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.

Rights of appeal in Civil cases in relation to TOTAL’s litigation failures

Any Plaintiff wishing to bring a claim for compensation or civil damages for more than FJ$50,000 must file that claim in the civil division of Fiji’s High Court. The High Court has unlimited jurisdiction to hear claims for civil damages, meaning it can award damages of an unlimited amount in accordance with common law principles and the Court’s findings of liability. 

A party who is aggrieved by a High Court Judgment has the right to appeal to Fiji’s Court of Appeal. This is the one appeal “as of right”. If a party is aggrieved by a Judgment of the Court of Appeal there is a limited right of appeal to Fiji’s highest Court - the Supreme Court. 

Although the Supreme Court is Fiji’s highest Court and final court of appeal, a Judgment of the Court of Appeal may not be appealed by either party “as of right” to the Supreme Court. In accordance with section 7(3) of the Supreme Court Act 1998, the aggrieved party (in this case TOTAL) must obtain special leave to appeal. The Supreme Court will not grant that leave to appeal in any civil appeal unless in the Supreme Court’s opinion the appeal meets one of the following tests:

• a far-reaching question of law is involved
• It raises a matter of great general or public importance
• It is otherwise a matter of substantial general interest to the administration of civil justice.

Fiji has ample case law that demonstrates the importance of meeting these tests. An aggrieved party, like TOTAL will not succeed by simply disputing the findings of fact of the Court of Appeal. For example, the Supreme Court case of Bulu v Housing Authority [2005] FJSC 1 CBV0011.2004S (8 April 2005) noted:

“A Petitioner seeking special leave to appeal to review concurrent findings of fact faces considerable difficulties.”

The purpose of this test and limited right of appeal - is to ensure that the rarified authority and time of the Supreme Court is not wasted on hearing cases that have no chance of success or do not raise novel questions of law or questions of considerable public interest.

The Supreme Court Judgment in the leading opinion of The Hon. Mr Justice Piryantha Jayawardena  found that TOTAL failed to meet the test in section 7(3) of the Supreme Court Act:

“none of the grounds pleaded [by TOTAL] in the petition fall within the criteria set out in section 7(3) of the Supreme Court Act.

Amongst other things, the Supreme Court Judgment rejected TOTAL’s interpretation of section 50 of the Environment Management Act. TOTAL’s submitted that damages for a “pollution incident” could only occur if a person had suffered health related problems. At paragraph 112 of the Supreme Court Judgment the following interpretation of section 50 of the Environment Management Act, 2005 was provided by the Supreme Court:

“I am of the opinion that any person who has suffered loss as a result of any pollution incident is entitled in law to institute a civil claim for damages in a court. Therefore, it is not necessary to contract a health-related problem as a result of any pollution incident to institute a civil claim for damages under s50 of the said Act”.

TOTAL’s challenge to the Supreme Court Judgment

TOTAL was evidently a dissatisfied litigant because it refused to accept the Supreme Court Judgment and filed a Constitutional challenge to the Supreme Court Judgment pursuant to Section 98 of the Constitution of the Republic of Fiji.

Section 98(7) of the Constitution reserves the right for the Supreme Court to: 

“review any judgment, pronouncement or order made by it.”

But it is an error of law to think that this provision confers a right of appeal to an aggrieved party, and on 5 April 2024 in a 3 paragraph Judgment the Supreme Court rejected TOTAL’s injudicious application. The reason provided by the Supreme Court to reject TOTAL’s application in paragraph 3 was:

“We did not discern any irremediable injustice which might have compelled us to take the exceptional course of reviewing an earlier decision of the Supreme Court.”

Further information about Constitutional review applications of Supreme Court Judgments

Based on our research, there appear to be no court rules dealing specifically with review of its own judgments and orders by the Supreme Court, particularly in the civil jurisdiction. But there is well established case law in the criminal jurisdiction including but not limited to:

• Silatolu v State, [2008] FJSC 28; CAV0002.2006 (17 October 2008)
• Dromudole v State [2015] FJSC 28; CAV0013.2013 (23 October 2015)
• Tasova v DPP [2022] FJSC 43; CAV0012.2019 (26 September 2022)
• Chand v State [2013] FJSC 5; CAV003.2012 (24 April 2013)
• Balaggan v State [2023] FJSC; CAV 0022 of 2015 (27 April 2023).

A number of important principles emerge from these case authorities that themselves cite leading case authorities from other common law jurisdictions. These principles relating to constitutional review applications include but are not limited to:

• As the Supreme Court is the final appellate court there is a public interest in maintaining the finality of litigation and a review application cannot provide a backdoor method by which unsuccessful litigants can reargue their cases (Silatolu)
• The power to review was one “to be exercised with great caution” and truly exceptional circumstances must exist for a review application showing that there would be irremediable injustice (Silatolu)
• The Supreme Court is a court of great sanctity, and exceptional circumstances must exist for a review
• Truly exceptional circumstances must apply (Chand)

The type of circumstances the Supreme Court looks for to justify a review, which is discretionary, would be an error or mistake by the court in its reasons for judgment or that the court had proceeded on some misapprehension of the facts and the relevant law having regard to the submissions then before it.

The case of Ballaggan is a recent one and makes a number of additional important points in relation to challenges to the finality of Supreme Court Judgments, including but not limited to:

• Section 98 of the Constitution must be considered in context because it makes it clear that the Supreme Court is the final appellate Court and the decision of the Supreme Court is binding on all other courts of the state (paragraph 7)
• The power of a review application is limited to only one Supreme Court judgment, pronouncement or order, meaning that no second review application can be brought (paragraph 8)
• Very few applications are made in Civil matters, if at all (paragraph 10)
• The exceptional power of the Supreme Court to review an earlier judgment should not be treated by the litigants as a second bite of the cherry (paragraph 55)

At paragraph 45 the Supreme Court (Gates J) provided:

“I have already referred to the need for finality in litigation. Cases must needs (sic) reach final  conclusion. Section 98(7) provides an avenue for curative jurisdiction in rare cases of obvious mistake, glaring error, and irremediable injustice. Once applied for, within a reasonable time, and declined, that must be the end of the matter. There is no continuing right to bring review applications. The litigation is at an end.”

At paragraph 53 the Supreme Court (Keith J) stated:

“The filing of a second or subsequent review should be treated as an abuse of the Court’s process.”

At paragraph 78 the Supreme Court considered the case of Dromudole v the State and provided as follows:

“The reason for that is the need to bring finality in the decision of the apex court of the country. You will always have litigants who are dissatisfied with the outcome of litigation. Where there is power to review its own decision, it has to be exercised with great caution and with the principle of finality in mind.”

Conclusion

TOTAL’s liability as a polluter under Fiji law has been established and cannot be challenged further. TOTAL has established the “polluter pays principle” in Fiji’s common law and Fiji lawyers have a definitive interpretation for the wording of section 50 of the Environment Management Act, 2005. The Supreme Court has rejected TOTAL’s interpretation that a pollution incident does not occur if the pollution does not cause human health related concerns.

We note that TOTAL's negligence caused the pollution incident in 2008/2009 and in the intervening years TOTAL may have updated its approach towards the environment.

Section 50 of the Environment Management Act, 2005 provides:

(a) economic loss resulting from the pollution incident or from activities 

undertaken to prevent, mitigate, manage, clean up or remedy any pollution 

incident;

(b) loss of earnings arising from damage to any natural resource;

(c) loss to or of any natural environment or resource;

(d) costs incurred in any inspection, audit or investigation undertaken to 

determine the nature of any pollution incident or to investigate remediation 

options.

(2) A claim under this section may be set off against any compensation paid under section 47(2).

About TOTAL:

TOTAL’s website contains information about how it manages environmental risk:  https://totalenergies.com/sustainability/environment/environment-challenges, and this includes the following statement:

TotalEnergies considers respect for the environment to be a priority. All employees, at every level, must do their utmost to protect the environment as they go about their work. TotalEnergies strives to control its energy consumption, its emissions in natural environments (water, air, soil), its residual waste production, its use of natural resources and its impact on biodiversity. TotalEnergies takes a constructive approach on this topic that is based on transparency and dialogue when communicating with its stakeholders and third parties.

Further notes If any person would like a copy of the Court of Appeal or Supreme Court Judgment please email: james@sas.com.fj

Disclaimer:

This legal bulletin is provided for informational purposes only and is not intended to be, and should not be relied upon as, legal advice.