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Government Proceedings Act 1974

CONSOLIDATED ACTS OF SAMOA 2009


GOVERNMENT PROCEEDINGS ACT 1974


Arrangement of Provisions


TITLE
1. Short title
2. Interpretation


PART I
ACTIONS BY OR AGAINST THE GOVERNMENT


3. Claims enforceable by or against the Government under this Act
4. Limitation of actions by or against the Government
5. Liability of the Government under other Acts
6. Liability of the Government in tort
7. Application of law as to indemnity, contribution, and joint and several tortfeasors


PART II
JURISDICTION, PROCEDURE, AND JUDGMENTS


8. Civil proceedings by or against the Government
9. Method of making the Government a party to proceedings
10. Recovery on behalf of the Government of amounts not exceeding $100
11. Service of documents and time for filing defence by the Government
12. Nature of relief
13. Appeals, stay of execution, and costs
14. Interest on debts, costs, etc.
15. Recovery of debts due upon recognisance
16. Judgments for recognisances may be vacated by Supreme Court


PART III
EXECUTION


17. Satisfaction of orders against the Government
18. Execution by the Government
19. Attachment of money payable by the Government


PART IV
MISCELLANEOUS


20. Discovery
21. Exclusion of proceedings in rem against the Government
22. Application to the Government of certain statutory provisions
23. Rules of Court
24. General rules to apply in the absence of special rules
25. Saving of certain rights, etc.
26. Repeal
Schedule


_____________


THE GOVERNMENT PROCEEDINGS ACT 1974
1974 No.13


AN ACT to make provision for the civil liabilities and rights of the Government and officers of the Government, and for civil proceedings by and against the Government.


(30 December 1974)
(Commencement date: 30 December 1974)


1. Short title - This Act may be cited as the Government Proceedings Act 1974.


2. Interpretation - (1) In this Act, unless the context otherwise requires:


"Agent", in relation to the Government, includes an independent contractor employed by the Government.


"Attorney-General" means the Attorney-General of Samoa.


"Civil proceedings" means any proceedings in any Court other than criminal proceedings, but does not include proceedings in relation to habeas corpus, mandamus, prohibition, or certiorari.


"Commonwealth" means the Commonwealth of Nations; and includes every territory for whose international relations the Government of any country of the Commonwealth is responsible.


"Court" means the Supreme Court, and any other Court of competent jurisdiction established in Samoa.


"Government Department" or "Department" means the Public Trustee and every other Department or instrument of the Executive Government of Samoa.


"Officer" in relation to the Government, includes any servant of the Government, and includes a Minister of the Government; but does not include the Head of State, a member of the Council of Deputies, or any Judge, District Court Judge, Faamasino Fesoasoani, or other judicial officer.


"Order" includes a judgment, decree, rule, award, or declaration.


"Proceedings against the Government" includes a claim by way of set-off or counterclaim raised in proceedings by the Government.


"Servant", in relation to the Government, means any servant of the Government, and includes a Minister of the Government but does not include the Head of State, a member of the Council of Deputies, or any Judge, District Court Judge, Faamasino Fesoasoani, or other judicial officer.


(2) Any reference in this Act to the Government, in relation to any civil proceedings, or in relation to any order or judgment debt or costs in connection with any civil proceedings, shall be construed as including a reference to the Attorney-General or any Government Department or officer of the Government where the Attorney-General, Department, or officer is a party or third party to the proceedings in accordance with section 14:


PROVIDED THAT the Attorney-General shall not be deemed to be the Government in relation to any proceedings by reason only of the fact that the proceedings are brought by the Attorney-General upon the relation of some other person.


PART I
ACTIONS BY OR AGAINST THE GOVERNMENT


3. Claims enforceable by or against the Government under this Act - (1) Subject to the provisions of this Act and any other Act, all debts, damages, duties, sums of money, land, or goods, due, payable or belonging to the Government, shall be sued for and recovered by proceedings taken for that purpose in accordance with the provisions of this Act:


PROVIDED THAT nothing in this subsection shall interfere with or restrict any special power or authority vested in the Government, or in any person on its behalf, with respect to all or any of the matters mentioned in this subsection.


(2) Subject to the provisions of this Act and any other Act, any person (whether a citizen of Samoa or not) may enforce as of right, by civil proceedings taken against the Government for that purpose in accordance with the provisions of this Act, any claim or demand against the Government in respect of any of the following causes of action:


(a) The breach of any contract or trust;


(b) Any wrong or injury for which the Government is liable in tort under this Act or under any other Act which is binding on the Government;


(c) Any cause of action, which is independent of contract, trust, or tort, or any Act, for which an action for damages or to recover property of any kind would lie against the Government if it were a private person of full age and capacity;


(d) Any other cause of action in respect of which relief would be granted against the Government at common law or in equity.


4. Limitation of actions by or against the Government - The provisions of this Act shall be subject to the provisions of any limitation enactment which limits the time within which proceedings may be brought by or against the Government.


5. Liability of the Government under other Acts - Except as expressly provided by this Act or any other Act, this Act shall not be construed so as to make any Act binding upon the Government which would not otherwise be so binding, or so as to impose any liability on the Government by virtue of any Act which is not binding on the Government.


6. Liability of the Government in tort - (1) Subject to the provisions of this Act and any other Act, the Government shall be subject to all those liabilities in tort to which, if it were a private person of full age and capacity, it would be subject:


(a) In respect of torts committed by its servants or agents;


(b) In respect of any breach of those duties which a person owes to his or her servants or agents at common law by reason of being their employer; and


(c) In respect of any breach of the duties attaching at common law to the ownership, occupation, possession, or control of property:


PROVIDED THAT no proceedings shall lie against the Government by virtue of paragraph (a) in respect of any act or omission of a servant or agent of the Government unless the act or omission would apart from the provisions of this Act have given rise to a cause of action in tort against that servant or agent or his estate.


(2) Where any functions are conferred or imposed upon an officer of the Government as such either by any rule of the common law or by statute, and that officer commits a tort while performing or purporting to perform those functions, the liabilities of the Government in respect of the tort shall be such as they would have been if those functions had been conferred or imposed solely by virtue of instructions lawfully given by the Government.


(3) No proceedings shall lie against the Government by virtue of this section in respect of anything done or omitted to be done by any person while discharging or purporting to discharge any responsibilities of a judicial nature vested in him or her, or any responsibilities which he or she has in connection with the execution of judicial process.


7. Application of law as to indemnity, contribution, and joint and several tortfeasors - Where the Government is subject to any liability by virtue of this Part, the law relating to indemnity and contribution shall be enforceable by or against the Government in respect of the liability to which it is so subject as if the Government were a private person of full age and capacity.


PART II
JURISDICTION, PROCEDURE, AND JUDGMENTS


8. Civil proceedings by or against the Government - Subject to the provisions of this Act or any other Act, all civil proceedings which must be taken by, or may be brought against, the Government under this Act may be commenced, heard, and determined in the same Court and in like manner in all respects as in suits between subject and subject.


9. Method of making the Government a party to proceedings - (1) Subject to the provisions of this Act and any other Act, civil proceedings under this Act shall be instituted by and against the Attorney-General.


(2) The Government may be joined as a plaintiff to any civil proceedings to which it could be a plaintiff under this Act by joining the Attorney-General as a plaintiff.


(3) The Government may be joined as a defendant or third party to any civil proceedings to which it could be a defendant under this act by joining the Attorney-General as a defendant or third party.


(4) No proceedings instituted in accordance with this Act to which the Attorney-General is a party or third party shall abate or be affected by any change in the person holding the office of Attorney-General.


(5) Where the Attorney-General is a party or third party to any proceedings in accordance with this section, any order of the Court against or in favour of the Government in those proceedings shall be made against or in favour of the Attorney-General.


10. Recovery on behalf of the Government of amounts not exceeding $100 - (1) Any debt or damages payable to the Government and not exceeding $100 may be sued for and recovered in a Court on behalf of the Government by and at the suit of any person appointed in that behalf by a warrant under the hand of the Attorney-General, and judicial notice shall be taken of the signature of any such warrant.


(2) Every person so appointed to sue on behalf of the Government shall sue in his or her own name with the addition of the words "suing on behalf of the Government", or words to the like effect.


(3) Nothing in this section shall be so construed as to prevent the recovery of money payable to the Government in any manner in which that money is recoverable independently of this section.


11. Service of documents and time for filing defence by the Government - (1) In any civil proceedings instituted against the Attorney-General, or to which the Attorney-General is joined as a party or third party, as aforesaid, all documents required to be served on him or her shall be served by delivering it to the Attorney-General at his or her office.


(2) In any civil proceedings against the Government under this Act the time to be allowed in any writ or summons for the filing of a statement of defence or notice of intention to defend shall be not less than 28 days, or such further time as the Court may allow.


12. Nature of relief - (1) In any civil proceedings under this Act by or against the Government or to which the Government is a party or third party the Court shall, subject to the provisions of this Act and any other Act, have power to make all such orders as it has power to make in proceedings between subjects, and otherwise to give such appropriate relief as the case may require:


PROVIDED THAT:


(a) Where in any proceedings against the Government any such relief is sought as might in proceedings between subjects be granted by way of injunction or specific performance, the Court shall not grant an injunction or make an order for specific performance, but may instead make an order declaratory of the rights of the parties; and


(b) In any proceedings against the Government for the recovery of land or other property, the Court shall not make an order for the recovery of the land or the delivery of the property, but may instead make an order declaring that any person is entitled as against the Government to the land or property or to the possession thereof.


(2) The Court shall not in any civil proceedings grant any injunction or make any order against an officer of the Government if the effect of granting the injunction or making the order would be to give any relief against the Government which could not have been obtained in proceedings against the Government.


13. Appeals, stay of execution, and costs - Subject to the provisions of this Act, all enactments and rules of Court relating to appeals and stay of execution shall, with any necessary modifications, apply to civil proceedings by or against the Government under this Act as they apply to proceedings between subjects; and the costs of suit shall follow on either side as in ordinary cases between other suitors:


PROVIDED THAT the Government shall not be required under any rule of Court or order to deposit or give security for the costs of any other party.


14. Interest on debts, costs, etc. - (1) Any judgment debt due from or to the Government shall carry interest if it would carry interest if it were due from or to a subject, and any interest so payable shall be at the rate at which it would be payable if the judgment debt were due from or to a subject.


(2) Any costs awarded to or against the Government shall carry interest if the costs would carry interest if they were awarded to or against a subject, and any interest so payable shall be at the rate at which it would be payable by a subject.


(3) Any judgment in any civil proceedings by or against the Government may award interest to any party to whom interest could be awarded if the proceedings were between subjects at the rate at which interest could be so awarded.


(4) This section shall apply both in relation to proceedings pending at the commencement of this Act and in relation to proceedings instituted thereafter.


15. Recovery of debts due upon recognisance - (1) Notwithstanding the foregoing provisions of this Act, where any person has entered into a recognisance to the Government, and the recognisance is forfeited, and no other procedure is provided by any Act or rule of Court for the estreat thereof, a Judge of the Court before which the same was forfeited may cause the recognisance to be estreated as hereinafter provided.


(2) The Judge shall, by writing under his or her hand in the form numbered 1 in the Schedule, or to the like effect, certify that the forfeiture has taken place, and shall deliver the said recognisance and writing to the Attorney-General, who, upon receipt thereof, shall cause a final judgement to be entered in the Court for the amount of the recognisance, and a sum not exceeding $10 for costs.


(3) Every such judgment may be in the form numbered 2 in the Schedule, or to the like effect, and no appeal shall lie therefrom.


16. Judgments for recognisances may be vacated by Supreme Court - Where final judgment has been entered under the provisions of section 15, the Supreme Court may order satisfaction to be entered upon the judgment, whether execution has been issued thereon or not:


PROVIDED THAT such an order shall not be made except upon notice calling upon the Attorney-General to show cause; nor unless it is proved by affidavit to the satisfaction of the Supreme Court either that the judgment has been satisfied, or that, according to equity and good conscience and the real merits and justice of the case, the defendant ought not to be required to satisfy the same.


PART III
EXECUTION


17. Satisfaction of orders against the Government - (1) Except as provided in this section, no execution or attachment or process in the nature thereof shall be issued out of any Court for enforcing satisfaction by the Government, or by the Attorney-General, or any Government Department or officer of the Government of any order made in any civil proceedings under this Act.


(2) Where in any civil proceedings any order (whether for costs or otherwise) is made by the Court in favour of any person against the Government or the Attorney-General or any Government Department or officer of the Government, and the person in whose favour the order is made so requests, the proper officer of the Court shall issue to that person, without payment of any fee, a certificate in the form numbered 3 in the Schedule or to the like effect:


PROVIDED THAT, if the order provides for the payment of money, the Court by which the order is made or any Court to which an appeal against the order lies may direct that, pending an appeal or otherwise, payment of the money so payable, or any part thereof, shall be suspended, and (if the certificate has not been issued) may order any such directions to be inserted therein.


(3) On receipt of any such certificate the Minister of Finance, without further appropriation than this section, may cause to be paid to the person therein named the amount payable by the Government under the order, together with any costs allowed him or her by the Court and the interest, if any, lawfully due thereon, and may also perform or give effect to the terms of the order so far as it is to be satisfied by the Government.


(4) The Minister of Finance shall, forthwith after the end of each financial year, cause to be prepared, in such form as the Minister approves or directs, a statement showing all amounts paid under this section without appropriation other than this section; and shall, as soon as practicable, cause the statement (duly audited by the Audit Office) to be laid before the Legislative Assembly.


18. Execution by the Government - Subject to the provisions of this Act and any other Act, any order made in favour of the Government against any person in any civil proceedings may be enforced in the same manner as an order made between subjects is enforced, and not otherwise. This section shall apply both in relation to proceedings pending at the commencement of this Act and in relation to proceedings instituted thereafter.


19. Attachment of money payable by the Government - Any person who has obtained an order for the payment of money may take proceedings, in accordance with rules of Court, to obtain payment to him or her of the amount of any debt payable by or accruing due from the Government to the person against whom the order was made, or so much thereof as may be sufficient to satisfy the order and the costs of the attachment proceedings; and in any such case the Court may make any order in respect of the amount payable by or accruing due from the Government which it would be entitled to make if the whole proceedings were between subjects:


PROVIDED THAT, except as provided in any other Act, no such order shall be made in respect of:


(a) Any wages, salary, honorarium, allowances, or expenses payable to any officer of the Government as such;


(b) Any money which is subject to the provisions of any enactment prohibiting or restricting assignment or charging or taking in execution;


(c) Any interest in customary land.


PART IV
MISCELLANEOUS


20. Discovery - (1) Subject to and in accordance with rules of Court:


(a) In any civil proceedings to which the Government is a party or third party, the Government may be required by the Court to answer interrogatories if the Government could be required to do so if it were a private person of full age and capacity; and


(b) In any such proceedings as aforesaid the Government may be required by the Court to make discovery of documents and produce documents for inspection if the Government could be required to do so if it were a private person of full age and capacity:


PROVIDED THAT this section shall be without prejudice to any rule of law which authorises or requires the withholding of any document or the refusal to answer any question on the ground that the disclosure of the document or the answering of the question would be injurious to the public interest.


(2) Any order of the Court made under the powers conferred by subsection (1)(a) of this section shall direct by what officer of the Government the interrogatories are to be answered.


(3) Without prejudice to the proviso to subsection (1), any rules made for the purposes of this section shall be such as to secure that the existence of a document will not be disclosed if, in the opinion of a Minister of the Government, it would be injurious to the public interest to disclose the existence thereof.


21. Exclusion of proceedings in rem against the Government - (1) Nothing in this Act shall authorise proceedings in rem in respect of any claim against the Government, or the arrest, detention, or sale of any ships or aircraft, or any cargo or other property belonging to the Government, or give to any person any lien on any such ship, aircraft, cargo, or other property.


(2) Where proceedings in rem have been instituted in the Supreme Court against any such ship, aircraft, cargo, or other property, the Court may, if satisfied, either on an application by the plaintiff for an order under this subsection or on application by the Government to set aside the proceedings, that the proceedings were so instituted by the plaintiff in the reasonable belief that the ship, aircraft, cargo, or other property did not belong to the Government, order that the proceedings shall be treated as if they were in personam duly instituted against the Government in accordance with the provisions of this Act, or duly instituted against any other person whom the Court regards as the proper person to be sued in the circumstances, and that the proceedings shall continue accordingly. Any such order may be made upon such terms, if any, as the Court thinks just; and, where the Court makes any such order, it may make such consequential orders as the Court thinks expedient.


22. Application to the Government of certain statutory provisions - This Act shall not prejudice the right of the Government to take advantage of the provisions of an Act although not named therein; and it is hereby declared that in any civil proceedings against the Government the provisions of any Act which could, if the proceedings were between subjects, be relied upon by the defendant as a defence to the proceedings, whether in whole or in part, or otherwise, may, subject to any express provision to the contrary, be so relied upon by the Government.


23. Rules of Court - (1) Any power to make, alter, or revoke rules touching or regulating the practice and procedure of any Court shall include power to make, alter, or revoke rules for the purpose of giving effect to the provisions of this Act, and any such rules may contain provisions to have effect in relation to any proceedings by or against the Government in substitution for or by way of addition to any of the provisions of the rules applying to proceedings between subjects.


(2) Without prejudice to the generality of the foregoing provisions of this section, rules may be made with respect to the following matters:


(a) For providing for service outside Samoa of process or notice thereof, in the case of proceedings by the Government against persons, whether citizens of Samoa or not;


(b) For securing that where any civil proceedings are brought against the Government in accordance with the provisions of this Act the plaintiff shall, before the Government is required to take any steps in the proceedings, provide the Government with such information as the Government may reasonably require as to the circumstances in which it is alleged that the liability of the Government has arisen and as to the Departments and officers of the Government concerned;


(c) For providing that in the case of proceedings against the Government the plaintiff shall not enter judgment in default of appearance or pleading without the leave of the Court to be obtained on an application of which notice has been given to the Government;


(d) For providing that a person shall not be entitled to avail himself or herself of any set-off or counterclaim in any proceedings by the Government for the recovery of taxes, duties, or penalties, or to avail himself or herself in proceedings of any other nature by the Government of any set-off or counterclaim arising out of a right or claim to repayment in respect of any taxes, duties or penalties;


(e) For providing that a person shall not be entitled, without the leave of the Court, to avail himself or herself of any set-off or counterclaim in any proceedings by the Government if the subject matter of the set-off or counterclaim does not relate to the Government, to a Government Department or officer of the Government;


(f) For providing that the Government, when sued, shall not be entitled to avail itself of any set-off or counterclaim without the leave of the Court.


24. General rules to apply in the absence of special rules - Subject to the provisions of this Act and any other Act, and to any rules made pursuant to section 23, the laws, statutes, and rules for the time being in force as to pleading, joinder of parties, third party procedure, evidence, hearing and trial, amendment, arbitration, special cases, the means of procuring and taking evidence, set-off, appeal, and all other laws, statutes, and rules for the time being available as between plaintiffs and defendants in personal actions between subjects, and the practice and course of procedure of the Court in its legal and equitable jurisdiction respectively for the time being in reference to such suits and personal actions, shall, unless the Court otherwise orders, be applicable and apply and extend to civil proceedings by or against the Government.


25. Saving of certain rights, etc. - (1) Except as therein otherwise expressly provided, nothing in this Act shall:


(a) Apply to any criminal proceedings; or


(b) Subject the Government to any greater liabilities in respect of the acts or omissions of any independent contractor employed by the Government than those to which the Government would be subject in respect of the acts or omissions if the Government were a private person; or


(c) Subject the Government to any liability in respect of the acts or omissions of any medical practitioner, pharmaceutical chemist, midwife, maternity nurse, dental practitioner or any other person while any such person is rendering any professional or other service or supplying any medicine, drug, appliance, or material, unless the medical practitioner, pharmaceutical chemist, midwife, maternity nurse, dentist, or other person is acting as a servant of the Government at the time of the act or omission; or


(d) Interfere with or affect any Act that now is or hereafter may be in force whereby the Government, or any of its officers and servants, is exempt from liability for anything done under the Act or affect any power, authority, or liability vested in or imposed upon the Government or any of its officers or servants under any such Act; or


(e) Affect any right of the Government to control or otherwise intervene in proceedings affecting the Government's rights, property, or profits.


(2) Where any property vests in the Government by virtue of any rule of law which operates independently of the acts or the intentions of the Government, the Government shall not by virtue of this Act be subject to any liabilities in tort by reason only of the property being so vested; but the provisions of this subsection shall be without prejudice to the liabilities of the Government under this Act in respect of any period after the Government or any person acting for the Government has in fact taken possession or control of any such property, or entered into occupation thereof.


(3) This Act shall not operate to limit the discretion of the Court to grant relief by way of mandamus in cases in which such relief might have been granted before the commencement of this Act, notwithstanding that by reason of the provisions of this Act some other and further remedy is available.


26. Repeal - Section 264 of the Samoa Act 1921 (NZ) is hereby repealed, and on the coming into force of this Act, the Crown Proceedings Act 1950 (NZ) shall cease to be part of the law of Samoa.


___________


SCHEDULE


FORM 1 Section 15(2)


CERTIFICATE OF FORFEITURE OF RECOGNISANCE


This is to certify to the Attorney-General that, at the ........ this day held at .............. the recognisances hereunto annexed were forfeited, and were there and then caused to be estreated.


Given under my hand this ............ day of .................. 20 .......


............................
Judge


FORM 2

Section 15(3)


JUDGMENT IN RESPECT OF RECOGNISANCE


In the Supreme Court of Samoa
Be it remembered that the Attorney-General has informed the Court that at the ......... held at ......... on the .......... day of .......... 20 ......... before ........... the recognisance of one ......... by which he acknowledged to owe to the Government the sum of ......... was forfeited and estreated as by the said recognisance and the certificate of the said ........... now filed of record appears. Therefore, on the ......... day of ....... 20 ........, it is adjudged by the Court here that the Government do recover against the said ............. the said sum of ....... and also the sum of ........... for costs, making together the sum of .......


Dated at ......... this ........ day of ............ 20 ..........


................
Registrar.


FORM 3

Section 17(2)


CERTIFICATE OF JUDGMENT, ETC.


In the Supreme (or Magistrate's) Court of Samoa


Between ................., Plaintiff
And ................., Defendant.


I hereby certify that .............. of ............, did on the ............ day of ........ 20 ........ in the Supreme Court (or the District Court) at .............., obtain a judgment (order, decree, or declaration); and that by the judgment (order, decree, or declaration) the Government was ordered to pay to him the sum of .............. (or as the case may be).


Dated at ............ this ......... day of .......... 20 .......


....................
Registrar.


REVISION NOTES 2008


This law has been generally edited as provided for by section 5 of the Revision and Publication of Laws Act 2008. The following general revisions have been made –


(a) References to Western Samoa have been amended to Samoa in accordance with an amendment to the Constitution of Samoa in 1997.


(b) The fines have been amended and are stated as penalty units as provided for by the Fines (Review and Amendment) Act 1998.


(c) All references to the male gender have been made gender neutral.


(d) Amendments have been made to conform to modern drafting styles and to use modern language as applied in the laws of Samoa.


(e) Amendments have been made to up-date references to offices, officers and statutes.


(f) Other minor editing has been done in accordance with the lawful powers of the Attorney General.


There were no amendments made to this law since the publication of the Western Samoa Statutes Reprint 1978-1996.


This law has been consolidated and revised by the Attorney General under the authority of the Revision and Publication of Laws Act 2008 and is an official version of this Act as at 31 December 2007. It is an offence to publish this Act without approval or to make any unauthorised change to an electronic version of this Act.


Revised and consolidated by Graham Bruce Powell
Under the supervision of Teleiai Lalotoa Sinaalamaimaleula Mulitalo (Parliamentary Counsel)


REVISION NOTES 2008 No. 2


The commencement date has been inserted after the date of assent.


This law has been consolidated and revised by the Attorney General under the authority of the Revision and Publication of Laws Act 2008 and is an official version of this Act as at 31 December 2008. It is an offence to publish this Act without approval or to make any unauthorised change to an electronic version of this Act.


Revised and consolidated by the Legislative Drafting Division under the supervision of Teleiai Lalotoa Sinaalamaimaleula Mulitalo (Parliamentary Counsel)


REVISION NOTES 2009


There were no amendments made to this law since the publication of the Consolidated and Revised Statutes of Samoa 2007.


This law has been consolidated and revised by the Attorney General under the authority of the Revision and Publication of Laws Act 2008 and is an official version of this Act as at 31 December 2009. It is an offence to publish this Act without approval or to make any unauthorised change to an electronic version of this Act.


Revised and consolidated by the Legislative Drafting Division under the supervision of Papalii Malietau Malietoa (Parliamentary Counsel).


The Government Proceedings Act 1974 is administered by the Office of the Attorney General

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