Appeal Court overturns $1.33m Fiji Fish judgment

The civil High Court judgment ordering an infrastructure group and two local cement companies to pay $1.33 million to Fiji Fish Marketing Group Ltd (Fiji Fish) has been set aside by the Fiji Court of Appeal.

The Court of Appeal found that the judgment delivered by Justice Deepthi Amaratunga went beyond the Plaintiff’s pleaded case.

RPA Group (Fiji) Limited, Pacific Cement Limited and Trengy Cement (Fiji) Ltd had appealed the High Court decision, which held them liable for economic loss and nuisance arising from two separate deliveries of clinker from a barge onto trucks near Fiji Fish’s premises.

Defence lawyers representing the appellants were Faizal Hanniff, Siddhart Nandan and Asilika Rogers, while Wylie Clarke and S. Koya appeared for the respondent.

In the High Court, Fiji Fish argued that clinker dust generated during the transfer and transportation process was noxious, offensive and constituted a nuisance.

The company claimed the dust settled on its boats, refrigerators and fans, causing clumping and damage.

Fiji Fish said the cost of cleaning, repairs and replacements amounted to approximately $780,000.

After reviewing the case, Resident Justice of Appeal Justice Chandana Prematilaka, Justice Walton Morgan and Justice Karen Clarke found that Justice Amaratunga had not allowed all parties to amend their pleadings.

The Court found that the High Court prejudiced the parties by relying on Sections 7 and 40(1)(2) of the 2013 Constitution citing a “mandatory duty to develop common law in a way that respected the right to environment including the Plaintiff’s right.”

They ruled that the Judge did not notify the parties of his purported development of common law which was a procedural error of the High Court.

The appellate judges further held that Fiji Fish failed to present expert evidence explaining the alleged hazardous nature of clinker dust, which was necessary for determining the technical issues raised in the case.

The Court noted that Fiji Fish had conceded its pleaded case was based on corrosion, despite claiming damages caused by dust clumping and blocking fans.