Thursday, 16 April 2015

Honourable Justice Michelle Gordon is a shit judge

Statue of Lady Justice on the Well of Justice
 in Bern, Switzerland.

Sculptor: Hans Gieng, 1543
Honourable Justice Michelle Gordon is a shit judge.

Le préjugé est une opinion sans jugement
Prejudice is an opinion without judgement

Voltaire (1764)

Her Honour has an excellent legal mind, is charitable, has clearly been dedicated to legal education, and has demonstrated a strong work ethic over the years. All good qualities.

Her Honour has the same arrogant streak displayed by her husband, High Court justice Honourable Kenneth Hayne. The main difference is that Haynes J's arrogance is palatable as he is usually right and his approach is often tempered with good humour. That is, his arrogance is well formed by authority and invites strong argument to rebut. You may not like it but it is earned. Hayne J has proved to be an excellent judge. Gordon J's arrogance is qualitatively different.  Her Honour's hubristic approach has resulted in judgments devoid of balance, appropriate reasoning and coloured by a flawed sense of personal righteousness.

Her Honour is a shit judge.

I've had the misfortune to be both a represented party and a self represented litigant in the Federal Court of Australia the last four years. You may like to dismiss this clarion call as an extreme bias as Gordon J ruled severely against me. I also self represented on an interlocutory application to have Her Honour withdraw for apprehended bias, because, well, of apprehended bias. Gordon J withdrew but dismissed my claims of a lack of impartiality. These claims continue to be a factor in an appeal awaiting judgment from the Full Bench of the Federal Court.

This tragedy and injustice I've been living with has let me see quite a few judges of the FCA first hand:
  1. Justice Shane Marshall – ruled against me on various leave to appeals and interlocutories
  2. Justice Christopher Jessup – ruled against me on various matters after stepping in after Gordon J withdrew
  3. Justice Richard Tracey – found me in contempt of court
  4. Justice John Middleton – ruled against me on an interlocutory but did not prevent forward progress on my final appeal attempt
  5. Justice Susan Kenny – heard a interlocutory leave to appeal attempt and denied it
  6. Justice Michelle Gordon – heard majority of the main case, including six days of trial, ruled against me
  7. Justice Jennifer Davies – heard insolvency hearing – ruled against related companies
  8. Justice Bernard Murphy – heard attempt to get leave to appeal liquidation - denied
  9. Justice Antony Besanko – sat on two day appeal of main matter and contempt
  10. Justice Jonathan Beach - sat on two day appeal of main matter and contempt
  11. Justice John Gilmour - sat on two day appeal of main matter and contempt
That's eleven out of the current forty six Federal Court judges I've had the misfortune to experience. I feel a bit like a restaurant critic that can't cook. I have some opinion on the merits of these judicial folk, at least in a relative sense, though I certainly am no expert in how they cook.

I haven't had any luck yet with no favourable rulings to speak of, so I guess I should hate them all. However, in the main I've found them to be quite impressive folk despite the public floggings I've received.

Surprisingly, I'd have to say, Gordon J was not the worst of them. That dubious honour went to Justice Jennifer Davies. Murphy J floundered incompetently in my matter but I couldn't really say he was flawed judge, just inexperienced and not at the top of his game. More about all that later. Gordon J was only the second worst out of the eleven. Tenth out of a sample of eleven should not be High Court material.

The big defect Gordon J carries around is her unwillingness to consider both sides of an argument. There is no weighing of the scales in the justice equation in her court. This is a clear failure in a judge. Consider the statue of Justitia in the picture above. The sword represents authority and the ability or right to pass sentence. The blindfold represents that justice needs to be impartial to the participants. The prince and the pauper should have their cases considered on merit. The scales represent the idea that a proper weighing needs to take place and the case of both sides needs to be properly stacked and accurately considered. After all, there is a sword involved. Now I believe in my case the Gordon J forgot about her blindfold but that is not the primary systemic failure I saw in her as a judge. The systematic failure I saw in my case, and in other cases in her court, was the inability to properly balance and assess both sides of the argument. She does not know how to use the scales. Gordon J is simply not judicial.

I could wax lyrically for hours about the injustices I perceived in my own case, but I'll resist the temptation just now as some of the circumstances were quite specific to just my case with regard to impartiality and other matters.

Consider instead the Norcast v Bradken case Gordon J ruled on. It was bizarre. The $US22.4M damages awarded to Norcast by Gordon J was deemed so unjust that both sides agreed on appeal to a common position of overturning the decision via consent orders. Yep, the team that won decided Gordon J's decision should not stand. The humorous, at first glance, thing was the full bench did not allow this consent position. You may find this strange, but the Court's approach really was pretty reasonable as the argument was that it was the court that decides these matters and not the parties. Random people can't make law via precedent. That is the role of the court. No, not the "random" aspect, the other bit about making laws. Instead the court wisely found another procedural mechanism to mete out the main justice of the consent position though the wacky Gordon decision still stood.

Gordon J's Bradken judgment smacked of a lack of professionalism in the language and approach in the text. Greiner “hoodwinked” people. He was “evasive and hostile.” Conduct was “misleading or deceptive.” The contravention was “aided, abetted, counselled or procured”. “He was evasive and hostile and eventually contended that he did not recall what he meant”. I don't know enough about the law to know if the outcome was correct or not, but I know enough to know that Gordon's judgment was shit. The inappropriate use of language, the apparent gaining of perceptive powers far in excess of any psychic, and the effective prosecution of a case without due balance made this judgment a Gordon classic. Gordon's hubristic streak results in a dysfunctional courtroom where she has to be seen to be the smartest person in the room. Counsel have to tread carefully as they have to live in the same ecosystem for the life of their careers. Furthermore, this is an ecosystem where politics and allegiances run rife in the judicial battle for status and recognition. Judges protect their own as a natural tendency and a judge like Gordon that is defective in judicial personality has to be appealed carefully if you want to have that extended career you crave. Appeals are tough when fanciful narratives and opinionated findings are pronounced by the bench and wrapped, or warped, together in a prosecutorial manner to stem the likelihood of the great judicial stain of successful appeal.

It was this kind of crap language that stood out in the bank fees case also. The Full Bench of the FCA agreed that the language used for fees for all circumstances being “unconscionable” on an ex ante basis was inappropriate. The AFR reported, “In a strongly-worded judgment running to 370 paragraphs that lambasted any notion that the fees were unjust or unfair, let alone an illegal penalty, Federal Court chief justice James Allsop said that the court should not assume the 'role of a price regulator'.” The Full Bench agreed with Honourable Chief Justice Allsops statement that there was, "no basis to conclude that … the provisions were unfair or the transactions unjust." Additionally the AFR reported one of the judges, 'tak[ing] a swipe at judges imposing personal perceptions of "desirable social goals".' Honourable Justice Middleton wrote, "A rationally based system of law needs to set out the limits of acceptable commercial behaviour in order that persons can order their commercial affairs in advance" … "Such a system cannot depend on the personal approach of a judge, based upon his or her view of commercial morality." The overturning also made it clear that specific circumstances for a specific customer may be different and indeed be extravagant and unconscionable as required by the legislation for the penalty doctrine to kick in. Specifically in that regard, Justice Allsop wrote, "That is not to say that in relation to some customer, of some bank, the particular circumstances concerning a particular account, including its terms and how the particular customer was treated, may not bespeak unfairness, unjustness or even unconscionability."

However, by far the worst thing about the bank case appeal was that I had to feel some sympathy for the banks. I hate that. It's not a comfortable position. It was classic Gordon J, overstepping and using extravagant language. Now, I've had tens of dollars charged for a credit card being a few cents in the red, due to a tiny interest charge, as a late fee, so it is hard to feel the banks were hard done by. However that anecdote just emphasises the circumstances need to be specific. I also acknowledge my situation was the consequence of the rules I'd agreed to. I didn't have to bank there. I've also had such a late fee refunded both both automajically and after complaint. I guess the idea is, if you think something specific is unfair, seek a specific remedy. Remember the cost of a default on an account is going to swamp a late fee and the question is a much more complex one than that considered by Gordon as the FCA Full Bench correctly pointed out. There may still be a different and more appropriate legal approach for remedy by class action for the plaintiff but that is a different case. The natural answer is, if you don't like your bank's rules, find another bank (or credit union). Allsop, Besanko and Middleton JJ did a good job with the case before them. Gordon's judgment was shit.
Honourable Justice Michelle Gordon

Ben Butler reported in Fairfax papers on 18 September 2012 on Gordon J failing to immediately withdraw from an ASIC case involving Bill Lewski. From a distance it was difficult to have much sympathy for Lewski's position in the case but who knows the details from afar. However neither sympathy nor the merits of the case are the issue here. The main point I'd like to make is that Gordon J was the judge dealing with the case and she had acted for ASIC as a barrister against Lewski previously! How could Gordon J think it possibly appropriate that she could properly oversee the matter without any possible perception of a lack of impartiality from the public? Remember the test is that justice must not just be done, justice must be seen to be done. The idea is that some prototypical (and mythical) reasonable layperson must not believe that there could be a question regarding the possibility of impartiality. Blind Freddy could see this was an immediate concern and not a cause for hesitation for this particular circumstance. I'm not sure what eventually happened. The point is that Gordon J should have raised the matter earlier. Gordon J should not have hesitated to do the right thing when it was eventually raised by Lewski's QC, Peter Bick.

My wife is a maths teacher being the head of the maths department at a secondary school here in Sydney. She is an excellent teacher. I'm a computer programmer and an experienced high frequency trader with some experience in machine learning and maths. My wife agrees that my maths is better than hers. We also agree that she is a much better teacher than I could ever be. Teaching is a skill in itself that transcends the subject matter. You need competence in the underlying field at hand but it is excellence in the skill of actually teaching which makes for a great educator. I would be a shit teacher. I see the same in judges. An excellent legal ability will not always translate into being a good judge. Legal ability is a necessary but insufficient quality for judicial office. This is where Gordon J, and the system, fails. The Federal Court of Australia and the High Court of Australia should not be places for judicial training. There is the unfortunate constitutional right to tenure to the appointed court for a federally appointed judge. You can't get rid of them without extraordinary circumstances. You'd better be careful in the appointment.

My particular court flirtation is a long and sorry tale. Naturally, I believe Gordon J's findings against me were incorrect. Hence my appeals. Just waiting on judgments to be pronounced on those appeals. As a self represented litigant before three judges of the FCA Full Bench, the historic case statistics tell me I don't have much chance of success. Somewhere between Buckley's and none. Even though I certainly believe my appeals had merit, I'm not sure my mumbling and fumbling and disjointed argument cut though. There is a reason you need professionals when you go to court. The hotel of self representation is a destination of last resort you don't want to find yourself in! Full credit to the court for at least allowing me the latitude to try to make my case for remedying an injustice. The process reminded me of a bad interview. And it is perhaps worth remembering that a geek like me shouldn't get hired for interview skills. Maybe the appeals can be like that bad interview where the interviewer is clever enough to see the value despite the fact that you're crap at interviews. Interviews rarely work that way, though some of my best hires have been great people that have been not so great at interviewing. Yeah, that's you Mr Lee, Apple screwed up rejecting your genius fortunately for Zeptonics :-) You never know, perhaps the gods of the Court of Chancery can somehow find the truth through the mist.

The bigger screw up was by Davies J and an appeal was not allowed to be heard on that matter by Murphy J. It was beyond wrong, or even beyond being a bad hair day. Plainly despicable. However, at the end of the day, it was all dependent on Gordon J's outcome. Here is a flavour of some of the situations in my cases:
  • Gordon J works at Melbourne University;
  • both opposing barristers were working at Melbourne University along side Gordon J;
  • the main protagonist on the other side had a wife that worked as a Professor heading a department at Melbourne University;
  • the other side donated at least $300,000 to Melbourne University;
  • other side had a relative get a prize from the Melbourne University Law School Masters, where Gordon teaches, about the time of the case was being heard;
  • information leaked from the Registry to the other side, where I got an affidavit response to an interlocutory before it was even served;
  • when I queried this possibility the stamped interlocutory for service was resent with a back dated date;
  • a Registrar acted against us and later declared a friendship with the other side, then continued to act until he had to award some unfavourable costs against the other side, and then he withdrew;
  • the case became controversial, especially as I applied to have Gordon J recused, and Her Honour withdrew mid case without stating reason, so for the insolvency action, a Registrar offered our choice of judge which was unusual, we asked for Marshall J though he had previously ruled against us, and got Davies J, a new judge working who worked and continues to work in the same small tax department at Melbourne University along side Gordon J; and
  • the other side had many connections via work, boards, friendships to both Gordon and Hayne of various degrees of familiarity, such as a significant shareholder working closely with the current Governor of Victoria, now also the Administrator of the Commonwealth, (Hayne J signed his commission) a good friend of Hayne J from their Victorian Supreme Court daze.
Crazy stuff. At least an interlocutory process did get the Gordon J recusal I needed for my sanity even if it was too late to have any effect. My goose was already cooked as liability had been judged and ordered with a dollop of injustice.
Bias weeps and condemns, plate IX from Thronus Justitiæ

Gordon J fails the good judge test; not on technical legal capability, nor on work ethic. Gordon J is clearly a good person as I previously mentioned. Gordon fails in the being able to stack and balance the scales. Gordon J is simply not judicial. Maybe she can change? However the High Court is not a training park where we should let bad judges run loose to see if they can get the hang of it and learn to be judicial.

I know many people in the legal fraternity agree that Gordon has “issues”. They are largely silent. As I'm typing this I have just seen an AFR editorial questioning the appointment. I'm not so alone. However, no one in the legal profession can ever criticize a significant judge if they value their future. Judges are for life. There is no escaping them. You won't hear the head of a law society or state bar association criticising a High Court judge. Perhaps a decision, but not the ability of a judge to be competent at their job. Indeed you'd hope heads of such bodies are politically aware enough not to commit public acts of Seppuku by criticising such a judge. So how did this dodgy judge get appointed to the High Court of Australia? How come the system has such confidence in her appointment that if she sees out her term she will rise to be the tenth longest term in office in the history of the HCA? What a frightening prospect!

Simple. It's politics. It's about favours, friends, connections and the natural consequence of being in an environment where, even though the system is adversarial, you have to act collegially and play the game to look after your own interests.

Part of the story is the about the powerful tentacles of the Melbourne Club. Part of it is just nepotism and cronyism. The Australian egalitarian ideal of a meritocracy continues to be abused by such tyranny. Justice Nettle read with Justice Hayne. Justice Gordon read with Justice Nettle. The Governor of Victoria, Honourable Alex Chernov AC, QC became the Administrator of the Commonwealth (kind of the Commonwealth Deputy Governor General), being the longest serving governor, signed in by his friend Hayne J on appointment. The two are good friends from their shared Victorian Supreme Court experience and other experiences. Howard recommended Hayne J's appointment. Brandis was the public face of putting forward Gordon J as Abbot's nominee. It can't have have harmed Gordon that Julie Bishop worked with Gordon in her early daze at a firm in WA that was eventually consumed by Clayton Utz. There are well connected supporters in the Gordon J camp.

That's a powerful political imperative for an appointment recipe. Hello cronyism. Merit begone. 

HCA appointments have always had a political dimension. I'm not sure if, in Australia's brief history of being a nation, such a bad judge has been appointed for such an extended period. The harm will last nigh on twenty years as Gordon J does not turn 51 until November this year. That leaves nearly 19 and a half years before she suffers the same fate as her husband Hayne J did this year by reaching the constitutionally mandated retirement age of 70. Gordon J is the 52nd HCA appointee and will become the tenth longest serving member of that esteemed Court with over 7000 days if she lasts the distance. That's a lot of days. Let's hope she changes and becomes a good judge somehow.

It begs the question of what alternative were there? There is a large and talented legal pool in Australia to draw from: FCA justices, State Supreme court justices and even former attorney generals and QCs to perhaps call on, though I believe judicial experience is essential for the reasons I've outlined. There are a lot of impressive jurists who could serve Australia well.

The politics dictate the person had to be Victorian, most likely, or perhaps South Australian, which is overdue for representation but less politically powerful, so somewhat less likely. This rules out, for example, FCA Chief Justice Allsop AO as His Honour has the misfortune to reside in NSW. Allsop CJ is stunningly good. Merit begone.

I can speak to the eleven FCA judges I've unfortunately experienced and we can play survivor with them to see who could be an alternative there to illustrate. This represents 11 out of 46 FCA justices.

Justice Gordon, Justice Jennifer Davies and Justice Murphy were duds. Murphy at least seemed smart and to be trying to consider balance, though he clearly floundered in the experience I had. Perhaps there is hope for him as the training wheels come off. Davies J was either really really terrible or corrupt, so let's just call her a terrible judge. I doubt Gordon and Davies will ever rise to true judicial quality. You never know. They are young for senior judges. Plenty of time.

Justice Gilmour is from WA and thus gets kicked from HCA consideration regardless of merit. Maybe His Honour will be the obvious candidate in 2017 when HCA CJ French retires as the next retiree, so it is not it is not so bleak if that is an agenda item for his career of good service. The subsequent HCA retirement is not due till 2020 which is, somewhat perversely, the most recent appointee, Nettle J from Victoria. Victoria gets another bite at the cherry soon enough.

Next on my list, Justice Tracey is Victorian and a good judge with qualities of balance that Gordon J misses. I initially thought via our initial interactions from his slow, deliberate staccato speech style he was some kind of dottering fool in need of a Zimmerframe. How wrong was I. Once he got moving, he was articulate and quick thinking and often the best legal mind in the room at the time. His judgments read well. I thought about his periods of unusual speech delivery quite a lot. It was a good lesson for me in needing to resist judging by first impressions. I noticed that the bad audio representation I heard with my ear usually read very well. The occasional and unusual staccato delivery seemed to be the experienced judge simple dictating carefully. I'd imagine being aware of the omniscient court transcription process is an art. Makes sense now. My first impressions of Zimmerframeness very very wrong! Smart really to adapt to transcription in such a way. I'd probably prefer him not to reach for the guillotine whenever he hears the word contempt. Bygones. Despite His Honour making decisions I disagreed with when he found me in contempt, I think he would be one of the most enjoyable jurists to have a red wine over dinner with as there was quite a sparkle in the soul that escaped the banal setting of the court room from time to time.

Justice Jessup is another Victorian that ruled against me. He is a very impressive and very careful jurist. Quite a black letter law judge with a good eye for detail even if I found some fault with minor elements of his reasoning in my case. I spent the most time in front of Gordon J, Tracey J and Jessup J. Jessup J was the best of this crew. Jessup J definitely is HCA material unlike Gordon J.

I found Marshall J to have an exceptional presence. He is one of those people you encounter where the brilliance just exudes and it is obvious without him barely saying a word. He is that good. Maybe I just got him on a good day. He is also perceived to lean left of centre, though I didn't see that, and he thus would never be appointed by a conservative government to High Court. He trashed my applications in court so I really ought not to like him but, alas, he is bloody good even if he is a Collingwood supporter. Nobody's perfect. Australia needs a HCA judge like Marshall but a conservative appointee he will never be.

Justice Middleton stuck me as being cut from the same cloth as Marshall and Jessup. He was also an obviously exceptionally talented jurist. Along with that talent, he had quite an impressive statesmanlike disposition. He seems a natural leader. Out of the judges that I know of from Victoria he would have been my bet for the HCA appointment. Maybe His Honour's time will come with Nettle's retirement in 2020.

Of the three judges sitting on the Full Bench of my appeal, I've mentioned Gilmour J above and he may be a front runner for the 2017 WA slot. Victoria's Justice Beach has prodigious technical abilities and not just in law. His talents rise to quantum physics and all sorts of expert matters. As a relatively new and younger FCA judge, Beach J needs more time in the oven before the world can interpret his judicial qualities properly. That just leaves Besanko J of that triumvirate to consider.

Besanko J was two giant failings. Firstly, he has the misfortune to be from South Australia. South Australia has never had a High Court appointment. Only a Tasmanian judge would be feeling less likely. Perhaps one of the next 52 appointments might be from SA though the Melbourne Club will fight tooth and nail to prevent that close proximity failure. Frankly, I thought SA origin might actually work in Besanko J's favour for this appointment as SA is definitely overdue. WA has not been always represented with a judge in the HCA, so perhaps Besanko can claim WA's spot for SA as early as 2017? Not really likely though as the politics of WA losing their representation would be difficult politics as is obvious to anyone listening to the state v state GST debate.

Besanko has the ideal qualities to fulfil such an esteemed role as a terrific jurist. He is twice the judge that Gordon J will ever be. However that brings up his second great failing. He has a penis instead of a vagina. I presume. The government is desperate to add female representation to the court given their all too public failings with gender misrepresentation in their cabinet. They already suffered some damage appointing Nettle J to replace Susan Crennan J despite Nettle J being a fine legal technician. The coalition government needed a woman and I don't really get the impression Justice Besanko qualified.

Now, I'm actually in favour of positive discrimination for gender. Women need support to break the glass ceiling and with only five HCA appointments in all of Australia's history being women, despite about half of university law graduates now being women, there is some catching up to do. Just like geography, gender has role to play in representative balance. Justice Kirby said, "Women are not just men who wear skirts." However there has to be an expectation that the appointee is suitable for the role and meritorious.

Victorian FCA judge, The Hon Susan Kenny I viewed as not quite in the same class as Besanko, Middleton, Marshall and Jessup in talent and ability. However she is an obviously better judge than Gordon J and her appointment to the HCA would not be the retrograde step that Gordon J represents. Kenny J ticks the conservative box as a Howard appointee to the FCA though I'm not sure how many years Her Honour has left until retirement beckons, perhaps ten or just under. A more reasonable term. So why not Kenny J? Perhaps she wishes to retire sooner? Was it her former role as a Commissioner of the Human Rights and Equal Opportunity Commission? Surely that is a positive and not negative?

So I thought Middleton, Marshall, Besanko, Jessup, Kenny, Gilmour were all fit for the HCA immediately and much better alternatives to Gordon J. Conservative politics and geography would rule out Marshall, Gilmour and perhaps Besanko (which seems wrong). So there were good alternatives in that very small sample. The best conservative judge, and quite a statesman, from Victoria would have been Middleton. The best female Victorian judge on my list would have been Kenny. Silly game, but it makes a point. There are plenty of other good jurists that may also fit the bill, especially in the Supremes. The government should have done its job properly. The process of appointment needs to be fixed.

Corgis are cool. I like the monarchy but I'm a Republican. I don't like having to tell my daughters that even though they are born in this country as citizens they can never rise to be Australia's head of state. They cannot be the Queen. Knowing that a citizen is prevented from station by birth is galling. Gordon J's appointment to the High Court feels like that. It is saddening that a bad judge via nepotism and cronyism can get such a prestigious and undeserved appointment. Sure there is always the politics of balanced representation but each unmeritorious appointment kill the hopes and dreams of a society that continues to have egalitarian ambitions. Gordon J's appointment kills a little of all of our happiness as the fairness is missing. There was no need. There are many talented female jurists in Australia. The bottom line is that Gordon's appointment has corrupted our society to some degree.

It is especially sad there is unlikely to be a proper debate. I've already heard of much discontent in the legal ranks as they rankle, but you're unlikely to hear it (update: maybe?). Dissidence is death where biases can shape outcomes in court and prevent appointments furthering careers. Brandis seemed to know it would be controversial by spinning out the line about how marriage should not prevent a candidate from consideration. So, the government knew it to be a fine example of cronyism and nepotism and did it anyway with the spin doctors at the heel. A nice FU to the citizenry from our democratic leaders. I'm hardly the font of all knowledge and am only scratching the surface with a very limited perspective. Out of eleven judges I'm familiar with, a tiny sample, nine have more merit than Gordon when I wear my somewhat flawed judicial critic hat. The obviousness that Gordon J is more like Joffrey than Ned Stark is unlikely to get traction in the public discourse. Those that know, wont say, and, most of those that say, don't know. Nothing will change. Gordon J is a shit judge now. Insanity is doing the same thing repeatedly and expecting a different result. Gordon J will be a shit judge at the High Court.

Whilst I'm deeply saddened Australia can allow this kind of crap to happen, I'm not sure anyone will really care. There are bigger failings afoot in society. For perspective, here are some more important issues in justice and corruption. The appointment of the wrong person to an ivory tower far from the relevance of the maddening crowd's daily routine is not a recipe for community interest. Perhaps, near enough is good enough continues to be the Australian way. A society where excellence has no place is a disturbing thought to my ideals. Much like the reaction to the new privacy and metadata laws you should expect we'll only hear the sound of one hand clapping.

I'm disappointed with Gordon J's unmeritorious appointment.

Please don't appoint shit judges to the High Court. Just stop it. Please stop. Stop it now! And, while you're at it, FIX the damn process so it doesn't happen again!

Fiat justitia,



Some links;

A simple statement

"As those who know me, I abhor publicity and attention," Gordon J said. "I believe that professionally a person should be judged by the nature and quality of their work, and not by any other fact or matter."                     #FAIL

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