High Court judge Justice Dane Tuiqereqere says the Commission of Inquiry made “very serious criticisms and findings” against the Barbara Malimali, Graham Leung, Wylie Clarke and Laurel Vaurasi but they were not given notice of draft adverse findings and an opportunity to respond before the report was completed.
In his judgment quashing the Commission of Inquiry findings and declaring the report null and void, Justice Tuiqereqere highlighted the seriousness of the conclusions reached against former FICAC Commissioner Barbara Malimali, former Attorney-General Graham Leung, lawyer Laurel Vaurasi and Fiji Law Society President Wylie Clarke.
“The Commissioner made some very serious criticisms and findings against each of the applicants,” Justice Tuiqereqere said.
“The conduct was characterized by the Commissioner as potential criminal offences.”
The judge noted that the criticisms contained in the COI report were not tentative.
“The criticisms were framed as final conclusions and were strongly expressed by the Commissioner,” he said.
Justice Tuiqereqere said none of the four applicants received either a Salmon letter or Maxwellisation notice before the report was finalised.
He said there was a “compelling argument” that Malimali should have received both forms of notice.
“There is a compelling argument that Ms Malimali ought to have received both and that Mr Leung, Ms Vaurasi and Mr Clarke ought to have, at least, received one or other, most likely the latter,” Justice Tuiqereqere said.
The judge explained this would have meant receiving notice of the draft adverse findings and being provided an opportunity to respond before the COI report was completed.
The issue of procedural fairness formed a significant part of the High Court’s findings.
Justice Tuiqereqere ultimately declared that the Commissioner failed to observe procedural fairness before making adverse findings and recommendations against the applicants, thereby denying them natural justice.
The court also ruled that the President and Prime Minister failed to observe procedural fairness in relation to the decision to release the report publicly.
The adverse findings and recommendations were quashed, while the Commission of Inquiry report dated May 1, 2025 was declared null and void in its entirety.
