Commercial Law Updates

 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.

Redundancies are, unfortunately, a fact of life. For the most part they occur because an employer wants to restructure to adapt to a changing business environment. This adaptation means that new roles may be created in, or old roles removed from the employer's organisation. It is the removal of roles (or job positions) within the employer's organisation that leads to that role becoming redundant. When the role is removed the employee in that role is affected, and his or her employment contract terminated, by reason of the redundancy.

Fiji law recognises that employers are entitled to restructure their operations and make roles within their organisations redundant. But Fiji law also regulates this process by amongst other things: restricting the reasons that may justify a redundancy; setting out a redundancy process that must be followed; and setting a minimum standard for the redundancy package that must be given to the employee who may be terminated by reason of redundancy at the end of this process.

In this commercial law update, we provide more information on the minimum standards that employers must follow. But because this is not intended as legal advice and should not be relied on as such - all employers who may be contemplating redundancies should consult a lawyer first. It must also be remembered that at all times all employers owe a duty to treat their employees with good faith, and the redundancy process under Fiji law must not be used as a disguise to terminate employees. Getting this process wrong, can be an expensive mistake, and we briefly discuss recent case law in this regard from a jurisdiction outside Fiji.

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.

Connectivity has made the access to information easier in this modern age, but it has also led to the increase in harmful online behavior such as cyberbullying, cyber stalking, internet trolling and exposure to offensive or harmful content, amongst other things. After much debate, Fiji has introduced the Online Safety Act, 2018 (the “Act”) to promote online safety and deter adverse online behavior and misuse of personal information. While it was enacted on 18 May 2018, it will not come into effect until the commencement date is gazetted.

At the date of writing the Online Safety Act has not appeared in the Fiji Government Gazette and therefore the legislation is not, as yet, in force. We will amend this update when it is “gazetted”.

In this commercial law update, we consider how this newly-introduced Act is intended to work.

After many years and a large volume of legal proceedings over personal injury and wrongful death claims arising from road accidents, Fiji has decided not just to update its legislation but to completely overhaul its system, by mandating a ‘no fault’ system of compensation in place of motor vehicle third party insurance.

The Legislation that came into force on 1 January 2018 is – The Accident Compensation Act 2017 (the “Act”) and related regulations

In this commercial law update we analyse how the new legal framework of 'no fault' compensation is intended to work and highlight some grey areas.

As of 16 January 2018, the Fiji Immigration Department will no longer accept the following applications:

• Short term work permit application – a type of permit given to an applicant for a term up to six months where the employer can show that the applicant’s expertise and knowledge is required urgently in Fiji; and
• Extension of 14-day business visa – an extension of up to three (3) months granted by operation of Section 9 (2) (c) of the Immigration Act 2003.

We briefly update on this change in Fiji Immigration policy.

Fiji has 3 types of land title ownership that are regulated in accordance with the Land Transfer Act. This provides a system of title by registration that accords with the Torrens Title System and bestows an indefeasible title on anyone who registers their title in accordance with the Land Transfer Act, in the absence of actual fraud.

Fiji’s system of written titles and different types of land ownership is not only unique in terms of protecting indigenous land ownership but it also provides Fiji with an advantage over most other Pacific Island States. This is because, in accordance with the Torrens Title System, Fiji, has a system of recorded titles that the State guarantees. This system provides certainty of title which reduces disputes over land ownership and benefits commerce and investment.

In this legal update we briefly set out the 3 types of Fiji land ownership, and update on a recent development in relation to the requirements for the lawful assignment of iTaukei leases.

A company is not a natural person and it is created by operation of law. In Fiji the Companies Act 2015 regulates Fiji companies and this includes how a company is created (incorporation) and how it ceases to be (dissolution).

A company may be dissolved either voluntarily or because it cannot meet the demands of its creditors and pay its debts. However, the law attempts to provide an orderly process when this happens, known as winding up.

When a company is wound up a liquidator is appointed who should act with professional efficiency to collect all the assets and settle all claims prior to the formal dissolution of the company. In this update, we highlight the recent changes to the Companies Act that aim to increase the regulation of liquidators by providing stricter requirements on who may be appointed as a liquidator.