc v Commissioner for Railways NSW (1964) 112 CLR 125 CASES CITED : Hackshaw v Shaw (1984) 155 CLR 614 Modbury Triangle Shopping Centre Pty Ltd v Anzil and Anor (2000) 205 CLR 254 Nguyen v Hiotis and City of Charles Sturt [2000] SASC 88 Smith v Leurs (1945) 70 CLR 256 Spedding v Nobles; Spedding v McNally [2007] NSWCA 29 Wagstaff v Haslem (2007) 69 NSWLR 1 Evangelos Rouvinetis - Plaintiff PARTIES : Dr Margaret Varady - First Defendant New South Wales Department of Education and Training - Second Defendant State of New South Wales - Third Defendant FILE NUMBER(S) : SC 20354/08 COUNSEL : Plaintiff in person Defendants - Mr M Fordham, counsel SOLICITORS : Plaintiff - unrepresented Defendants - Moray & Agnew - 16 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION SCHMIDT AJ Thursday, 5 March 2009 20354/08 EVANGELOS ROUVINETIS v MARGARET VARADY AND ORS JUDGMENT 1 HER HONOUR: In August 2008, the plaintiff, Evangelos Rouvinetis, commenced proceedings against Dr Margaret Varady, the Principal of Sydney Girls High School and the New South Wales Department of Education and Training, seeking compensation of $1,000,000.00. In October Mr Rouvinetis amended his pleadings. By notice of motion of 23 October 2008, the defendants seek orders under Rule 13.4 of the Uniform Civil Procedure Rules 2005 dismissing the statement of claim upon which Mr Rouvinetis proceeds, or in the alternative, orders under Rule 14.28 of the Rules, that the claim be struck out. 2 Mr Rouvinetis' claims concern an alleged assault by security guards engaged by a third party to provide security at a function being conducted at the School. 3 The claims Mr Rouvinetis advances in the statement of claim under the Civil Liability Act 2002, are: (1) NEGLIGENCE: The first defendant, as principal of the school approved a function in the PUBLIC school premises the 09/04/2008, which, time 20 45 00 or about incured(sic) ASSAULT, INJURIES, which are veryfied(sic) by medical reports of diagnosis attaches to this documents(sic). Handcuffings, and illegal detainment, against the PLAINTIFF who is a senior respected member of the constituency and well known to the first defendant and the rest of the schools administrators, for no reason at all and no provocation, by armed private personal body guards, who were inappropriately brought in the PUBLIC school grounds. (2) FAILING DUTY OF CARE: The first defendant failed duty of care in not providing safety and security to anyone and everyone within the PUBLIC school grounds during the 09/04/2008 function and by derilection(sic) of duty created a dangerous and volatile enviroment(sic) by allowing in armed private personal body guards with no links of the paid schools SECURITY. (3) FAILING REASONABLE PRECAUTIONS the first defendant, failed reasonable precautions and instead, increased risks of harm by allowing in the PUBLIC school armed personal private body guards. 4 Mr Rouvinetis also alleges breach of a Departmental Community Use of School Facilities Policy Statement and Implementation Procedures document. The provisions identified as having been breached were: 1. 'In the interests of the school and its community, care must be taken to avoid agreements with inappropriate organisations for inappropriate use.' 2. Prohibited Use School facilities must not be used for: · games of chance or gambling unless an appropriate authority or licence has been obtained from the chief secretary's Department or other regulatory body; · any illegal activity; · activities considered by the Principal in consultation with the School Council and parent bodies, to be inconsistent with the school's purpose and goals. It should be noted that smoking is totally prohibited on all departmental premises. 3. Conditions of Use The community user will: (h) ensure that all persons allowed on the premises or permitted by the community user to use equipment shall properly conduct themselves and ensure that any person forbidden by the Principal to use the premises or equipment does not do so; 5 In advancing their arguments, the parties referred to the summons by which Mr Rouvinetis had originally commenced the proceedings, a case management document filed by Mr Rouvinetis in August 2008, which outlined the circumstances out of which his claim came to be made, as well as an affidavit which Mr Rouvinetis had sworn in October 2008 and the policy document which he claimed had been breached. 6 From that material and Mr Rouvinetis' submissions, it appears that Mr Rouvinetis' complaint is that he was passing by the School one evening, when he observed that the School, a public institution, was lit and open. He was very well known to the administration of the School, which he loved, so he entered, to observe that a function was underway. He believed that he had a duty to investigate, as a good constituent. He was approached, advised that a private function was being held and was asked to leave. He refused, stating that he would not leave until he had seen the Principal or School administrators, so that he could tell them what was occurring, or unless the police were called. He was again asked to leave, but still refused. He was then assaulted without provocation or reason by several security guards, who detained him until police attended. He was then released and escorted from the School, with the police advising him that no action would be taken. He subsequently received medical attention for various injuries which he had sustained from the security guards' unprovoked attack. He has sustained an ongoing medical condition, as a consequence of the assault in the grounds of a public school, which is Crown land. The parties' cases 7 The defendants' case was that the totality of the allegations made by the plaintiff in the statement of claim concerned an alleged breach of the Procedures document, arising out of the hiring/licensing of the School premises for a private function. The organisers of the function were identified to be an independent organisation, the Jewish Board of Deputies, which, it was alleged, had inappropriately brought into the School 'Pisteleros'. 8 It was argued that on Mr Rouvinetis' case, it was the Jewish Board of Deputies which had occupied the School site, catering for a function which they conducted there and retaining the security personnel who had assaulted him, while he was on the premises. Taking Mr Rouvinetis' pleadings at their highest, namely, accepting that he had been assaulted as he complained, the circumstances could not found a cause of action in negligence against the defendants. 9 The only breach of duty pleaded was 'By allowing in armed private personal body guards with no links to paid school security.' While breach of the Community Use of School Facilities policy was also pleaded, none of the allegations made could found a cause of action in negligence against the two named defendants, or the correct defendant, the State of New South Wales. It is convenient to observe that in response to this submission, by consent, an order was made at the hearing joining the State of New South Wales as a defendant in the proceedings. 10 It followed, it was argued, that there was no triable issue as between Mr Rouvinetis and the defendants and that the defects in his case were not curable by amendment. At best, the plaintiff had a possible assault or false imprisonment claim against a named security firm, retained by an independent third party, for the purpose of a function which it had held at the School premises. 11 While the proceedings were governed by the provisions of the Civil Liability Act 2002, that could not cure the difficulty that Mr Rouvinetis had no claim in negligence against the defendants, on his pleadings. 12 Mr Rouvinetis' case was that there had been a breach of the Community Use of School Facilities policy document, as he alleged. This had resulted in the Jewish Board of Deputies wrongly being permitted to use the School. He had entered the School, where he was well known, as a member of the constituency, as he was entitled to do. Whileever he was on the grounds of a public school, the defendants had a duty to ensure his safety. They had failed in their duty towards him and so he was entitled to proceed with his claim in negligence. 13 Mr Rouvinetis emphasised his passionate belief in his cause, describing this as a 'historical test case'; his view that justice lay with him; that the State, which took money from him, in relation to the treatment which he received for his injuries, could not deny the responsibility which it had to ensure his safety while he was in a public place such as the School. That he had claims against other entities which he was pursuing, was irrelevant to his right to pursue the defendants in these proceedings. His claims were not frivolous or vexatious, but reflected the serious injuries he had sustained, as the result of the defendants' failures. 14 Mr Rouvinetis also emphasised that his complaint flowed from the defendants' wrongful breach of the applicable policy. The Jewish Board of Deputies ought never to have been allowed to use the School. In these proceedings, he was confronted with the forces of evil and was bound to pursue his claims. Consideration 15 There is no question that the Court has the power to make the orders sought. The onus falling on the defendants is, however, a high one. Its application must be considered in accordance with the approach discussed by the High Court in General Steel Industries Inc v Commissioner for Railways NSW (1964) 112 CLR 125. The General Steel test is a particularly stringent one, which may only result in dismissal of the proceedings at a stage like this, where there is no reasonable cause of action disclosed on the pleadings and where it is clear that the plaintiff's case is so untenable, that it cannot possibly succeed. The power must be exercised with great care, limited to cases such as those which are doomed to fail and where no pleading amendment could cure the defect. 16 This, it seems to me, is such a case, for reasons which I will explain. 17 In considering the defendants' application, Mr Rouvinetis' claims must be taken at their highest, namely on the basis of an assumption that the assault he complains about and the resulting injuries which he claims he suffered, will be established at trial. 18 Mr Rouvinetis' complaints are advanced on the basis that the Principal wrongly allowed a function to be conducted in the School premises by the Jewish Board of Deputies, where the assault by 'armed private personal body guards' occurred. He alleges that the Principal failed in her duty of care in not providing safety and security to anyone and everyone on School grounds during the function, including him. Mr Rouvinetis also claims that by her dereliction of duty, the Principal created a dangerous and volatile environment, by allowing armed private personal body guards at the School, with no links to the paid School security. He also claims that the Principal failed to take reasonable precautions and instead, had increased the risk of harm, by allowing armed private personal body guards in the school. The State accepts its liability for the Principal's actions. 19 Mr Rouvinetis does not claim to have had any right to be on the School grounds when he was assaulted, other than as constituent known to the School. He does not claim, for example, that he was there because he had a legal relationship with the School, such as being an employee, contractor or even a parent of a child who attends the School. He says he entered the School 'in concern for the PUBLIC institution and safety as a caring constituent'. Nor does he claim any relationship with the organisation conducting the private function. Undoubtedly, there are occasions where members of the public are invited to the School. Indeed, Mr Rouvinetis referred to such occasions, for example when the School grounds are made available for parking when certain events are underway in the vicinity of the School, albeit he also disagrees with such use being made of the School. He did not claim that this was such an occasion. 20 On his pleadings Mr Rouvinetis was not invited to enter the School, or to attend the function underway on the evening that he was assaulted. To the contrary, he came to be there because he happened to be passing by, saw the School open and upon entering, he observed that a function was in progress. On enquiry, he was advised that it was a private function and he was asked to leave, but refused. Mr Rouvinetis claimed to have a duty to investigate as he did, but the basis upon which such duty could have arisen, was not apparent. 21 Mr Rouvinetis also does not claim that the defendants had any relationship with the security guards who assaulted him, so that it could be claimed, for instance, that thereby they had liability for the security guards' conduct. To the contrary, it is his complaint that the security guards who assaulted him had no connection with the defendants, or the security guards they usually engaged at the School and that these guards ought not to have been permitted on School grounds at all. 22 The test as to whether it could be claimed that the defendants owed Mr Rouvinetis any duty of care was discussed by the High Court in Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479. There, at [11] Mason CJ, Wilson, Deane and Dawson JJ adopted the observations of Dean J in Hackshaw v Shaw (1984) 155 CLR 614 pp 662 - 663: "... it is not necessary, in an action in negligence against an occupier, to go through the procedure of considering whether either one or other or both of a special duty qua occupier and ordinary duty of care was owed. All that is necessary is to determine whether, in all the relevant circumstances including the fact of the defendant's occupation of premises and the manner of the plaintiff's entry upon them, the defendant owed a duty of care under the ordinary principles of negligence to the plaintiff. A prerequisite of any such duty is that there be the necessary degree of proximity of relationship. The touchstone of its existence is that there be reasonable foreseeability of a real risk of injury to the visitor or to the class of person of which the visitor is a member. The measure of the discharge of the duty is what a reasonable man would, in the circumstances, do by way of response to the foreseeable risk." 23 Here, the existence of a duty of care on the part of the defendants must be established in circumstances where the School premises had been hired out for a private function, in accordance with a Departmental Policy designed to give community groups access to those premises. 24 Mr Rouvinetis' case rested on the claim that the Departmental Policy was breached, because it was the Jewish Board of Deputies who were given permission to use the School. He also complained that the function was attended by the Minister of Education. I am satisfied that the possibility of any breach of this Policy being established on the basis of these complaints, or that any such breach of the Policy, even if established, could give rise to a cause of action in negligence, is non-existent. The defendants can have owed Mr Rouvinetis no duty of care, in relation to the observation or implementation of the Policy. 25 Can a claim in negligence otherwise be established? 26 Mr Rouvinetis did not claim that he had any connection or relationship with any of the defendants, or the community organisation conducting the function, either contractually, under any statute, or on any other basis which could give rise to a duty of care. At his highest, his case is simply that he was a member of the public who was owed a duty of care by the defendants, once he had entered the School. 27 Mr Rouvinetis does not claim to have been invited to attend the School or the function; rather, on his own initiative, he entered to investigate why the School was open, when he was passing by and saw that it was open. He refused to leave when asked to do so. His complaint is that he was assaulted by the security guards hired by the organisation conducting the function, when they detained him until the police attended. 28 It seems to me that it may be accepted that it is foreseeable that a member of the public who entered the School in such circumstances might be injured when being dealt with by security guards hired by a community organisation, granted permission to use the School for a private function. Foreseeability of such injury is not, of itself, however, a basis upon which it can be concluded that any duty of care was owed by the defendants to a person so injured. It has long been the law that 'The general rule is that one man is under no duty of controlling another man to prevent his doing damage to a third', in the words of Dixon J, the former Chief Justice of the High Court (see Smith v Leurs (1945) 70 CLR 256 at 262). 29 There are well established exceptions to this general rule, which do not arise for consideration in this case. Otherwise such exceptions are not lightly established. In Modbury Triangle Shopping Centre Pty Ltd v Anzil and Anor (2000) 205 CLR 254, for example, the High Court considered the duty of an occupier for the deliberate wrongdoing of others, there persons who had assaulted the plaintiff, an employee working at a shopping centre, at the occupier's car park. His Honour Gleeson CJ, observed: [30] There may be circumstances in which, not only is there a foreseeable risk of harm from criminal conduct by a third party, but, in addition, the criminal conduct is attended by such a high degree of foreseeability, and predictability, that it is possible to argue that the case would be taken out of the operation of the general principle and the law may impose a duty to take reasonable steps to prevent it. The possibility that knowledge of previous, preventable, criminal conduct, or of threats of such conduct, could arguably give rise to an exceptional duty, appears to have been suggested in Smith v Littlewoods Organisation Ltd [1987] AC 241 at 261, per Lord Mackay of Clashfern. It also appears to be the basis upon which United States decisions relating to the liability of occupiers have proceeded [1987] AC 241 at 261, per Lord Mackay of Clashfern. A leading American textbook states that [Prosser and Keeton on the Law of Torts, 5th ed (1984), pp 199-201 (footnotes omitted)]: "The duty to take precautions against the negligence of others ... involves merely the usual process of multiplying the probability that such negligence will occur by the magnitude of the harm likely to result if it does, and weighing the result against the burden upon the defendant of exercising such care. ... There is normally much less reason to anticipate acts on the part of others which are malicious and intentionally damaging than those which are merely negligent; and this is all the more true where, as is usually the case, such acts are criminal. Under all ordinary and normal circumstances, in the absence of any reason to expect the contrary, the actor may reasonably proceed upon the assumption that others will obey the criminal law." [31] That does not represent an accurate statement of the common law in Australia. [32] The factor most commonly taken into account in the United States in determining whether criminal activity was reasonably foreseeable is knowledge on the part of the occupier of land of previous incidents of criminality [See Kline v 1500 Massachusetts Avenue Apartment Corporation (1970) 439 F 2d 477; Holley v Mt Zion Terrace Apartments Inc (1980) 382 So 2d 98; McClendon v Citizens and Southern National Bank (1980) 272 SE 2d 592; Butler v Acme Markets (1982) 89 NJ 270; McCoy v Gay (1983) 302 SE 2d 130; Ann M v Pacific Plaza Shopping Center (1993) 863 P 2d 207; Piggly Wiggly Southern Inc v Snowden (1995) 464 SE 2d 220; McClung v Delta Square Ltd Partnership (1996) 937 SW 2d 891; Nivens v 7-11 Hoagy's Corner (1997) 133 Wn 2d 192; Sturbridge Partners Ltd v Walker (1997) 482 SE 2d 339.] . [33] It could not reasonably be argued that the present is such a case. There had been illegal behaviour in the area. A restaurant near the car park had been broken into. During a period of a year before the incident in question, there had been two attempts to break into an automatic teller machine. About a year before the incident, the car window of an employee of the video shop had been smashed. This does not indicate a high level of recurrent, predictable criminal behaviour. [34] It is unnecessary to express a concluded opinion as to whether foreseeability and predictability of criminal behaviour could ever exist in such a degree that, even in the absence of some special relationship, Australian law would impose a duty to take reasonable care to prevent harm to another from such behaviour [Mason P, in W D & H O Wills (Australia) Ltd v State Rail Authority (NSW) (1998) 43 NSWLR 338 at 358-359, indicated a negative opinion on that question, and gave cogent reasons for that indication.] . It suffices to say two things: first, as a matter of principle, such a result would be difficult to reconcile with the general rule that one person has no legal duty to rescue another; and secondly, as a matter of fact, the present case is nowhere near the situation postulated. [35] The most that can be said of the present case is that the risk of harm of the kind suffered by the first respondent was foreseeable in the sense that it was real and not far-fetched. The existence of such a risk is not sufficient to impose upon an occupier of land a duty to take reasonable care to prevent harm, to somebody lawfully upon the land, from the criminal behaviour of a third party who comes onto the land. To impose such a burden upon occupiers of land, in the absence of contract or some special relationship of the kind earlier mentioned, would be contrary to principle; a principle which is based upon considerations of practicality and fairness. The principle cannot be negated by listing all the particular facts of the case and applying to the sum of them the question-begging characterisation that they are special. There was nothing special about the relationship between the appellant and the first respondent. There was nothing about the relationship which relevantly distinguished him from large numbers of members of the public who might have business at the Centre, or might otherwise lawfully use the car park. Most of the facts said to make the case special are, upon analysis, no more than evidence that the risk of harm to the first respondent was foreseeable. [36] The appellant is entitled to succeed upon the ground that its duty as an occupier of land did not extend to taking reasonable care to prevent physical injury to the first respondent resulting from the criminal behaviour of third parties on that land. 30 Mr Rouvinetis claims no relationship with either the defendants or the organiser of the function, to establish his claim that the defendants owed him a duty of care once he entered the School. He claims that such a duty arose from the simple fact of his presence at the School, a public institution on Crown land. The High Court's approach in Modbury presents a powerful impediment to the case which Mr Rouvinetis seeks to advance. It has been repeatedly applied. (See for instance the Court of Appeal's decisions in Spedding v Nobles; Spedding v McNally [2007] NSWCA 29, Wagstaff v Haslem (2007) 69 NSWLR 1 and in the case of the duty of care in hotel and club cases, in Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem [2009] NSWCA 29.) Could it sensibly be considered that this difficulty could be overcome? 31 In Nguyen v Hiotis and City of Charles Sturt [2000] SASC 88, the South Australian Court of Appeal also had to consider a strike out application, which had been refused at first instance. In that case the plaintiff had attended a fashion parade and concert at a Town Hall. The Hall had been hired out by the defendant to those conducting the event. The plaintiff also claimed that the defendant owed him a duty to ensure his safety and security, while he attended the event. When he was assaulted at the event, he brought proceedings against the defendant, the owner of the Hall. 32 Unlike the complaint made in this case, the assault was not the result of the security guards' conduct, but resulted from the conduct of other attendees of the event. The plaintiff's complaint was that the security arranged by the hirer of the Town Hall was inadequate for the security necessary to ensure safety at the event, which he had paid to attend and that as occupier of the Hall, the defendant had a duty to ensure that the hirer made adequate arrangements to ensure his safety. The claim was regarded to be a novel one and after careful consideration, the appeal was upheld and the claim struck out. 33 While the Court of Appeal saw a basis upon which a duty of care to the plaintiff might arise in relation to the physical state of the premises, it concluded that the defendant owed no other duty of care to the plaintiff, not even a duty to take reasonable care that the person who had hired the Hall made adequate arrangements for crowd control or security for persons attending the event. 34 In this case, the possibility of the existence of a duty between the defendants and Mr Rouvinetis was even more remote, especially in the case of the Principal. The School was hired out to a community organisation for a private function, not one which members of the public might attend for a price. Mr Rouvinetis did not pay to attend the function, he was not even invited to attend. He had no connection with the School or organisers of the function, he did not even know that a function was underway, but entered the School nevertheless. Once there, he observed that the function was in progress. He was told it was private and was asked, but refused, to leave. When he persisted with his demands, he was dealt with by the security personnel arranged for the function by the Jewish Board of Deputies. Those who assaulted Mr Rouvinetis had no connection at all with the defendants, who themselves had other security arrangements in place for the School premises. 35 Unlike Nguyen, here the complaint advanced is not an absence of adequate security, but that the defendants ought not to have permitted the security arrangements made by the Jewish Board of Deputies, to have been made at all. Indeed, they ought not to have been permitted to conduct the function. I am satisfied that there is no basis upon which it could be concluded that the defendants owed Mr Rouvinetis any such duty. 36 Mr Rouvinetis does not suggest that there ought to have been no security at the School. It is the identity of the third party given access to the School and the fact that its security arrangements for the function it was holding, were different to those ordinarily in place at the School, about which he complains. 37 The Conditions of Use under which the Jewish Board of Deputies were permitted to use the School, required that they ensure that all persons allowed on the premises 'conduct themselves properly'. That obligation extended to both the security personnel they engaged and to Mr Rouvinetis, once he entered the School, while the function was underway. 38 There is no suggestion in the pleadings that the function was being conducted by the defendants. Other than having permitted the use of the School, it is not suggested that they had any other interest in the function which the Jewish Board of Deputies arranged, although Mr Rouvinetis does complain that the Minister attended the function as a guest. There was no suggestion, however, that the function was being conducted by the defendants, or that the security personnel who assaulted Mr Rouvinetis, were under the defendants' control. 39 Nor is it suggested that the defendants knew, or ought to have known that it was likely that the particular security personnel engaged to provide security at the function, would assault Mr Rouvinetis. That there was any foreseeable risk of harm to Mr Rouvinetis from the engagement of the particular security personnel in question, which the defendants ought to have been aware of and ought to have taken steps to control, is not claimed. 40 The only basis of the defendants' alleged duty to Mr Rouvinetis is that the defendants permitted the Jewish Board of Deputies to conduct a function at the School and that he was assaulted there, by the personnel whom they engaged to provide security. It is not claimed that the defendants had any connection with, or control over those who Mr Rouvinetis claims assaulted him. In all of these circumstances I am satisfied that there is no prospect that the defendants could be found to have any duty of care to Mr Rouvinetis, as he claims. 41 While Mr Rouvinetis brings his proceedings under the Civil Liability Act 2002, that takes his case no further. There is no basis on which it may be concluded that the defendants owed Mr Rouvinetis any duty of care, in the circumstances raised on the pleadings, or that this difficulty is curable by any amendment. 42 I finally note that the provisions of the Civil Procedure Act 2005, are also relevant to consider, in determining what here lies between the parties, at this stage of the proceedings. There it is required by s 58 that the Court must 'act in accordance with the dictates of justice', which requires that, amongst other things, the Court must act in accordance with the requirements of s 57, namely 'to facilitate the just, quick and cheap resolution of the real issues in the proceedings.' That obligation is to be approached in the way discussed by the Court of Appeal in Dennis v Australian Broadcasting Corporation [2008] NSWCA 37. 43 Those considerations but reinforce the conclusion that when a defendant satisfies the test established by the High Court in General Steel earlier referred to, the dictates of justice require that orders of the kind here sought by the defendants, must be made, notwithstanding the plaintiff's passionate desire to have his complaint dealt with at trial. Such a course would neither be just, quick nor cheap, in circumstances such as these. Orders 44 It follows that in accordance with Rule 13.4(b), no reasonable cause of action being disclosed in the proceedings, orders dismissing the proceedings must follow. I order accordingly. An order for costs would usually follow the event, but no order for costs was pressed at the hearing. 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