There is no evidence of how the Chair of the Commission of Inquiry into the appointment of Barbara Malimali as FICAC Commissioner, Justice David Ashton-Lewis came to the conclusion in the COI report that lawyers Wylie Clarke and Laurel Vaurasi were perverting the course of justice, were bulling, harassing and were intimidating outside FICAC when Malimali was taken into custody.
This has been highlighted by counsel for Clarke and Vaurasi, King's Counsel Martin Daubney who says Clarke, while in the witness box during the COI, was asked about his behaviour being silent on questions of bullying while Vaurasi was led to believe she was there as a representative of the Fiji Law Society.
Duabney says the Chief Justice and Chief Registrar were re-called to give evidence and Clarke and Vaurasi could have been called again as well.
He says it was not accidental that there was no notice given to his clients that there would be adverse findings made against them in the report.
The King's Counsel says it was deliberate because of the content of the remarks by Justice Ashton-Lewis on a radio interview on WWC27 on the 25th of May last year where he said he made recommendations to the Prime Minister to act on the recommendation before making it public.
He had said that the Prime Minister had asked him to identify the crocodiles in the pond.
He says Justice Ashton-Lewis had said that he had received pretty good intelligence that there was going to be an injunction in its release.
Daubney further says Clarke, as President of the Fiji Law Society during the COI, raised a question as to the appropriateness of the admission of counsel assisting the COI Janet Mason by reason of the
undisputed fact of her having an adverse disciplinary history, professional discipline history in
New Zealand.
He says in his editorialisation in the report, the COI Commissioner found that Clarke's attempt to undermine the Commission of Inquiry by attempting to impugn the integrity of Counsel assisting the COI, unethical, unprofessional and bordering on an attempt to obstruct or pervert the course of the justice system.
Daubney says Justice Ashton-Lewis decided that Clarke had it in for Mason and his response was to play the man and not the ball.
He says the Commissioner then gave Mason a gratuitous character reference where he said she is an excellent barrister and has been immensely helpful in the work of the Commission of Inquiry.
The King’s Counsel says Justice Ashton-Lewis then turns his attack back to Clarke and said, without evidence, that Clarke was, from the outset, one of the individuals implicated in the COI's investigation and he ought to have had enough good sense to realise that he should have refrained from interfering with the work of the COI.
He says Justice Ashton-Lewis, in dealing in the course of the Commission of Inquiry, was motivated directly by animus towards Clarke and by association with Vaurasi.
The King's Counsel says Mason took it personally when Clarke questioned Mason's appointment.
Daubney also highlighted that Prime Minister Sitiveni Rabuka in deciding to publish the COI report, was obligated to provide natural justice and he has a care of duty to seek a response.
He says not doing so resulted in the report to be irreparably tainted.
Daubney says they are not seeking to quash the Commission of Inquiry report but are instead asking the High Court for declarations that the adverse findings against Wylie Clarke and Laurel Vaurasi are unlawful and have no legal effect.
Daubney says they are also seeking a mandatory order for the removal of the report from the Government website, arguing that it contains misleading and defamatory material.
He further submits that the findings amount to serious defamation against Clarke and Vaurasi, and they are seeking substantial damages, including aggravated damages, due to the harm caused to their professional reputations and the failure to give them an opportunity to respond.
Daubney adds that if the court agrees, it should first grant the declaratory and removal orders, and then adjourn the matter for a separate hearing to assess damages and costs.
The hearing continues tomorrow.
