THE High Court has awarded more than $360,000 in costs to four applicants who successfully challenged the Commission of Inquiry into the appointment of former FICAC commissioner Barbara Malimali but declined to award damages.
Justice Dane Tuiqereqere, in a judgment delivered yesterday, said the applicants — Ms Malimali, lawyers William Wylie Clarke, Laurel Vaurasi, and former attorney-general Graham Everett Leung had suffered serious personal and professional harm following adverse findings in the COI report and its public release.
The court had previously found the applicants were denied natural justice, that adverse findings against two applicants were irrational and that the conduct of the commissioner created a reasonable apprehension of bias.
The applicants sought compensatory and vindicatory damages as well as indemnity costs, with claims for costs ranging from $22,000 for Ms Malimali, $345,000 Mr Clarke and Ms Vaurasi jointly, and $233,000 for Mr Leung. Mr Clarke, Ms Vaurasi and Mr Leung had been represented by overseas Kings Counsel.
However, Justice Tuiqereqere said he was not satisfied that damages were available in the judicial review proceedings.
He noted there were no common-law authorities, apart from two recent Belize decisions, where damages had been awarded following judicial review of a COI. He also declined to award indemnity costs. Instead, he awarded the Respondents 60 per cent of their actual costs: $13,615 for Ms Malimali, $207,426 for Mr Clarke and Laurel Vaurasi, and $139,944 for Mr Leung.
The COI, the President, the Prime Minister, and the Attorney-General, who are jointly and severally liable to pay the total costs, were ordered to pay within one month.
