The High Court has ruled that a challenge to the Commission of Inquiry (COI) report will proceed as scheduled on Friday, April 10, refusing an adjournment sought by Justice David Ashton‑Lewis on medical grounds. Justice Dane Tuiqereqere said Ashton‑Lewis had not presented adequate evidence to establish that a “serious medical condition” prevented him from preparing affidavit material or participating in the hearing, which is expected to continue through the weekend.
Ashton‑Lewis had applied to be joined to the judicial review proceedings after the COI report became the subject of legal challenges by former FICAC commissioner Barbara Malimali, Fiji Law Society president William Wylie Clarke, former Law Society president Laurel Vaurasi, and former attorney‑general Graham Leung. The applicants ask the court to declare the COI report’s findings unlawful. The judge’s decision comes after an interlocutory hearing on the adjournment application on Thursday.
Evidence played in court undermined Ashton‑Lewis’s medical claim, Justice Tuiqereqere said. Clarke gave evidence that Ashton‑Lewis had been giving weekly radio interviews on a Queensland station while claiming incapacity, and counsel for the applicants played an extract of an interview recorded in Australia just hours before Thursday’s hearing. Richard Naidu, for Ashton‑Lewis, had earlier sought the adjournment; he played the interview to the court during the application. Government lawyer Geraldine Naigulevu told the court the Attorney‑General’s Office supported the adjournment, while all four applicants opposed it.
Justice Tuiqereqere acknowledged Ashton‑Lewis’s medical condition but found the judge had not filed any substantive affidavit addressing the allegations against him — particularly the central claims of bias — despite being given the opportunity to participate as an interested party. The judge noted Ashton‑Lewis first applied to join the proceedings in December last year and that the applicants’ lawyers had highlighted the resulting delays and lack of diligence in presenting evidence.
Importantly, Justice Tuiqereqere restricted the prospective contribution of Ashton‑Lewis’s evidence. He ruled that the former judge’s evidence will be limited to whether alleged bias on his part affected the COI process; other grounds for judicial review can largely be determined from the COI report itself and the COI hearing transcript. The judge also cautioned Ashton‑Lewis’s lawyer, Hemendra Nagin, against using “hyperbolic” descriptions of his client’s health — including references to being on his “deathbed” — saying there was no supporting evidence for such characterisations.
With the adjournment refused, the case will proceed on April 10. How much Ashton‑Lewis will be able to contribute in person or by affidavit on the focused question of bias remains to be seen; the court’s order narrows his role while allowing the main judicial review challenge to press ahead based on the existing record. The hearing is likely to test whether alleged procedural or personal biases by the COI chair affect the lawfulness of the inquiry’s conclusions.
Leave a comment