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Fiji’s Supreme Court rules against TOTAL (Fiji) for a second time - Environmental Law update

Apr 14, 2024 / by James Sloan posted in Environmental governance, Fiji law, Commercial lawyers Fiji, Fiji Environmental law, Fiji Court of Appeal, Total negligence, Polluter Pays, Fiji Supreme Court, Polluter Pays Principle, Negligence

 On 28 October 2022, the Supreme Court of Fiji confirmed that Total (Fiji) Limited (TOTAL) is liable under Fiji law as a polluter. (CIVIL PETITION NO. CBV 0007 of 2020) (Supreme Court Judgment)

Fiji’s Supreme Court Judges were unanimous in their opinion that TOTAL had been negligent and caused a “pollution incident”. The Supreme Court Judgment upheld the Fiji Court of Appeal’s unanimous Judgment (CIVIL APPEAL NO. ABU 90 OF 2018) that found TOTAL had caused a pollution incident as defined by section 50 of the Environment Management Act, 2005. 

Together, Fiji’s Court of Appeal and Supreme Court Judgments against TOTAL provide significant environmental law jurisprudence for Fiji and demonstrate that the “polluter pays principle” is established in Fiji common law. Amongst other things, the Supreme Court Judgment rejected TOTAL’s interpretation of section 50 of the Environment Management Act, and directed that damages be assessed against TOTAL under 5 separate heads of damages. 

TOTAL did not accept the higher Court Judgments and as a dissatisfied litigant, chose to file an application to challenge the Supreme Court Judgment pursuant to section 98(7) of the Constitution of Fiji. TOTAL’s challenge to the Supreme Court Judgment may be unprecedented in the context of civil litigation in Fiji. 

TOTAL’s challenge was heard by Fiji’s Supreme Court on 13 April 2023, and on 5 April 2024 the Supreme Court by unanimous decision rejected TOTAL’s challenge.

This article provides a summary of the exceptional circumstances under which the final judgment of Fiji’s highest court, the Supreme Court, may be challenged. Any challenge to the Supreme Court must be considered with extreme caution as the dissatisfied litigant challenges the public interest that litigation should reach a final conclusion.

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Landmark Fiji Environmental Law Judgment finds TOTAL negligent and liable for pollution incident, upholding Fiji's Environment Management Act and the principle "Polluter Pays"

Mar 2, 2020 / by James Sloan posted in Environmental Management Act 2005, Fiji land law, The Environment Management Act, Environmental governance, Environmental decision making, Commercial law Fiji, Fiji Environmental law, Fiji Court of Appeal, Fiji Planning and Environmental Law, pollution in Fiji, Total negligence, Fuel leak Fiji

A unanimous decision of Fiji’s Court of Appeal Ramendra Prasad v Total (Fiji) Limited, Civil Appeal No. ABU 90 of 2018, 28 February 2020 (Lecamwasam, JA, Almedia Guneratne, JA, Jameel, JA) has found Total (Fiji) Limited (“TOTAL”) negligent and liable for a fuel leak that was discovered in September 2008 close to Nausori on the island of Viti Levu, in Fiji.

In finding TOTAL negligent, liable and responsible for an underground fuel leak, Fiji’s Court of Appeal has affirmed Fiji’s Environment Management Act, 2005, and the principle “polluter pays” as well as affirming the actions and findings of Fiji’s Department of Environment.

In this legal update we focus on the key legal principles affirmed by the Court of Appeal as they are significant in terms of Fiji’s environmental jurisprudence and good governance.

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Steps to take to avoid a Will being challenged and declared invalid

Aug 28, 2018 / by Mary Muir and James Sloan posted in Commercial law Fiji, Fiji lawyers, Fiji commercial lawyers, Wills and Probate Fiji, Probate Law Fiji, Fiji Court of Appeal

Every person over the age of 18 should have a Will, as without one, a person dies in a state of intestacy, meaning that where the deceased person’s property goes must be determined by the State in accordance with legal principles related to intestacy.

A well drafted Will is a legal document that enables a person (known as the Testator) to ensure that his or her wishes are respected after death with regard to how property owned by the Testator is distributed.

In Fiji, to be a valid Will it must comply with the Wills Act, 1972 which includes the requirement that the Testator’s intentions must be witnessed by two witnesses who are not beneficiaries of the Will. The strict legal formalities that lead to the formation of a valid Will are why it is advisable to seek a lawyer’s advice before the Will is prepared. The engagement of a private lawyer is not necessary, as the Legal Aid Commission may also provide competent advice in this regard, although before engaging any lawyer (public or private) it is important to understand what charges may apply to administer the estate via what is known as a grant of probate. Probate is the process by which the appointed executors of the Will are appointed by the High Court of Fiji to execute the Will of the Testator in favour of the persons who will benefit from the Testator’s wishes (Beneficiaries).

In this commercial law update we provide some general guidance (not legal advice) on how to minimise the chances of a Will being challenged and overturned by the Court.

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