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Judge Dismisses Strike-Out Application by A-G’s Office

Judge Dismisses Strike-Out Application by A-G’s Office
April 24
11:00 2018

High Court judge Justice Lyone Seneviratne has dis­missed an application by the Attorney-General’s Office to strike out a summons.

The summons to strike out was filed by lawyers for the A-G’s Office on February 7, 2018.

This was in response to proceed­ings initiated by a child plaintiff, Nete Kaloucava, who alleged that the Commissioner of Police had breached his constitutional rights.

According to Kaloucava’s affida­vit, the Police Commissioner had violated his freedom from degrad­ing treatment as per section 11 of the Fijian Constitution, his right as an arrested and detained person and his right as a child.

The facts revealed that sometime in July, 2017 Kaloucava was ar­rested by a Police officer at about 9pm while he was having his din­ner and was taken to the Nausori Police Station.

It is alleged that he was physical­ly assaulted at the station by the arresting officer.

Lawyers from the A-G’s Office, Mary Lee and Geraldine Naig­ulevu, made an application for Kaloucava’s originating summons to be struck out because it did not disclose any reasonable cause of action.

Justice Seneviratne said dur­ing the hearing of the application for striking out, the learned law­yers from the A-G’s Office based submissions on totally irrelevant grounds, which should be consid­ered at the hearing of the substan­tive matter.

He said the lawyer had submitted that Kaloucava had not exhausted the alternative remedies available to him.

Kaloucava’s mother has made a complaint to the Human Rights Commission and they have re­ferred the matter to the Police who have indicated that the matter had been referred to the Director of Public Prosecutions.

However, no steps have been tak­en by the DPP yet.

“For how long this child has to wait for some redress is a very im­portant question, which the court should be mindful of,” Justice Se­neviratne said.

The second ground advanced by lawyers from the A-G’s Office is that the child could have filed ac­tion for damages.

“There may be instances where the victim does not suffer any in­juries but still his or her constitu­tional rights have been violated or, like in this case, the victim may suffer some injuries which are not very serious,” Justice Seneviratne said.

“Is this what the legislature in­tended when it enacted the Bill of Rights? That is to pay the victim some money and for the rights vio­lators go on violating the rights of the people.”

The court heard that filing action for damages may not be the proper remedy in every case.

The substantive matter will be heard in the High Court in Suva on June 25, 2018.

Human Rights and Anti-Discrim­ination Commission lawyer Wai­sale Tokalau appeared for Kalou­cava.

Edited by Naisa Koroi

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