Judge refuses Apted’s application to set aside order for committal proceedings against Richard Naidu

High Court Judge, Justice Jude Nanayakkara has refused Jon Apted’s application for setting aside the ex-parte order in relation to committal proceedings against Richard Naidu brought by Attorney General, Aiyaz Sayed-Khaiyum.

Naidu allegedly posted on his Facebook page a picture of a judgement in a case represented by his associate that had the word 'injunction' misspelt, and then made some comments that he was pretty sure the applicant wanted an injunction.

In his ruling, Justice Nanayakkara says Apted’s setting aside summons is supported by an affidavit by Loraine Bhan, a Munro Leys staff and NFP MP Lenora Qereqeretabua but it was challenged by the applicant on the grounds that the affidavits need the respondent’s authority, the respondent is required to swear an affidavit and third parties cannot swear affidavits.

He says neither Bhan or Qereqeretabua are swearing affidavits on behalf of anyone, and this is sworn by someone other than a party to proceedings.

Justice Nanayakkara has ruled there was no weight in the contents of the affidavits of the two.

The Judge also says the Attorney General has formed the view that Naidu’s Facebook post is calculated to ridicule the presiding judicial officer and the Fijian judiciary as a whole and therefore he is entitled to invoke the court process to apply ex parte for leave to apply for an order of committal against Naidu.

He says therefore, he sees that the Attorney General has brought the proceedings for a legitimate purpose for which he is entitled under the law. He says it has not been shown that the committal proceedings based upon Naidu’s Facebook post has no real prospect of success and Apted did not seek to persuade the court that the Attorney General’s allegation lacked a reasonable basis in fact or law.

Justice Nanayakkara says therefore, it is probable that the Attorney General is pursuing the committal application for legitimate reason and in the circumstances, the contempt proceedings engage the public interest and it should not be viewed with suspicion.

He adds in his judgement, viewed in that light, it is not part of the court’s function at the leave stage to analyze the evidence to resolve whether the ex parte leave application represents a personal vindictive campaign of harassment against the respondent by the Attorney General.

The Judge had yesterday also refused Apted's application to cross-examine Aiyaz Sayed-Khaiyum.

The matter has been adjourned to Monday.