The Court of Appeal has set aside a High Court judgment that awarded Fiji Fish Marketing Group Limited more than $971,000 in damages against three companies over alleged clinker dust pollution in Lami, ruling that the trial was fundamentally unfair and could not stand.
In a judgment delivered on May 28, the appellate bench found that the High Court had determined liability on legal grounds that were never pleaded, argued, or put to the parties during the trial.
The dispute stemmed from a lawsuit filed by Fiji Fish Marketing Group Limited against Pacific Cement Limited, Tengy Cement (Fiji) Limited and RPA Group (Fiji) Limited over the offloading and transportation of clinker in December 2016 and January-February 2017. Fiji Fish alleged that clinker dust from the operation damaged its premises, equipment and business.
The High Court had awarded Fiji Fish special damages of approximately AUD$741,000 and FJ$30,000, together with FJ$200,000 in general damages, interest and costs.
However, the Court of Appeal ruled that the High Court Judge based his findings on constitutional environmental rights and the “Polluter Pays Principle”, despite those issues not forming part of the case pleaded by Fiji Fish.
“The trial process miscarried to such an extent that the High Court Judgment cannot stand,” the Court said.
The appellate judges stressed that parties must be judged on the case that has been pleaded and that courts cannot determine liability on issues that were never raised by the litigants.
“It is fundamental that in our adversarial system of justice the parties clearly identify the issue not only so that each side has the opportunity to respond but because it is the function of the judge to adjudicate on those issues alone,” the Court stated.
The Court found that the defendants were prejudiced because the case evolved during the hearing and ultimately resulted in liability being imposed on a basis they had no opportunity to address.
While acknowledging the High Court’s attempt to develop the common law in line with constitutional environmental protections, the Court of Appeal held that parties should have been given notice and an opportunity to amend pleadings and make submissions before such issues were considered.
As a result, the Court set aside the High Court judgment in its entirety.
The judges declined to order a retrial, noting the age of the proceedings, the costs already incurred by the parties and the possibility of settlement. Instead, they left it to Fiji Fish to decide its next course of action. Each party was ordered to bear its own costs on appeal.
