The Supreme Court has ruled in favour of Valele Trust saying the former Director of Biosecurity breached his statutory duty to apply the law when he suspended their licence.
But the kava exporters’ Vt 22 million plus claim for damages as a result of the Directors action was dismissed last week.
The case relates to how the former Director of Biosecurity suspended Valele Trusts’ kava export permit in 2018.
The former director acted after being notified by Biosecurity Fiji that upon inspection of a container containing a consignment of the exporters’ kava products it was discovered to contain Kava Kasa mixed with kava chips.
Valele Trust was promptly informed that Kasa was not for human consumption and Fiji did not promote the export of Kasa .
The exporter was informed by the former Director that the suspension was due to breaching of some parts of the Kava (Amendment) Act 2015.
“Following the suspension, on 14 August 2018, the first defendant (Director) informed the claimant by letter that she has the opportunity to appeal the Suspension and was given seven (7) working days to lodge her appeal with Biosecurity Vanuatu,” Justice Dudley Aru stated in this written judgment.
The case determined two main issues, namely:
- “whether the defendants breached a statutory duty imposed by s9B (2) of the Kava Amendment Act , and if so
- Whether the claimant is entitled to damages”.
On the first issue Justice Aru ruled that there “is no appeal process provided under the Kava Act nor the Kava (Amendment) Act.
“Therefore by advising the claimant to lodge an appeal against the suspension is misleading and contrary to the clear wording of s9B (2).
“In that sense the Director breached his statutory duty to apply the law.”
In regards to entitlement to damages, evidence was provided by an expert accountant who submitted that the kava exporter “should be awarded damages in the sum of VT 22,636,751”.
After considering similar case, Aru ruled that “Section 9B (2) and the Kava Act as a whole are silent on the right to recover damages against the Director for any breaches of the Act”.
He added that the “absence of such a provision is clear indication that Parliament did not intend to create a private law right sounding in damages for any breaches of the Act”.
Additionally he stated that “even if a private right existed, the only evidence relied on by the claimant (Valele) in support of the damages suffered is the evidence” of the expert accountant.
Aru stated that the accountant “admitted that his assessment of the damages was not based on the unsold kava retained by the claimant but on his own opinion based on previous sales”.
“He also admitted that he did not go to Santo to do any assessment of the loss alleged.”
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