The Suva High Court will deliver it's ruling on the 23rd of next month in the matter where former FICAC Commissioner Barbara Malimali, former Attorney General Graham Leung and lawyers Wylie Clarke and Laurel Vaurasi's counsels made submissions for leave to apply for judicial review of the Commission of Inquiry into Malimali's appointment.
Malimali is represented by Tanya Waqanika. Richard Naidu is representing Clarke and Vaurasi while Leung is represented by Seforan Fatiaki.
The Office of the Solicitor General is representing the President, Prime Minister, Attorney General and the COI while Simione Valenitabua is also representing the Prime Minister in the case where he dismissed Malimali.
High Court Judge Justice Dane Tuiqereqere informed the counsels that their matters have not been consolidated and separate decisions will be made.
In her submission, Waqankika says Malimali was not accorded natural justice to respond to the allegations in the report.
She says statements by COI Chair Justice David Ashton-Lewis were toxic and derogatory where he called her corrupt and that she had lied on her CV.
Waqanika made a remark that she will not get into Justice Ashton-Lewis' CV.
She further says they also extended the hearing date of the COI, contrary to what was gazetted and was in their Terms of Reference and any hearing beyond the gazetted date was illegal.
The Counsel says the COI went outside the scope of the inquiry where they also looked into Malimali's conduct after her appointment when it should have been limited to her appointment.
Waqanika also highlighted that apart from reputational damage, there was also abuse of process where she and Malimali were told to leave the room when the Prime Minister and MPs Manoa Kamikamica and Biman Prasad were being questioned, when Rajendra Chaudhry, who did not even have a PC, remained.
She says leave must be granted for Judicial Review otherwise Malimali will never be able to clear her name.
The Counsel adds the adverse findings in the COI report, which is damaging and traumatic, must be quashed.
Naidu, who is representing Clarke and Vaurasi, also told Justice Tuiqereqere that there is no alternative remedy other than the Judicial Review.
He says Justice Ashton-Lewis is bound by the Terms of Reference and notes that all adverse findings against Clarke and Vaurari were after 4th September, when the COI should have ended.
The Counsel says that Clarke and Vaurasi attempted to assist Malimali when she was being taken for questioning but the Terms of Reference only requires that they look into her appointment.
Naidu also says that the Office of the Attorney General argues that the COI has ended but he argues that it does not mean that their decisions are not open to a judicial review.
He adds that they were also not accorded natural justice and a chance to respond.
Fatiaki, who represents Leung says he adopts Naidu's position and adds as a direct result of the COI report, the former Attorney General lost his job and his reputation has been affected.
While responding to the submissions, Deputy Solicitor General Eliesa Tuiloma, who is representing the President, Prime Minister, Attorney General and the COI in the case filed by Malimali regarding the COI report, says if the initial period of the COI has lapsed, there is nothing in the COI Act prohibiting the extension.
Tuiloma says the extensions were done through letters by the President and not through gazettes.
The Office of the Solicitor General also says that the COI does not make binding recommendations and relief sought is not possible as the COI does not exist anymore and cannot reconvene.
Tuiloma says Malimali has a form of remedy in terms of her existing application for a Judicial Review regarding her dismissal.
When questioned by Justice Tuiqereqere about what other remedies are available for other applicant, Office of the Solicitor General lawyer, Geraldine Naigulevu says defamation cases can be filed by Clarke and Vaurasi while Leung can file a Judicial Review on the decisions of the Prime Minister.
Prime Minister Sitiveni Rabuka's counsel, Simione Valenitabua says the applications must be struck out as a case cannot be filed against the COI under Section 11 of the COI Act.
When questioned by Justice Tuiqereqere that does this mean that Malimali does not have a recourse available, Valenitabua says her recourse is available under the Constitution.
He further says adverse findings in the report are findings of facts.
Meanwhile, before the hearing began, Justice Ashton-Lewis' counsel Hemendra Nagin had said that Justice Ashton-Lewis was not served documents in this case but Justice Tuiqereqere pointed out that he is not a party to the proceedings.
While making verbal application to be a party to the proceedings, Nagin says he should have been as he intends to file affidavits.
Justice Tuiqereqere said that the case cannot be a surprise to Justice Ashton-Lewis as it has been in the media and if he was genuinely concerned, he should have applied.
Waqanika says they need to file proper application but she objects as they were ready for hearing as Malimali is without a job, she was arrested and the matter cannot be delayed.
Naidu and Fatiaki also objected while Tuiloma said they are also ready to procees but Nagin needs to file an application and there are allegations against him.
Justice Tuiqereqere rejected the application and stated that an application should have been made before but it is too late now as submissions have been filed and they are ready for hearing.
He said this does not mean he cannot make a formal application.
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