The Civil High Court has refused orders sought by Fiji Swimming rep Taichi Vakasama and swim coach Marlene Vuniwaqa in a civil action against the president of Fiji Swimming, secretary of Fiji Swimming, and Fiji Swimming.

Vakasama and Vuniwaqa filed an inter-parte summons on May 8, 2023 seeking the following Orders:

 That until further orders, the Court immediately lift the suspension imposed by the defendants and/or third defendant on the plaintiff from all international representative swimming competitions through their letter dated 04 November 2022 signed by the first defendant for the third defendant.

 That until further Orders, the Court immediately lift the suspension imposed by the defendants and/or third defendant on the first plaintiff from all international representative swimming competitions through their letter dated November 4 , 2022 signed by the first defendant for the third defendant – without prejudice to the continuation of hearing of the plaintiffs’ and defendants’ Summons before the Court on 16 June 2023.

High Court Judge Justice Anare Tuilevuka said Vakasama was undoubtedly one of the most accomplished swimmers that Fiji had ever produced.

Vakasama has represented Fiji at many international swimming competitions including the Olympic Games, the Commonwealth Games, and the World Championships. He is coached by Vuniwaqa who is the second plaintiff in this case.

On November 5, 2022, the Secretary of Fiji Swimming personally served Vakasama a letter signed by the president of Fiji Swimming for and on behalf of Fiji Swimming.

The said letter documented, and conveyed to Vakasama, a decision by Fiji Swimming, to suspend Vakasama from all local and international swimming competitions, pending proof that Vakasama is mentally fit to resume those competitions.

A little over a month later, on December 8, 2022, Vakasama and Vuniwaqa filed a Writ of Summons and Statement of Claim naming the president, the secretary and also Fiji Swimming as first, second and third defendants respectively.

Justice Tuilevuka said it was suffice to say that there was a pending application by Munro Leys for and on behalf of the defendants to strike out the Writ of Summons and Statement of Claim on the ground that Fiji Swimming was an unincorporated association and as such, was not a legal person capable of suing or being sued.

The Judge said it appeared that the events or facts which led Fiji Swimming to the decision to suspend Vakasama happened a few months earlier in July 2022 during the Commonwealth Games which was held in Birmingham, England.

In the statement of claim, Vakasama and Vuniwaqa plead that during the Commonwealth Games, Vakasama was feeling immense stress and was sick. As a result of these, he was not in any position to compete in his scheduled events at the Games. After consulting the secretary, and other Fiji Swimmers at the Games, Vakasama then made the decision to withdraw from his events.

The court noted that the competition rules for the sport of swimming stipulate inter alia that any competitor who withdraws from any event, for which his or her name has been entered, shall pay without excuse a certain penalty fee.

Justice Tuilevuka said he gathered that the penalty may be borne by the national swimming body of the country which the swimmer was representing at the Games and that this fee may be waived if the withdrawal was due to medical reasons which are verified and supported by a report from a medical practitioner.

As per the court document, according to Vakasama, before the decision to withdraw was conveyed to the Games officials, he and the Secretary of Fiji Swimming did visit a Medical Practitioner at the Polyclinic in Birmingham who recommended in writing that Vakasama withdraw from his Commonwealth Games swim events as he was “mentally unwell”.

As it turned out, four months later, back in Fiji, Fiji Swimming would make the decision to suspend Vakasama from all local and international swimming competitions, pending proof that Vakasama was mentally fit to resume those competitions.

The Judge said it was clear from the affidavits filed by Fiji Swimming; the decision to suspend Vakasama was based on the Birmingham Medical Report.

He said Vakasama wished to compete internationally and it appeared that Fiji Swimming wanted the same thing.

He added that all that Fiji Swimming required was that Vakasama complied with the stipulations for the Selection Criteria which includes inter alia that Vaksama attend a Fiji Swimming Medical and be certified as medically fit (physically, mentally and emotionally) by a clinical professional and that he fulfilled the “Team Commitments”.

He said once these were complied with then Fiji Swimming would be only too happy to lift the suspension and consider Vakasama for the upcoming Fukuoka Championship.

“I do not think it would be appropriate for me at this interlocutory point to consider the veracity and the evidential value of the Birmingham Medical Report or the Local Medical Report which I set out above,” Justice Tuilevuka said.

“Suffice it to say that, from where I sit, the Selection Criteria which Fiji Swimming is adhering to – are not at all ‘arbitrary conditions’ designed to specifically target Vakasama. Rather, they apply to all swimmers who wish to compete for Fiji at the Fukuoka Championship.

“While I note that Vakasama is anxious that a further psychiatric assessment might result in a stigma which may be hard to erase and overcome in years to come, I do not see how completing one as part of the Selection Criteria can have that effect.

“I say this in on belief that other swimmers hopeful for a spot in Team Fiji will be subject to the same requirements. It appears to me that all that Fiji Swimming is saying to Vakasama is – ‘you fulfill the Selection Criteria, and we will lift the suspension and consider you for the Fukuoka Championship’,” Justice Tuilevuka added.

The Judge refused the orders sought.

He ordered that parties bear their own costs.

StoryBy: ashna.kumar@fijisun.com.fj