High Court Judge Justice Dane Tuiqereqere says in his experience, he has never seen such language used in a judicial report, as reflected in the Commission of Inquiry into Barbara Malimali’s appointment as FICAC Commissioner.
He highlighted this while asking for Deputy Solicitor General Eliesa Tuiloma's opinion during the judicial review hearing filed by Malimali, former Attorney-General Graham Leung, and lawyers Wylie Clarke and Laurel Vaurasi.
Justice Tuiqereqere says the description of some of the conduct of the applicants and others are in the extremes.
While responding, Tuiloma agrees the language that has been used has gone overboard, especially the normal way we can even criticise a person.
He says some of the words are quite harsh and it is quite disparaging and dismissive of a judicial officer to be stating those matters in that fashion.
Tuiloma says, however, that they still have to treat it with caution, as perhaps the COI Chair Justice David Ashton-Lewis may have a reason to state those matters in that fashion.
The Deputy Solicitor General says they do feel for those that are affected as it is something that is totally out of line with the way a report should be made under normal circumstances.
When questioned if he knew that complainant Alex Forwood and Rajendra Chaudhry were present during the entire COI hearing where quite a few others were excluded, Tuiloma says he did not know about their presence as he had not been part of the COI until the judicial review matter was filed in court.
Justice Tuiqereqere also asked if there was a valid reason to exclude Malimali and her counsel from any of the hearings conducted by the COI, given that she was the subject matter of the COI, Tuiloma says that is something that is quite strange, especially when they know it is a transparent process that should be done according to the Terms of Reference and the rules.
Justice Tuiqereqere says it can be in closed court but even in closed court in a criminal proceeding, the counsel of the accused and the accused generally are in court.
He says it is unusual for counsel of the subject matter not to be present even during closed and criminal proceedings.
Tuiloma responded that they are hearing about most of the circumstances that the applicants went through for the first time during their submission.
He agrees that it is something that they find strange as well, especially when it is a civil matter, but there could be concerns of national security.
Justice Tuiqereqere says he can understand if there are national security issues and confidentiality may well come to play.
He says, however, he does not imagine that a lot of the witnesses were talking about matters of national security or any extent of the matter that required the exclusion of Malimali's counsel.
Tuiloma adds that is what he is trying to understand.
The hearing is expected to conclude today.
