Former Attorney General Graham Leung's King’s Counsel Andrew Tokley says the report of the Commission of Inquiry into the appointment of Barbara Malimali as FICAC Commissioner is invalid because it was delivered after the Commission had legally expired, and the COI Act does not allow extensions.
While making his submission from Australia in the judicial review hearing filed by Malimali, Leung, lawyers Wylie Clarke and Laurel Vaurasi, Tokley says the deadline was 31st January, 2025 and a supposed extension was given until 7th March but the report was actually submitted around 14th May.
He says there is no power in the Act to extent the COI and if there is going to be any alteration, it is going to be by the President and be gazetted as a fresh Commission.
He also says that procedural fairness was not afforded to Leung as he was not informed before, during, or after the Commission that adverse findings would be made against him.
Tokley says Leung was not put on notice, nor questioned or cross-examined on such matters.
Tokley also says that Justice Ashton-Lewis was biased as he threatened counsel and witnesses, made references to “crocodiles in the pond”, lacked impartiality, failed to disclose conflicts and used extreme and intemperate language in the report.
He says they also rely on the radio interview, which shows that Justice Ashton-Lewis had formed views before hearing evidence and advised the Prime Minister to act on the report before it became public.
He further says that Section 11 of the Commissions of Inquiry Act which relied upon by the Office of the Solicitor General, protects witnesses by ensuring that evidence they give to a Commission of Inquiry cannot be used against them in other legal proceedings.
The King’s Counsel says Section 11 Commissions of Inquiry Act which is relied upon by the Office of the Solicitor General cannot prevent judicial review as it protects witnesses from their evidence being used against them.
He stresses it does not protect a defective process.
The King’s Counsel says the report published, contained defamatory statements, and led directly to the dismissal of Leung.
He says there is a clear chain of causation, from Justice Ashton-Lewis, to the Prime Minister, to the dismissal.
Tokley submits the State is vicariously liable, and damages should be awarded.
The hearing is expected to conclude tomorrow.
