The High Court has declined to award damages to former FICAC Commissioner Barbara Malimali and three others despite finding they suffered serious personal and professional harm from adverse findings in the Commission of Inquiry (COI) report.
Justice Dane Tuiqereqere, in a judgment delivered today, said the applicants had been seriously affected by the findings and the public release of the report, with the harm extending to their families, communities and places of worship.
The court had earlier found the conduct of the Commission of Inquiry into Ms Malimali’s appointment to be ultra vires and the proceedings, in their entirety, null and void.
Ms Malimali had sought $150,000 for reputational harm and $150,000 in vindicatory damages.
William Wylie Clarke and Laurel Vaurasi each sought $200,000 for reputational harm and $200,000 in vindicatory damages, while also claiming a combined $255,000 for economic loss.
Graham Leung also sought damages. The applicants argued that damages could be awarded through the judicial review proceedings by relying on constitutional redress provisions and Order 53 Rule 7 of the High Court Rules.
However, Justice Tugereqere said the absence of previous cases awarding damages in similar judicial reviews was indicative of the unsuitability of such relief.
He also said the scheme of the Commission of Inquiry Act 1946 did not lend itself to an award of damages.
He said while he accept that the applicants have suffered harm as a result of the conduct of the Commissioner (and the release of the COI Report to the public), he is not prepared to make any award of damages.
The judge also declined the applicants’ request for indemnity costs, saying the respondents’ conduct in defending the proceedings did not warrant such an award.
However, he found the applicants had been successful and were entitled to costs.
Ms Malimali was awarded costs of $13,615, the Ms Vaurasi and Mr Clarke $207,426 and Mr Leung $139,944.
The COI, the President, the Prime Minister and the Attorney-General were ordered to be jointly and severally liable for the costs, which must be paid within one month.
The judgment was delivered today.
