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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
OS 323 of 2000
LOHIA RAKA FOR HIMSELF AND ON
BEHALF OF 32 OTHERS WHOSE
NAMES ARE INSCRIBED IN THE
SCHEDULE HERETO
Plaintiffs
LEO TOHICHEM
First Defendant
SIR ARNOLD AMET CJ, CHAIRMAN
SIR MARI KAPI, DCJ,
JUSTICE SIR KUBULAN LOS,
comprising the JUDICIAL COUNCIL OF
PAPUA NEW GUINEA
Second Defendants
THE INDEPENDENT STATE OF PAPUA
NEW GUINEA
Third Defendant
Waigani : Sakora J
JUDICIAL REVIEW – Application for Leave – Plaintiffs aggrieved by and challenging the failure or refusal to implement a National Executive Council decision in their favour – Employment rights and entitlements – Constitution, ss 190 and 191 – Public Service (Management) Act, 1986 (as amended), ss 12, 17, 19, 21 and 23 – National Judicial Staff Service Act, 1987, ss 2, 3, 3A, 4, 14 – 16, 17, 18 and 19 – 23 - Claims By and Against the State Act, 1996, s 8 - National Court Rules, O. 16, rr. 1, 3 and 4.
Cases Cited:
The following cases are cited in the judgment:
Inland Revenue Commissioners; Ex parte National Federation of Self-Employed and Small Businesses Ltd [1981] UKHL 2; [1981] 2 WLR 722
Ombudsman Commission v. Donohoe [1985] PNGLR 348
Amadio Pty Ltd v. Mt Kare Holdings Pty Ltd [1992] PNGLR 218
The Application of Demas Gigimat Unreported N1076, June 1992
Kekedo v. Burns Philp (PNG) Ltd & Ors. [1988-89] PNGLR 122
Independent State of Papua New Guinea v. Kapal [1987] PNGLR 417
NTN Pty Ltd v. PTC [1987] PNGLR 70;
Arawe Logging Pty Ltd v. The State [1988-89] PNGLR 216
Counsel:
Mr Stevens for the Plaintiffs.
Mr Kumura for the Defendants.
SAKORA, J: This is an application for leave to apply for judicial review pursuant to O. 16, rr. 1 and 3 of the National Court Rules (NCR). The requirement of r. 3(3) having been duly complied with by the giving of notice of the application to the Attorney-General, by the service on him of sealed copies of the Originating Summons, Notice of Motion, Statement under r. 3(2)(a) and the verifying Affidavit under r. 3(2)(b) NCR, the defendants were represented by counsel on the application, though such applications are usually made ex parte (r. 3(2)).
The Law
The purpose of the requirement for notice to the Attorney-General is so as to enable the State to appear on the preliminary proceedings, and, if necessary, to oppose the grant of leave if the application relates to a matter affecting the interests of the State. The State has the right to be heard on a leave application. In fact, to be more precise, the State does not have to be heard, but rather must be accorded an opportunity to be heard. This comes from s. 8 of Claims By and Against the State Act, 1996, which reads:
Notwithstanding anything in any other law, a court hearing an application for leave to apply for judicial review in a matter in which the State is a defendant shall not grant leave unless the State has been afforded an opportunity to be heard.
In this proceedings the State itself is named as a party (third defendant). It ought to be mentioned also that each of the other defendants was duly served with the pertinent documents (supra). The Office of the Solicitor-General represents all the defendants. Thus, as the State is a party, in its various forms, in the proceedings, the reference to ex parte hearing in O. 16, r. 3 (2) NCR does not apply here because of the operation of s. 8 Claims By and Against the State (supra). Perhaps this is the situation envisaged by Lord Diplock’s dicta in Inland Revenue Commissioners; Ex parte National Federation of Self-Employed and Small Businesses Ltd [1981] UKHL 2; [1981] 2 WLR 722, where (at 738) his Lordship said:
The procedure under the new Order 53 involves two stages: (1) the application for leave to apply for judicial review, and (2) if leave is granted, the hearing of the application itself. The former, or ‘threshold’ stage is regulated by rule 3. The application for leave to apply for judicial review is made initially ex parte, but may be adjourned for the persons or bodies against whom relief is sought to be represented.
At this preliminary, but threshold, juncture of the application for judicial review, the Court is and ought to be concerned only with the issue of whether or not leave should be granted to make the substantive application. It is noted that with the State’s representation I would have had the benefit of full arguments on both sides, if the State had objected to the grant of leave. In this instance, learned counsel for the defendants indicated the State was not contesting leave. Thus the situation is as if it were a straight-forward ex parte application where, as Amet J (as he then was) observed in the Supreme Court decision in Ombudsman Commission v. Donohoe [1985] PNGLR 348 at 361:
On an application for leave to file an application for judicial review the Court need only be satisfied as to the requirement of O. 16, rr. 2, 3 and 5. The application, of course, is ex parte and so the Court does not have any other material contesting the application.
The law on applications for judicial review is well-settled in this jurisdiction. As noted already here, such applications are usually ex parte (with the notable exception now as adverted to, supra). In the 1992 National Court decision in Amadio Pty Ltd v. Mt Kare Holdings Pty Ltd [1992] PNGLR 218 Justice Woods emphasised the established principles in seeking judicial review, noting (at 221) that:
The Court in considering leave to review is not necessarily concerned with the merits of the decision in respect of which the review is sought but, rather, the decision-making process itself.
Prior to this, the learned judge acknowledged that "the argument on a leave application is limited to whether there is an arguable case to review the decision sought to be reviewed" (at p. 220, italics provided).
In the same month in 1992 as the decision in Amadio Pty Ltd (supra), Woods J, had the occasion to re-visit the established principles on judicial review in The Application of Demas Gigimat (unreported N1076, June 1992, at p. 3):
The established principles in seeking leave for judicial review emphasise that an applicant must show that he has an arguable case. The court in considering leave to review is not necessarily concerned with the merits of the decision in respect of which the review is sought but rather the decision making process itself.
(italics mine)
His Honour was, of course, echoing the same sentiments as expressed previously in other cases, but more particularly, Ombudsman Commission v. Donohoe (supra, his Honour being a member of that Supreme Court); Kekedo v. Burns Philp (PNG) Ltd & Ors. [1988-89] PNGLR 122; and Independent State of Papua New Guinea v. Kapal [1987] PNGLR 417 (his Honour being a member of this Supreme Court as well).
The requirements for leave to be obtained before an applicant can proceed to impugn the decision of a public body or tribunal provide protection against unmeritorious, trivial and vexatious applications. Apart from the possible adverse effects on the public image and integrity of the public officer, body or tribunal concerned, there is also the important consideration that operations and management of public bodies or institutions ought not be hampered or adversely affected in any other way having their decisions and actions rendered uncertain by the Courts having before them challenges that have no legal merits.
The leave requirements also enable the Courts to have control over their proceedings. The flood-gates effect on litigation is prevented and, in the process, abuse of the judicial process is discouraged. Tardy, groundless and unmeritorious challenges upon the validity or legality of administrative and, indeed, judicial and quasi-judicial decisions are detected from the very outset and removed (by dismissal) before they clog up the system.
Lord Diplock expressed the purpose(s) in somewhat different but very succinct terms in the Inland Revenue Commissioners case (supra) as follows:
Its purpose is to prevent the time of the court being wasted by busybodies with misguided or trivial complaints of administrative error and to remove the uncertainty in which public officers and authorities might be left as to whether they could safely proceed with administrative action while proceedings for judicial review of it were actually pending even though misconceived . . . (at 730)
(italics mine)
Thus, as in ordinary private law litigation, if the originating process disclosed no reasonable cause of action, if it is (the claim or allegation) scandalous, frivolous or vexatious, or if it otherwise constitutes an abuse of the process of the Court, the action or application may be dismissed.
Order 16, r. 3(5) NCR requires the applicant to demonstrate sufficient interest in the subject-matter of the intended litigation. This enables the Court to be satisfied that the applicant is not a "meddlesome busy body". Thus, through this sub-rule the issue of locus standi is determined at the outset. The requirement of locus standi or standing determines who exactly is legally entitled to bring a particular dispute or claim before the Courts and invoke the powers of the Courts. Thus, once again, only meritorious interests gain access into the Courts. Some commentators use the term real interest to convey the same notion, as opposed to, for instance, an ideological concern in the outcome. Perhaps, yet another way of describing this requirement is as others have where they use the phrase genuine grievance rather than, say, litigation out of spite or malice.
The law on this is quite clear and well-settled now, from a line of decisions in recent times within the (Commonwealth) common law jurisdictions of the world, following the authoritative pronouncements of Lord Diplock in the Inland Revenue Commissioners case (supra). See also: the judgment of Lord Wilberforce, particularly on the requirements of leave providing safeguards. Lord Diplock, whilst explaining the procedure under Order 53 of the English Rules of the Supreme Court (RSC), identical to our O. 16 (NCR), added this:
Rule 3 (5) specifically requires the court to consider at this stage whether ‘it considers that the applicant has a sufficient interest in the matter to which the application relates’. So this is a ‘threshold’ question in the sense that the court must direct its mind to it and form a prima facie view about it upon the material that is available at the first stage. The prima facie view so formed, if favourable to the applicant, may alter on further consideration in the light of further evidence that may be before the court at the second stage, the hearing of the application for judicial review itself.
It is, with respect, helpful in my opinion to note what Lord Wilberforce said in the same case (at 727):
There may be simple cases in which it can be seen at the earliest stage that the person applying for judicial review has no interest at all, or no sufficient interest to support the application: then it would be quite correct at the threshold to refuse him leave to apply. The right to do so is an important safeguard against the courts being flooded and public bodies harassed by irresponsible applications. But in other cases this will not be so. In these it will be necessary to consider the powers or duties in law of those against whom the relief is asked, the position of the applicant in relation to those powers or duties, and to the breach of those said to have been committed. In other words, the question of sufficient interest can not, in such cases, be considered in the abstract, or as an isolated point: it must be taken together with the legal and factual context. The rule requires sufficient interest in the matter to which the application relates.
Two Papua New Guinea (PNG) cases (amongst many in recent times) on this point are: NTN Pty Ltd v. PTC [1987] PNGLR 70; and Arawe Logging Pty Ltd v. The State [1988-89] PNGLR 216.
As acknowledged already (in the cases cited, supra) the applicant carries the onus of establishing to the satisfaction of the Court that he has an arguable case that warrants, by law, determination by way of review. Once again reference to and support must be had from the authoritative statements in the judgment of Lord Diplock in the oft-cited case of Inland Revenue Commissioners (supra) where he said this:
The whole purpose of requiring that leave should first be obtained to make application for judicial review would be defeated if the court were to go into the matter in any depth at that stage. If, on a quick perusal of the material then available, the court thinks that it discloses what might on further consideration turn out to be an arguable case in favour of granting to the applicant the relief claimed, it ought, in the exercise of a judicial discretion, to give him leave to apply for that relief. The discretion that the court is exercising at this stage is not the same as that which it called upon to exercise when all the evidence is in and the matter has been fully argued at the hearing of the application.
(italics mine)
Another prerequisite before the Court can exercise its discretion in favour of grant of leave is that the applicant must show that he has exhausted all administrative avenues and remedies for relief or resolution. The PNG case authorities on this reflect the common law position, so that in PNG v. Kapal (supra), the Supreme Court (Kidu CJ; Kapi DCJ and Woods J) held that (headnotes):
Proceedings for judicial review of a decision of the National Executive Council to provisionally suspend a provincial government should not be entertained where the procedure provided for in the Organic Law on Provincial Government have not been completed or exhausted.
The learned Chief Justice and Woods J (in a joint judgment) said this (at pp. 421 – 422):
The second matter we wish to comment upon is what we would call a "threshold question" in the decision as to whether or not to judicially review the NEC decision to provisionally suspend. One of the fundamental rules in relation to judicial review is the question as to whether the applicant for judicial review has exhausted other remedies provided by law, eg; statutory provisions for appeal. Generally it is the rule that the judicial review jurisdiction will not be exercised where other remedies available have not been used: see, eg; R v. Epping & Harlow General Commissioners; Ex parte Goldstraw [1983] 3 All ER 257 at 262 per Sir John Donaldson (with Purchas concurring). This rule is subject to cases where facts and circumstances show that judicial review is more appropriate or convenient to do justice.
The learned Deputy Chief Justice acknowledged the existence of the "process set out under the terms of the Organic Law on Provincial Government ...", and concluded that the trial judge ought to have allowed that process to go ahead before intervening (at 426). In that case the proceedings were brought immediately after the NEC suspended the provincial government.
The law on this point as enunciated in PNG v. Kapal (supra) was subsequently confirmed in Kekedo v. Burns Philp (supra). The Supreme Court there (Kapi DCJ; Amet J (as he then was) and Cory J) held that: It would be an abuse of process for the National Court to grant an application for leave to apply for judicial review whilst alternative appeal procedures were being pursued.
Finally, the Court entertaining an application for leave must consider whether or not there has been delay in the making of the application. Whilst O. 16 (NCR) does not prescribe any time limit (except application for an order of certiorari: r. 4(2)) for making the application, discretion is vested in the Court to refuse leave if there has been undue delay. Rule 4 of O. 16 is in the following terms:
(1) Subject to this Rule, where in any case the Court considers that there has been undue delay in making an application for judicial review or, in a case to which Sub-rule (2) applies, the application for leave under Rule 3 is made after the relevant period has expired, the Court may refuse to grant –
- (a) leave for the making of the application; or
- (b) any relief sought on the application,
if, in the opinion of the Court, the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights, of any person or would be detrimental to good administration.
(italics mine).
(2) In the case of an application for an order of certiorari to remove any judgment, order, conviction or other proceeding for the purpose of quashing it, the relevant period for the purpose of Sub-rule (1) is four months after the date of the proceeding.
(3) Sub-rule (1) is without prejudice to any statutory provision which has the effect of limiting the time within which an application for judicial review may be made.
If granted leave, the applicants will apply for judicial review of what they contend are the acts, actions, omissions and decisions (or lack of) in respect of the National Executive Council (NEC) Determination No. 125 of 1993, as affected and affects all of the 33 applicants, with a view to obtaining the orders set out in the Notice of Motion filed 14 June 2000. These orders sought are in the same terms as the claims in the Originating Summons. And these are set out in full hereunder as follows:
Factual Background
The circumstances surrounding and giving rise to this application and relied upon here are set out or provided, in compliance with the requirement of O. 16, r. 3(2) NCR, in the Statement filed with this application. These are reproduced hereunder as follows:
The facts, the circumstances, set out in the Statement have been verified in and by the affidavit of Robin Guria sworn 7 June and filed 14 June 2000, pursuant to O. 16, r. 3(2)(b) NCR. All of these are said to be confirmed by and in the affidavit of Lohia Raka sworn 4 August 2000 and filed of even date.
The matters deposed to in these two affidavits, verifying and confirming as they do, the applicants contend, the Statement filed pursuant to O. 16, r. 3(2)(a) NCR, constitute or demonstrate, in the submission of the applicants, the four (4) requirements or prerequisites for the exercise of the Court’s discretion in favour of grant of leave, which are, of course, the following:
Conclusion
The law on this subject having been canvassed here, even if only briefly, I, in the end, respectfully apply the well-established principles as enunciated in the oft-cited English case (supra) and their adoption in the PNG cases (supra), to the instant case.
In relation to the requirement for locus standi, the applicants could hardly be described as meddlesome busybodies having no real or sufficient interest in the circumstances or the matter to which this application relates. The subject NEC decision affected their rights and entitlements as officers in the service of the State. The decision or determination was declared to be applicable to them. The applicants’ assertion that the responsible officer or authority within the NJSS had and continues to refuse or fail to implement the determination in their favour and to their benefit would demonstrate, in my view, a genuine interest, a direct legal interest in the matter and its outcome.
I, therefore, find this particular requirement or prerequisite for leave has been made out to my satisfaction.
The material before me that remain unchallenged demonstrate that the responsible officer or authority within the NJSS had refused and continues to refuse, or had and has shown reluctance, to implement or give effect to the NEC determination. I am thus satisfied that this action or attitude, or indeed inaction, had and continues to have detrimental effects on the applicants. It would appear that all other public authorities in the public sector have implemented the NEC decision as affects them. The applicants here have alleged and asserted that no reasons have been offered to them for this refusal or reluctance to implement the decision.
In my opinion, serious legal issues have been raised in the material before me that warrant review and determination in a substantive application. Thus, I conclude that the applicants have an arguable case for me to grant leave.
The requirement or prerequisite of having availed of and exhausted any administrative or non-judicial remedies before making this application has, in my view, been amply borne out by the facts and circumstances put before me in the Statement and the verifying affidavits.
Unlike, it is argued, the Public Service (Management) Act, 1986, which vests quasi-judicial powers on departmental heads and the Public Service Commission (PSC) in respect of disciplinary and personnel matters, the NJSS Act contains no similar authorities and provisions (see, however, Part III, ss 14 – 23). The PSC is established by s. 190 of the Constitution (see: Constitutional Amendment No. 8). Its powers are provided for under s. 191 (as amended by No. 8, supra) in the following terms:
Under the Public Services (Management) Act, the powers of the PSC are further expanded and elaborated upon under s. 12, where it is vested also with certain penal powers to enable it to perform its functions. Section 17 gives the PSC the duty and power to review personnel matters connected with the NPS. Similarly, review of organizational matters: s. 18. Section 19 establishes the Department of Personnel Management, and such other Departments; s. 21 provides for the creation and abolishing of the offices of Departmental Heads. Their responsibilities are spelt out under s. 18, where, under subsec. (2), the responsibilities of the Departmental Head of the Department of Personnel Management are provided. And these are as follows:
(2) The Departmental Head of the Department of Personnel Management –
- (a) is responsible for –
- (i) the proper administration of this Act; and
- (ii) the application and interpretation of terms and conditions of employment in the National Public Service; and
- (iii) the setting of terms and conditions of employment for the National Public Service and the setting and prescribing of conditions of service of the National Public Service; and
- (iv) the conduct of industrial relations with public sector employee organisations; and
- (v) the retrenchment of officers from the National Public Service; and
- (vi) the formulating of General Orders under Section 53; and
- (b) has such other functions and duties as are specified in this Act or under Section 20(2); and
- (c) is responsible for the selection of –
- (i) persons for appointment as officers; and
- (ii) officers for appointment, promotion and transfer,
in accordance with the procedures specified in the General Orders.
(3) . . .
The latter Act creates the administrative position of Secretary: s. 4(1). He is the "Head of the Service" responsible to the Council for the general working and the efficient conduct of the business of the Service.
The Service is the NJSS established by s. 2(1) of the NJSS, and consists of, by s. 2(2):
(a) The Secretary; and
(b) The Registrar and Deputy Registrar appointed under the National Court Act (Chapter 38); and
(c) the other officers and employees of the Service.
Its stated functions, under s. 3, include provision of all manner of logistical and manpower support to the Courts to enable them to perform and discharge their Constitutional duties and functions. The Council is the Judicial Council established by s. 3A(1), and consists of, pursuant to sub-s (2), the following members:
(a) the Chief Justice; and
(b) the Deputy Chief Justice; and
(c) the Chief Magistrate; and
(d) the Judge nominated by the Chief Justice; and
(e) a Magistrate nominated by the Chief Magistrate.
Section 10 of the Act provides for the responsibilities of the Secretary in the following terms:
(1) The Secretary shall report to the Council wherever the necessity arises–
(a) any alterations in the organisation, staffing or management of the Service that are, in his opinion, necessary or expedient for the more economical efficient or convenient working of the Service or any branch of it; and
(b) any alterations that are, in his opinion, necessary in the salaries or allowances of any of the officers or employees of the Service.
(2) The Secretary shall bring to the attention of the Council, any matter, whether in relation to an officer or to the work of a branch or section of the Service, that he thinks it desirable for the Council to be acquainted with.
It is to be noted that, whilst the Act makes elaborate provisions in respect of disciplinary matters (Part III, ss 14 – 19 and 20 – 23), there is nothing in relation to personnel matters directly concerned with employment rights and entitlements. Section 26 provides for the making of Regulations by the Head of State, acting on advice, inter alia, for the efficient control and management of the Service, and in particular for –
(a) prescribing the terms and conditions of appointment and of employment of officers, the manner of recruitment of persons to the Service and the powers and procedures of an Appeal Tribunal; and
(b) making provision for the establishment of a superannuation scheme or provident fund to provide benefits for officers of the Service on retirement, resignation, retrenchment or death; and
(c) . . .
Finally, the Transitional provisions of the Act (Part IV) provide for the transfer from and retention of status and entitlements under the Public Service (Management) Act, 1986 (as amended) under this Act. As if to re-emphasise the point, s. 31 is in the following terms:
All periods that were counted as service in the National Public Service shall be counted as service for the equivalent purposes under this Act.
No clear legislative arrangement for officers such as these applicants to have recourse to for the airing of grievances and seeking remedies in an informal non-judicial way exists under the Act that directly governs them. Thus, for purposes of immediate administrative remedies, the applicants do not have authorities such as the PSC in the event of grievances against the actions, inactions or decisions (or indecisiveness) on the part of the Secretary.
The material demonstrate to my satisfaction that the applicants have had recourse to the limited avenue under their legislation, the Secretary for NJSS, on several occasions to seek and obtain remedies for their grievances, and this recourse has so far proven fruitless. It is, therefore, instructive to make reference to the two supporting affidavits which depose to these. Robin Guria, in his affidavit (supra), at paragraphs 16 to 18, deposes to these. Firstly, he says that the matter had been raised with the first defendant and his predecessors without success. Then, in early March of this year the plaintiffs approached the first defendant for the matter to be drawn to the attention of the Judicial Council, but have not received any response since, either from the Secretary himself or the Council. It would appear also that the discussions between the first defendant and the lawyer for the applicants in an effort to resolve the matter have turned up unsuccessful, with the first defendant, it is deposed to, not indicating his position, one way or the other, on the issues raised.
Mr Guria’s deposition on this is confirmed by Mr Lohia Raka in his own affidavit (supra). Indeed, Mr Raka deposes (at para. 6) that as at the date of swearing of his affidavit (4 August 2000), the only communication from the defendants on this matter is a letter from the first defendant dated 12 July 2000 advising that ". . . it is our position that as far as possible the matter be settled out of court". This is, of course, contrary to what this deponent says (at para. 6). Annexure "A", a copy of the letter does not say the defendants wish the matter to go to court. Be that, as it may, what had to be resolved merely entailed the first defendant doing what he had repeatedly been advised and instructed, and, thus, duty-bound to do. And that is give practical effect to the subject NEC decision.
The Secretary for NJSS had and has no independent discretion to exercise in the matter. Nor did and does the Judicial Council. The relevant decision-making body or authority in the matter had already performed its function. It only remained for the Secretary and other similar authorities to implement that decision. And this relevant decision-making body was the highest executive authority in the land.
Thus, what the first defendant said in the 12 July 2000 letter (supra) could not properly be described as anything positive for the applicants. The concluding parts of the letter were couched in uncertain and uncommitted terms, what I would describe as recipe for continued uncertainty and procrastination.
In relation to the prerequisite (for leave) that the application for judicial review be made without undue delay (O. 16, 4. 4 NCR, supra), because of the desire and efforts of the applicants to have the matter resolved internally, there necessarily have been some delay. The question as to whether or not the delay has been undue must be determined on the particular facts and circumstances of each case. The chronology of events have been well-documented in the material before me. It is not without consequence to note, I would suggest, that the apparent patience of the applicants has been the partial cause of this delay. The unresponsive attitude, not to mention the uncertainties inherent in this, on the part of the defendants, has been the other direct cause of the delay.
It is, in my opinion, more to the point to suggest here also that the object of the applicants’ grievance or dissatisfaction is not a matter that would involve or entail any complex time-consuming administrative decision-making process. Nor, indeed, involving or entailing any action or decision affecting organisational issues, such that any undue delay would be seen to have an adverse or detrimental effect on good administration.
Under the entire circumstances of this case, I am satisfied that what delay there has been has not been undue or unreasonable. Appreciating the circumstances here, it can safely be said that the object of the applicants’ grievance, the failure or refusal to implement the NEC decision was and is not a one-off administrative act or omission, or decision. It has been, and continues to be, a source of grievance.
In the end result, having been satisfied that the applicants have demonstrated an arguable case, one that is, in my opinion, ripe for substantive judicial review, I grant the leave sought for the applicants to apply for judicial
review.
_____________________________________________________________
Lawyers for the Plaintiffs: Stevens Lawyers
Lawyers for the Defendants Solicitor-General
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