THE Court of Appeal has overturned a multi-million-dollar civil judgment against three transportation and manufacturing companies, ruling that a High Court judge erred by determining the case beyond the plaintiff’s pleaded case.
The consolidated appeals stemmed from a 2017 civil lawsuit filed by Fiji Fish Marketing Group Ltd against RPA Group (Fiji) Ltd, represented by Lawyer Feizal Haniff, Pacific Cement Ltd, and Tengy Cement (Fiji) Ltd.
Fiji Fish claimed that over two separate periods in late 2016 and early 2017, RPA Group negligently offloaded and transported “noxious and offensive” clinker, a substance used to manufacture cement, to the premises of Pacific Cement and Tengy Cement.
Fiji Fish alleged the resulting clinker dust caused severe economic loss and heavily damaged its high-grade tuna processing facilities, vessels, and refrigeration equipment at Lami.
In April 2023, the High Court ordered the three companies to pay substantial joint and several damages, including $AUS741,000 and $F30,000 in special damages, as well as $F200,000 in general damages.
However, in a judgment delivered on May 28, the Court of Appeal bench comprising Justices Chandana Prematilaka, Justice Walton Morgan, and Justice Karen Clark set aside the entire High Court ruling.
The appellate bench ruled that the judge’s development of the common law was done without notifying any party and without receiving submissions regarding the factual or legal foundations of the right or how it could be breached.
The Appeals Court found that the judge primarily grounded the companies’ liability and the calculation of damages in Section 40 of the Fijian Constitution, which protects environmental rights, and applied international “Polluter Pays” principles.
The panel noted that while it respected the lower court’s commitment to developing the common law in line with the Bill of Rights, doing so completely without notice to the defence was a procedural error.
Furthermore, the bench highlighted that Fiji Fish never proved the “hazardous” nature of clinker dust through expert scientific evidence and significantly altered its case from “corrosion” to “clumping” mid-trial.
The bench ruled that proper pleadings frame the strict limits of an action to ensure a fair trial, stating that “no party should be blindsided and no party advantaged by judicial determination of a case not pleaded or liabilities never argued”.
Given the severe procedural unfairness, the High Court judgment was quashed. The Court concluded that it remains up to Fiji Fish to decide on the next steps or potential settlement.
