Commercial Law Updates

On 03 June 2021, the Parliament of Fiji passed the Public Health (Amendment) Act 2021. The Amendment Act introduces amendments (amendments) to Part 7 of the Public Health Act of 1935 (the Act) which deals with all matters relating to infectious diseases.

While the background and explanatory notes of the amendments relate largely to the current Covid-19 coronavirus outbreak, the amendments in fact relate to all infectious diseases under Part 7 of the Act including Covid-19.

In this commercial law update we explain the amendments and provide our comments in relation to the amendments by way of guidance and to assist in the current situation that requires all Fijians to work together to do what we can to reduce the transmission of this virus and get back to the way we want to.

A recent judgment of the High Court of Fiji has discussed and clarified the operation and legal effect of defect liability clauses in construction contracts.

This Judgment adds to Fiji's jurisprudence for construction law and emphasizes the importance of construction law contracts particularly when things don't go to plan.

We provide a short update in relation to important legal points that have arisen from the High Court's Judgment. The Judgement was also reported in Fiji's national press here

Everyday life has been severely impacted by COVID-19, and even after the pandemic eases or ends we will have to adjust to new ways of conducting ourselves and our businesses. These are likely to include new methodologies to prepare ourselves better to ensure continuity of businesses, and safeguard the livelihoods of employees.

During these testing times, it is easy to overlook important deadlines, legal obligations and those terms and conditions under a contract which continue to run uninterrupted, and the fulfilment of which may be rendered impossible. This commercial law guidance briefly reviews what options may be available under a contract should businesses face difficulty in performing their contractual obligations.

Please note we provide general guidance only regarding commercial contractual obligations in the context of the current pandemic. This guidance does not cover employment contracts as these should be considered separately in accordance with the Employment Relations Act 2007.

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.

In common with other common law jurisdictions, Fiji exercises State control over land including but not limited to how it may be developed. The regulation of development falls within the domain of planning and environmental law.

The government has announced that in the public interest it is in the process of updating its Town Planning Schemes for Suva, Lautoka and Nadi. This is an important nation building initiative because a Town Planning Scheme will shape future development in all these cities. But, it is also a significant undertaking that provides an opportunity for, and in our view, requires - wide consultation. If this consultative process is successful it will result in better planned development that along with the effective regulation of environmental standards, is essential to create sustainable and resilient cities and towns for Fiji’s future and its citizens' well-being.

In this update, we take a look at Fiji’s planning law framework and set out various reasons why it is vital for Fiji’s citizens to become involved in the consultation process that is being led by the Ministry for Industry, Trade, Tourism, Local Government, Housing and Community Development to create and adopt new Town Planning Schemes.

The reasons that public involvement is vital include but are not limited to:

• the significance of Town Planning Schemes to the way planning law and decisions operate in Fiji law
• the fact that the decisions made pursuant to Town Planning Schemes will have far reaching effects on all citizens, and may affect existing property rights
• Town Planning Schemes should be suited to Fiji’s context and linked to a shared and bold vision for Fiji’s future.

Each citizen who becomes involved in this consultative process has an opportunity to provide her/his views on how Fiji’s towns and cities should develop to improve but also what aspects of Fiji’s culture and values should be part of that future too.

 On Christmas Eve, 2018, the Fiji Government Gazette published a notice of commencement for the Workmen’s Compensation (Repeal) Act 2018, along with an amendment to the Schedule for the Accident Compensation Act adding accidents arising out of and in the course of employment and accidents occurring on school premises or during school events to those covered by the Accident Compensation Act.

In July 2018 we provided an update on the Workmen's Compensation (Repeal) Act which can be found here - this update explained how it would work but it is important for employers and schools to understand the legal implications of the new Act and Regulations.

In this commercial law update we provide a brief update on the effect of the new law and regulations.

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.

Parliament has recently passed the Workmen’s Compensation (Repeal) Act 2018 (Act No 30 of 2018). As indicated by its name, it repeals the original Workmen’s Compensation Act 1964 and replaces it with a new regime from 1 January 2019.

Although the date of commencement of the Act is yet to be gazetted (so it is not in force at the date of writing this commercial law update), the effect of the Act is likely to mean that from 1 January 2019 Workmen’s Compensation claims must be brought before and handled by the Accident Compensation Commission (“ACC”) established pursuant to the Accident Compensation Act 2017.

In this commercial law update we briefly consider what this will mean for employees and employers in relation to workplace accidents.

In our Commercial Law update issued on 28 January, 2018 we provided an update on the policy changes made by the Immigration Department regarding work permits which can be found here

This further update specifically addresses recent policy changes by the Immigration Department to the 14 days business permit that may, once issued, be extended up to 3 months. This policy change by Fiji's Immigration Department means that it has now reverted to its original policy that enables 14 days business permits be extended for a period of up to 3 months by operation of section 9 (2) (c) of the Immigration Act 2003. 

Each construction contract has its own different areas of risk.

In this commercial law update, we consider only the general areas in which risks can arise and need to be managed in a construction contract.