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High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION
Civil Action No. 68 of 2017
BETWEEN : FIJI FISH MARKETING GROUP LIMITED a duly incorporated Company having its registered office at Suva in Fiji.
PLAINTIFF
AND : PACIFIC CEMENT LMITED of Queens Road, Lami c/- PO Box 11653, Suva in Fiji
FIRST DEFENDANT
AND : TENGY CEMENT (FIJI) LTD a duly incorporated Company having its registered office at Lot 1, Nakavu, Veisari, Lami, Suva in Fiji.
SECOND DEFENDANT
AND : RPA GROUP (FIJI) LIMITED a duly incorporated Company having its registered office at Shop 3, Fiji Muslim League, Lakeba Street, Samabula, Suva in Fiji.
THIRD DEFENDANT
Counsel : Mr. W. Clarke for the Plaintiff
Mr. F. Haniff for the Defendants
Date of Hearing : 20th March, 2017
Date of Judgment : 22nd March, 2017
Catch words – injunction - environmental damage - statutory approvals - does approval of environmental agency preclude a party from seeking injunction - claim for damage - common law right – statutory obligation for an agency- Polluter Pays Principle (PPP) – undertaking as to damages
Cases cited in the Submission[1]
American Cyanamid Co Vs Ethicon Ltd [1975] UKHL 1; [1975] AC 396
Cayne v Global Resources plc [1984] 1 All ER 225
Francome v Mirror Group Newspapers [1984] 1 WLR 892
Natural Waters of Viti Ltd v Crystal Clear Mineral Water (Fiji) Ltd [2004] FJCA 59; ABU0011.2004S & ABU0011A.2004S (26 November 2004)
Honeymoon Island (Fiji) Ltd v Follies International Ltd [2008] FJCA 36; ABU0063.2007S (4 July 2008)
Barr and others v Biffa Waste Services Ltd [2011] EWHC 1003; [2011] 4 All ER 1065
American Cyanamid Co v Ethicon Ltd [1975] UKHL 1; [1975] 1 All ER 504
Natural Waters of Viti Ltd v Crystal Clear Mineral Water (Fiji) Ltd [2004] FJCA 59; ABU0011.2004S
JUDGMENT
INTRODUCTION
1. The Plaintiff filed this application for injunction to prevent the Defendants from unloading a Hazardous substance (Clinker) on
a jetty close to their fish processing factory. Clinker is a main component in the manufacture of cement and this is imported to
Fiji by ships, and earlier they were unloaded to trucks and they were transported to the factory site and unloaded to silos for
storage. Due to overweight of the trucks loaded with Clinker, they were unable to meet ‘the Factor of Safety required by
the code’[2], in order to cross the main bridge between the Suva Port and the cement factory. Since end of last year, Clinker was offloaded
to a barge from the ship, using a ‘grapper’ and this barge was taken to a place close to the Plaintiff’s Fish
Processing Factory and using an digger the clinker was unloaded to trucks. This unloading by open digger/bucket invariably generates
Clinker dust, which had polluted the air around and even the roads where these truck loads of Clinker are transported, resulting
the Plaintiff initially, complaining about this activity to the Defendants. Admittedly two meetings were held, with the 3rd Defendant who is contracted to transport Clinker from the ships to the respective cement factories (1st and 2nd Defendants) and some suggestions were made by the 3rd Defendant to reduce this pollution from Clinker dust to the Plaintiff. The parties were unable to come to an amicable arrangement
to curtail or eliminate the emission of Clinker dust in the unloading of the same from the barge close to their factory. The Plaintiff
is seeking an injunction preventing the Defendants from unloading Clinker from the barge using a digger to trucks in their jetty.
FACTS
2. The Plaintiff in the affidavit in support alleges
f. The Clinker dust had gathered in the fishing vessels, the Factory, blocking air conditioning units and freezers and also contained exposed water. The cost of damage is yet to be ascertained.
g. When Clinker unloading from the barge, the employees have an uphill task of cleaning the premises including equipment used from the Clinker dust, and the vessels belonging third parties have also indicated moving away from their jetty loosing revenue to the Plaintiff. At the same time there is also a possibility of losing HACCP certification and also losing their export market due to contamination of Clinker in to their food, as it is extremely competitive high end market.
h. Already any delay in processing is costing them more than $35,000 per day and the loss to the equipment and machinery is over $100,000.
i. Seeks the unloading operation of Clinker from the barge be terminated till the final determination of the claim for the loss.
3. The application for injunction was made ex-parte but considering that the Clinker unloading operation has not started yet the Defendants were notified. When the matter came up before me the counsel for the Defendants indicated that no Clinker unloading will resume from the barge in or around the Plaintiff’s Fish Processing Factory till 23rd March, 2017 since the ship carrying Clinker is scheduled to arrive on that day. Already the Plaintiff had communicated, the contamination of Clinker dust in the manner it was unloaded to the 3rd Defendant. It was contracted to transport clinker from the ship to the cement factory and even the solicitors were informed about the impending application for the injunction. So, considering the said factors the application for injunction was converted to inter partes and the Defendants were allowed to file affidavits in opposition.
4. 1st and 2nd Defendants were manufacturers of cement, who owns respective cement manufacturing facilities. The main ingredient for making cement
is Clinker, which is imported.
5. The three Defendants have filed three separate affidavits in opposition. For the brevity the following can be deduced from the
said affidavits. (certain facts are verbatim reproduced in the affidavits of 1st and 2 Defendants)
1st and 2nd Defendants (Affidavits of Sowani Tuidrola and Hongyong Li)
3rd Defendant (Affidavit of Ronesh Kumar)
`We certainly hope that these proposed will be accepted to your good company as means of resolving the current impasse that you may encounter during out(sic) operation.’
ANALYSIS
6. It is admitted fact that Clinker is Hazardous substance to human health. Inter alia, it causes ‘severe skin burns, causes serious eye damage and may cause damage to the organs (respiratory system)’[6]. Admittedly it must be ‘Transported with a method that does not cause dust’[7].
7. The Plaintiff in the Motion seeking injunctive relief is seeking following reliefs
‘An order granting an interim injunction restraining and prohibiting forthwith the Defendants herein by themselves and or by their servants and or by their agents from directing, procuring or permitting:
i) transporting or the transportation of Clinker and any other hazardous material by barge, ship or other floating vessel to; and/or
ii) unloading or offloading or directing, procuring or permitting the offloading or unloading from a barge or vessel of Clinker and its trucking in any manner whatsoever at any location within a five kilometer radius of the business premises of the Plaintiff at Queens Road, Lami, until further order; and
AND/OR IN THE ALTERNATIVE an order granting an interim injunction restraining and prohibiting forthwith the Defendants herein by themselves and or by their servants and or by their agents from carrying out directing, procuring or permitting the offloading within a five kilometer radius of the business premises of the Plaintiff at Queens Road, Lami, until further order’
8. The counsel for the Defendant, in its oral submissions as well as in the written submissions emphasized that there were no photographic evidence attached of the alleged damage to the factory and its equipment of the Plaintiff. The Defendants admit emission of Clinker dust in their method of unloading of Clinker from the barge to the trucks as well as transport of the same to the factory by land. According to Defendants own evidence the transport of Clinker must be done using ‘a method that does not cause dust’[8].Their position is the claim of the Plaintiff is exaggerated. I cannot decide these disputed facts as to the level of contamination in the factory premises of the Plaintiff at this hearing on affidavits.
9. There are some photographs attached to the affidavit in support and these photographs were not individually described. So I cannot for certain decide which photograph belongs to the factory and its facilities, but injunctions are granted on affidavit evidence and there is no strict rule as to requirement of photographic evidence. In this case there is no requirement for such evidence as most of the admitted facts are sufficient to conclude that the 3rd Defendant was polluting the environment, which I would discuss later in this judgment.
10. It should also be noted photographic evidence may not be possible in certain circumstances like airborne hazardous substances which cannot be photographed, using a conventional camera, but nevertheless may have exceeded permitted levels of the pollutants. Eg Air quality cannot be ascertained from photographic evidence, using a conventional camera.
11. The affidavit in support amply describe the damage to the factory and its processes and additional cleaning they had to engage in order to keep their premises to the HACCP standards. It should also be noted that at the time of this action, there was no Clinker unloading hence no pollution of Clinker to the environment.
12. The Plaintiff had also contacted the 3rd Defendant who was responsible for Clinker transportation as early as 24th January, 2017 and admittedly some suggestions were made by the 3rd Defendant to ‘Minimize Discharge of Clinker Dust – FHL Jetty’.
13. These recommendations are quoted verbatim in paragraph 5 in this judgment, in bold italics and from the said admitted facts what is evident is that;
14. In the light of the said admitted suggestions by the 3rd Defendant, there is no merit in the objection raised by the counsel for the Defendants regarding lack of photographic evidence of Clinker dust to the operation of Fish Processing Factory of the Plaintiff. If there was no impact from Clinker dust from the unloading from the barge, there would not be a need to stop entire operation as suggested by the 3rd Defendant.
15. In an application for injunction it is not the duty of the court to closely analyze the disputed facts, so the affidavit in support with its annexed photographs indicates that clinker dust being discharged to the environment including vessels nearby. In the written submissions in paragraph 14 Defendants admitted that photographed vessel that was significantly covered with clinker was ‘close to the tug’ meaning that significant discharge of Clinker to the environment. As per directions of the Safety Data Sheet[8] transport of Clinker should be done with a method that does not emit Clinker dust to the environment. This may be an issue that even MSAF should closely monitor as per their own letter as any accidental discharge should be immediately reported to them, but this method of discharge at the jetty seems discharge a significant amount of Clinker to the environment but no evidence of those being informed to MSAF. The 3rd Defendant’s voluntary suggestion to terminate its operation depending on the direction of the wind also indicates the seriousness of the discharge of the Clinker to the environment and its effect to the Plaintiff, and also their total disregard to pollution of Clinker to atmosphere, other than Plaintiff.
16. This was held in American Cyanamid Co v Ethicon Ltd [1975] UKHL 1; [1975] 1 All ER 504 at p509 Lord Diplock held.
‘My Lords, when an application for an interlocutory injunction to restrain a defendant from doing acts alleged to be in violation of the plaintiff's legal right is made on contested facts, the decision whether or not to grant an interlocutory injunction has to be taken at a time when ex hypothesis the existence of the right or the violation of it, or both, is uncertain and will remain uncertain until final judgment is given in the action. It was to mitigate the risk of injustice to the plaintiff during the period before that uncertainty could be resolved that the practice arose of granting him relief by way of interlocutory injunction......
In those cases where the legal rights of the parties depend on facts that are in dispute between them, the evidence available to the court at the hearing of the application for an interlocutory injunction is incomplete. It is given on affidavit and has not been tested by oral cross-examination. The purpose sought to be achieved by giving to the court discretion to grant such injunctions would be stultified if the discretion were clogged by a technical rule forbidding its exercise if on that incomplete untested evidence the court evaluated the chances of the plaintiff's ultimate success.
At p 510
It is no part of the court's function at this stage of the litigation to try to resolve conflicts of evidence on affidavit as to facts on which the claims of either party may ultimately depend nor to decide difficult questions of law which call for detailed argument and mature considerations. These are matters to be dealt with at the trial.’
Approval by relevant authorities
17. The counsel for the Defendants said that they have obtained relevant approvals for the discharge of the Clinker. For this they
have annexed documents, which need scrutiny by the court, even though it is yet to be tested in evidence at hearing.
18. The first document in this regard is an email[9] dated 8th December, 2016 from a person from Waste and Pollution Control Unit Department of Environment. There is no designation of the author
of the email, but it stated as;
‘In terms of clinker movement, the department does not have any regulatory role in the movement of this raw material and is up to Fiji Ports Limited and MSAF to give approval.’
19. Part 5 of the Environment Management Act 2005, deals with the issue of permits regarding certain activities and it states as follows;
PART 5 - WASTE MANAGEMENT AND POLLUTION CONTROL
Permits to discharge waste or pollutants
35.-(1) A facility must not-
(a)discharge any waste or pollutant into the environment;
(b)handle, store, process, or control any hazardous substance;
(c)produce or generate any waste, pollutant or hazardous substance; or
(d)engage in any activity that may have an adverse impact on human health or the environment,
unless the facility is issued with a permit under this Part.
(2) Notwithstanding section 5, if a provision of any written law is inconsistent with the provision of this Part, the provision of this Part prevails.(emphasis is mine)
20. It is admitted fact that Clinker is a hazardous substance. In the method engaged in the discharge of Clinker at their jetty, caused a certain amount of Clinker dust to the environment. Apart from that, while it is being transported further discharged and the 3rd Defendant had suggested that water being used to minimize the Clinker dust on the road. The quantity of discharge and amount of pollution cannot be ascertained from the disputed facts, but it is undisputed that certain amount of Clinker dust was discharged to the environment, in the process adopted by the 3rd Defendant with the concurrence with 1st and 2nd Defendants (see paragraph 14 of the submissions). This is contrary to their own ‘Safety Data Sheet’ for Clinker, where transportation must be done with a method that does not cause Clinker dust[10]
21. According to the ‘Safety Data Sheet’ provided by the 1st Defendant (ST6)[11] Clinker is;
Hazards Identification
GHS classification
Human health hazards
Signal word ‘Danger’
‘Causes severe skin burns
Causes serious eye damage
May cause damage to organ (respiratory system)
May cause damage to organ (respiratory system) through prolonged or repeated exposure’
22. In terms of Section 35 of the Environmental Management Act 2005 the operation of the 3rd Defendant in the discharge of Clinker from the barge to the trucks and also transport of the same needs a permit.(irrespective of what was stated in the email annexed RK4).
23. The authorized person to issue such permit is Waste and Pollution Control Administrator (WPCA) in terms of Section 36 of the Environmental Management Act 2005, and there is no evidence of such person being notified of the activity, by the 3rd Defendant. When issuing such a permit such authority should consider the requirement of transportation of Clinker by a ‘method that does not cause dust’[12]. For this, open trucks are obviously unsuited. A closed devise similar to special ‘cement transportation trucks’, which
are enclosed, so as no Clinker dust escaped to the environment in the transportation over land, are desirable. As to the unloading
an equally secure method should be engaged so as to prevent pollution from Clinker dust.
24. Without prejudice to the above position, the said email, which the 3rd Defendant relied, requested approvals from Fiji Ports Limited and Maritime Safety Authority of Fiji (MSAF). The 3rd Defendant had obtained none from the evidence submitted at this hearing.
25. MSFAF on 9th December,2016 had given approval to a third party, Cruz Holdings Limited to ‘Clinker offloading operation- Suva Harbour’, ‘based on operational documents submitted’ by the said third party.Cruz Holding was initially engaged in the offshore operations prior to the 3rd Defendant. What documents were submitted was not known and upon the documents submitted strict conditions were imposed.
26. The said approval under the heading ‘Re: Offshore Clinker Offloading Operation- Suva Harbour’ contained following conditions;
‘1. That strictly no pollutant is to be discharged in to the sea.
2. All Navigational lights for the Barge and Tug with relevant lights and shapes based on the Rule of The Road must be adhered
to for day night operation.
3. Any accident or polluting incident must be immediately reported to CEO MSAP.
4. Fiji Ports Corporation Limited must be kept informed with the Suva Port Control Tower advised of all tug and barge movement.
(emphasis added)
27. This is neither approval directed at 3rdDefendant, nor a blanket approval to offload Clinker in any manner, polluting the environment. The approval was qualified in two aspects. First, it is directly referred to the ‘Operational Documents submitted’ by Cruz Holdings. Whether the 3rd Defendant was aware of the said operational procedures submitted, at that time, which was the basis of such approval, was not known. So how could they rely on the said approval directly addressed to a third party which was a conditional approval, upon the document submitted by the said third party? Secondly it was an approval given to Cruz Holdings Ltd with strict conditions, and not to 3rd Defendant.
28. More importantly, the said approval of the MSAF to Cruz Holding had a heading ‘Offshore Clinker Offloading Operation- Suva Harbour’. There are two off loadings of the Clinker. The first offloading is from ship to the barge (at Suva Harbour) which is done using ‘grapper’. Since a ‘Grapper’ is covered in all sides, when it is closed, there is no or minimal Clinker dust being discharged to the environment. In any event there is no allegation of Clinker dust discharging to the environment in the said offloading of Clinker from the ship to the barge.
29. It is presumed that the ‘grapper’ is built in those ships that transport the bulk Clinker to Suva Harbour and this is used for the offloading of the Clinker from the ship to barge about 2 km from the shore at Suva Harbour. This is the first point of off shore offloading of Clinker in the operation of Clinker transportation. The barge delivers the said Clinker load to the jetty. The next point of offloading happens in the jetty from the barge to the trucks using a digger. Unlike a ‘grapper’ the use of 20 tonne digger, the Clinker dust may readily, discharge to the environment. This may be the reason to use ‘grappers’ as opposed to more commonly used and available diggers which are nearly half open, and more susceptible for pollution in any open (windy) space.
30. It should also be noted that first offload, from the ship to the barge happens in 2 km away from the shore, thus allowing sufficient room for diffusion of Clinker dust, if it is created in the said operation, as opposed to any offloading using an open digger, close to land in a private jetty where other parties are closely located.
31. So, the second offloading is more critical and significant from a point of view of environmental impact from Clinker dust. The
offload of Clinker from a barge to the trucks were carried out using a 20 tonne digger at a private jetty. There is no indication
of such an activity being approved by MSAF even to a third party (i.e Cruz Holding).
32. Whether this method of offload was approved by the MSAF is not clear in the said letter RK 5[13]. In any event the approval of MSAF was subjected to conditions and it will only be restricted to the documents supplied by a third
party.
Can statutory approvals prevent a party from claiming damages and or seeking interim injunctive relief?
33. The 3rd Defendant has no approval from MSFAF and Fiji Ports Limited for the transportation of Clinker in terms of the evidence submitted
at the hearing. As I have stated earlier the 3rd Defendant must obtain a permit from WPCA in terms of Section 35 and 36 of the Environmental Management Act 2005.
34. Even from the said approval contained in the lettered dated 9th December, 2016 from MSAF, annexed RK 5, it is not clear any approval is given to unload Clinker in the manner 3rd Defendant was conducting, in the said location, as there was no evidence of any such operation or method or procedure adopted by the 3rd Defendant was subjected to any scrutiny by MSAF. There was no evidence that 3rd Defendant’s method of offloading was ever submitted to MSAF even for their information.
35. The absence of any authority from MSAF, is amply demonstrated by the 3rd Defendant’s unilateral suggestion to alter the digger or bucket, without informing MSAF. According to the affidavit of Ronesh Kumar already such alterations were done.[14]This indicates that the 3rd Defendant is unilaterally suggesting some changes to the procedure of unloading without even informing the same to the MSAF. Admittedly he had also done it, in total disregard to MSAF.
36. The said approval of MSAF given to Cruz Holding Limited was based on the materials submitted by them, at that time of seeking approval. So any variation of said method needs concurrence of MSAF. Already the 3rd Defendant had altered the capacity of the bucket used to dig Clinker from barge. The counsel for the Defendants at the hearing said the said increase in capacity of the bucket by alteration, was not done with the intention of increasing volume of clinker, but to minimize the discharge of Clinker dust. Irrespective of intention of the 3rd Defendant, any alteration to the unloading of Clinker operations needs MSAF’s concurrence, and there is no evidence of such approval.
37. Even assuming that 3rd Defendant obtained approval from MSAF and also Ports Fiji Limited, (they have not) this itself would not preclude the Plaintiff from claiming for damages and or seeking injunctive relief when there is a nuisance to their activities. This was held in UK decision in Barr and others v Biffa Waste Services Ltd [2012] EWCA Crim 280; [2012] 3 All ER 380. The said UK Court of Appeal decision as well as UK Queens Bench Division (Technology and Construction) recorded in [2011] EWHC 1003; [2011] 4 All ER 1065 held, that common law remedy for seeking damages for nuisance is not excluded, unless specifically done so by legislature. In that case there was no violation of any condition of the permit, yet the ‘smell’ created a nuisance to neighbours.
38. Carwath LJ in Barr and others v Biffa Waste Services Ltd[2012] EWCA Crim 280; [2012] 3 All ER 380 at 394 held,
‘[46] In my view there are short answers to all these points. (i) 'Reasonable user' is at most a different way of describing old principles, not an excuse for reinventing them. (ii) The common law of nuisance has co-existed with statutory controls, albeit less sophisticated, since the nineteenth century. There is no principle that the common law should 'march with' a statutory scheme covering similar subject matter. Short of express or implied statutory authority to commit a nuisance (rule (v) above), there is no basis, in principle or authority, for using such a statutory scheme to cut down private law rights. (iii) Further: (a) the 2003 permit was not 'strategic' in nature, nor did it change the essential 'character' of the neighbourhood, which had long included tipping. The only change was the introduction of a more offensive form of waste, producing a new type of smell emission. (b) The permit did not, and did not purport to, authorize the emission of such smells. Far from being anticipated and impliedly authorized, the problem was not covered by the original waste management plan, and the effects of the change seem to have come as a surprise to both Biffa and the EA. Nor can they be dismissed as mere 'teething troubles', since they continued intermittently without a permanent solution for five years. (iv)There was no requirement for the claimants to allege or prove negligence or breach of condition. Even if compliance with a statutory permit is capable of being a relevant factor, it would be for the defendant to prove compliance, not the other way round. (v) There is no general rule requiring or justifying the setting of a threshold in nuisance cases. The two cases mentioned do not support such a general rule, and in any event concerned noisy activities which could readily be limited to specific days (unlike smelly tipping at Westmill). (vi) By adopting such a threshold, the judge deprived at least some of the claimants of their right to have their individual cases assessed on their merits.’(emphasis added)
39. At the hearing I was not pointed out that a common law remedy was excluded in any of the statutes that specifically deal with such approvals, including the Environment Management Act 2005. The counsel for the Defendants in oral submissions stated that they have obtained all necessary approvals from the relevant authorities including MSAF, hence any complaint should be first directed at those relevant agencies before coming to the court. According to him the Defendants can only be subjected to the statutory control by relevant agencies and Plaintiff could not file an action if approvals were given by the relevant authorities.
40. The counsel for the Defendants was unable to indicate any provision in law that preclude the Plaintiff’s common law remedy for nuisance, if he is adversely affected by the activities of the Defendants. This right of the Plaintiff exists, and can be subject of Civil Claim, irrespective of statutory regime where specific activities are regulated by specific agencies, with specific penal and regulatory provisions.
41. I cannot accept the above contention of the counsel for the Defendants. First, if there is a violation of such condition of a general approval it may be liable for criminal prosecution that may result in punishment (e.g fines) or other forms of deterrent or corrective measures and that may be entrusted with special agency, but the impact of such violation may be basis of a claim for damages and or to a claim in nuisance depending on the activity. So the Plaintiff is not precluded from claiming damages from the Defendants. At the same time an application for injunction can be made by an aggrieved party and the court’s discretionary power to grant injunction is inherently available, unless specifically curtailed by specific law.
42. The Plaintiff’s endorsement of claim contains a serious issue to be tried and it has private component as well as public component where environmental damage due to discharge of Clinker of the environment. Though no damages could be claimed by the Plaintiff for the latter, it is equally important as many environmental damages are irreversible and permanent in nature, hence immediate measures should be taken and discretion of the court should be available to prevent a danger to the environment. If not, an injustice would happen. The activities of the 3rd Defendant which was unauthorized by relevant environmental bodies, cannot continue in its present form.
43. Even if there is no violation of condition of the said approval or permit that itself would not prevent a party from filing an action based on damages for nuisance, under common law. A party may well within the parameters of permissible levels of the permit, yet they may cause damage to an individual or a group of individual. In Barr and others v Biffa Waste Services Ltd [2012] EWCA Crim 280; [2012] 3 All ER 380 there was no violation of conditions in the permit. There is no requirement for the Plaintiff to show a breach of condition of such approval. There is no evidence that the discharging method of Clinker close to a HACCP certified export food processing factory was ever considered, by any of the relevant authorities. It may be beyond their scope for MSFA, to consider the type of business of the Plaintiff engaged, yet the method of discharge and manner of discharge from the barge near to the shore is a relevant consideration for approval by the MSFA and or the WPCA. As I have stated earlier, Clinker is Hazardous to human health and it should be transported in a manner that does not cause Clinker dust and the present method of transportation is far from their own ‘Safety Data Sheet’ for Clinker.
44. The Plaintiff in this application for injunction had shown a serious question to be tried at the hearing, regarding the alleged nuisance and damage to their Fish Processing Factory. The 3rd Defendant had made several suggestions to minimize the Clinker dust and one such suggestion is to stop the Clinker operation when the wind direction changes. Such a complete stoppage of their offloading would not have proposed without a serious issue.
45. The next issue is whether damages would be an adequate remedy for the Plaintiff. According to undeniable facts contained in the affidavit in support, they are HACCP certified export oriented food processing factory. They are also competing in high end market in developed countries like UK, USA, Japan and EU. So their reputation is at stake and if clinker is found in their food even in trace amounts. It would tarnish their reputation. So damage is irreparable. At the same time any damage to environment is irreparable and Polluter Pays Policy (PPP) will also support that Clinker should be transported in a method that does not cause clinker dust.
46. Polluter Pays Policy is applied in cases relating to environmental damage[15]. It is a policy that can be applied to allegations of environmental damage in order to consider the balance of convenience, in granting injunctive relief. The polluter should bear the cost of pollution as well as to prevent pollution by investing in prevention of pollution rather than passing it to the others.[16]Investing in transportation in enclosed trucks (similar to cement transport trucks) or any other suitable method cannot be considered uneconomical considering the investment potential of the 1st and 2nd Defendants rather than outsourcing such transportation of Hazardous raw material to 3rd Defendant, in violation of their own ‘Safety Data Sheet’.
47. The argument that injunction would halt cement production which is a main component for construction industry is not acceptable when pollution to the environment is alleged. The ‘Safety Data Sheet’ provided by the Defendant required that Clinker to be transported in a manner that does not cause Clinker dust. They are in violation of their own Safety Data Sheet for Clinker. The Defendants have produced statistics to show how important their industry to the economy. By the same token environmental damage also attach a cost. What is relevant is sustainable development with due regard to environment. The 1st and 2nd Defendants are engaged in a duopoly in the manufacture of cement, and it is their Corporate Social Responsibility (CSR), to minimize the environmental damage from their industry. Irrespective of legal regime, their own ‘Safety Data Sheet’ indicates how hazardous Clinker is and it also requires Clinker to be transported in a manner that does not cause Clinker dust. The present method of transportation creates Clinker dust and this fact is admitted. By preventing the present unloading of Clinker in the jetty close to the Plaintiff, the Defendant has to engage a safer and less polluting method of Clinker transport, which is a requirement under law as well as their own ‘Safety Data Sheet’ for Clinker.
48. The 3rd Defendant had suggested complete shutting down of the Clinker Operation when the wind direction changes. Who is going to decide this was the question raised by the Plaintiff’s counsel. This is a pertinent issue, but irrespective of that, if the wind direction is opposite direction to the factory, unloading will continue, but equal or more pollutants will be added to the atmosphere, not limiting it to even the stagnant water surrounding the jetty.
49. It is admitted fact that the Defendants desired discharge of Clinker from the ship as soon as possible and the Plaintiff’s concern is pollution of Clinker dust to their factory and surrounding area. These opposing interests cannot be reconciled and the suggestion which looks good on the paper will not get off the ground, for obvious conflicting interests. It should also be noted that direction of wind is something very unpredictable considering the weather pattern in a private jetty in a small Pacific country.
50. The balance of convenience is also favouring the Plaintiff in granting this injunction. The Defendants are not precluded from transporting Hazardous substance like Clinker, with due regard to the environmental pollution. There should be acceptable best practices in this regard. If the Clinker offloading is allowed in the jetty in the manner they did previously the alleged damage to the Plaintiff is relatively more.
51. The Defendants in the submissions stated that the undertaking as to damage given by the Plaintiff is not sufficient. For that reliance was placed on Fiji Court of Appeal case of Natural Waters of Viti Ltd v Crystal Clear Mineral Water (Fiji) Ltd [2004] FJCA 59; ABU0011.2004S. That case can be distinguishable from the matter before me. That was an Intellectual Property Dispute between two competing businesses and one was a new entrant to the industry and referred as ‘minnow’ by comparison. According to the affidavit in support the Plaintiff employs more than 300 employees in their factory and had been in the business at the premises for over 40 years and they are competing in the high end (niche market) for processed fish market in highly developed countries. The affidavit also stated that they are one of Fiji’s largest and most successful fresh fish processors. It is sufficient for an undertaking as to the damages. The cost to the Defendants cannot exceed the additional measures that they must take to prevent Clinker dust in the transportation, which is a requirement under law as well as their own ‘Safety Data Sheet’.
52. Without prejudice to what was stated in the above paragraph, in the grant of injunction for environmental damage the method used in Natural Waters of Viti Ltd v Crystal Clear Mineral Water (Fiji) Ltd [2004] FJCA 59; ABU0011.2004S is unsuitable. Even an individual should be able to bring an action against a Multinational if there is evidence of environmental damage and or non-adherence to the Safety Data Sheets for Hazardous substance like Clinker. In the grant of an injunction undertaking as to damage is essential, but in my judgment it is not determinative factor when it relates to environmental pollution. Any human Hazardous substance should be handled with due care and safety. This safety would be applicable to employees as well as to third parties, including neighbous (the Plaintiff) and even to the general public. If there is an environment pollution and injustice would happen if the alleged activity is not prevented, the financial status of the Plaintiff would not be determinative, and Natural Waters of Viti Ltd v Crystal Clear Mineral Water (Fiji) Ltd [2004] FJCA 59; ABU0011.2004S cannot be applied. This does not mean that there should not be an undertaking, but rather the test applied in said decision should be applied more liberally in the exercise of the discretion to prevent environmental damage thus preventing injustice.
CONCLUSION
53. Clinker is a Hazardous substance[17]. In terms of Section 35 of the Environmental Management Act 2005 a permit is needed for the Clinker transport. The person empowered
to issue such permit is WPCA in terms of Section 36 of the same Act. Clinker is to be transported utilizing a method that does not
cause Clinker dust[18]. At the moment there is no allegation pollution from Clinker discharge from ship to the barge using ‘grappers’, so
I make no order as to that method of discharge. The discharge of Clinker from an open digger bucket (irrespective of alterations
done) invariably discharge Clinker dust (as admitted). The transport of the Clinker over the land should be through a method that
does not cause Clinker dust[19]. Any permit issued by the WPCA may consider the above, among other things. There is a serious question to be decided at the hearing,
and the balance of convenience favours the grant of injunction preventing the Defendants and or their agents, servants and others
from unloading Clinker from the barge so as to pollute the air from Clinker dust. Polluter Pays Principle also supports balance
of convenience in favor of the Plaintiff, for the reasons given earlier.
FINAL ORDERS
a. An order granting an interim injunction restraining and prohibiting forthwith the Defendants herein by themselves and or by their
servants and or by their agents from carrying out directing, procuring or permitting the offloading from the point of unloading
Clinker at their jetty, in a manner that pollute the air from Clinker dust, around the Plaintiff’s factory (including the
premises the Plaintiff’s factory and also jetty, but not limiting to said area ) until further order of this court. (No Clinker
offloading using digger should be carried out from the present location and or any other location so as to pollute the air quality
from Clinker dust or cause Clinker dust in the operation of Clinker transport (this applies to discharge of Clinker from the barge
to the trucks and for transportation of the same by land).
b. The cost of this application is summarily assessed at $2,000.
c. The matter is to be listed before Master, for suitable directions to expedite the hearing.
Dated at Suva this 22nd day of March, 2017
......................................
Justice Deepthi Amaratunga
High Court, Suva
[1]the Plaintiff did not file any submission or cited cases at hearing
[2] See RK 6 annexed to the affidavit of Ronesh Kumar.
[3] See annexed ST6 of the Affidavit of SowaniTuidrola
[4]See para 12 and annexed RK4 of the affidavit in opposition of the 3rdDefeLndant.
[5] See para13 and annexed RK 5, of the affidavit of Ronesh Kumar
[6] See annexed ST6 of the Affidavit of SowaniTuidrola
[7] Ibid page 5 under Transport Information - Specific Safety Measures and Conditions for transport method.
[8] Annexed ST6 to the affidavit of SowaniTuidrola
[9] See annexed RK 4 to the affidavit of Ronesh Kumar
[10]Annexed ST6 to the affidavit of SowaniTuidrola page 5- Transport Information.
[11] ibid
[12] In compliance with Defendant’s Safety Data Sheet for Clinker – p5 annexed ST6
[13]See annexed RK 4 of affidavit of Ronesh Kumar
[14] See annexed RK 3 of affidavit of Ronesh Kumar
[15] Indian Council for Environmental Legal Action v. Union of India, [1996] INSC 244; AIR 1996 SC 1446 (1996), 2 SCR 503, 3 SCC 212 (1996) and
[16] In Marlene Beatriz Duran Camacho v. the Republic of Colombia (Sept. 26, 1996), the Constitutional Court, in reviewing the constitutionality
of some environmental legislation, approved provisions that impose a special economic burden on those who contribute to the deterioration
of the environment and impose on those who take advantage of natural resources the costs of remedying the negative effects that their
actions have on the environment.
[17] See annexed ST6 to the affidavit of SowaniTuidrola,p 1
[18] Ibid p 5
[19] Ibid p 5
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