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Practice notes

Every Issue

Cite as: (2009) 83(02) LIJ, p. 62


Federal Court

National guide to counsel fees

The following guide may be applied by taxing officers of the Federal Court when making an estimate pursuant to O.62 r46 of the Federal Court Rules or on taxation of a party and party bill of costs.

In many cases the range of fees in this guide will bear no relationship to the amounts that members of the Bar actually charge as a fee on an hourly rate.

Where, for example, by reason of the number, difficulty and/or complexity of the questions of law or fact involved, the time required for preparation for the hearing is substantially extended beyond what might be regarded as “average”, a taxing officer may determine that a fee at or above the upper end of the range may be appropriate. In particular cases, the standing and experience of the counsel concerned may also be a relevant matter for consideration. Similarly, where the matter is not complex or difficult, a fee at or towards the lower end of the range may be appropriate.

The amounts listed are not to be regarded as limiting the taxing officers’ discretion to allow higher or lower fees if it is considered appropriate.

This guide takes effect from 1 January 2009.

Warwick Soden
Registrar, 8 December 2008

Supreme Court

Associate judges

Practice Note No 6 of 2008

1. The Chief Justice has authorised the issue of the following practice note.

Title

2. On the commencement of the Courts Legislation Amendment (Associate Judges) Act 2008 on 17 December 2008, the office of master of the Supreme Court is replaced with the office of associate judge. Each of the former masters is now an associate judge. The senior master will be known as the associate judge who is the senior master and the taxing master will be known as the associate judge who is the taxing master.

3. Having consulted with the Council of Judges, the Chief Justice has determined the following matters pertaining to the title of associate judges pursuant to s9B of the Supreme Court Act 1986:

  • An associate judge is to be formally known as and referred to as The Honourable Associate Justice [surname].
  • In court, the appropriate form of address of and reference to an associate judge is “your Honour” and “his or her Honour”.
  • In judgments and similar writings, the appropriate abbreviation for an associate judge is “AsJ”.

Robing

4. Associate judges will robe in the same circumstances as judges of the Court.

Existing practice notes

5. References in existing practice notes to masters are to be read as references to associate judges.

6. References in existing practice notes to masters by name who are now associate judges are to be read according them their new title.

7. References in existing practice notes to the listing master are to be read as referring to the associate judge responsible for listing. Associate Justice Kings continues to be responsible for listings.

8. Practice Note No 3 of 2002 – Transcript in civil proceedings does not apply to hearings before associate judges unless an associate judge so orders. Parties should anticipate that associate judges hearing the trial of a proceeding may order that there be transcript.

9. For the purposes of clarity, Practice Note No 9 of 1986 and Practice Note No 2 of 1993 no longer have effect.

Vivienne Macgillivray
Executive associate to the Chief Justice 16 December 2008

County Court

County Court Koori Court Division

Practice Note PNCR 3/2008

Introduction

1. The Koori Court has been established under the County Court Amendment (Koori Court) Act 2008. The Act was assented to on 23 September 2008 and provides for the establishment of the Koori Court as a division of the County Court.

2. The Koori Court draws on the successful implementation of the Koori Court model in both the Magistrates’ Court and the Children’s Court.

3. The objective of the Koori Court is to ensure greater participation of the Aboriginal community in the sentencing process of the County Court through the role played in that process by the Aboriginal Elders or Respected Persons and others such as the Koori Court officer.

4. The County Court Koori Court is the first sentencing court for Aboriginal offenders in a higher jurisdiction in Australia.

5. The pilot program runs for four years, commencing at the Latrobe Valley Law Courts, Morwell following the official launch on 19 November 2008. County Koori Court hearings will be given priority in the first week of circuits held during 2009.

Jurisdiction

6. The Koori Court has jurisdiction to sentence for all offences dealt with in the criminal jurisdiction of the County Court except:

  • a sexual offence as defined in s6B(1) of the Sentencing Act 1991; or
  • a contravention of a family violence intervention order or a family violence safety notice under the Family Violence Protection Act 2008 or an offence arising out of the same conduct as that from which the contravention arose.

7. The Koori Court can hear a proceeding if all of the following criteria are satisfied:

(a) the offender is an Aboriginal or Torres Strait Islander; and

(b) the offence is within the jurisdiction of the County Court; and

(c) the offender pleads guilty; and

(d) the offender consents to the proceeding being dealt with by the Koori Court; and

(e) the judge considers the matter is appropriate to come before the Court.

Process for identification

8. Aboriginality is a jurisdictional requirement. An offender must be Aboriginal to come before the Koori Court. Aboriginality is defined as a person who:

(a) is descended from an Aborigine or Torres Strait Islander; and

(b) identifies as an Aborigine or Torres Strait Islander; and

(c) is accepted as an Aborigine or Torres Strait Islander by an Aboriginal or Torres Strait Island community.

9. Where an offender is represented by the Victorian Aboriginal Legal Service (VALS), no further confirmation of Aboriginality is required.

10. In all other cases, offenders who elect to come before the Koori Court must complete a Koori Court proof of Aboriginality form* and provide that to the County Court Koori Court officer at the time the election is made to enter the Koori Court. An information form explaining the process is attached.* The completed forms are to be given to the Koori Court officer, who completes the identification process prior to the offender’s case being heard in the Koori Court.

11. The issue of an offender’s Aboriginality is not a matter for discussion in open court. Issues regarding Aboriginality must be raised with the Koori Court officer prior to the sitting day and must be resolved prior to the hearing.

How to enter the Koori Court division

12. To enter the Koori Court an offender or their legal representative must advise the registrar of the Magistrates’ Court at the completion of the committal proceedings. Alternatively, application can be made to the listing judge if the matter has already been committed for trial. The matter is then listed before the listing judge, Latrobe Valley Law Courts about three months from committal.

13. The listing judge decides whether the matter is appropriate for the Koori Court in all the circumstances and, if so, allocates a court hearing date. Any challenges to jurisdiction shall be dealt with by the listing judge prior to the matter being allocated to the Koori Court.

Koori Court plea hearing

14. The plea hearing is conducted in a three stage process. Stage 1 is a formal arraignment. Guilty pleas are entered at a case conference before the listing judge at the Latrobe Valley Law Courts. The matter will then be given a plea date in the Koori Court.

15. Stage 2 is the sentencing conversation. This procedure is different from the usual plea hearing conducted in the County Court.

16. The sentencing conversation is carried out as a discussion around a table. The judge sits at the table with an Aboriginal Elder or Respected Person on either side of him or her. Also seated at the table are the offender, the Koori Court officer, the corrections officer, the offender’s legal representative and prosecutor. Each participant has the opportunity to participate in the sentencing conversation.

17. The first part of the sentencing conversation concerns aspects of cultural significance and is repeated with every offender. The sentencing conversation begins with an acknowledgement of country, Gunai/Kurnai country. The judge explains to the offender that the Court respects Aboriginal people and culture and that the room has been smoked in keeping with tradition. The judge introduces the participants or asks them to introduce themselves and explain to the offender their role in the process.

18. The second part of the conversation deals with the law. The prosecutor provides a summary of the offending, details the maximum penalty applicable and makes submissions on penalty. The defence lawyer will then outline the offender’s situation, placing before the Court the plea material, and make submissions about penalty. The offender is asked to speak to the Court about their offending and about themselves.

19. Family members, support persons or counsellors are also invited to contribute to the conversation.

20. The Aboriginal Elders or Respected Persons may then speak to the offender. The Elders or Respected Persons may provide information on the background of the offender and possible reasons for the offending behaviour. They may also explain relevant kinship connections, how a particular crime has affected the Indigenous community and provide advice on cultural practices, protocols and perspectives relevant to sentencing. They may also speak to the offender about his or her behaviour and its effect on the community.

21. The victim will be offered the opportunity to be heard. The victim can attend the conversation and speak or a victim impact statement may be read aloud in court at their request.

22. During the sentencing conversation, the judge may ask the Koori Court officer about the availability of local services and programs appropriate to the offender. The corrections officer can also provide advice about Indigenous programs offered by Corrections Victoria, either in custody or with the offender remaining in the community. The aim of this approach is to maximise the rehabilitation prospects of the offender.

23. The judge may discuss community and family considerations with the Aboriginal Elders or Respected Persons and other participants audibly and openly at the table.

24. Stage 3 is the sentence. The usual sentencing procedures are followed. The procedure is formal with the judge sitting alone at the bench to deliver the sentence. This process reinforces to the offender and other participants that the judge is the ultimate decision-maker.

Exchange of material

25. The parties shall deliver copies of any reports or other materials on which they intend to rely to the Koori Court officer and to each other at least two working days prior to the sentencing conversation.

Appeals to the County Koori Court

26. In addition to hearing pleas, the County Koori Court can hear appeals under ss83 or 84 of the Magistrates’ Court Act 1989 where the appeal is against a sentencing order made by:

(a) the Koori Court Division of the Magistrates’ Court; or

(b) the Magistrates’ Court other than the Koori Court Division of that court.

27. For the pilot, the only appeals that can be heard in the Koori Court are matters that proceeded in Magistrates’ Courts located in the Latrobe Valley region and the matters which would otherwise have been dealt with in the County Court sitting in the Latrobe Law Courts, Morwell or at Sale and Bairnsdale.

28. At the time of filing of an appeal from the Magistrates’ Court (whether in its Koori Court Division or otherwise), an appellant or the legal representative must request that the appeal be referred to the Koori Court. The matter is then listed for a mention before the list judge. If the appeal is appropriate to be dealt with in the Koori Court, the list judge will then list the matter for a Koori Court sitting.

Breaches of orders made by the Koori Court

29. The Koori Court has jurisdiction to hear any breach proceeding relating to an order previously made. Breach proceedings are brought before the Court by the responsible authority liaising with the associate to the list judge, Latrobe Valley Law Courts and the Koori Court officer.

30. Judge Lawson will be the judge in charge of the Koori Court responsible for the man-agement of the Court. Her associate Clare Morris can be contacted on ph 8636 6604, fax 8636 6036 or email clare.morris@countycourt.vic.gov.au.

County Koori Court personnel

31. Rosemary Smith is the project manager, Koori Court and is responsible for the establishment, implementation and evaluation of the Koori Court. Her contact details are ph 8636 6507, fax 8636 6051, email rosemary.smith@justice.vic.gov.au.

32. Nicole Le Sage is the Koori Court officer based at the Latrobe Valley Law Courts, 134 Commercial Road, Morwell 3840. Her responsibility is to support the Koori Court, to provide information about the Koori Court and to assist defendants to access appropriate support services. Her contact details are ph 5116 5222, email NicoleLeSage@countycourt.vic.gov.au.

* Due to space constraints these forms have not been reproduced here. The full version of this practice note, including the forms, can be found at http://www.countycourt.vic.gov.au.

County Court

Interim note – Relationships Act 2008

Practice Note PNCI 8/2008

1. This interim practice note is designed to deal with the Relationships Act 2008 (the Act) and the Relationships Amendment (Caring Relationships) Bill 2008.

2. The Act came into operation on 1 December 2008. Section 72 of the Act repeals the operation of Part IX of the Property Law Act 1958. The Act provides for, among other things, adjustment of property interests between domestic partners and the rights of domestic partners to maintenance as and from 1 December 2008.

3. Section 74 of the transitional provisions of the Act provides that any right or entitlement that a person had under Part IX of the Property Law Act 1958 immediately before the commencement day is taken, on and after that day, to be a right or entitlement of the person under this Act. Any proceeding commenced under Part IX before 1 December 2008 will continue to be governed by Part IX.

4. The Family Court will assume full responsibility for the jurisdiction created by the Act as and from March 2009.

5. Any proceeding filed in the County Court on and after 1 December 2008 and before March 2009 will remain in the County Court, subject to the entitlement of the parties to have the proceeding transferred to the Family Court.

6. The parties must give consideration to deferring any application under the Act which either of the parties is contemplating, given that the Family Court will assume full jurisdiction under the Act as and from March 2009.

7. Any proceeding filed in the County Court as and from 1 December 2008 should follow the procedure referred to in the relevant practice note governing the business of the Family Property Division note as far as is possible.

8. Practitioners completing a request to enter a list form making applications pursuant to the Act should nominate the category Domestic Partners Property Dispute in the Commercial List, Family Property Division.

9. Any proceedings filed in the County Court under Chapter 3 Division 3 (adjustment of property interests) or under Chapter 3 Division 4 (maintenance) seeking any interim orders, other than procedural orders, must be commenced by a principal proceeding by writ or originating motion and the interim relief commenced by summons as required by O.46 of the County Court Rules:

(a) specifying the division of the Act under which the application is brought; and

(b) the relief sought.

10. An application for maintenance under Division 4 must be supported by an affidavit setting out the financial circumstances of the plaintiff and the defendant, and without limiting the generality of the foregoing, must address:

(a) the evidence relied on by the applicant to the application;

(b) the financial circumstances of the applicant to the application;

(c) the financial circumstances of the respondent to the application;

(d) the basis of the need for maintenance for the applicant to the application;

(e) the basis of the capacity to pay maintenance by the respondent to the application; and

(f) a short statement of the financial resources of the plaintiff and the defendant to the application.

11. A statement of financial circumstances authorised for use in an application for maintenance under the Family Law Act 1975 can be used for the purpose of supporting the application for maintenance in addition to the affidavit required under paragraph 9 above.

12. Any application described in paragraph 8 above will be listed before Judge Misso on a Thursday at 9.30am. If Judge Misso is unavailable, applications will be listed before the Practice Court judge.

Victims of Crime Assistance Tribunal

Notification of alleged offenders and third parties

Practice Direction No 4 of 2008

Purpose

The purpose of this practice direction is to specify the procedure to be followed where:

  • the Tribunal is considering notifying a person with a legitimate or substantial interest in an application, including the alleged offender; or
  • a person, including the alleged offender, considers that they have a legitimate or substantial interest in an application for assistance.

Background

Pursuant to s34(2) of the Victims of Crime Assistance Act 1996, “the Tribunal may give notice of the time and place for the hearing to any other person whom the Tribunal considers to have a legitimate interest in the matter”.

Pursuant to s34(3) of the Act, “the Tribunal must not give notice of the time and place for the hearing to the person who committed, or is alleged to have committed, the act of violence without first giving the applicant an opportunity to be heard on the issue of whether that notice should be given”.

Notification to the alleged offender(s)

Where the Tribunal indicates that consideration is being given to notifying the alleged offender of an application for financial assistance, the following procedures will apply:

1. The Tribunal will advise the applicant or their legal representative in writing that notification of the alleged offender is being considered and 21 days will be allowed for a response.

2. At the conclusion of 21 days, the registrar will refer the matter, including any submissions/objections received, to the Tribunal member considering the notification to make a decision as to whether the alleged offender will be notified of the application.

3. If the Tribunal member determines that the alleged offender is to be notified of the application, the applicant or their legal representative will be advised of this in writing before the alleged offender is notified of the application. The applicant or their legal representative will be allowed 21 days to advise the Tribunal as to whether the application for financial assistance is still to be pursued.

4. If the applicant or their legal representative advises that the applicant wishes to proceed with their application for financial assistance, or no response is received by the Tribunal, the registrar will send notification of the application to the alleged offender by registered mail. The registrar will allow the alleged offender 14 days to advise the Tribunal as to whether they intend to participate in the hearing.

5. If no response is received from the alleged offender, the registrar will refer the application for financial assistance to the Tribunal member for listing advice. In these circumstances, the registrar is required to advise the applicant or their legal representative that the alleged offender will not be attending the hearing.

6. If the alleged offender elects to be notified of the hearing, the registrar will list the application for a directions hearing and notify the applicant or their legal representative of the time, date and place of the directions hearing.

7. Pursuant to any directions given at the directions hearing, the application will be listed for hearing and both the applicant or their legal representative and the alleged offender will be notified of the time, date and place of the hearing.

Notification of other person(s) with a legitimate or substantial interest

Where the Tribunal indicates that consideration is being given to notifying a person who may have a legitimate or substantial interest in the application for financial assistance, other than the alleged offender, the following procedures will apply:

1. The Tribunal will advise the applicant or their legal representative in writing that notification to a potential third party is being considered and 21 days will be allowed for a response.

2. At the conclusion of 21 days, the registrar will refer the matter, including any submissions/objections received, to the Tribunal member considering the notification to make a decision as to whether the potential third party should be notified.

3. If the Tribunal member determines that the potential third party has a legitimate or substantial interest in the application, the applicant or their legal representative will be advised of this in writing before the potential third party is notified. The applicant or their legal representative will be allowed 21 days to advise the Tribunal as to whether the application for financial assistance is still to be pursued.

4. If the applicant or their legal representative advises that the applicant wishes to proceed with their application for financial assistance, or no response is received by the Tribunal, the registrar will send notification of the application to the potential third party by registered mail. The registrar will allow the potential third party 14 days to advise the Tribunal as to whether they intend to participate in the hearing.

5. If no response is received from the potential third party, the registrar will refer the application for financial assistance to the Tribunal member for listing advice. In these circumstances, the registrar is required to advise the applicant or their legal representative that the potential third party will not be attending the hearing.

6. If the third party wishes to be involved in the proceedings or to be notified of the hearing, the registrar will list the application for a directions hearing and advise the applicant or their legal representative and the third party of the time, date and place of the directions hearing.

7. Procedural directions for the further conduct of the proceedings will, unless otherwise ordered, be determined at the directions hearing.

Applications by person(s) with a legitimate or substantial interest

Where a person, including the alleged offender, considers that they have a legitimate or substantial interest in an application for assistance, the following procedures will apply:

1. The third party/alleged offender must make an application in writing, setting out the reasons why they consider that they have a legitimate interest, substantial interest or should be notified of the proceedings. There is no prescribed form for the application and it can be made by letter addressed to the Tribunal.

2. The application is to be referred to a Tribunal member for consideration.

3. Unless otherwise ordered by the Tribunal member, the registrar will forward to the applicant or their legal representative a copy of the third party/alleged offender application. The applicant or their legal representative must respond to the Tribunal within 21 days as to whether they object to the third party/alleged offender participating in the proceeding.

4. If no response is received from the applicant, or the applicant does not oppose the application of the third party/alleged offender, the application will be referred to a Tribunal member in chambers for determination of the application by the third party/alleged offender.

5. If the applicant opposes the third party/alleged offender application, the matter will be referred to a Tribunal member for listing advice. If the application is listed for a directions hearing, the registrar is required to advise the applicant or their legal representative and the third party/alleged offender of the time, date and place of the directions hearing.

6. Procedural directions for the further conduct of the proceedings will, unless otherwise ordered, be determined at the directions hearing.

Revocation of previous practice direction

This practice direction revokes the following practice directions:

  • Practice Direction 5/2003 – Notification of alleged offender(s) pursuant to s34(2) and (3) of the Victims of Crime Assistance Act 1996.
  • Practice Direction 8/2003 – Persons with a legitimate and/or substantial interest pursuant to ss34 and 35 of the Victims of Crime Assistance Act 1996.

Commencement

This practice direction has effect from 1 January 2009.

Chief Magistrate Ian L Gray
11 December 2008

Victims of Crime Assistance Tribunal

Claims for loss of earnings

Practice Direction No 5 of 2008

Purpose

The purpose of this practice direction is to specify the procedure to be followed in relation to claims for financial assistance for loss of earnings.

Background

Section 17 of the Victims of Crime Assistance Act 1996 provides as follows:

“17 Loss of earnings

Assistance for loss of earnings awarded by the Tribunal is for earnings lost by the primary or secondary victim as a direct result of total or partial incapacity for work during a period of up to two years after the occurrence of the act of violence”.

The Tribunal may award a primary victim up to $20,000 for loss of earnings suffered, or likely to be suffered, during a period of up to two years after, and as a direct result of, the act of violence.

In exceptional circumstances, the Tribunal may award a secondary victim up to $20,000 for loss of earnings suffered, or reasonably likely to be suffered, as a direct result of witnessing, or becoming aware of, the act of violence and which loss occurred during a period of up to two years after the occurrence of the act of violence.

Note: A primary or secondary victim is only entitled to an award for loss of earnings after exhausting all other entitlements available, including those available pursuant to Social Security, WorkCover and Transport Accident Commission legislation.

Note: Calculations for loss of earnings claims should be made by reference to gross income figures.

Procedure for making a claim for loss of earnings

An application for an award for loss of earnings shall be made in writing by filing a loss of earnings claim form.* Claims for loss of earnings must be supported by documentation that verifies the figures used to calculate the amount claimed. This may include:

(a) Advice in writing from the applicant’s employer or, if self-employed, a statement detailing:

  • number of days/weeks absent from work;
  • reason for period of absence; and
  • gross loss and how amount is calculated, including particulars of the basis on which notional pre-injury earnings have been determined.

(b) Medical report/certificate specifying the nature of illness or injury causing partial or total work incapacity and the duration of such incapacity.

(c) Documentation verifying:

  • WorkCover payments;
  • Transport Accident Commission payments;
  • Social Security payments; and
  • all other payments received by the applicant or to which the applicant is or may be entitled during the period for which the loss of earnings claim is made.

(d) If self-employed, tax returns for:

  • the three financial years before the act of violence; and
  • the financial years between the date of the act of violence and the end date of the period for which the loss of earnings claim is made.

(e) Any other documentation relevant to the loss of earnings claim.

Revocation of previous practice direction

This practice direction revokes Practice Direction 6/2003 – Loss of earnings claims.

Commencement

This practice direction has effect from 1 January 2009.

Chief Magistrate Ian L Gray
11 December 2008

* Due to space constraints this form has not been reproduced here. The full version of this practice note, including the form, can be found at http://www.vocat.vic.gov.au.

New Victorian Notaries’ Fees

Applicable from 4 December 2008 (GST exclusive).

This scale is a suggested scale only. Notaries may negotiate any fee for a service or may charge no fee at all.

Attestations, declarations and oaths

1. Very short attestations without a separate certificate (e.g. New Zealand land transfers, US acknowledgements): $50

2. Attestations, declarations and oaths with separate certificates – one person (e.g. Supreme Court affidavits, Malaysian deeds): $80

3. Item 2: for each additional person at the same time: $40

4. Preparing and completing an exhibit note: $50

5. Completing and sealing an exhibit note provided by others: $40

6. Verification of copy documents, per page: $20

Certificates

7. As to copy documents: $120

8. As to anything not included in any other item of the scale, in addition to necessary searches, inquiries, inspections and discussions, which may be charged for under item 18 below, according to length, but including completion and sealing:

1 page: $120

2 pages: $180

3 pages: $240

9. Certificates of good standing of companies: as for item 8 plus $80 per additional page after the first.

10. Certificates as to Australian or foreign law: $240 plus $80 per additional page after the first.

Bills of exchange

11. Noting a bill of exchange: $150

12. Presenting a bill of exchange – by the notary, per hour: $450

– by a clerk of the notary, per hour: $200

13. Protesting a bill of exchange, including all steps: $200

Ships’ protests

14. Completing and certifying copies of a protest prepared by a ship’s master: $200

15. Preparing and completing an extended protest: $200

16. Protest, when entirely drawn by the notary, but including all annexures and providing three certified copies: $300

If there are any additional witnesses or parties, additional charges may reasonably be made under item 18.

Duplicates of any notarial act

17. For each of the first 10 copies after the first: half the total fees for the original.

18. For each copy after the tenth: one quarter of the total fees for the original.

Miscellaneous services

19. Time spent, apart from the interview with the client for the purpose of execution, to undertake any of the following:

  • perusal of documents;
  • drawing additional documents such as special declarations or affidavits;
  • obtaining information from third parties;
  • performing searches of the web, land or ASIC registries;
  • interviewing persons other than the executant.

For each six minutes engaged: $45

20. For providing any document in a language other than English: double the scale fee.

21. Providing photocopies of documents, per page: $2

22. Attending to present a notarial act to have an apostille affixed by DFAT: $100

23. For correspondence with DFAT obtaining an apostille: $60

All out of pocket expenses incurred by the notary, including company search fees, access fees charged by internet service providers, DFAT apostille fees etc. are additional.

National guide to counsel fees

Applications/Appeals

Junior Counsel

Senior Counsel

Fee on brief (including preparation at discretion of taxing officer and appearance on the first day of a hearing)

OR

$1160 – $4660

$1920 – $7000

Appearance at hearing (daily rate including conference)

$820 – $3850

$1920 – $5830

Interlocutory applications

Motion/Interlocutory hearing

– short (up to 2 hours)

– long (2 hours plus)

$320 – $1920

$640 – $3800

$400 – $2920

$760 – $5830

Other

Hourly rate for:

• Directions hearing

• Preparation time

• Conferences (not occurring on day of hearing)

• Settling applications, statements of claim, affidavits, defence, other documents

• Opinions, advice on evidence

• Written submissions (where not allowed above)

• Attending to receive judgment (where appropriate)

• Not otherwise provided for

$260 – $470

$400 – $700

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