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Court Throws Out Sun Insurance Case

Court Throws Out Sun Insurance Case
Solicitor-General Sharvada Sharma (right) and Sun Insurance lawyer Julian Moti (second from left)outside the High Court in Suva on April 25, 2018. Photo: Fonua Talei.
April 26
13:39 2018

 

In a statement released after the Court delivered its judgment, Counsel for Sun Insurance Julian Moti QC said the Constitution guaranteed his client an automatic right of appeal to the Court of Appeal.

Within 60 days of becoming aware that a person’s right is expected to be contravened in future, the person should apply to the High Court for constitutional redress.

This was the nub of the High Court judg­ment delivered yesterday on the Sun Insur­ance (plaintiff) motion seeking constitu­tional redress after the repeal of The Motor Vehicles (Third Party Insurance) Act 1948 and the Motor Vehicles (Third Party Insur­ance) Regulations 1949 by Section 31 of the Accident Compensation Act 2017.

In his judgment, Justice David Alfred said if the matter proceeded to full determina­tion it would involve consideration of the doctrine of separation of powers, which Fiji applies as a functioning democracy.

At the outset Justice Alfred said he was only called upon to decide whether or not he should allow the Attorney-General’s sum­mons to strike out Sun Insurance’s motion.

He said the issues canvassed and the ques­tions ventilated in the matter appeared to not have been explored in the courts of Fiji.

He said Sun Insurance should have applied to the High Court for redress as soon as it became aware that the Act was expected and it would go against Section 27, “Free­dom from compulsory or arbitrary acquisi­tion of property,” of the 2013 Fijian Consti­tution.

Sun Insurance contended that the opera­tive date of the Act was January 1, 2018, from when the 60-day period started.

In his view, Justice Alfred said the earliest date of enactment would have been July 14, 2017, and July 18, 2017, when the Act was ga­zetted.

“It would stretch credulity to breaking point if it can be seriously contended for the Plaintiff that it was not aware, at least by the later date of something that was by then in the public domain,” Justice Alfred said.

“The Plaintiff by the later date should have been or actually was cognizant that the Act would allegedly contravene its rights in the future.”

He said the insurance company did noth­ing for the 60 days thereafter, thus allowing rule 3 (2) of the 2015 High Court (Constitu­tional Redress) Rules to take effect.

The court ruled that the date when the matter at issue first arose was July 14 and 18, 2017.

“The period of 60 days starts to run from the date when he first became aware of an expected future contravention of his rights.”

However, he stated, the door could be opened at the end of the 60 day period if the court found exceptional circumstances, which in the Sun Insurance case they failed to provide.

Further, Justice Alfred quoted the Os­born’s Concise Law Dictionary and said the, “Ignorance of the law which everybody is supposed to know does not afford excuse”.

The A-G’s submission to strike out Sun In­surance motion was allowed and the motion was dismissed.

Sun Insurance was also ordered to pay $2000 in costs.

In a statement released after the court de­livered its judgment, Counsel for Sun Insur­ance Julian Moti QC said the Constitution guaranteed his client an automatic right of appeal to the Court of Appeal.

“Courts are temples of justice. They have many doors. When one door closes, another opens,” Mr Moti said.

“His Lordship has had his say so our cli­ent, Sun Insurance Company Limited, will carefully consider his judgment, with the benefit of our advice, before knocking on the doors of Fiji’s Court of Appeal.”

Edited by Epineri Vula

Feedback: fonua.talei@fijisun.com.fj

 

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