Counsel for the Prime Minister, Simione Valenitabua. [Photo: LITIA CAVA]

Counsel for the Prime Minister Simione Valenitabua has urged the High Court to strike out the challenge to the Commission of Inquiry report.

The applicants’ case, he says, was legally unsustainable without reliance on barred evidence.

Opening his submissions, Valenitabua said the strike-out application, though directed at the first applicant, raises grounds that apply to all parties. He argued that the case is constructed almost entirely on material taken from the inquiry. This includes quotations, findings and conclusions drawn from proceedings under the Commissions of Inquiry Act 1946.

He submitted that Section 11 of the Act imposes a strict prohibition. In his reading, it prevents any evidence taken during a commission from being used in later court proceedings. He told the court that the applicants cannot prove liability or damages without that material. Once excluded, he said, the claims collapse.

Presiding judge Justice Dane Tuqereqere questioned whether such an interpretation would deny affected individuals a path to challenge the report. He raised concerns that even where natural justice may have been breached, litigants could be left without remedy.

Valenitabua acknowledged the concern but maintained that the statute is clear in its wording. He said any conflict with constitutional rights would fall to judicial interpretation. He described the issue as largely unsettled, noting the absence of direct authority on Section 11 in Fiji.

He further argued that the applicants are attempting to sidestep statutory protections. By bringing the matter as a judicial review, he said, they are advancing claims that resemble defamation and misuse of office. In his submission, those claims belong in ordinary civil proceedings, not in a public law forum.

Valenitabua also pointed to the exoneration of the first applicant by the Director of Public Prosecutions. He said that the decision was made without reliance on COI material, consistent with the same statutory bar now being challenged. He argued it is inconsistent for the applicant to benefit from that protection in a criminal context, then seek to rely on the material in a civil claim.

The court heard that the State also relies on statutory immunity provisions protecting the Commissioner. Valenitabua said imposing a duty of care would cut across the legislative scheme. It would, in his words, weaken protections designed to preserve the integrity of inquiry processes.

He maintained that the COI report itself carries no direct legal effect. It is advisory, he said, and does not determine rights or liabilities. On that basis, remedies such as certiorari and mandamus do not arise. Claims for damages, he added, are misplaced in judicial review proceedings.

During exchanges, Justice Tuqereqere raised concern about the tone of the report. He described the language as unusually strong for a judicial officer. Valenitabua accepted that the wording was “unexpected” but said it does not establish bias or invalidate the findings.

On procedural fairness, Valenitabua accepted that commissions are generally guided by natural justice. However, he rejected the claim that parties were entitled to a draft report or advance notice of adverse findings. He said participants were aware of the issues through the inquiry process and that the law does not require further notice before publication.

He also addressed questions about the timing of the report and whether extensions were properly authorised. Valenitabua states there is evidence of a presidential extension and argues it should be treated as valid unless proven otherwise.

He urged the court to clarify the scope of Sections 11 and 18, saying the case presents an opportunity to settle the law.

Such guidance, Valenitabua said, would shape how future commissions are challenged and how courts treat inquiry evidence.

The applicants, all named in the COI report, include former FICAC Commissioner Barbara Malimali, senior counsel Wylie Clarke and Laurel Vaurasi.

They are challenging both the findings and recommendations of the report, asking the court to set them aside. Their claims centre on alleged reputational damage and financial loss.

Former Attorney-General Graham Leung is also listed among the applicants.

The hearing continues in the Suva High Court.