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Seth v Attorney-General [2005] FJHC 294; HBC0059.1996 (11 November 2005)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

ACTION NO. HBC0059 OF 1996

BETWEEN:

VIJAY KUMAR LAL SETH
father’s name Brij Lal Seth of Ba, Farmer.
PLAINTIFF

AND:

THE ATTORNEY GENERAL
sued on behalf of the Ministry of Primary Industries
and its advisors in the Fisheries section.
FIRST DEFENDANT

THE DRAINAGE BOARD
a statutory body constituted under the Drainage Act Cap 143.
SECOND DEFENDANT

Mr Vuataki for the Plaintiff
Ms A. Ali for the Defendants

Date of Hearing: 25 October 2005
Date of Judgment: 11 November 2005

JUDGMENT OF FINNIGAN J

The Plaintiff sues two statutory public bodies, claiming negligence on the part of each for failing to advise or prevent him when he was setting up a prawn farm at Navau near Ba. The project was ready to go into production when it was stopped by the Second Defendant. The Plaintiff claims he had spent $12,000.00 constructing ponds and dykes which he now seeks to recover as special damages. In addition he seeks punitive damages against each Defendant and general damages. He seeks also a declaration and an injunction.

The Facts, Briefly:

In 1988, the Plaintiff occupied a cane farm which was at the coast. It was so near the coast that he thought it better for prawn farming using salt water then it was for cane farming. He sought the advice of the First Defendant, the Fisheries Department, and says he received enthusiastic support. He consulted a lawyer (not his present lawyers) and took advice on what the law required him to do. There is correspondence showing that the lawyer took steps in the matter.

The Plaintiff hired a contractor who gave evidence and constructed two ponds. This work took about a month. During that time the Second Defendant the Drainage Board was working near by. Its contractors were working with diggers making a drain. Those contractors were visited almost daily by a Field Officer of the Drainage Board. Almost every day that person visited the Plaintiff’s house and seemed enthusiastic about the prawn farm project.

Suddenly, according to the Plaintiff, the Second Defendant exerted authority over him and ordered him not to fill his ponds with sea water. Through his lawyer he denied the authority of the Drainage Board but he desisted. The Drainage Board was concerned about seepage of sea water into surrounding cane farm land.

The Defendant says he then wanted to convert to talapia, a fresh water fish. The Second Defendant stopped him from doing that too.

The Claims

On that basis the Plaintiff claims that the First Defendant was in breach of duties of care to him, duties of care to advise him about the “need to clear the project with other government bodies” (and five other claims which really amount to the same thing). He claims that the Second Defendant breached its duty to him in seven particular ways which include failing to stop the works at commencement or during construction, misreading the law, coming to the incorrect conclusion in fact that saline water would seep from the ponds into surrounding cane fields, not properly investigating the ownership of the surrounding cane fields, incorrectly purporting to exercise its powers under Section 9 (f) (viii) of the Drainage Act and incorrectly preventing him from operating either a saline or a fresh water farm on the land.

The Submissions

Mr Vuataki did excellent work for the Plaintiff. Ms Ali, who assumed responsibility for the defence case only a short time before the hearing began also did excellent work. The Statement of Claim is clear and detailed and the Plaintiff’s evidence concise and clear. It causes me regret to say that such careful work cannot be rewarded with a favourable outcome. Apart from submitting that the Drainage Board had no basis in fact for its concern that salt water would seep from the ponds (which I reject), Mr Vuataki’s major submission was that the duty of the two Defendants was like the duty of a Policeman who, even when off duty, if he sees something being done against the law will take action to prevent it.

I know of no authority for holding the two Defendants to that proposition. Their functions are created for them by the legislation which created them. In carrying out their functions they do indeed have general common law duties of care to other persons. However in the submissions made to me on behalf of the Plaintiff I found no authority for any duty of care by either of them to the Plaintiff in the facts of this case.

It is apparent that the Plaintiff fell foul of the Town and Country Planning Authority and the Local Authority. He fell foul of the Drainage Authority. He acknowledges these things in his Statement of Claim. He blames the Defendants for that. But he knew there were pitfalls. That is why he took legal advice. If I accept his evidence then the legal advice he got was wrong. That is not the fault of either of the Defendants.

There may have been some benefit for the Plaintiff and for the Court had the Plaintiff’s lawyer been involved in the case as a party or as a witness. On the case presented to me however I can find no breach of duty of care by either of these two Defendants.

Further Facts:

I could rest my judgment there but I should refer to the series of correspondence between the Plaintiff and the Defendants which came in as evidence from both sides. First, it is plain that the First Defendant was supportive. It tried to help him and encourage him. But I see no detrimental action or inaction by the First Defendant. About the Second Defendant, the Plaintiff claims that the Drainage Board Field Officer who saw the work in progress should have advised him. It is difficult for me to know at what point the Field Officer should have started giving advise and about what. Surely he was entitled to assume that the Plaintiff who was constructing a substantial earthwork knew what he was doing and had taken legal advice (which he had). Second, it is clear from the correspondence that from as early as August 1988 the Field Officer did indeed act like the neighbourhood policeman and took official action when he realised what was happening. From that point the Drainage Board tried to help the Plaintiff. It gave him several options. He chose not to adopt any of them on the grounds of difficulty and/or cost. Through his then lawyer he challenged the legal authority of the Board. In Court he challenged the technical expertise of the Board in claiming there was insufficient security against salt water slippage. He had neither submission nor evidence to back up these positions.

Conclusion:

It is a great pity that this cause of action which arose in 1988 and was certainly complete by 1993 waited so long for a hearing. The whole hearing took only three & half hours. No Plaintiff, successful or otherwise, should held out of his hearing for so long. Had the Drainage Board Field Officer been available to give evidence I might have gained a different impression. Since this action is against bodies of the State the best I can do for the Plaintiff is to make no order against him for costs. The Defendants could have applied long ago to have this action struck out, as happened in Wartaj Seafood Products Ltd –v- Ministry of Homes Affairs HBC0129.2005, judgment 8 September 2000, a judgment supplied to me by Ms Ali who as Counsel for the Defendants acted properly.

The action is dismissed without costs.

D.D. Finnigan
JUDGE

At Lautoka
11 November 2005