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Wednesday, 18 July 1906


Mr ISAACS (Indi) (Attorney-General) . - I move -

That the Bill be now read a second time.

Honorable members are aware that the High Court of Australia was organized in October, 1903, and has, therefore, been in operation for nearly three years. In section 4 of the Act it is provided that the High Court shall be a superior Court of Record, consisting of the Chief Justice and two other Justices, who shall respectively be appointed by commission. That is to say, the High Court shall consist of three Judges, the minimum number mentioned in the Constitution. The Bill provides in clause 2 that section 4 of the Act shall be amended by omitting the word " two ' ' and inserting in lieu thereof the word " four," so that the section shall then read -

The High Court shall be a superior Court of Record, and shall consist of the Chief Justice and four other Justices, who shall respectivelybe appointed by commission.

The rest of the Act will, of course,apply to the five Judges, as it now does to thethree. Honorable members have before them, in the correspondence which has been printed and laid on the table, a vast amount of information as to the views of their Honours, the Justices of the High Court, with regard to the necessity of strengthening the Bench. I would direct attention to the fact that every effort has. been made by the Government to ascertain the views of those having the best means of affording information with respect to the necessity for that course, and with regard to the business and the prospects of business coming before the High Court, and before the Justices, outside of the ordinary business of that tribunal. Honorable members will see that the Prime Minister directed inquiries tobe made, which have led to the correspondence now in the hands of honorable members. I think that it will be admitted that the High Court of Australia has gained the complete confidence of the public. Inherently it is in a position of enormouspower and influence, and I think it is not too much to say that its decisions have justified the highest anticipations of its best friends. Apart from the Supreme Court of the United States, I do not think there is any legal tribunal in the world which has so much power. Even the House of Lords and the Privy Council may find their decisions upon any point whatever reversed by an Act of the Legislature. That is not always so with us. It is so in Canada in many respects, but so far as Australia is concerned, the Supreme Court has the almost unique power of controlling, by its decisions, the efforts of the Legislature itself. That, to my mind, is a veryimportant consideration.


Mr Johnson - It is a very dangerous power.


Mr ISAACS - I cannot conceive why it should be regarded as dangerous. I think it would be very dangerous if the Constitution did not provide for some legal control over the exercise of parliamentary power. This question was threshed out in the Federal Conventions, and provision was made in the Constitution for the powers to be exercised by the High Court. It would be of no use to apportion jurisdiction to the Commonwealth and the States respectively unless the Constitution provided for such control and would insure that the respective Legislatures would operate only within their own ambits. As I ha.ve said, the High Court was organized nearly three years ago, and honorable members will find in the report of Mr. Castle, the Principal Registrar, which is dated the 10th July - the report was brought up to the last moment prior to the tabling of the correspondence - a considerable amount of information that will enable them to judge of the enormous increase of business before the Court. The Court was established on the 5th October, 1903, and from that date until the end of that year sat for twelve days, and heard two appeals and eight motions and applications. In 1904 they heard' thirty-nine appeals and forty motions and applications. For the moment, I am passing; by the original jurisdiction of the Court. In 1905 the Court heard sixty-four appeals, and seventy-two motions and1 applications. During the present year they have already decided no fewer than forty-two appeals, and a very large number of motions. The number of appeals which they have dealt with during the first half of the present year is nearly as large as the total number dealt with last year, and the cases now awaiting attention will be more than sufficient to keep the Court employed for the greater part of the remaining portion of this year. In addition to that, even since the corres pondence was printed, a number of other appeals have reached the position of just being entered for hearing in the High Court. To my own knowledge, certain cases are coming forward from the State tribunals in South Australia and Victoria, and I presume that the same thing is happening with regard to other States. The amount of appellate business alone that has to be transacted by the High Court is, to my mind, sufficient to justify a measure such as this. It must be within the observation of honorable members, as it is certainly within the observation of those who come into professional contact with their Honours, and of those who have an opportunity of personally judging as to the manner in which those honorable gentleman transact their business, that the strain and stress upon them in their almost continuous application to appellate work is enormous. Those who, like myself, have had personal opportunities of judging, know full well that the magnitude and importance of the cases brought before therm and the industry and the application they bring to bear, must involve an enormous strain on their Honours. It is well known to those who practise before them that, however strenuously arguments may have taken place during the day, their Honours come prepared next morning in a manner that shows that they have been working overnight in dealing with many' difficult problems.


Mr JOSEPH COOK (PARRAMATTA, NEW SOUTH WALES) - How would the strain upon the Justices in connexion with the appellate jurisdiction be lessened if their number were increased to five ?


Mr ISAACS - If the number of Justices, were increased, an interchange might take place which would perhaps enable judgments to be considered, and there would not be that intense strain which now has to be undergone bv their Honours-, in order to dispose of the business as it comes along.


Mr JOSEPH COOK (PARRAMATTA, NEW SOUTH WALES) - I am inclined to think that with a larger Bench there would be more conflict of opinion, and, therefore, more strain.


Mr ISAACS - No. I think I 'can best answer the honorable member in the words of the learned Chief Justice, who, in his letter gives many reasons from the public stand-point, why the Court requires to be strengthened. In paragraphs 6 and 7, he says -

6.   The appellate business of the Court is of a very onerous and responsible character. In the large majority of cases, it is expedient, if not necessary, to reserve judgment. The present continuous pressure of work leaves us very little time for research, and for the preparation of written or even oral judgments. We do not think it desirable that a Court of final appeal should work at such constantly high pressure, from which, however, there is no prospect of escape so long as the number, of Justices is limited to three.

7.   Apart, therefore, from the question of the Commonwealth Court of Conciliation and Arbitration, we are of opinion that - if suitors desiring to have recourse to the original jurisdiction of the Court are to have a fair opportunity of doing so, and if the imminent risk of dislocation of the appellate work of the Court is to be provided for - it is absolutely necessary that some addition should be made to the number of the Bench. We think, further, that it is very improbable that Mr. Justice O'Connor will be free at any time during the present year to discharge his functions as President of the Arbitration Court.

In a previous portion of his letter His Honour the 'Chief Justice says that a sitting of the Full Court was appointed to be held at Adelaide on 21st inst. The letter is dated 8th May. His Honour pointed out that that business had been withdrawn, and that but for this accident the Court would certainly not have been able to dispose of the business still remaining to be heard in Sydney before leaving for Melbourne for the sittings of the Full Court appointed for the 28th May. He added, " In the actual state of affairs, it is possible that we may do so."


Mr JOSEPH COOK (PARRAMATTA, NEW SOUTH WALES) - Is it unusual for a Court to have business left over - that is constantly happening.


Mr ISAACS - It is very hard for the High Court to overtake arrears of business. In other Courts, the Judges may interchange, and the business may be brought up to date in that way, but the Justices of the High Court are continuously on the move from one State to another dealing with cases as they come along, and if once their business falls into arrear it is difficult for them to pick it up again. His Honour the Chief Justice pointed out that it was doubtful whether the Court would be able to dispose of the business still remaining to be heard in Sydnev before leaving for Melbourne for the sittings of the Full Court on the 28th May. As a matter of fact, the Court had to allow some business to stand over in Sydney and come on to Melbourne, and so strenuous were their efforts to finish the business in Melbourne in order to enable them to get back to Sydnev that in one case, of which I have a vivid recollection, arguments on a very important point had to be suppressed, and the cases merely handed in to their Honours.


Mr Mcwilliams - Is there any record of the number of days upon which the Court sits during the year?


Mr ISAACS - Yes, so far as the information could be completed. The appeal business of the Court is constantly growing. There is no doubt that the Court has so far established itself in the confidence of both the professional and the general public that its business, is increasing. I should like to point out, as a tangible reason that will appeal to honorable members from a commonsense point of view why the appellate business is likely io increase. The High Court has power to hear' appeals from the judgment of a single Judge in the States Courts. Therefore, there is no necessity, unless the parties desire it, for appealing first to the Full Court of a State, and subsequently to the High Court of Australia. Now, I must say that these continuous appeals constitute a very expensive process, and in many cases would result in the ruin of a litigant. I can best illustrate the position by citing one case which came within my own personal experience. There was a litigant who was not very wealthy, and whose widowed mother and sisters were to a large extent dependent upon him. He lived in a neighbouring State, and he was willing - in order that their rights to certain property should be asserted - to incur the expense of an action. The case, came before a single Judge of the Supreme Court of the State in question, and he was defeated. Had there been no appeal direct to the High Court - in other words, had this litigant, in case of defeat, been forced to appeal first to the Full Court of that State, he would have been able to go no further. On the contrary, assuming tha* he had won his case, he would have been carried further, either to the Privy CounCil or to the High Court, and he would not have been able to stand the expense of that litigation. Consequently, if that had been the position, he would never have appealed at all. But, having the right to appeal from the decision of a single Judge of the Supreme Court of the Stale direct to the High Court, he was able to bear the costs involved. He did so, and he succeeded in his action. I mention this case as a practical illustration of the reason why litigants are likely - wherever they can do so - to appeal direct to the High Court. By so doing their case is determined once and for all. There is no right of appeal subsequently to the Privy Council. The decision of the High Count is binding, or, as the Chief Justice says, "It is a final Court of Appeal." But whilst it is most advantageous to litigants that the number of appeals should be cut down, and that finality should be reached as early as possible, it is extremely important that the learned Justices of the High Court should not be rushed in the work which they have to perform, and that their decisions should be given after careful deliberation and full consideration. In this connexion I would point out that that tribunal, occupying as it does, a position of much dignity and responsibility, has to decide questions which involve not merely the interests of individuals and of large corporations, but the welfare of the States themselves, as well as of the Commonwealth. We can easily imagine very important questions indeed coming before the High Court - questions in which the rights and powers of the States Parliaments, as well as the constitutional powers of this Parliament, will be in dispute. It is, therefore, of the highest importance that the Court shall not be hurried in its deliberations, but shall be afforded the fullest opportunity for considering its important decisions. As matters stand, it is absolutely impossible for it to do the work which the public demand of it. If we go a step further, we find that the Constitution Act vests the High Court beyond any power of recall, with certain original jurisdiction.. The only other original jurisdiction with which it has been invested has reference to the interpretation of the Constitution. There are several cases at present awaiting decision by the Court, and I am told that some eleven writs in its original jurisdiction have been issued this year, of which I think two are ready for trial. At the present moment there are eleven outstanding cases, most of which, if not all, I think, we may expect sooner or later to be brought before the Court, that is to say, if the desire of those who have instituted the; actions, to obtain a decision from the High Court without any serious delay, can be satisfied. I would also point out the advantage of litigants being able to appeal direct to the High Court, from the stand-point of the expense involved, and the saving of time effected.

They might bring an action in the Supreme Court of a State upon a matter in which the State Court has concurrent jurisdiction, and as a result of that action they might be carried by way of appeal to the Full Court of that State, and subsequently to the High Court. In any case there would be at least two hearings, whereas if the litigation were commenced in the High Court the parties might agree to state a case for the Full Court, or the Justice who hears it might refer the matter to the Full Court, where it would be finally determined. The public appreciate this fact, and desire to avail themselves of the High Court, and it is only right that having created that tribunal it should be equipped with the numerical strength necessary to enable it to discharge the public functions for which it was called into being. I now come to another matter - I do not know what to term it, because it partly involves questions of original jurisdiction - but it is really one of auxiliary jurisdiction. This Parliament has seen fit to invest the High Court with original jurisdiction in mar.y respects. In this connexion I do not wish to refer to the many Acts which we have passed, such as the Customs Act, the Excise Act, the Post and Telegraph- Act, the Property for .Public Purposes Acquisition Act, the Electoral Act, the Defence Act. the Patents Act, the Conciliation and Arbitration Act, and the Trade Marks Act. But I specially wish to refer to the Conciliation and Arbitration Act, and I would invite the attention of honorable members to the urgent letter of His Honour Mr. Justice O'Connor upon this subject, dated 25th April, 7906. He says -

Circumstances have arisen which make it my duty to bring under the notice of the Government the present condition of business in the Commonwealth Court of Arbitration. A dispute alleged to have arisen between the Merchant Service Guild of Australasia, Employes, and the Commonwealth Steam-ship Owners' Association, Employers, was some months ago in proper form brought before that Court. On the 5th inst. both parties came before me to fix a time and place for hearing. The hearing will necessitate an inquiry into the status, wages, daily duties, and hours of employment of the officers of the mercantile marine of Australasia in the service of the steam-ship owners of Australasia. It is clear from the statements filed by the parties, and from the facts put before me on the application, that the case involves issues of vital interest to both parties, and of vast importance to the public, and, further, that having regard to the relation of the parties, and to the nature of the dispute, it is essential that the matters in difference should be settled as soon as possible, and when once entered upon should be heard continuously until determined. A month's continuous sittings of the Court, at least, in my opinion, would be necessary for the hearing.

I have some personal knowledge of that case, having been consulted in regard to it, and I think that the honorable and learned member for West Sydney is possessed' of similar knowledge. I think that he will bear me out that a month is a very small period within which to expect that matter to be settled. To my mind it will occupy at least two months, and probably more.


Mr Webster - It would be determined very quickly if it were settled within two months.


Mr Hutchison - I hope that the Court will be able to deal with all the matters mentioned bv His Honour.


Mr ISAACS - I hope so. But they cannot be dealt with, as matters stand at present. His Honour says - .

Looking through the list of the appeal sittings of the High Court for the remainder of the year, it is impossible to find even two or three days, much less a month, of the working time of the Court which is not fully occupied. In practically all the appeals three Judges are required to constitute a Court.

I have no hesitation in saying 'that the appeal business is much more congested now than it was when that letter was written. His Honour continues -

On the hearing, therefore, of the application, I find myself obliged either to take a course which would suspend all the appeal business of the High Court for a month, or to postpone the hearing of this most important dispute indefinitely.

I honestly think it is more likely that His Honour would have to postpone the whole cf the appeal business of that Court for three months than for one month.


Mr Wilks - Would it not be better to limit the Court to its appellate jurisdiction ?


Mr ISAACS - That is impossible. The Constitution vests a large amount of original jurisdiction in the Court. We could not have a Federal Conciliation and Arbitration Act without the High Court. Nobody would give to a Judge of the Supreme Court of any one State power to declare what the law should be in all the States. If an appeal were granted from the Full Court of. a State to the High Court, the whole of the three Judges would have to be engaged upon it.


Mr Wilks - Then all the legislation! that we have been passing has been for the purpose of providing work for the High* Court?


Mr ISAACS - Even in the debate which took place upon the Australian Industries Preservation Bill, the opinion universallyexpressed was that complaints lodged under that measure should be investigated by a Justice of the High Court rather than by a Boar8. His Honour proceeds -

As the alternative, in my view, less harmful1 in the administration of justice, I adjourned the application until August, in the hope that some chance might before then leave an interval irĀ» the High Court appeal business, but I see at present no prospect whatever of such an interval. If this condition of the High Court businessarose from temporary, causes not likely to recur, the position would not be so serious. But the condition has not arisen from temporary causes. It is the result of- the steady growth in the appeal business of the High Court, and all the indications are of a further increase rather than, a diminution in its volume.

I can say distinctly, both from my position as Attorney-General and as a member of the practising Bar, that His Honour's statement, is quite within the mark. Mr. Justice O'Connor continues -

Unfortunately, therefore, a delay amounting to practically a denial of justice to the partieshas become inevitable.

I think that no stronger words than those - " a denial of justice" - would be used. Seeing that we have told men that they must not strike, and that we have warned employers they must not lock-out, if so far we have only nominally created a tribunal to settle disputes between them, it is a denial of justice to take away from them the rights which they formerly had of urging their own interests, without giving .them the substituted right, namely, the intervention' of the State to settle their disputes. His Honour continues -

In my view, it will continue to be inevitable so long as the presence of the High Court Judge, who is President of the Commonwealth Arbitration Court, is essential to constitute the HighCourt sitting to hear appeals. In other words, so long as the High Court consists of three Judges only, it is impossible that one of those three Judges can adequately discharge the duties of the President of the Commonwealth Court of Conciliation and Arbitration.

HisHonour must have felt an enormous pressure upon him to induce him to communicate to the Government spontaneously - as he did in that case - his views upon the matter. When his; letter came to hand, the Prime Minister, who had charge of the matter,. was not content. He referred it, through me, to the Chief Justice of the High Court and his colleagues, and we invited their views upon it, altogether apart from the question of arbitration, and having regard only to the ordinary business of the Court. Then came the letter of His Honour the Chief Justice, in which he speaks on behalf of himself and all his colleagues. I have already sufficiently referred to that communication, and I need only add that his undoubted opinion was that an increase in the number of Justices was desirable. In order further to afford Parliament an opportunity of learning the minds of the Justices in regard to the extent of the increase required, I wrote to His Honour the Chief Justice upon the -19th June. Upon the 20th June, His Honour replied -

Having regard to the risk of interruption of the appellate business of the Court by the temporary illness or absence of one of the Justices, the importance of making provision for the exercise of the original jurisdiction of the Court which is now, of necessity, practically in abeyance, and the discharge of the functions of President of the Arbitration Court by one of the Justices, we are of opinion that the strength of the Bench should be increased by the appointment of two additional Justices.

So that the Government have done all that they could to bring before honorable members the authorative opinion of those whose only concern is, and must be, the proper discharge of their functions. These learned gentleman, who are placed far above any personal considerations, have informed the House and the country that they find a strain imposed1 upon them which is, indeed, hard to be borne. Struggle as they may, even in dealing with their appellate work, the strain upon them is very great. Further, it is not to be forgotten that the quality of the work is a very essential consideration where judicial decisions are concerned. We have to consider, not merely the quantity - which is very great - but the quality of the work. A hastily or imperfectly considered decision might mean the ruin of a litigant, the crippling of a Stave, or the fettering of the Commonwealth. Placed, as their Honours are, in a high and distinguished position, with a great responsibily centered in the Court, it is only right that, when thev appeal to Parliament, saying, " We cannot do our work with satisfaction ; we cannot endure the strain," we should recognise the position. They are only human, and are subject to the vicissitudes of humanity. That being so, we should recognise the posi- tion and inquire into it. We have done so, and the Government say to the House and the country that it is impossible for the Justices to properly discharge their functions unless they are assisted. It is for the House to say whether that assistance shall be given, and what its extent shall be. Mr. Castle, in his report pf the 10th ultimo, writes -

In 1906 the High Court has continuously been engaged from the close of the summer vacation until the commencement of the winter vacation, either in holding sittings or travelling to hold sittings. As the greater part of the business before the Court had to be dealt with by a Full Court of three Justices, no Justice has been available to try original jurisdiction cases, or cases in the Court of Conciliation and Arbitration.


Mr Johnson - What is the interval between the summer and the winter vacations ?


Mr ISAACS - Speaking from memory, I think it extends from the middle of February to the end of June. I shall point out directly what is the vacation in all the States, so that honorable members may judge of the matter for themselves.


Mr Mcwilliams - It is a question, not of what is the practice of the States Courts, but of how long the Justices of the High Court work.


Mr ISAACS - I shall deal presently with that point. Mr. Castle continued -

Notwthstanding the continuous work, the Court has been unable to dispose of all the business on the lists, and certain cases have had to stand over until the next half-year. In Sydney there are eight ca; es now awaiting hearing -

I am not in a position to state definitely that that number has increased, but according to hearsay it has. in Melbourne five -

I know that additions have since been made to that number - in Brisbane one, and in Perth several more. The Registrar at Perth expects that there will be quite twenty cases for hearing by the time the Court sits there in October next. The DeputyRegistrar in Melbourne expects that two or three additional cases will be set down within the next few days.

Then he goes on to say -

In my opinion, there is no reason to expect any falling off in business in the future. The increase in business has been continuous, and, although perhaps the business will not continue to increase at the same rate as it has in the past two years, I believe that it will continue to increase, especially in the States of Western Australia and Queensland.


Mr Conroy - Was that written after the Privy Council had decided that certain sections were ultra vires ?


Mr ISAACS - There has been no such decision by the Privy Council ; but even if there had been, it would not affect this matter in the slightest. I shall now answer the inquiries made as to the vacations. The High Court vacation was fixed by Parliament itself in the schedule to the High Court Procedure Act. We know, of course, that the Justices have power to make a rule bearing; on the subject, but Parliament decided that the vacations of the High Court should be eight weeks in the summer, and four weeks in the winter.


Mr Wilson - Out of those vacations a month could be set apart to enable the Conciliation and Arbitration Court to deal with the cases listed.


Mr ISAACS - One month would not be sufficient to enable that Court to deal with the business set down for its determination. A case in the Conciliation and Arbitration Court, in which I am engaged, will occupy more than one or two months.


Mr Wilson - That could be taken next year.


Mr ISAACS - If the honorable member were one of the workers concerned, he would not say that ; he would desire to have his rights established with the least possible delay. 1 come now to the States Courts. In New South Wales, the summer vacation is eight weeks, and the winter vacation three weeks; in Victoria the summer vacation extends over six weeks, and, although there is no provision in the law for a winter vacation, the practice is to have a fortnight's holiday in July. In Queensland the summer vacation is eight weeks, and the winter vacation four weeks; whilst in South Australia the vacation is two months in duration, extending from 25th December to 25th February. I believe, although I am not sure on the point, that notwithstanding the absence of a rule providing for a winter vacation in South Australia, there is a practice under which the Judges can obtain some holidays in the winter.


Mr Conroy - A vacation is not always a holiday; a Judge has often much hard work to do.


Mr ISAACS - Quite so. In Western Australia the vacation is two months - extending from 24th December to 25th February, whilst in Tasmania the long vacation extends from the 17th December to 28th February. It is not due to the Justices of the High Court themselves that they enjoy the vacations named; the Act itself provides for them.


Mr Johnson - I do not take exception to 'heir vacations.


Mr ISAACS - I was going to say that it is impossible to do without them. In England, the Courts enjoy a vacation of about three months.


Mr Johnson - These vacations are very necessary.


Mr ISAACS - That is so. The pressure on the Justices, is tremendous ; and if they need a rest they can secure it only during a vacation. If the High Court were to sit in a State during the ordinary vacation of the Supreme Court of that State, where should we find the legal gentlemen engaged in the cases listed for hearing? They would be away on their holidays.


Mr Robinson - They would come back very quickly if they had briefs.


Mr ISAACS - I do not think so.


Mr Wilson - Where the carcass is, there will ' the eagles be gathered together.


Mr ISAACS - I am sorry to hear the honorable gentleman refer to litigants as " the carcass " ; I desire 10 speak of them far more respectfully. If there is any other question on which I can enlighten the House, I shall be pleased to do so. The High Court, in order to limit the number of appeals, for special reasons, has laid down precisely the same rule as the Privy Council has done relative to the grounds on which special leave to appeal will be given. I should, perhaps, read the views of the learned Justices to show that they are not assuming to themselves the power to hear further appeals by granting special leave, other than under the rule laid down by the Privy Council. In the appeal case of Dalgarno v. Hannah (1 C.L.R., 8), the first case dealt with by the Court, the Chief Justice said -

With regard to the second ground, we think that the rule to be applied by the High Court in dealing with applications for special leave to appeal in cases below the appealable amount should be substantially that laid down by the Judicial Committee of -ths Privy Council, in. the case of Prince v. Gagnon.

The quotation from the judgment of' the Privy Council, which the High Court applied to itself, is as follows: -

Their Lordships are not prepared to advise Her Majesty to exercise her prerogative by admitting an appeal to Her Majesty in Council from the Supreme Court of the Dominion, save where the case is of gravity, involving matters of public interest, or some important question of law, or affecting property of considerable amount, or where the case is otherwise of some public importance, or of a very substantial character.

The Full Court has refused leave to appeal in several cases. It did so, for instance, in the case of Johansen v. The City Mutual Life Assurance Coy (2 C.L.R. 186). The case was under the appealable amount, and the Court said that where there were mere questions of fact involved - where there was no important question of law involved - if the judgment appealed from was unattended with sufficient doubt to justify the granting of leave to appeal, they would refuse that leave. They also refused leave in the case of Norton v. Taylor (2 C.L.R. 291) applying the Privy Council rule that there was not sufficient reason to doubt the correctness of the decision to justify them in granting leave to appeal. . In three or four other cases, which I need not enumerate, they have applied the same principle. They have cut down, as far as they can, the special cases in which leave to appeal is granted, and they find that the work of dealing with the limited number of appeals allowed by Parliament and the Constitution, has practically outgrown their strength. If we desire that the Court shall maintain the high position allotted to it by the Constitution, and the high position that it has won for itself in the public estimation and confidence - if we desire that it shall perform the duties intrusted to it in various other directions, and that there shall be a denial of justice no longer than exists at present - then I think that the Parliament will agree to the passing of this Bill.

Debate (on motion by Mr. Conroy) adjourned.







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