Three of the four parties in a High Court challenge linked to the controversial Commission of Inquiry into the appointment of Barbara Malimali have reached a settlement in principle, but the formal terms and any court orders remain to be finalised and sealed, the court heard yesterday.
The Judicial Services Commission (JSC) brought judicial review proceedings seeking to quash the COI’s findings and recommendations about Malimali’s appointment. The respondents named in the proceedings are the Commission of Inquiry, the Attorney-General and Justice David Ashton-Lewis, who chaired the inquiry. Solicitor‑General Ropate Green told Justice Dane Tuiqereqere the two parties he represents—the COI and the Attorney‑General—had not yet endorsed the formal settlement terms presented in court.
The key procedural question before the court is whether the settlement terms should be disclosed in full, or made wholly or partly confidential and sealed. The JSC’s counsel, Isireli Fa, sought confidentiality for aspects of the agreement, but Justice Tuiqereqere said any sealing order would need to be supported by clear legal authority and proper justification. “At this stage, I am not convinced” that the confidentiality application merits approval, the judge said.
Justice Ashton‑Lewis, who is not a party to the settlement, is represented by lawyer Hemendra Nagin. Nagin told the court he was unable to obtain instructions from his client until he had seen the proposed terms of settlement. He said he would not share the document with any third party except his client. Justice Tuiqereqere, however, indicated Nagin would not be given access to the settlement terms until the confidentiality issue had been addressed and ruled upon.
The court directed the parties to file written submissions by May 7 setting out the precise orders they seek to be treated as confidential and the legal arguments supporting sealing or non-disclosure. The matter is scheduled to return to the High Court on May 8 for further directions and a ruling on those applications.
If the settlement is finalised and accepted by the court, it could bring an end to this judicial review challenge to the COI’s conclusions. But the debate over sealing highlights broader tensions in the case between the competing interests of transparency in public inquiries and any countervailing confidentiality or legal privilege asserted by the parties. The outcome of the sealing application will determine how much of the settlement—and the reasons behind it—will be available to the public and other affected parties, including Justice Ashton‑Lewis.
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