Enforcing U.S. and other foreign judgments in Australia - what are the rules?
Given the close economic relationship that now exists between the United States and Australia, it can often come as a surprise that there is no legislation governing the recognition and enforcement of U.S. judgments in Australian courts. The question of whether or not a judgment can be enforced is determined according to common law rules rather than legislation.
With closer economic ties comes the possibility that there will be an increase in the number of U.S. judgments involving Australian companies or individuals that may need to be recognised and enforced in Australian courts. This article provides an overview of the common law rules that will be applied when attempts are made to recognise/enforce a U.S. judgment which imposes a personal obligation on the defendant in Australian courts. (2) While the article focuses on U.S. judgments, it also addresses the question of other foreign judgments.
I. The Australian Legal System (3)
Australia is a federation comprising six states and two self-governing territories. The Australian Constitution specifies a range of matters that are the responsibility of the Federal government. The balance of legal issues remains the responsibility of the various State and Territory governments.
Australia's laws and legal system have their foundation in the common law of England. However, while the judgments of the House of Lords and the English Court of Appeal are of persuasive authority, they are not binding on Australian courts. More recently, in developing the law, Australian courts have looked to the jurisprudence of other countries, particularly the United States and Canada.
Australia has both a federal court system and a hierarchy of courts in each of the states and territories. In all cases, the ultimate appellate court is the High Court of Australia ("High Court"). Decisions of the High Court are binding on all other Australian courts. The High Court is also responsible for the determination of Constitutional disputes, in the same way as the U.S. Supreme Court.
Actions heard by Australian courts proceed on an adversarial basis. The practice and procedure, including the rules of evidence, are similar to those in English courts. While these are also similar to the rules in American courts, there are some very significant differences.
First, there is no Constitutional right to a jury trial in civil proceedings in Australia. Many, and in some states most, civil actions are heard and determined by a judge sitting without a jury known in the United States as a "bench trial". While the rules of the Federal Court of Australia provide for trial by jury where "the ends of justice appear to render it expedient to do so", there is a presumption that civil trials will be heard by a judge alone, and a civil jury trial has never occurred in that court. (4)
Second, discovery in Australia follows the English tradition and the concept of the deposition as a mode of discovery is unknown in Australia. (5) Rather, discovery takes the form of documentary discovery and, albeit very limited, use of interrogatories. Trial by ambush, a possible consequence of not having a deposition procedure, is addressed in most Australian jurisdictions by way of an obligation to exchange witness statements setting out the evidence in chief of the parties and witnesses prior to trial.
II. Lack of Legislation in Relation to U.S. Judgments
While there is a federal statute (6) that provides for the recognition and enforcement of certain foreign judgments it does not apply to U.S. judgments. Specifically, the Foreign Judgments Act 1991 (Cth) (the "Act") provides a set of rules for the recognition/enforcement of foreign judgments by Australian courts. However, in order for a successful litigant to utilise those rules, the judgment must have been obtained from one of the courts of the countries listed in the Foreign Judgments" Regulations 1992 (Cth) (the "Regulations"). A list of the relevant countries and their recognised superior/inferior courts is set out in the Schedule at the end of this article.
Broadly, if a foreign judgment is to be recognised under the Act, it must be registered in the appropriate Australian court within a period of six years from the date of the judgment (or relevant appeal) (7)
The appropriate court is generally the Supreme Court of a State or Territory, (8) depending on the nature of the judgment. The rules of the court will normally prescribe the matters that must be addressed in order to register a foreign judgment under the Act including: (9)
* The evidence in support of the registration application;
* The form of the registration order;
* The making of an application to set the registration order aside; and
* The process for the enforcement of the registered judgment.
Unfortunately, the United States of America is not a country listed in the Regulations. Accordingly, in order to enforce a U.S. judgment in Australia, a successful litigant is required to rely upon common law principles regarding the recognition/enforcement of foreign judgments which have their origin in 19th century English case law.
III. The Common Law Elements That Must Be Established
At common law, the elements that must be established for the recognition/enforcement of a foreign judgment are commonly described as follows: (10)
* The foreign court has exercised a jurisdiction which Australian courts will recognise;
* The foreign judgment is final and conclusive;
* There is an identity of the parties; and
* If based on a judgment in personam, the judgment must be for a fixed debt.
The onus of establishing these elements rests on the party seeking to rely upon the foreign judgment. If the foreign judgment satisfies these elements, it has 'jurisdiction in the international sense' and is prima facie enforceable in Australia unless the defendant can establish one or more of the recognised defences to the enforcement of a foreign judgment. (11)
A. Does the Foreign Court Have Jurisdiction?
A foreign judgment will not be enforced by Australian courts unless the foreign court had jurisdiction over the defendant at the time when that jurisdiction was invoked. (12)
This element is commonly established in one of two ways: (13)
* The defendant was a resident or had a presence in the foreign jurisdiction; or
* The defendant voluntarily submitted to the jurisdiction.
A foreign judgment will normally be recognised by an Australian court if the defendant was personally served with an originating process while physically within the jurisdiction of the adjudicating court, even if that presence was fleeting. (14) A separate question is whether recognition of a judgment is possible against a person ordinarily resident in the foreign jurisdiction, but against whom service was effected whilst temporarily out of that jurisdiction. The answer to this question remains uncertain even though there is some limited authority (15) that supports a finding of jurisdiction being established.
The issue of whether or not a corporation is 'residing' or 'present' in a jurisdiction is generally considered to be artificial because, within the same jurisdiction, a corporation may use subsidiaries, branch offices and commercial agencies to carry out its business. As such, a foreign court will generally be considered to have had jurisdiction over a corporation if the corporation carried on business in that jurisdiction "at a definite, and to some extent, permanent place" (16) (for example, at a branch office that used premises leased by the corporation). Other criteria for determining whether or not a corporation carried on business in a particular jurisdiction are that the corporation was represented in the jurisdiction by an agent with authority to bind the corporation to contracts with persons in that jurisdiction and business has been conducted by the corporation in the jurisdiction for a sufficiently substantial period of time. (17)
The attitude of the Australian courts to the concept of U.S. style 'long arm' jurisdiction may be changing slowly. (18) However, it is unlikely that an Australian court will yet be willing to enforce a U.S. judgment where the U.S. court's jurisdiction was 'long arm' rather than the defendant having some presence in the jurisdiction in the traditional sense.
A defendant will generally be held to have voluntarily submitted to the jurisdiction of a foreign court if it appeared in the proceedings or agreed in advance that the foreign court had jurisdiction.
In relation to appearing in a proceeding the following matters should be noted:
* Filing an unqualified appearance generally amounts to a submission to the jurisdiction, unless the appearance was entered by a lawyer without consent, (19) or the appearance was withdrawn (either via leave of the court or under the provision of its rules); (20)
* The filing of an appearance to protest the jurisdiction is generally not a submission to the jurisdiction, unless the defendant proceeds to argue the merits of the case; (21)
* If the appearance was entered because of duress or physical coercion, fraud or genuine mistake, there is generally no submission to the jurisdiction of the court. (22)
The most common example of a submission to the court's jurisdiction by agreement is where there is a clause in a contract specifying that the courts of a particular country will have jurisdiction for the purposes of any dispute under the contract. Other examples of submission by agreement include situations where the defendant has authorised a person who resides in the foreign country to accept service on the defendant's behalf or where it has been previously agreed that service may be carried out by leaving documents at a specified location within the jurisdiction.
B. Is the Judgment of the Foreign Court Final and Conclusive?
To be 'final and conclusive', a foreign judgment must end not only the proceedings between the parties, but also the dispute which led to the proceedings in the first place. (23)
The fact that a right exists to appeal the foreign judgment does not normally affect the conclusiveness of the judgment. However, the existence of such a right is likely to be relevant to the court exercising its discretion to grant a stay.
Foreign judgments that are obtained by default are generally treated as final and conclusive, for example, after the time for setting them aside has expired or until the time when they are actually set aside.
C. Is There an Identity of the Parties?
The parties to the foreign judgment and the parties to the recognition proceeding must be identical and in the same interest. (24) For example, an application would almost certainly fail in circumstances where the original U.S. judgment concerned a corporation and the local Australian recognition proceeding concerned a director of that corporation.
D. Is the Judgment for a Fixed Debt?
An Australian court will only enforce a foreign judgment for a fixed debt, or for a debt which is readily calculable.
If the foreign judgment is contingent upon unascertained amounts, it will generally not be enforceable.
IV. Defences at Common Law
At common law, there are a number of defences that are available to a defendant in an Australian proceeding for the recognition/enforcement of a foreign judgment. Broadly, these defences are as follows:
* The foreign judgment was obtained by fraud;
* The foreign judgment is contrary to public policy;
* The foreign court acted contrary to the principles of natural justice;
* The foreign judgment is penal or for a revenue debt; and
* The enforcing party is estopped from relying on the foreign judgment because there is a prior judgment within the forum between the same parties and concerning the same issues.
It is generally not possible to challenge the merits of a foreign judgment on the basis that the court erred as to the relevant facts or law. (25) Further, a defendant cannot rely on the fact that in the foreign proceeding an available defence was not raised, even if that defence may have changed the result. (26)
A. The Foreign Judgment Was Obtained by Fraud
The principles to be applied in an action to set aside a judgment on the grounds of fraud were stated by the New South Wales Court of Appeal in Wentworth v. Rogers (No. 5). (27) Broadly, those principles were as follows:
* Particulars of the fraud claimed must be exactly given and the allegations must be established by strict proof;
* It must be shown that material fresh facts have been discovered which by themselves or in combination with previously known facts provide a reason for setting aside the judgment;
* Mere suspicion of fraud will not be enough to secure relief;
* The mere allegation, or even the proof, of perjury will not normally be sufficient to set aside a judgment;
* It must be shown by admissible evidence that the successful litigant was responsible for the fraud which taints the judgment under challenge;
* The burden of proof for fraud lies with the party challenging the judgment.
The case for equally applying those principles to the enforcement of foreign judgments was advocated in Keele v. Findley. (28) That approach has been questioned by single judges on several occasions (29) (particularly in respect of the issue of fresh evidence) and there is still some uncertainty about whether it is correct. Having said that, the decision of the Full Court of the Supreme Court of South Australia in Benefit Strategies Group Inc v. Prider is a recent decision by an appellate court that supports the application of the principles from the Wentworth case to the recognition/enforcement of foreign judgments and is also authority for the proposition that the fraud relied on must be that of the party seeking to enforce the foreign judgment.
Another type of fraud that will justify the non-enforcement of a foreign judgment is fraud on the part of the court that pronounced the judgment. However, there is limited authority that supports this type of fraud and it has been observed that it tends to merge with the defence that the foreign proceedings were contrary to the principles of natural justice, (30) especially where procedural issues are raised.
B. The Foreign Judgment is Contrary to Public Policy
If a foreign judgment is based on a law which offends public policy in Australia, it is unlikely to be enforced.
In Stern v. National Australia Bank, (31) the Federal Court of Australia provided some broad clarification about the defence of a judgment being contrary to public policy. In that case, Justice Tamberlin had to decide whether a Californian law, similar to the prohibition against misleading and deceptive conduct contained in section 52 of the Australian Trade Practices Act 1974 (Cth), offended public policy because the law did not offer defences which would otherwise have been available for this type of claim if the action was heard in Australia.
The proposition that this deficiency somehow offended public policy in Australia was rejected by Justice Tamberlin. His Honour observed that the denial of enforcement of a foreign judgment is only available when the offence to public policy is of the highest order. He went on to observe that cases involving fundamental questions of moral or ethical policy, fairness of procedure or illegality, may contravene this standard.
C. The Foreign Court Acted Contrary to Natural Justice
A foreign judgment will not be enforced in Australia if the procedure which produced that judgment was so flawed that natural justice in the proceeding may have been compromised.
Broadly, the two criteria that indicate the observance of procedural fairness are as follows:
* Whether or not the parties have had an opportunity to present their case before an impartial tribunal;
* Whether or not the parties were given due notice of the proceedings and have been able to prepare their case.
The absence of either one of these criteria in respect of a foreign judgment may result in the non-enforcement of it by an Australian court.
D. The Foreign Judgment is Penal or for a Revenue Debt
Generally, an Australian court will not enforce foreign laws that are penal or revenue laws. A penal law is a criminal provision, including in that term all breaches of public law, that are punishable by a pecuniary penalty or otherwise. (32)
In a number of cases it has been argued that a foreign judgment that includes an award of punitive or exemplary damages, or at least that component of the award, is not enforceable on the basis that the judgment is penal. This issue remains to be conclusively determined. In one case the argument was accepted by the court on the basis that the U.S. court had imposed the award of punitive damages as a sanction for the defendant's failure to comply with an interlocutory order of the court. (33) That decision has, however, been distinguished on the basis that the punitive award was described as a penal consequence of the defendant's failure to comply with the order and thus unrelated to a private right. (34)
In our view an award of punitive or exemplary damages will be enforced where those damages have been awarded on the basis of the defendant's conduct that gave rise to the substantive proceedings, as distinct from a sanction or a penalty for breach of a public law. Even then, the balance of the judgment will be enforced provided the punitive component can be severed.
However, Article 14.7 of the Australia-United States Free Trade Agreement now qualifies this defence in respect of civil monetary judgments obtained by the Federal Trade Commission, U.S. Securities and Exchange Commission and U.S. Commodity Futures Trading Commission by providing that these kinds of judgments should not be disqualified from recognition or enforcement by an Australian court on the basis that they are penal or revenue in nature.
E. The Enforcing Party is Estopped from Relying on the Foreign Judgment Because There Is a Prior Judgment Within the Forum Between the Same Parties and Concerning the Same Issues
Broadly, this means that if there is a conflict between a foreign judgment and an earlier judgment of an Australian court on the same matter between the same parties, the Australian court for the recognition enforcement proceeding will generally prefer the earlier Australian judgment.
The recognition and enforcement of U.S. judgments in Australian courts is governed by common law principles.
The elements for the recognition/enforcement of U.S. judgments in Australian courts are jurisdiction, final and conclusive judgment, identity of parties and fixed debt. The party seeking to rely upon the U.S. judgment has the onus of establishing these elements to the court. The defences that are available to a defendant in an Australian proceeding for the recognition/enforcement of a U.S. judgment include fraud, public policy, natural justice and the penal nature of the judgment.
In light of these matters, successful litigants should proceed cautiously in both obtaining the foreign judgment and seeking to enforce it since, like many other matters determined by common law principles, twists and turns are inevitable.
(1) For statistics on Australia's trading and investment relationship with the United States of America, see www.dfat.gov.au.
(2) Also known as an in personam judgment. For example, a judgment for damages for breach of contract or a decree for specific performance or injunction. Most foreign judgments that are sought to be enforced in Australian courts are judgments in personam.
(3) This section is adapted from S Stuart Clark and C Harris, "Multi-Plaintiff Litigation in Australia: A Comparative Perspective" (2001) 11 Duke J. Comp.& Int'l L. 289.
(4) See Federal Court ()[Australia Act 1976 (Cth), ss 39-40.
(5) Note, however, that one of Australia's State law reform bodies, the Victorian Law Reform Commission ("VLRC"), in its recent review of that State's civil justice system has recommended the introduction of depositions: see VLRC Civil Justice Enquiry, Civil Justice Review Report ("VLRC report"), 28 May 2008, Chapter 6, available at <http://www.lawreform.vic.gov.au/wps/wcm/conne ct/Law+Reform/Home/Completed+Projects/Civil+ Justice/LAWREFORM+-+Civil+Justice+Review% 3A+Report> (last viewed on 2 June 2008). The Federal Court also recently considered taking "the unusual step of ordering oral discovery" in a now-settled sexual harassment case, which would involve a court official examining the parties publicly about the relative strengths and weaknesses of their cases: see S Moran, "Court may speed up PwC sex case", The Australian, 21 September 2007, available at <http://www. theaustralian.news.com.au/story/0,25197,22454017 -17044.00.html> (last viewed on 2 June 2008). For an excellent consideration of whether U.S.-style depositions should be adopted in Australia, see MJ Legg, "The United States Deposition Time for Adoption in Australian Civil Procedure?" (2007) 31 MULR 146.
(6) Federal statutes and regulations are identified by the appearance of "(Cth)", while those of a state and territory are identified by the abbreviation of the state or territory's name after the name of the statute or regulation, e.g. (NSW).
(7) Section 6(1) of the Act.
(8) The superior courts of each of the states and territories have been conferred with extensive federal jurisdiction such that most federal statutes can be enforced in those courts as well as the Federal Court of Australia.
(9) Uniform Civil Procedure Rules 2005 (NSW) Part 53; Uniform Civil Procedure Rules 1999 (Qld) Chapter 20A; Supreme Court (Miscellaneous Civil Proceedings) Rules 1998 (Vic) Order 11, Part 2; Supreme Court Rules 2000 (Tas) Part 28; Supreme Court Rules (NT) Chapter 9; Rules of the Supreme Court 1971 Order 44A (WA); Court Procedures Rules 2006 (ACT) Chapter 3, Part 3.8. In South Australia there are no rules specifically for proceedings under the Act.
(10) Stem v. National Australia Bank Ltd.  FCA 1421 at  per Tamberlin J; Benefit Strategies Group Inc and Anor v. Prider  SASC 365 at  per Gray J; Newcom Holdings Pty. Ltd. v. Funge Systems Inc.  SASC 284 at  per Nyland J.
(11) Nygh PE and Davies M, Conflict of Laws in Australia, 7th Edition, LexisNexis Butterworths, Australia at page 169.
(12) Emanuel & Ors v. Symon  1 KB 302 at 309.
(13) There are other ways that a successful litigant might establish ,jurisdiction. For example, reciprocity of recognition (that is, the foreign adjudicating jurisdiction recognises Australian judgments - see, for example, the decision in Re Dulles' Settlement (No. 2)  Ch 842 at 851) or that the defendant has the nationality or domicile of the jurisdiction. However, these ways are not particularly well established by Australian case law and therefore their applicability as proper defences is questionable.
(14) Herman v. Meallin (1891) 8 WN (NSW) 38.
(15) Marshall v. Houghton  2 WWR 553.
(16) Littauer Glove Corp v. F W Millington (1920) Ltd (1928) 44 TLR 746 at 747 per Salter J; Bushfield Aircraft Co v. Great Western Aviation Pty. Ltd. (1996) 16 SR (WA) 97.
(17) National Commercial Bank v. Wimborne (1979) 11 NSWLR 156 at 165 per Holland J.
(18) See Humane Society International Inc. v. Kyodo Senpaku Kaisha Limited (2006) FCAFC 116 in the context of an application for leave to serve out of the jurisdiction.
(19) Hendrikman v. Magenta Druck & Verlag CmbH  QB 426.
(20) Malaysia-Singapore Airlines Ltd. v. Parker (1972) 3 SASR 300.
(21) Bushfield Aircraft Co v. Great Western Aviation Pty. Ltd. (1996) 16 SR (WA) 97.
(22) Israel Discount Bank of New York v. Hadjipateras  3 All ER 129.
(23) See e.g., the decision in Nouvion v. Freeman (1889) 15 App Cas 1 at 9 per Lord Herschell where it was stated "... it must be shewn that in the Court by which it was pronounced it conclusively, finally and for ever established the existence of the debt of which it is sought to be made conclusive evidence in this country, so as to make it res judicata between the parties".
(24) Blohn v. Desser  2 QB 116.
(25) Godard v. Gray (1870) LR 6 QB 139.
(26) Ellis v. M Henry (1871) LR6 CP 228.
(27) (1986) 6 NSWLR 534 at 538, 539 per Kirby P (with whom Hope and Samuels JJA agreed).
(28) (1990) 21 NSWLR 444 at 449, 458 per Rogers CJ Comm D.
(29) Close v. Arnot (unreported, New South Wales Supreme Court, Graham AJ, 21 November 1997, BC9706194); Yoon v. Young Dung Song (2000) 158 FLR 295, Dunford J.
(30) Benefit Strategies Group Inc v. Prider  SASC 194 at  per Bleby J (with whom Vanstone and Anderson JJ agreed) (special leave to appeal this decision to the High Court of Australia was refused on 10 February 2006).
(31)  FCA 1421.
(32) See the definition of Lord Watson in Huntington v. Attrill  AC 150 which has been consistently adopted by the courts in Australia and the UK.
(33) Schnabel v. Lui  NSWSC 15 (unreported 1 February 2001).
(34) See e.g., Benefit Strategies Group Inc v. Prider (2005) 91 SASR 544.
IADC member S. Stuart Clark is the national Managing Partner of Clayton Utz's Litigation and Dispute Resolution practice. He is resident in the firm's Sydney office. He has particular expertise in the defence of class actions and the conduct of complex litigation, particularly claims involving drugs and medical devices.
Dugan Cunningham is a Senior Associate working in the Commercial Litigation Group in the Brisbane office of Clayton Utz.
Rob McEvoy is a Lawyer from the Commercial Litigation Group in the Brisbane office of Clayton Utz who is currently traveling in South America.
Schedule Countries and Superior Courts No. Country Superior Court 1 New Zealand Court of Appeal High Court 2 Province of Alberta, Supreme Court of Canada Canada Court of Appeal of Alberta Court of Queen's Bench of Alberta 3 Bahamas, The Commonwealth Court of Appeal of the Supreme Court 4 Province of British Supreme Court of Canada Columbia, Canada Court of Appeal of British Columbia Supreme Court of British Columbia 5 British Virgin Islands Eastern Caribbean Supreme Court 6 Cayman Islands Grand Court 7 Dominica, Commonwealth of Eastern Caribbean Supreme Court Court of Appeal High Court of Justice 8 Falkland Islands Court of Appeal Su creme Court 9 Fiji, Republic of Supreme Court Court of Appeal High Court 10 France (French Republic) Cour de Cassation Cours d'Appel Tribunaux de grand instance Tribunaux de commerce Cours d'assise Tribunaux correctionnels 11 Germany, Federal Bundesgerichtshof Republic of Oberlandesgerichte Bayerische Oberste Landesgericht Landgerichte 12 Gibraltar Court of Appeal Supreme Court 13 Grenada Supreme Court (consisting of the Court of Appeal and High Court 14 Hong Kong Special Court of Final Appeal Administrative Region of High Court (consisting of the the People's Republic of Court of Appeal and Court of China, The First Instance 15 Israel, State of Supreme Court District Courts Moslem Religious Courts Druze Religious Courts 16 Italy (Italian Republic) Corte Suprema di Cassazione Corte di Assise Corte d'Appello Tribunale 17 Japan Supreme Court High Courts District Courts Family Courts 18 Korea, Republic of Supreme Court Appellate Courts District Courts Family Court Patent Court Administrative Court 19 Malawi High Court Su creme Court 20 Province of Manitoba, Court of the Queen's Bench of Manitoba 21 Canada Montserrat Privy Council (of the United Kingdom) Eastern Caribbean Court of Appeal High Court of Montserrat 22 Papua New Guinea Supreme Court of Justice National Court of Justice 23 Poland, Republic of Supreme Court Commercial Courts Courts of Appeal Provincial Courts 24 St Helena Supreme Court 25 St Kitts and Nevis, Privy Council (of the Federation of United Kingdom) Eastern Caribbean Court of Appeal High Court (Saint Christopher Circuit) High Court (Nevis Circuit) 26 St Vincent and the Eastern Caribbean Supreme Grenadines Court (consisting of the Court of A t veal and High Court 27 Seychelles, Republic of Court of Appeal Supreme Court 28 Singapore, Republic of Privy Council (of the United Kingdom) in respect of orders made on appeals from the Singapore Supreme Court and filed with the Court of Appeal of Singapore Supreme Court of Singapore (consisting of the Court of Appeal and High Court) 29 Solomon Islands Court of Appeal High Court 30 Sri Lanka Supreme Court Court of Appeal High Court District Court 31 Switzerland Bundesgericht Kantonale Obere Gerichte HandelsAerichte 32 Taiwan Supreme Court High Courts District Courts 33 Tonga Court of Appeal Supreme Court 34 Tuvalu Court of Appeal High Court 35 United Kingdom, The House of Lords Supreme Court of England and Wales Supreme Court of Judicature of Northern Ireland Court of Session 36 Western Samoa Court of Appeal Supreme Court of Western Samoa Inferior Courts No. Country Court 1 New Zealand Each District Court of New Zealand 2 United Kingdom County Courts (England and Wales) County Courts (Northern Ireland) Sheriff Courts (Scotland). 3 Canada The Provincial Court of Alberta The Provincial Court of British Columbia The Provincial Court of Manitoba 4 Switzerland Bezirksgerichte Erstinstanzliche Gerichte Arbeitsgerichte Mietgerichte 5 T Poland Each District Court of the Republic of Poland
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|Author:||Clark, S. Stuart; Cunningham, Dugan; McEvoy, Rob|
|Publication:||Defense Counsel Journal|
|Date:||Jul 1, 2008|
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