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Fiji Sessional Legislation |
GOVERNMENT OF THE SOVEREIGN DEMOCRATIC REPUBLIC OF FIJI
DECREE NO. 25 OF 1992
_________________
FAIR TRADING DECREE 1992
A Decree to promote the interests of Consumers and the effective and efficient development of industry, trade or commerce through the encouragement of fair competition and prevent the unfair or undesirable trade practices and to provide for an equitable, competitive and informed and safe market place, and provide for regulation, where necessary for supply of goods and services and for related purposes.
PART I - PRELIMINARY
1. Short Title
2. Objectives of this Decree
3. Application of Decree
4. Interpretation
5. Extended application of Parts III of the Decree
6. Meaning of Consumer
7. State Bound
PART II - ADMINISTRATION
Division 1 - Consumer Safety Committee
8. Establishment of Consumer Safety Committee
9. Terms of Appointment
10. Casual Vacancies
11. Vacation of Office
12. Meetings of the Committee
13. Validity of Acts
14. Fees and Allowances
15. Committee May Obtain Advice
16. Reference to the Committee
17. Committee to Report to Minister
18. Factors to be considered by Committee
19. Order to Discontinue etc Trade Practice
20. Penalty for Non-Compliance With Order
Division 2 - Director for Fair Trading and Consumer Affairs
21. Establishment of Fair Trading k Consumer Affairs Department
22. Functions of the Department
23. Assistance by Departments to Supplying Information
24. Director
25. Authorized Officers
26. Approval of Fair Trading Department not to be Implied
PART III - RESTRICTIVE TRADE PRACTICES
Division 1
27. Contracts, Arrangements or Understandings Restricting Dealings or Affecting Competition
28. Contracts, Arrangements or Understandings in Relation to Prices
29. Covenants Affecting Competition
30. Covenants in Relation to Prices
31. Restriction on Conduct that Hinders or Prevents the Supply of Goods or Services to Others
32. Prohibition of Contracts, Arrangements or Understandings Affecting Supply or Acquisition of Goods or Services
33. Misuse of Market Power
34. Collective Tendering
35. Pyramid Selling Schemes
36. Unlawful Actions and Representations
37. Collective Bidding at Auction
38. Supply of Trading Stamps
39. Refusal to Sell Goods or Services Unless Other Goods or Services are also Purchased
40. Adulteration
41. Hoarding
42. Black Marketing
Division 2
43. Limited offers and Failing to Supply as Demanded
44. Statement of Price or Condition and Pull Date
45. Mandatory Trade-ins Prohibited
46. Exclusive Dealing
47. Resale Price Maintenance
48. Price Discrimination
49. Mergers
50. Acquisition Outside Fiji
51. Penalty for Part III
52. Forfeiture of Goods
PART IV CONSUMER PROTECTION
Division 1 - General. Rules
53. Interpretation
54. Misleading or Deceptive Conduct
55. Unconscionable Conduct
56. False or Misleading Representation
57. Misleading Advertisement
58. False Representations and Other Misleading or Offensive Conduct in Relation to Land
59. Misleading Conduct to Which Industrial Property Convention Applies
60. Misleading Conduct in Relation to Employment
61. Cash Price to be Stated in Certain Circumstances
62. Certain Misleading Conduct in Relation to Goods
63. Certain Misleading Conduct in Relation to Services
64. Offering Gifts and Prizes
65. Bait. Advertising
66. Referral. Selling
67. Accepting Payment Without Being Able to Supply as Ordered
68. Misleading Representation About Certain Business Activities
69. Harassment and Coercion
70. Application of Certain Provisions to Prescribed Information Providers
Division 2- Unsolicited Goods and Services
71. Assertion of Right to Payment for Unsolicited Goods or Services, or for Making Entry in Directory
72. Liability of Recipient of Unsolicited Goods
73. False Orders
Division 3- Mock Auctions
74. Prohibition on Mock Auctions
Division 4- Door to Door Sales
75. Interpretation
76. Contracts to Which This Division Applies
77. Prohibition of Certain Contractual. Terms
78. Definition of Prescribed Contract
79. Requirements in Relation to Prescribed Contracts
80. No Consideration During Cooling-Off Period
81. Prohibited Hours
82. Duties of Dealers
83. Right of Rescission
84. Exercise of Right of Rescission
85. Restitution
86. Related Contracts or Instruments
87. No Waiver of Rights
88. Prohibition of Certain Actions
89. Evidentiary Matters Concerning This Division
PART V -
CONDITIONS AND WARRANTIES IN CONSUMER TRANSACTIONS
Division 1- Warranty
90. Interpretation
91. Actions in Respect, of Unsuitable Goods
92. Actions in Respect of False Descriptions
93. Actions in Respect of Goods of Unmerchantable Quality
94. Actions in Respect, of Non-Correspondence with Samples
95. Actions in Respect of Non-Compliance with Express Warranty
Division 2 - Manufacturer and Importer
96. Actions Against Manufacturer and Importer
97. Supply of Facilities for Repair or Parts
PART VI- INFORMATION AND SAFETY PROVISIONS
Division 1 - Information Provision
98. Information Standards
99. Compliance With Information Standard
Division 2 - Safety Provisions
100. Safety Standards
101. Compliance With Safety Standard
PART VII MINISTERIAL PROHIBITION
102. Minister May Make Orders Prohibiting or Restricting Supply of Dangerous or Undesirable Goods or Services
103. Offence to Contravene Order Under S. 102
104. Seizure etc, of Goods in Certain Cases
PART VIII - ENFORCEMENT AND REMEDIES
Division 1 - Powers of Inspectors
105. Powers of Inspectors
106. Power to Obtain Information
107. Obstruction
Division 2 - Offences, Court Enforcement and Remedies
108. Penalties
109. Continuing Offences
110. Direction to Secure Compliance
111. Powers to Institute and Conduct Proceedings
112. Liability of Employer, Agent and Employee
113. Officers of Corporate Bodies
114. Offence Due to fault of Other Person
115. Defence of Mistake, Accident etc.
116. Forfeiture Proceedings
117. Compensation Provisions
118. Proceedings Other Than Under This Decree
119. Protection of Officers
120. Innocent Publication of Advertisement
121. Presumption
122. Conduct by Directors, Servants or Agents
123. Vicarious Liability
124. Defence in Proceedings for an Offence Against This Decree
125. Injunctions
126. Actions for Damages
127. Compensation and Other Remedial Orders
128. Mode of Enforcement of Compensation
129. Power of Court to Prohibit Payment or Transfer of Money or Other Property
PART IX - GENERAL
130. Impersonation
131. Savings of Rights and Remedies
132. Contracting Out Prohibited
133. Limitation of Action
134. Preservation of Secrecy
135. Service of Documents, etc.
136. Evidence
137. Regulations
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In exercise of the powers vested in me as the President and Commander-in-Chief of the Sovereign Democratic Republic of Fiji and acting in accordance with the advice of the Prime Minister and the Cabinet, I hereby make the following Decree:-
Short title.
1. This Decree may be cited as the Fair Trading Decree 1992.
Objectives of this Decree.
2. The objectives of this Decree shall be:
(a) the promotion of the interests of the Consumers;
(b) the promotion of the effective and efficient development of industry trade or commerce;
(c) the need to secure effective competition in industry, trade or commerce; and
(d) the need to encourage improvements in productivity and efficiency in industry, trade or commerce in Fiji.
Application of Decree.
3. (1) This Decree applies to every person who does an act or makes an omission within or out of Fiji that constitutes a contravention of this Decree.
(2) Where acts or omissions occur that would constitute a contravention of this Decree if they occurred in Fiji and any of the acts or omissions occur in Fiji the person who does the act or makes the omission shall be taken to have committed that contravention of this Decree.
(3) Subsections (1) and (2)-
(a) shall not be construed as limiting any application that this Decree has apart from this section;
(b) shall be construed subject to any provisions of this Decree expressly to the contrary.
Interpretation.
4. (1) In this Decree, unless the contrary intention appears-
"acquire" includes-
(a) in relation to goods - acquire by purchase or exchange or by taking on lease, on hire or on hire-purchase;
(b) in relation to services - accept;
"arrive at" in relation to an understanding includes reach or enter into;
"auction" means a sale at which prospective purchasers are invited to bid and includes a sale at which bids are suggested and the suggested amounts progressively reduced until a bid is actually made;
"Assistant Director" means an Assistant Director for Fair Trading appointed for the purposes of this Decree;
"Business" includes-
(a) a business not carried on for profit;
(b) a trade or profession;
"Committee" means the Consumer Safety Committee established under this Decree;
"Competition" includes competition from imported goods or services rendered by persons not resident or not carrying on business in Fiji;
"component part" includes an accessory;
"Corporation" includes a firm, partnership, enterprise, company, or association, (natural or juridical persons), or any combination thereof, irrespective of the mode of creation or control or ownership, private or State, which are engaged in trade or commerce, and includes their branches, subsidiaries, affiliates, or other entities directly or indirectly controlled by them;
"credit" includes any form of financial accommodation;
"Director"" means the Director for Fair Trading appointed for the purposes of this Decree and includes any other person who for the time being occupies the office or performs the duties of the Director;
"document" includes-
(a) accounts, balance sheets, vouchers, records, minutes of meetings, contracts, files or other materials there is writing or printing, or on which there are marks, symbols or perforations having meaning for persons qualified to interpret them; and
(b) a disc, tape or any information recorded or stored by means of any computer or other device whatsoever, and any material subsequently derived from information so recorded or stored;
"giving effect to" in relation to a provision of a contract, agreement or understanding, includes doing an act or thing in pursuance of or in accordance with or enforcing or, purportedly enforcing;
"goods" include any article, product or thing which is the subject of trade and commerce and includes-
(a) ships, aircraft and other vehicles;
(b) animals, including fish;
(c) minerals, trees and crops, whether on, under or attached to land or not;
(d) gas and electricity; and
(e) any component part of goods;
"hire-purchase agreement" means a letting of goods with an option to purchase;
"inspector" means-
(a) the Director;
(b) an Assistant Director;
(c) an inspector appointed for the purpose of this Decree;
(d) the Chief Inspector and an Inspector within the meaning of Section 5 of the National Trade Measurement Decree No. 14 of 1989; and
(e) includes any other officers and staff appointed for the purposes of this Decree.
"Minister" means the Minister for the time being charged with the administration of this Decree. The term includes any person who at the material time is performing the duties of the Minister;
"Occupier" in relation to any building, stall, vehicle, aircraft, or vessel used in navigation or in relation to the use of any place for any purpose means the person for the time being in charge of the building, stall, vehicle, aircraft, or vessel or, as the case may be, the person for the time. using that place for that purpose;
"premises" includes-
(a) a place, whether a building or in the open air where any business, industry, production or trade is carried on by a person whether by himself or through an agent, by whatever name called;
(b) a place where any books of account or other documents pertaining to any trade or transaction are kept;
(c) a dwelling house, if any part thereof is used for the purpose of carrying on any business, industry, production or trade;
(d) a vehicle or vessel or any other mobile device with the help of which any trade or business is carried on;
"price" includes a charge of any description and the cost of obtaining credit;
"provision" in relation to an understanding, means any matter forming part of the understanding;
"published" in relation to a statement includes:
(a) inserted in a publication;
(b) publicly exhibited in any place;
(c) contained in a document or other thing capable of providing information that is given or sent to any person or left at his address;
(d) broadcast by radio or television or otherwise publicly announced by any means;
(e) reproduced electronically;
"record" includes any record of information however compiled, recorded or stored and any books, documents or writings;
"related Act or Decree" means an Act or Decree or a provision of an Act or Decree-
(a) of which the Director is stated, in that Act or Decree, to have the administration; or
(b) that is prescribed by regulations to be a related Act or Decree;
"services" includes any rights (including rights in relation to, and interests in, real or personal property) benefits, privileges, accommodation or facilities that are, or are to be, provided, granted or conferred in trade or commerce, and without limiting the generality of the foregoing, includes the rights, benefits, privileges and facilities that are, or are to be, provided, granted or conferred under-
(i) the performance of work (including building work and work of a professional nature), whether with or without the supply of goods;
(ii) a contract for, or involving, the provision of gas or electricity or the provision of any other form of energy;
(iii) the provision, or making available for use, of facilities for amusement, entertainment, recreation or instruction; or
(iv) the conferring of rights, benefits or privileges for which remuneration is payable in the form of a royalty, tribute, levy or similar exaction; a contract of insurance; a contract between a banker and a customer of the banker entered into in the course of the carrying on by the banker of the business of banking; or a contract for or in relation to the lending of money, but does not include rights or benefits being the supply of goods or the performance of work under a contract of service;
(v) "Claims Tribunal" means a tribunal duly constituted under the Small Claims Tribunals Decree 1991;
"supply" with its cognate expressions, includes to sell, or to agree to sell, to offer, advertise, have in possession for any such purposes, expose, transmit, convey, deliver, make or prepare for sale, or to hire or to exchange or dispose of for any consideration whatsoever, or to transmit, convey or deliver in pursuance of a sale, hiring, exchange or disposal as aforesaid;
"trade or commerce" activity ...............;
"trading coupons" includes any coupon, stamp, token, cover, package, document, or other thing issued for delivery, either directly or indirectly, to the purchaser of any goods or services which, by itself or with any other trading coupon or trading coupons, or with any other act or thing, and whether or not it has to be produced or surrendered to any person, entitles or purports to entitle the holder thereof to receive in respect of the purchase of such goods or services any discount or any other gift, allowance, concession, or benefit of any kind whatsoever;
"unsolicited goods" means goods sent to a person without any request for the goods being made by, or by the authority of, the person;
"unsolicited services" means services supplied to a person without any request for the services being made by, or by the authority of, the person;
"understanding" means agreement, contract, whether verbal or written.
(2) Conduct
In this Decree-
(a) a reference to engaging in conduct shall be read as a reference to doing or refusing to do any act, including the making of, or the giving effect to a provision of, a contract or arrangement, the arriving at, or the giving effect to a provision of, an understanding or the requiring of the giving of, or the giving of, a covenant;
(b) a reference to conduct, when that expression is used as a noun otherwise than as mentioned in paragraph (a), shall be read as a reference to the doing of or the refusing to do any act, including the making of, or the giving effect to a provision of, a contract or arrangement, the arriving at, or the giving effect to a provision of, an understanding or the requiring of the giving of, or the giving of, a covenant;
(c) a reference to refusing to do an act includes a reference to-
(i) refraining (otherwise !than inadvertently) from doing that act; or
(ii) making it known that that act will not be done; and
(d) a reference to a person offering to do an act, or to do an act on a particular, condition, includes a reference to the person making it known that the person will accept applications, offers or proposals for the person to do that, act or to do that; act on that condition, as the case may be.
(3) Effect of relevant time
Where a provision of this Decree is expressed to render a provision of a contract, or to render a covenant, unenforceable if the provision of the contract or the covenant has or is likely to have a particular effect, that provision of this Decree applies in relation to the provision of the contract or the covenant at any time when the provision of the contract or the covenant has or is likely to have that effect notwithstanding that-
(a) at an earlier time the provision of the contract or the covenant did not have that effect or was not regarded as likely to have that effect; or
(b) the provision of the contract or the covenant will not or may not have that effect at a later time.
(4) Acquisitions of shares or assets
In this Decree –
(a) a reference to the acquisition of shares in the capital of a body corporate shall be construed as a reference to an acquisition, whether alone or jointly with another person, of any legal or equitable interest in such shares; and
(b) a reference to the acquisition of assets of a body corporate shall be construed as a reference to an acquisition, whether alone or jointly with another person, of any legal or equitable interest in such assets but does not include a reference to an acquisition by way of charge only or an acquisition in the ordinary course of business.
(5) Subsidiary, holding and related bodies corporate
(1) For the purpose of this Decree, a body corporate shall, subject to sub-section (3), be deemed to be a subsidiary of another body corporate if-
(a) that other body corporate-
i) controls the composition of the board of directors of the first-mentioned body corporate;
ii) is in a position to cast, or control the casting of, more than one-half of the maximum number of votes that might be cast at a general meeting of the first-mentioned body corporate; or
iii) holds more than one-half of the allotted share capital of the first-mentioned body corporate (excluding any part, of that allotted share capital that carries no right to participate beyond a specified amount in a distribution of either profits or capital); or
(b) the first-mentioned body corporate is a subsidiary of any body corporate that, is that other body corporate's subsidiary (including any body corporate that is that other body corporate's subsidiary by another application of other applications of this paragraph).
(2) For the purposes of sub-section (1), the composition of a body corporate's board of directors shall be deemed to be controlled by another body corporate if that other body corporate, by the exercise of some power exercisable by it without the consent or concurrence of any other person, can appoint or remove all or a majority of the directors, and for the purposes of this provision that other body corporate shall be deemed to have power to make such an appointment if-
(a) a person cannot; be appointed as a director without the exercise in his favour by that other body corporate of such a power; or
(b) a person's appointment as a director follows necessarily from his being a director or other officer of that other body corporate.
(3) In determining whether a body corporate is a subsidiary of another body corporate-
(a) any shares held or power exercising by that other body corporate in a fiduciary capacity shall be treated as not held or exercisable by it;
(b) subject to paragraphs (c) and (d), any shares held or power exercisable-
i) by any person as a nominee for that other body corporate (except where that other body corporate is concerned only in a fiduciary capacity); or
ii) by, or by a nominee for, a subsidiary of that other body corporate, not being a subsidiary that is concerned only in a fiduciary capacity, shall be treated as held or exercisable by that. other body corporate;
(c) any shares held or power exercisable by any person by virtue of the provisions of any debentures of the first-mentioned body corporate, or of a trust deed for securing any allotment of such debentures, shall be disregarded; and
(d) any shares held or power exercisable by, or by a nominee for, that other body corporate or its subsidiary (not being held or exercisable as mentioned in paragraph (c) shall be treated as not held or exercisable by that. other body corporate or its subsidiary, as the case may be, includes the lending of money and the shares are held or the power is exercisable by way of security only for the purposes of a transaction entered into in the ordinary course of that business.
(4) A reference in this Decree to the holding company of a body corporate shall be read as a reference to a body corporate of which that other body corporate is a subsidiary.
(5) Where a body corporate-
(a) is the holding company of another body corporate;
(b) is a subsidiary of another body corporate; or
(c) is a subsidiary of the holding company of another body corporate, that first-mentioned body corporate and that other body corporate shall, for the purposes of this Decree, be deemed to be related to each other.
(6) In proceedings under this Decree, it shall be presumed, unless the contrary is established, that bodies corporate are not, or were not at a particular time, related to each other.
(6) Acquisition, supply and re-supply
In this Decree, unless the contrary intention appears-
(a) a reference to the acquisition of goods includes a reference to the acquisition of property in, or rights in relation to, goods in pursuance of a supply of the goods;
(b) a reference to the supply or acquisition of goods or services includes a reference to agreeing to supply or acquire goods or services;
(c) a reference to the supply or acquisition of goods includes a reference to the supply or acquisition of goods together with other property or services, or both;
(d) a reference to the supply or acquisition of services includes a reference to the supply or acquisition of services together with property or other services, or both; and
(e) a reference to the re-supply of goods acquired from a person includes a reference to-
i) a supply of the goods to another person in an altered form or condition; and
ii) a supply to another person of goods in which the first-mentioned goods have been incorporated.
(7) Exclusionary provisions
1) A provision of a contract, arrangement or understanding, or of a proposed contract, arrangement or understanding, shall be taken to be an exclusionary provision for the purposes of this Decree if -
(a) the contract or arrangement was made, or the understanding was arrived at, or the proposed contract or arrangement is to be made, or the proposed understanding is to be arrived at, between persons any two or more of whom are competitive with each other; and
(b) the provision has the purpose of preventing, restricting or limiting-
i) the supply of goods or services to, or the acquisition of goods or services from, particular persons or classes of persons; or
ii) the supply of goods or services to, or the acquisition of goods or services from, particular persons or classes of persons in particular circumstances or on particular conditions,
by all or any of the parties to the contract arrangement or understanding or of the proposed parties to the proposed contract, arrangement or understanding or, if a party or proposed party is a body corporate, by a body corporate that is related to the body corporate.
2) A person shall be deemed to be competitive with another person for the purposes of sub-section (1)if, and only if, the first-mentioned person or a body corporate that is related to that person is, or is likely to be, or, but for the provision of any contract, arrangement or understanding or of any proposed contract, arrangement or understanding, would be, or would be likely to be, in competition with the other person, or with a body corporate that is related to the other person, in relation to the supply or acquisition of all or any of the goods or services to which the relevant provision of the contract, arrangement or understanding or of the proposed contract, arrangement or understanding relates.
(8) Market
For the purposes of this Decree, unless the contrary intention appears, "market" means a market in Fiji and, when used in relation to any goods or services, includes a market for those goods or services and other goods or services that are substitutable for, or otherwise competitive with, the first-mentioned goods or services.
(9) Reference to purpose or reason
For the purposes of this Decree-
(a) a provision of a contract, arrangement or understanding or of a proposed contract, arrangement or understanding, or a covenant, or of a proposed covenant, shall be deemed to have had, or to have, a particular purpose if-
i) provision was included in the contract, arrangement, or understanding or is to be included in the proposed contract, arrangement or understanding, or the covenant was required to be given or the proposed covenant is to he required to be given, as the case may be for that purpose or for purposes that included or include that purpose; and
ii) that purpose was or is a purpose; and
ii) that purpose or reason was or is purpose or reason.
(b) a person shall be deemed to have engaged or to engage in conduct for a particular purpose or a particular reason if-
i) the person engaged or engages in the conduct for purposes that included or include that purpose that included or for reasons that included or include that reason, as the case may be; and
ii) that purpose or reason was or is purpose or reason.
(10) Application of Decree in relation to leases arid licences of land and buildings
In this Decree –
(a) a reference to a contract shall be construed as including a reference to a lease of, or a l license building or part. of a building and shall be so construed notwithstanding the express reference to granting or taking the lease or license; and
(b) a reference to making or entering into a contract, in relation to such a lease or License shall be read as a reference to granting or taking the lease or license; and
(c) a reference to a party to a contract, in relation to such a )ease or license, shall be read as including a reference to any person bound by, or entitled to the benefit of, any provision contained in the ]ease or license.
(11) Joint ventures
In this Decree-
(a) a reference to a joint venture is a reference to an activity in trade or commerce-
i) carried on jointly by 2 or more persons, whether or not in partnership; or
ii) carried on by a body corporate formed by two or more persons for the purpose of enabling those persons to carry on that activity jointly by means of their joint control, or by means of their ownership of shares in the capital, of that body corporate; and
iii) .............................
(12) Loss or damage to include injury
In this Decree-
(a) a reference to loss or damage, other than a reference to the amount of any loss or damage, includes a reference to injury; and
(b) a reference to the amount of any loss or damage includes a reference to damages in respect of an injury.
(13) Severability
If the making of a contract; after the commencement of this section contravenes this Decree by reason of the inclusion of a particular provision in the contract, then, subject to any order made under section 129 nothing in this Decree affects the validity or enforceability of the contract otherwise than in relation to that provision in so far as that provision is severable.
(14) Saving of law relating to restraint of trade and breaches of trust or confidence
This Decree does not affect the operation of-
(a) the law relating to restraint of trade in so far as that law is capable of operating concurrently with this Decree;
(b) the law relating to breaches of confidence, but nothing in the law referred to in paragraph (a) or (b) affects the interpretation of this Decree.
5. Extended application of Part 3 of the Decree.
(1) Part 3 extends to the engaging in conduct outside Fiji by bodies corporate incorporated or carrying on business within Fiji or by Fiji citizens or persons ordinarily resident. within Fiji.
(2) These sections extend to the engaging in conduct outside Fiji by any persons in relation to the supply by those persons of goods or services to persons within Fiji.
(3) where a claim under Section 126 is made in a proceeding, a person is not entitled to rely at a hearing in respect of that proceeding on conduct to which a provision of this Decree extends by virtue of sub-section (1) or (2) of this section except with the consent in writing of the Minister.
(4) No person is not entitled to make an application to the Court, for an order under section 126 in a proceeding in respect; of conduct to which a provision of this Decree extends by virtue of sub-section (1) or (2) of this section except with the consent in writing of the Minister.
(5) The Minister shall give a consent under sub-section (3) or (4) in respect of a proceeding unless, in the opinion of the Minister it is not, in the national interest. that the consent be given.
6. Meaning of Consumer.
(1) In this Decree, unless the contrary intention appears, a reference to a consumer is a reference to a person who in relation to a particular transaction, whether a separate contract or separate transaction within a contract, acquires goods or services as a consumer.
(2) where it is alleged in any proceeding under the Decree or in any other proceeding in respect of a matter arising under this Decree that a person is a consumer in relation to particular goods or services, it shall be presumed, unless the contrary is proved, that he is a consumer in relation thereto.
7. State Bound.
This Decree binds the State.
PART II – ADMINISTRATION
Division 1 - Consumer Safety Committee
8. Establishment of Consumer Safety Committee
(1) There shall be a committee called the Consumer Safety Committee.
(2) The Committee shall consist of such number of members as the Minister appoints from time to time and not, exceeding 4 ...............
(3) The members referred to in subsection (2) are in this Division referred to as the "appointed members".
(4) The Minister shall appoint the Chairman of the Committee.
(5) The appointed members of the Committee may be persons who, in the Minister's opinion, have expertise in relation to the safe supply of goods or services and shall be appointed by the Minister by notification published in the Gazette.
(6) Deputy Chairman-
(a) The Minister shall appoint a deputy chairman who shall be a member of the Committee;
(b) A member appointed to be deputy chairman shall be deputy chairman of the Committee for the current term of his office as a member of the Committee unless before the expiration of that term-
i) he resigns his office as deputy chairman by notice in writing given to the Minister;
ii) he vacates his office as member of the Council; or
iii) he is appointed chairman of the Committee,
whereupon he shall cease to be deputy chairman and the office shall fall vacant;
(c) The deputy chairman shall act in the office of chairman during such time as the chairman is prevented by absence, illness or otherwise from performing the duties of that office and whilst so doing shall be deemed to be chairman.
(7) The Public Service Commission shall assign an officer to perform the duties of Secretary to the Committee.
9. Terms of appointment.
(1) Subject to section 11, each appointed member shall be appointed for a term of three years ending on the same day as every other appointed members but, subject to his not being disqualified from membership, he shall be eligible for re-appointment.
(2) Each appointed member shall, subject to this Decree hold his office as a member until his term of appointment expires or until his successor's appointment as a member takes effect, whichever is the later date.
(3) The Minister for any reason appearing to him to be sufficient, may remove an appointed member from office.
10. Casual Vacancies.
(1) Where a vacancy occurs in the office of an appointed member during the currency of his term of office as such member the Minister may appoint another person to fill that vacancy.
(2) A person appointed to fill a casual vacancy shall, subject to this Decree, be appointed and hold office for the balance of his predecessor's term of office or until his successor's appointment as a member takes effect, whichever is the later date.
11. Vacation of office.
The office of an appointed member shall become vacant if the member-
(a) dies;
(b) resigns his office by notice in writing given to the Minister;
(c) is absent from three consecutive meetings of the Committee and is not excused by the Chairman for his absence at any time before the end of the meeting next following his third absence; or
(d) is removed from office as a member by the Minister.
12. Meetings of the Committee.
(1) The Chairman of the Committee shall. preside at all meetings of the Committee.
(2) The Committee shall. meet at such times and places and conduct its business in such manner as is prescribed or, in so far as not prescribed as it determines from time to time.
(3) A quorum shall be three quarters of the members of the Committee and business shall not be conducted at a meeting of the Committee unless a quorum is present.
(4) All matters before a meeting of the Committee shall be determined by the majority vote of its members present at the meeting and in the event of an equality of votes the chairman shall have a casting vote.
(5) A member of the Committee who is present at, a meeting and abstains from voting shall be taken to have voted in the negative.
13. Validity of acts.
No act or proceeding of the Committee shall be invalid or unlawful by reason only of any defect in the membership or appointment of any member thereof or a vacancy in the membership of the Committee at the time of that act or proceeding.
14. Fees and allowances.
(1) Subject to subsection (2),each member shall be paid such fees and allowances, if any, as the Minister from time to determines.
(2) Fees and allowances provided for in subsection (1) shall not be paid to a member who is an officer of the public Service.
15. Committee may obtain advice.
(1) The Committee may co-opt any person who in its opinion has expertise in relation to the safe supply of goods or services to advise it in relation to any question referred to it by the Minister.
(2) A person co-opted pursuant to subsection (1) shall for the purposes of this Division be deemed to be a member of the Committee during the period he is co-opted.
16. Reference to the Committee.
(1) The Minister may direct the Committee to conduct investigation and or inquiries as to whether the supply of any goods or services or goods or services of a particular class should be prohibited or only authorized subject to conditions or restrictions on the ground that they are likely to cause the death of a person or to injure a person or to adversely affect a person's health or well being and investigate any trade practice or act which appears to be unfair or uncompetitive.
(2) For the purposes of conducting any such investigation, the Committee may hold such inquiry, either in public or in camera, as it thinks fit.
(3) At any inquiry the Committee may require any person appearing as a witness either to be examined on oath, and administer an oath accordingly, or to make and subscribe a declaration of the truth of the matter respecting which he is examined.
(4) If any person who is to give evidence at any such inquiry held in public so requests at the hearing, or by a notice in writing served on the Chairman before the date of the hearing, the public may at the discretion of the Chairman be excluded from the hearing while that person gives his evidence.
(5) Any person required to give evidence under this section or in the opinion of the Committee having an interest in the subject-matter of an inquiry may be permitted to be represented at the inquiry by a barrister and solicitor or other person of his own choice.
(6) A person who refuses or wilfully neglects to attend in obedience to a summons issued under this section or to give evidence as required by such a summons shall be guilty of an offence.
(7) For the purposes of any investigation or inquiry the Committee may-
(a) inspect, examine, audit and copy any books, accounts or documents;
(b) require any person to produce any books, accounts or documents in his possession or under his control;
(c) require any person to furnish any information or particulars that may be required by the Committee and any copies of or extracts from any books, accounts or documents.
(8) No information furnished or obtained by the Committee in pursuance of this section shall be disclosed to any other person unless the person providing the information has consented in writing to such disclosure:
Provided that nothing shall prohibit the disclosure under section 26 of this Decree.
(9) No person shall be compelled, in complying with any requirement of this section, to answer any question or furnish any information if to do so might incriminate him.
17. Committee to Report to Minister.
(1) The Chairman shall, on reference of any matter to it by the Minister, conduct inquiry in respect of that matter and make recommendations in a report to the Minister.
(2) Where a member or members of the Committee disagrees with the recommendations of the Chairman, this fact, and the reasons, if any, for the disagreement shall be included in the report to the Minister.
(3) Any report or recommendation made to the Minister shall be confidential and shall. not, except with the consent of the Minister be disclosed or made available to any person.
18. Factors to be considered by Committee.
The Committee shall in considering any matter-
(a) take into account any representations made to it by any person who, has an interest in the matter; and
(b) conduct such other investigations as it, considers necessary to enable it to make a recommendation with respect; to the matter.
19. Order to Discontinue etc Trade Practice.
When the Minister has received a report, from the Chairman in accordance with the provisions of section 17 and the Minister is of the opinion that the continuance or repetition of any trade practice or act; mentioned in the report. would be contrary to the provisions of this Decree he may make an order:-
(a) directing the discontinuance or prohibiting the repetition of the practice or act; or
(b) permitting the continuance or repetition of the practice or act subject to such conditions as may be specified; or
(c) directing the discontinuance or prohibiting the repetition of the practice or act and directing (in either case) that, in order to remedy in whole or in part the consequences of the practice or act, the person carrying on the practice or act shall revert; in whole or in part to the trading conditions, including prices, existing before the practice or act was commenced or was last carried out, or shall adopt such trading conditions as shall prevent the continuance of such practice or act.
20. Penalty for non-compliance with Order.
Any person who fails to comply with or contravenes an order under section 19 shall be guilty of an offence; and the court may, in addition to the penalty prescribed for such offence by this Decree, order the payment, to any aggrieved person of the damage or loss sustained by that other person as a result of the commission of such offence.
Division 2 - Director for Fair Trading and Consumer Affairs
21. Establishment of Fair Trading & Consumer Affairs Department.
(1) There shall be established a Fair Trading and Consumer Affairs Department consisting of the Director and such other officers appointed to assist him.
(2) The Department shall discharge its functions, subject to the directions and control of the Minister.
22. Functions of the Department.
(1) The functions of the Department shall be-
(a) to administer the provisions of this Decree and to facilitate its operation;
(b) to promote the interests of consumers and persons negotiating or considering the acquisition of goods or services as consumers and to assist, them to a greater awareness in relation to their assessment and use of goods or services;
(c) to collect, examine and disseminate information in respect of matters affecting or likely to affect the interests of consumers or persons negotiating or considering the acquisition of goods or services as consumers;
(d) to receive and consider complaints concerning matters affecting or likely to affect the interests of consumers or persons negotiating or considering the acquisition of goods or services as consumers and, if the Director is of the opinion that such action is warranted, to investigate the complaints and take such action in respect thereof as seems proper to the Director;
(e) to investigate fraudulent or deceptive practices in relation to matters that affect or are likely to affect the interests of consumers or persons negotiating or considering the acquisition of goods or services as consumers and to take such action in respect of the practices as seems proper to the Director;
(f) to advise and assist persons who seek from the Director information or guidance on matters affecting or likely to affect their interests as consumers or as persons negotiating or considering the acquisition of goods or services as consumers;
(g) to investigate matters or to arrange for the investigations of matters on behalf of the Committee;
(h) to collect, collate and furnish, or to arrange for the collection, collation and furnishing of data to assist the Committee in the discharge of its function as may be required;
(i) to encourage and undertake the dissemination of information concerning consumer affairs to producers, manufacturers and suppliers of goods or services;
(j) to take action to promote and ensure safety in the supply of goods and services;
(k) to keep under review commercial activities carried on and to collect information regarding such activities and the persons whom they are carried on with a view to becoming aware of, and ascertaining the circumstances relating to; and
(l) to discharge such other functions as the Minister may direct it to administer or discharge.
(2) The provisions of this section shall not be construed to require the Director or any officer of the Department to give, or hold himself out as ready or competent to give, to any person advice concerning the rights and liabilities in law of the person concerning any matter, or to aid in the enforcement of the rights of the person.
23. Assistance by Departments to Supplying Information.
The chief executive of each department of the Government of the State shall co-operate and shall cause the officers tinder his control to co-operate with the Director and shall render assistance in the provision of information required by the Director for the purposes of this Decree.
24. Director.
(1) There shall be a Director for Fair Trading and Consumer Affairs.
(2) The Director shall be appointed by the Public Service Commission and shall be employed in the Public Service, of the Republic of Fiji.
(3) Subject to the provisions of this Decree, it. Shall be the duty of the Director to:
(a) generally to superintend the working and enforcement of this Decree; and
(b) where necessary or expedient, himself to take steps to enforce this Decree.
(4) It is the duty of the Director, so far as appears to him to be practicable and having regard both to the national interest and interests of the consumers to keep under review and from time to time advise the Minister about-
(a) social and commercial developments in Fiji, and
(b) the working and enforcement of this Decree.
(5) The Director shall arrange for the dissemination, in such form and manner as he considers appropriate, of such information and advice as it may appear to him expedient to give the public of Fiji about the operation of this Decree.
25. Authorized Officers.
(1) The Public Service Commission shall appoint an Assistant Director of Fair Trading and Consumer Affairs and such inspectors and officers as may be necessary for the proper implementation of this Decree.
(2) Without prejudice to the power of appointment conferred by subsection (1), the Chief Inspector for Trade Measurement and Standards and every Inspector appointed under the National and Trade Measurement; Decree No. 14 1989, shall be deemed to be inspectors for the purpose of this Decree.
(3) The Assistant Director may at anytime perform the duties of the Director.
26. Approval of Fair Trading Department not to be implied.
(1) A person shall not, without the approval of the Director, publish, or cause to be published, a statement promoting, or apparently intended to promote, the supply of goods or services or the sale or letting of premises that states, either expressly or by implication, that the Department has approved or refrained from disapproving-
(a) the statement;
(b) any particular contained, or claim made, in the statement; or
(c) any goods or services referred to in the statement.
(2) Any person who contravenes this section is guilty of an offence.
PART III - RESTRICTIVE TRADE PRACTICES
Division 1
27. Contracts, arrangements or understandings- restricting dealings or affecting competition.
(1) if a provision of a contract-
(a) is an exclusionary provision; or
(b) has the purpose, or has or is likely to have the effect, of substantially lessening competition, that provision is unenforceable in so far as it confers rights or benefits or imposes duties or obligations on a person.
(2) A person shall not-
(a) make a contract; or arrangement, or arrive at an understanding, if-
i) the proposed contract, arrangement, or understanding contains an exclusionary provision; or
ii.) a provision of the proposed contract, arrangement, or understanding has the purpose, or would have or be likely to have the effect, of substantially lessening competition; or
(b) give effect to a provision of a contract, arrangement or understanding, whether the contract or arrangement was made, or the understanding was arrived at, before or after the commencement. of this section, if that provision –
i) is an exclusionary provision; or
ii) has the purpose, or has or is likely to have the effect, of substantially lessening competition.
(3) For the purposes of this section and section ?8?? "competition", in relation to a provision of a contract arrangement or understanding or of a proposed contract, arrangement or understanding, means competition in any market in which a person that is a party to the contract, arrangement or understanding or would be a party to the proposed contract, arrangement or understanding, or any body corporate related to such a person, supplies or acquires, or is likely to supply or acquire, goods or services or would, but for the provision, supply or acquire, or be likely to supply or acquire, goods or services.
(4) For the purposes of the application of this section in relation to a particular person, a provision of a contract, arrangement or understanding or of a proposed contract, arrangement or understanding shall be deemed to have or to be likely to have the effect of substantially lessening competition f that provision and any one or more of the following provisions, namely-
(a) the other provisions of that contract, arrangement or understanding proposed contract, arrangement or understanding; and
(b) the provisions of any other contract, arrangement or understanding or proposed contract, arrangement or understanding to which the person or a body corporate related to such person is or would be a party,
together have or are likely to have that effect.
(5) This section does not apply to or in relation to a contract, arrangement or understanding in so far as the contract, arrangement or understanding provides, or to or in relation to a proposed contract, arrangement or understanding in so far as the proposed contract, arrangement or understanding would provide, directly or indirectly for the acquisition of any shares in the capital, or any assets, of a body corporate.
(6) This section does not apply to or in relation to a contract, arrangement or understanding, or a proposed contract, arrangement or understanding, the only parties to which are or would be bodies corporate that are related to each other.
28. Contracts, arrangements or understandings in relation to prices.
(1) Without limiting the generality of section 27, a provision of a contract, arrangement or understanding, or of a proposed contract, arrangement or understanding, shall be deemed for the purposes of that section to have the purpose or to have or to be likely to have the effect, of substantially lessening competition if the provision has the purpose, or has _or is likely to have the effect, as the case may be, of fixing, controlling or maintaining, or providing for the fixing, controlling or maintaining of, the price for, or a discount, allowance, rebate or credit in relation to, goods or services supplied or acquired or to be supplied or acquired by the parties to the contract, arrangement: or understanding or the proposed parties to the proposed contract, arrangement or understanding, or by any of them, or by any bodies corporate that are related to any of them, in competition with each other.
(2) Sub-section (1) does not apply to a provision of a contract or arrangement:. made or of an understanding arrived at, or of a proposed contract or arrangement to be made or of a proposed understanding to be arrived at, for the purposes of a joint venture to the extent that the provision relates or would relate to –
(a) the joint supply by the parties to the joint venture, or the supply by the parties to the joint venture in proportion Lo their respective interests in the joint venture, of goods jointly produced by those parties in pursuance of the joint venture;
(b) the joint supply by the parties to the joint venture of services in pursuance of the joint venture, or the supply by the parties to the joint venture in proportion to their respective interests in the joint venture of services in pursuance of, and made available as a result of, the joint venture; or
(c) in the case of a joint venture carried on by a body corporate as mentioned in Section ?d? (11)(a) (ii)-
i) the supply by that body corporate of goods produced by it in pursuance of the joint, venture; or
ii) the supply by that body corporate of services in pursuance of the joint venture, not being services supplied on behalf of the body corporate by –
(a) a person who is the owner of shares in the capital of the body corporate; or.
(b) a body corporate that is related to such a person.
(3) Sub-section (1) does not apply in relation to a provision of a contract, arrangement or understanding, or of a proposed contract, arrangement or understanding, to the extent that the provision recommends or provides for recommending, or would recommend or provide for recommending, the price for, or a discount, allowance, rebate or credit in relation to, goods or services, where the parties to the contract, arrangement or understanding, or the proposed parties to the proposed contract, arrangement or understanding, include –
(a) not less than 2 persons (bodies corporate that are related to one another being counted as a single person) who supply, in trade or commerce, goods or services to which the provision applies; or
(b) not less than 2 persons (bodies corporate that are related to one another being counted as a single person) who acquire, in trade or commerce, goods or services to which the provision applies.
(4) Sub-section (1) does not apply to a provision of a contract. arrangement or understanding, or of a proposed contract, arrangement. or understanding, being a provision –
(a) in relation to the price for goods or services to be collectively acquired; whether directly or indirectly, by parties to the contract, arrangement or understanding or by proposed parties to the proposed contract, arrangement or understanding; or
(b) for the Joint advertising of the price for the re-supply of goods so acquire.
(5) For the purposes of this Decree, a provision of a contract, arrangement or understanding, or of a proposed contract, arrangement or understanding, shall not be taken not to have the purpose, or not to have or to be likely to have the effect, of fixing, controlling or maintaining, or providing for the fixing, controlling or maintaining of, the price for, or a discount, allowance, rebate or credit in relation to, goods or services by reason only of –
(a) the form of, or of that provision of, the contract, arrangement or understanding or the proposed contract, arrangement or understanding;
(b) any description given to, or to that provision of, the contract, arrangement or understanding or the proposed contract, arrangement, or understanding by the parties or proposed parties.
(6) For the purposes of this Decree but without limiting the generality of sub-section (5), a provision of a contract, arrangement or understanding, or of a proposed contract, arrangement or understanding, shall not be taken not to have the purpose, or not to have or to be likely to have the effect, of fixing, controlling or maintaining, or providing for the fixing, controlling or maintaining of, the price for, or a discount, allowance, controlling or maintaining of, the price for, or a discount, allowance, rebate or credit in relation to, goods or services by reason only that the provision recommends, or provides for the recommending of, such a price, discount, allowance, rebate or credit, if in fact the provision has that purpose or has or is likely to have that effect.
(7) For the purposes of the preceding provisions of this section but without limiting the generality of those provisions, a provision of a contract, arrangement or understanding, or of a proposed contract, arrangement or understanding, shall be deemed to have the purpose, or to have or to be likely to have the effect, of fixing, controlling or maintaining, or providing for the fixing, controlling or maintaining of, the price for, or a discount, allowance, rebate or credit in relation to, goods supplied as mentioned in sub-section (1) if the provision has the purpose, or has or is likely to have the effect, of fixing, controlling or maintaining, o r1 providing for t1)e fixing, controlling or maintaining of such a price, discount, allowance, rebate or credit in relation to a re-supply of the parties to the contract, arrangement or understanding or the proposed parties to the proposed contract, arrangement or understanding, or by any of them, or by any bodies corporate that are related to any of them.
(8) The reference in sub-section (1) to the supply or acquisition of goods or services by persons in competition with another includes a reference to the supply or acquisition of roods or services by persons who, but for a provision of any contract, arrangement or understanding or of any proposed contract, arrangement or understanding, would be, or would be likely to be, in competition with each other in relation to the supply or acquisition of the goods or services.
29. Covenants affecting competition.
(1) A covenant, whether the covenant was given before or after the commencement of this section, is unenforceable in so far as it. confers rights or benefits or imposes duties or obligations on a person or on a person associated with a corporation if the covenant has, or is likely to have, the effect of substantially lessening competition in any market in which such person or any person associated with such person supplies or acquires, or is likely to supply or acquire, goods or services or would, but for the covenant, supply or acquire, or be likely to supply or acquire, goods or services.
(2) A person or a person associated with such person shall-
(a) require the giving of a covenant, or give a covenant, if the proposed covenant has the purpose, or would have or be likely to have the effect, of substantially lessening competition in any market in which –
i) the person, or any person associated with such person by virtue of sub-section 6 (b), supplies or acquires, is likely to supply or acquire, or would, but for the covenant, supply or acquire, or be likely to supply or acquire, goods or services; or
ii) any person associated with such person by virtue of the operation of sub-section 6 (a) supplies or acquires, is likely to supply or acquire, or would, but for the covenant, supply or acquire, or be likely to supply or acquire, goods or services, being a supple or acquisition in relation to which that person is, or would be, under an obligation to act, in accordance with directions, instructions or wishes of the corporation;
(b) threaten to engage in particular conduct if a person who, but, for sub-section (1 ), would be bound by a covenant does not comply with the terms of the covenant; or
(c) engage in particular conduct by reason that a person who, but for sub-section (1), would be bound by a covenant has failed to comply, or proposes or threatens to fail to comply, with the terms of the covenant.
(3) Where a person –
(a) issues an invitation to another person to enter into a contract containing a covenant;
(b) makes an offer to another person to enter into a contract containing a covenant; or
(c) makes it known that the person will, not enter into a contract, of a particular kind unless the contract contains a covenant of a particular kind or in particular terms, the first-mentioned person shall, by issuing that invitation, making that offer or making that fact known, be deemed to require the giving of the covenant.
(4) For the purposes of this section, a covenant or proposed covenant shall be deemed to have, or to be likely Lo have, the effect of substantially lessening competition in a market if the covenant or proposed covenant, as the case may be, would have, or be likely to have, that. effect, when taken together with the effect or likely effect on competition in that market of any other covenant or proposed covenant to the benefit. of which –
(a) a person, is or would be, or but for sub-section (1) would be, entitled to the benefit of the first-mentioned covenant or proposed covenant; or
(b) a person associated with the person referred to in paragraph (a),
is or would be, or but for subsection (1) would be, entitled.
(3) This section does not apply to or in relation to a covenant or proposed covenant where the only persons who are or would be respectively bound by, or entitled to the benefit: of, the covenant. or proposed covenant are persons who are associated with each other or are bodies corporate that are related to each other.
(6) For the purposes of this section, section 30, a person and a corporation shall be taken to be associated with each other in relation to a covenant or proposed covenant if, and only if –
(a) the person is under an obligation (otherwise than in pursuance of the covenant or proposed covenant), whether formal or informal, to act in accordance with directions, instructions or wishes of the corporation in relation to the covenant or proposed covenant; or
(b) the person I?t; a body corporate in relation to which the corporation is in the position mentioned in section 4(5)(a)(i).
(7) This section does not apply to or in relation to a covenant, or proposed covenant if –
(a) the sole or. principal purpose for which, the covenant was or is required to be given was or is to prevent the relevant land from being used otherwise than for residential purposes;
(b) the person who required or requires the covenant to be given was or is a religious, charitable or public benevolent institution or a trustee for such an institution and the covenant was or is required to be given for or in accordance with the purposes or objects of that institution; or
(c) the covenant was or is required to be given in pursuance of a legally enforceable requirement made by, or by a trustee for, a religious, charitable or public benevolent institution, being a requirement made for or in accordance with the purposes or objects of that institution.
30. Covenants in Relation to Prices.
(1) In the application of section 29(1) in relation to a covenant that, has, or is likely to have, the effect, of fixing, controlling or maintaining, or providing for the fixing, controlling or maintaining of, the price for, or a discount, allowance, rebate or credit in relation to, goods or services supplied or acquired by the persons who are, or but for that sub-section would be, bound by or entitled to the benefit of the covenant, or by any of them, or by any persons associated with any of them, in competition with each other, that, sub-section has effect, as if the words "if the covenant has, or is likely to have, the effect of substantially lessening competition in any market in which a person or any person associated with a supplies or acquires, or is likely to supply or acquire, goods or services or would, but for the covenant, supply or acquire, or be likely to supply or acquire, goods or services" were omitted.
(2) In the application of section 29(2) in relation to a proposed covenant that. has the purpose, or would have or be likely to have the effect, of fixing, controlling or maintaining, or providing for the fixing, controlling or maintaining of, the price for, or a discount, allowance, rebate or credit in relation to, goods or services supplied or acquired by the persons who would, or would but for section 29(1), be bound by or entitled to the benefit of the proposed covenant, or by any of them, or by any persons associated with any of them, in competition with each other, section on 29(2)(a) has effect as if all the words after the words "require the giving of a covenant, or give a covenant:" were omitted.
(3) For the purposes of this decree, a covenant shall not be taken not to have, or not to be likely to have, the effect, or a proposed covenant shall not be taken not to have the purpose, or not: to have, or not to be likely to have, the effect, of fixing, controlling or maintaining, or providing for the fixing, controlling or maintaining of, the price for, or a discount, allowance, rebate or credit in relation to, goods or services by reason only of –
(a) the form of the covenant or proposed covenant; or
(b) any description given to the covenant by any of the person who are, or but for section 29(1) would be, bound by or entitled to the benefit of the covenant or any description given to the proposed covenant by any of the persons who would, or would but for section 29(1), be bound by or entitled to the benefit of the proposed covenant.
(4) For the purposes of the preceding provisions of this section, but without limiting the generality of those provisions-
(a) a covenant shall be deemed to have, or to be likely to have, the effect of fixing, controlling or maintaining, or providing for the fixing, controlling or maintaining of, the, price for, or a discount, allowance, rebate or credit in relation to, goods supplied as mentioned in subsection (1) if the covenant has, or is likely to have, the effect of fixing, controlling or maintaining, or providing for the fixing, controlling or maintaining of, such a price, discount, allowance, rebate or credit in relation to a re-supply of the goods by person to whom the goods are supplied by the persons who are, or but for section 29(1) would be, bound be or entitled to the benefit of the covenant, or, by any of them, or by any persons associated with any of them; and
(b) a proposed covenant shall be deemed to have the purpose, or to have, or to be likely to have, the effect, of fixing, controlling or maintaining, or providing for the fixing, controlling or maintaining of, the price for, or a discount, allowance, rebate or credit in relation to, goods supplied as mentioned in sub-section (2) if the proposed covenant has the purpose, or would have or be likely to have the effect, as the case may be, of fixing, controlling or maintaining, or providing for the fixing, controlling or maintaining of, such a price, discount, allowance, rebate or credit in relation to a re-supply of the goods by persons to whom the goods are supplied by the persons who would, or would but for section 29 (1), be bound by or entitled to the benefit of the proposed covenant, or by any of them, or by any persons associated with any of them.
31. Restriction on conduct that hinders or prevents the supply of goods or services to others.
(1) Subject to this section, a person --hall not, in concert with a second person, engage in conduct that hinders or prevents the supply of goods or services by a third person to a fourth person (not: being an employer of the first-mentioned person), or the acquisition of goods or services by a third person from a fourth person (not being an employer of the first mentioned person), where –
(a) the third person is, and the fourth person is not, a corporation and –
i) the conduct would have or be likely to have the effect of causing –
a) substantial loss or damage to the business of the third person or of a body corporate that is related to that, person; or
b) a substantial lessening of competition in any market in which the third person or a body corporate that is related to that person supplies or acquires goods or services; and
ii) the conduct is engaged in for the purpose, and would have or be likely to have the effect, of causing -
a) substantial loss or damage to the business of the fourth person; or
b) a substantial lessening of competition in any market in which the fourth person acquires goods or services; or
(b) the fourth person is a corporation and the conduct is engaged in for the purpose, and would have or be likely to have the effect, of causing substantial loss or damage to the business of the fourth person or of a body corporate that is related to that person; or
ii) a substantial lessening of competition in any market, in which the fourth person or a body corporate that is related to that person supplies or acquires goods or services.
(2) Subject to this section, a person shall not, in concert with another person, engage in conduct, for the purpose, and having or likely to have the effect, of preventing or substantially hindering a third person (not being an employer of the first-mentioned person) from engaging in trade or commerce –
(a) between Fiji and places outside Fiji,
(b) within Fiji.
(3) In a proceeding under this Decree in relation to a contravention of sub-section (2), it is a defence if the defendant proves the dominant: purpose for which the defendant, engaged in the conduct concerned was to preserve or further a business carried on by him.
(4) The application of sub-section (2) in relation to a person in respect of his engaging in conduct in concert with another person is not affected by reason that the other person proves any of the matters mentioned in sub-section (3) in respect of that conduct.
(5) Section 4(9)(b) does not apply in relation to sub-section (1) or (2) of this section but a person shall be deemed to engage in conduct for a purpose mentioned in that sub-section if he engages in that conduct for purposes that include that purpose.
(6) A person shall not be taken to contravene, or to be involved in a contravention of, subsection (1) or (2) by engaging in conduct where-
(a) the dominant purpose for which the conduct is engaged in is substantially related to –
i) the remuneration, conditions of employment, hours of work or working conditions of that person or of another person employed by an employer of that person; or an employer of that person having terminated, taken action to terminate, the employment of that person or of another person employed by that employer; or
(b) in the case of conduct engaged in by the following person in concert with each other (and not in concert with any other person), that is to say –
i) an organization or organizations of employees, or an officer or officers of such an organization, or both such an organization or organizations and such an officer or officers; and
ii) an employee, or 2 or more employees who are employed by the one employer, the dominant purpose for which the conduct is engaged in is substantially related to –
iii) the remuneration, conditions of employment, hours of work or working conditions of the employee, or of any of the employees, referred to in sub-paragraph (ii); or
iv) the employer of the employee, or of the employees, referred to in sub-paragraph (ii) having terminated, or taken action to terminate, the employment of any of his employees.
(7) The application of sub-section (1) or (2) in relation to a person in respect of his engaging in conduct in concert with another person is not affected by reason that sub-section (6) operates to preclude the other person from being taken to contravene, or to be involved in a contravention of, sub-section (1) or (2) in respect of that conduct.
(8) If two or more persons (in this sub-section referred to as the "participants") each of whom is a member or officer of the same organisation of employees (being an organization that exists or is carried on for the purpose, or for purposes that. include the purpose, of furthering the interests of its members in relation to their employment) engage in conduct in concert with one another, whether or not the conduct is also engaged in concert with other persons, the organization shall be deemed for the purposes of this Decree to engage in that conduct in concert with the participants, and so to engage in that, conduct, for the purpose or purposes for which that conduct is engaged in by the participants, unless the organization establishes that, it, took all reasonable steps to prevent the participants from engaging in that conduct.
(9) Where an organization of employees engages, or is deemed by sub-section (8) to engage, in conduct in concert with members or officers of the organization in contravention of sub-section (1) or (2) –
(a) any loss or damage suffered by a person as a result of the conduct shall be deemed to have been caused by the conduct of the organization;
(b) for the purpose of enforcing any judgement or order given or made in a proceeding mentioned in sub-paragraph (i) that is instituted under section 126, process may be issued and executed against any property of the organization or any branch or part of the organization, or any property in which the organization have in their capacity as such members, a beneficial interest, whether vested in trustees or however otherwise held, as if the organization were a body corporate and the absolute owner of the property or interest but no process shall be issued or executed against any other property of members, or against any property of officers, of the organization or of a branch or part of the organization.
(10) Nothing in this section affects the operation of any provision of this part.
32. Prohibition of contracts, arrangements or understandings affecting supply or acquisition of goods or services.
(1) Subject to this section, a person who has been accustomed, or is under an obligation, to supply goods or services to, or to acquire goods or services from, a second person shall not make a contract or arrangement, or arrive at an understanding, with a third person (being an organization of employees, an officer of such an organization, or another person acting for or on behalf of such an organization or officer) if the proposed contract, arrangement or understanding contains a provision that –
(a) has the purpose of preventing or hindering the first-mentioned person from supplying or continuing to supply any such goods or services to the second person or, as the case may be, from acquiring or continuing to acquire any such goods or services from the second person;
(b) has the purpose of preventing or hindering the first-mentioned person from supplying or continuing to supply any such goods or services to the second person except subject to a condition (not being a condition to which the supply of such goods or services by the first-mentioned person to the second person has previously been subject; by reason of a provision of a contract existing between those persons) as to the persons to whom, as to the manner in which, or as to the terms on which, the second person may supply any goods or services; or
(c) has the purpose of preventing or hindering the first-mentioned person from acquiring or continuing to acquire any such goods or services from the second person except subject to a condition (not being a condition to which the acquisition of such goods or services by the first-mentioned person from the second person has previously been subject by reason of a contract existing between those persons) as to the persons to whom, as to the manner in which, or as to the terms on which, the second person may supply any goods or services.
(2) Sub-section (1) does not apply in relation to a contract, arrangement or understanding that is In writing if the second person mentioned in that sub-section is a party to the contract, arrangement or understanding or has consented in writing to the contract or arrangement being. made or the understanding being arrived at.
(3) In a case where the person first-mentioned in subsection (1) is not a corporation, that sub-section applies only if the second person mentioned in that sub-section is a corporation.
(4) Section 9(a) applies in relation to sub-section (1) of this section as if section 9(a)(ii) were omitted.
(5) Subject to sub-section (6), a reference in this section to a person who has been accustomed to supply goods or services to a second person shall be construed as including a reference to –
(a) a regular supplier of any such goods or services to the second person;
(b) the latest supplier of any such goods or services to the second person; and
(c) a person who at any time during the immediately preceding period of 3 months supplied any such goods or services to the second person.
(6) Where –
(a) goods or services have been supplied by a person to a second person pursuant to a contract between those persons under which the first-mentioned person was required over a particular period to supply such goods or services;
(b) that period has expired; and
(c) after the expiration of that period the second person has been supplied with such goods or services by another person or other persons and has not, been supplied with such goods or services by the first-mentioned person,
then, for the purposes of the application of this section in relation to anything done after the second person has been supplied with goods or services as mentioned in paragraph (c), the firs t mentioned person shall be deemed not to be a person who has been accustomed to supply such goods or services to the second person.
(7) Subject to sub-section (S), a reference in this section to a person who has been accustomed to acquire goods or services from a second person shall be construed as including a reference to –
(a) a regular acquirer of any such goods or services from the second person;
(b) a person who, when he last acquired such goods or services, acquired them from the second person; and
(c) a person who at any time during the immediately preceding period of 3 months acquired any such goods or services from the second person.
(8) Where-
(a) goods or services have been acquired by a person from a second person pursuant to a contract between those persons under which the first-mentioned person was required over a particular period to acquire such goods or services;
(b) that period has expired; and
(c) after the expiration of that period the second person has refused to supply such goods or services to the first-mentioned person,
then, for the purposes of the application of this section in relation to anything done after the second person has refused to supply goods or services as mentioned in paragraph (c), the first-mentioned person shall be deemed not to be a person who has been accustomed to acquire such goods or services from the second person.
(9) If-
(a) a person has, whether before or after the commencement of this section, made a contract or arrangement, or arrived at an understanding, with another person; and
(b) by reason of a provision included in the contract, arrangement or understanding, the making of the contract: or arrangement, or the arriving at the understanding, by the first-mentioned person contravened sub-section (1) or would have contravened that sub-section if this section had been in force at the time when the contract or arrangement was made, or the understanding was arrived at,
a person shall not give effect to that provision of the contract, arrangement or understanding.
(l0) In determining for the purposes of paragraph (9) (b) whether a contract or arrangement made, or understanding arrived at, before the commencement of this section would have contravened sub-section (1) if this section had been in force at the time when the contract understanding was arrived if the words "that is in were omitted or arrangement was made, or the at, sub-section (2) shall be read as writing" and, the words "in writing".
(11) Nothing in this section affects the operation of any other provision of this part.
33. Misuse of market power.
(1) A person that has a substantial degree of power in a market, shall not take advantage of that. power for the purpose of-
(a) eliminating or substantially damaging a competitor of such person or of a body corporate that is related to such person in that, or any other market;
(b) preventing the entry of a person into that. or any other market; or
(c) deterring or preventing a person from engaging in competitive conduct in that. or any other market,
(2) If-
(a) a body corporate that is related to such person lids, or 2 or more bodies corporate each of which is related to the person together have, a substantial degree of power in a market; or
(b) a person and a body corporate that is, or a such person and 2 or more bodies corporate each of which is, related to such person, together have a substantial degree of power in a market,
the person shall be taken for the purposes of this section to have a substantial degree of power in that market.
(3) In determining for the purposes of this section the degree of power that a person or body corporate has in a market,, the Court shall have regard to the extent to which the conduct of the person or of any of the body corporate in that market, is constrained by the conduct of –
(a) competitors, or potential, competitors, of the person or of any of the body corporate in that market; or
(b) persons to whom or from whom such person or any of those body corporate supplies or acquires goods or services in that market.
(4) In this section –
(a) a reference to power is a reference to market power;
(b) a reference to a market is a reference to a market for goods or services; and
(c) a reference to power in relation to, or to conduct in, a market is a reference to power, or to conduct, in that market either as a supplier or as an acquirer of goods or services in that market.
(5) Without extending by implication the meaning of sub-section (1), a person shall not be taken to contravene that sub-section by reason only that is acquires plant or equipment.
(6) Without in any way limiting the manner in which the purpose of a person may be established for the purposes of any, other provision of this Decree, a person may be taken to have taken advantage of its power for a purpose referred to in subsection (1) notwithstanding that after all the evidence has been considered the existence of that purpose is ascertainable only by inference from the conduct of such person or of any other person or from other relevant circumstances.
(7) Any person who breaches this provision is guilty of an offence.
34. Collective tendering.
(1) It shall be an offence against this Decree for any 2 or more persons, being either wholesalers, retailers, or contractors, or suppliers of services, to tender for the supply or purchase of any goods or services at prices, or on terms, agreed, or arranged between them; and it shall be an offence against this Decree for 2 or more of any such persons to agree or arrange for all or any of them to abstain from tendering for the supply or purchase of any goods or services, tenders for the supply or purchase of which have been invited.
(2) It shall not be a defence in proceedings for an offence against this section –
(a) that the invitation to tender or the tender was not made or submitted in writing; or
(b) that the invitation to tender or the tender was not described as such or was given some other descriptions; or
(c) that the invitation to tender was extended to some or all of the parties to the agreement or arrangement at different times; or
(d) that the tender of any party to the agreement or arrangement was submitted before that party had consulted with all or some of the other parties to the agreement or arrangement on the prices or the terms that, those other parties were to submit or on the question as to whether all or some of those parties should abstain from tendering.
35. Pyramid selling schemes.
(1) Every person commits an offence against this Decree who acts as the promoter of, or operates, a pyramid selling scheme.
(2) For the purposes of this section, the term "pyramid selling scheme" means a scheme-
(a) which provides for the sale or distribution of goods or services or both for reward; and
(b) which, to many participants in the scheme, constitutes primarily an opportunity to sell an investment opportunity rather than an opportunity to sell goods or services; and
(c) which is or is likely to be unfair to many of the participants in the scheme in that-
i) the financial rewards of many of those participants are dependent on the recruitment of additional participants (whether or not at successively lower levels); and
ii) the number of additional participants in the scheme that must be recruited to produce reasonable financial rewards to participants in the scheme is not attainable or is not; likely to l» attainable by many of the participants in the scheme.
(3) For the purposes of this section, the term" pyramid selling scheme", subject to subsection (4) of this section, includes an arrangement for the supply of goods or services pursuant to an arrangement of the type commonly known as a chain letter arrangement.
(4) For the purposes of this section the term "pyramid selling scheme" does not include any scheme or activities (including all or any of the activities of a particular person or a particular class of person) that may be declared by the Minister, by notice in the Gazette, to be excluded from that term.
36. Unlawful actions and representations.
(1) A creditor, or the agent of a creditor, shall not, for the purpose of recovering a trading debt of the creditor –
(a) make any demand for payment without indicating the creditor's identity and the balance owing to the creditor and, where the demand is made by the agent, the agent's identity and authority to make the demand;
(b) demand payment of any amount that the creditor or agent does not honestly believe to be due and owing to the creditor;
(c) persist in demanding payment from a person who has denied liability without malting reasonable inquiries to ensure that the demand is based on reasonable grounds;
(d) make any personal calls or telephone calls for the purpose of demanding payment -
(i) on a public holiday; or
(ii) ?????????????;
(e) except as reasonably necessary to determine the debtor's whereabouts, communicate with an employer, acquaintance, friend, relative or neighbour of the debtor (not being a guarantor).
(2) Any person who contravenes this section is guilty of any offence.
(3) A creditor, or the agent of a creditor, shall not, for the purpose of recovering a trading debt –
(a) falsely represent that criminal or other proceedings will. lie for non-payment of the debt;
(b) falsely pretend to be authorized in some official capacity to claim or enforce payment; or
(c) falsely represent, that a document has some official character that it does not have.
(4) Any person who contravenes this section is guilty of an offence.
(5) In this section:
"agent" includes an employee of a creditor whose main duty of employment is to seek to recover trading debts owed to the creditor.
37. Collective bidding at auction.
It shall be an offence against this Decree for any 2 or more persons, being either wholesalers, retailers, or contractors, to enter into any agreement or arrangement as to the price or prices which any of them will bid at any auction sale of goods or services or any agreement or arrangement whereby any party to that agreement, or arrangement agrees to abstain from bidding at any auction sale of goods or services.
38. Supply of trading stamps.
(1) Every person commits an offence against this Decree who supplies or arranges for the supply of any coupon, stamp, token, cover, package, document„ or other thing either directly or indirectly to any manufacturer, packer, importer, distributor, or seller of any goods or to any seller or services and undertakes to redeem the coupon, stamp, token, package, document, or other thing, or that, it will he redeemed, whether or not it has to be produced or, surrendered to any person by giving or delivering to the holder thereof any money, goods, or services.
(2) Nothing in subsection (1) of this section applies to any coupon, stamp, token, cover, package, document, or thing issued directly or indirectly in connection with any goods or services be the manufacturer, packer, importer, distributor, or seller of the goods or by the seller of the services, being a coupon, token, cover, package, document, or thing which by itself or with any other act or thing entitles or purports to entitle the holder thereof to receive any money from the issuer, whether or not it has to be produced or surrendered to any person.
(3) In this section the term "seller", in relation to any goods, means the person by whom the goods are sold to a person who purchases them for a purpose other than resale.
39. Refusal to sell goods or services unless other goods or services are also purchased.
(1) Every person commits an offence against this Decree who, whether as principal or agent, and whether by himself or his agent, refuses to sell any goods or services except, on the condition that, other goods or services are also purchased from him or from any other person nominated by him, or attempts to impose any such condition.
(2) Nothing in this section shall render unlawful any condition -
(a) against, the separate sale of any goods forming part of a set or forming part of a single or composite article;
(b)
40. Adulteration.
(1) Any person who –
(a) adulterates any goods for supply by way of trade or commerce; or
(b) supplies by way of trade or commerce any adulterated goods,
shall, subject to the provisions of this Decree, be guilty of an offence.
(2) It shall be a defence for a person charged under this section to prove that the adulteration was not carried out fraudulently and that the goods were supplied having attached thereto, or accompanied by, a clear and conspicuous notice stating explicitly the nature of such adulteration, or were supplied in a container displaying such notice.
(3) It shall also be a defence for a person charged under this section to prove –
(a) the presence of extraneous matter is an unavoidable consequence of the collection or processing of such goods, and
(b) the amount of the extraneous matter does not exceed such tolerance as may he prescribed by the minister in regulations under subsection (4).
(4) The Minister may by regulation prescribe in respect of such goods or class of goods as may be specified the amount of extraneous matter to be tolerated, in excess of which tolerance the goods shall be deemed to be adulterated.
(5) For the purposes of this Decree, goods shall be deemed to be adulterated-
(a) if any valuable constituent, has been in whole or in part omitted or abstracted therefrom; or
(b) if any substance has been substituted wholly or part, therefore; or
(c) if damage or inferiority has been concealed in any manner; or
(d) if any substance has been added thereto or mixed or packed therewith so as to increase the bulk or weight, or reduce the quality or strength of the goods, or make them appear better or of greater value than they are.
41. Hoarding, etc..
Every person commits an offence against this Decree who, being in possession of goods for mercantile purposes, destroys or hoards the goods, or refuses to sell the goods or to make them available for sale, if such destruction or hoarding or refusal raises, or tends to raise, or is to raise the cost, of other similar goods, or maintain the market, price of such goods to any person.
42. Black marketing.
Every person commits an offence against this Decree who, whether as principal or agent, and whether by himself or his agent, sells any goods for purposes of resale, unless he is satisfied –
(a) that the goods are required by the buyer, in good faith, for the legitimate purposes of his business; and
(b) in particular, that the effect of the transaction, whether by itself or taken in conjunction with transactions of the same or of a similar nature, will not be to increase or will not tend to increase the price to the ultimate buyer of the goods above a fair and reasonable price (whether that price be a lawful. price or not):
provided that this section shall not apply with respect to the sale of any goods to a retailer for purposes of retail sale.
43. Limited offers and failing to supply as demanded.
(1) A person shall not advertise or offer goods for sale retail upon condition that not more than a specified or limited quantity or number of the goods may be purchased by any one purchaser.
(2) A person who offers goods for sale by retail shall not refuse or fail, on demand of a quantity or number of the goods and tender of the appropriate price, to supply the goods in the quantity or number demanded.
(3) Any person who contravenes this section is guilty of an offence.
44. Statement of Price or condition and Pull Date.
(1) Where any statement of price or conditions of sale (relating to the availability of discounts or trade-in or other allowances) imprinted on, attached to or exhibited with any goods offered for sale by retail does not set, out in a prominent, position and in clear and legible figures the price at which the goods can be bought for cash, the trader who offers the goods is guilty of an offence.
(2) A person shall not sell, display for sale, cause to be distributed for the purposes of sale any perishable or semi perishable goods unless the pull dates are marked on the package.
(3) Any person who contravenes this section is guilty of an offence.
(4) In this Decree "Pull Date" means the last date on which a perishable or semi.-perishable goods shall be sold and a perishable or semi-perishable, goods shall include all types of food commodity in package form.
45. Mandatory trade-ins prohibited.
(1) Every person who, in the course of trade, sells goods at retail or supplies services (in this section called the seller) commits an offence against, this Decree if he, whether as principal or agent and whether by himself or his agent, indicates in the course of bargaining with any purchaser or prospective purchaser of those goods or services -
(a) that he will sell goods or supply services to that purchaser or prospective purchaser only if he sells or arranges the sale of second-hand goods to the seller or to a person nominated by the seller; or
(b) that the terms and conditions on which he will sell those goods or supply those services will be less favourable than those upon which he would make them available if the purchaser or prospective purchaser were to sell or to arrange the sale of second-hand goods to the seller or to a person nominated by the seller.
46. Exclusive dealing.
(1) Subject to this section, a person shall be guilty of an offence who in trade or commerce, engages in the practice of exclusive dealing.
(2) A person engages in the practice of exclusive dealing if the person-
(a) supplies, or offers to supply, goods or services;
(b) supplies, or offers to supply, goods or services at a particular price; or
(c) gives or allows, or offers to give or allow, a discount, allowance, rebate or credit in relation to the supply or proposed supply of goods or services by the corporation,
on the condition that the person to whom such person supplies, or offers or proposes to supply, the goods or services or, if that person is a body corporate, a body corporate related to that body corporate –
(d) will not, or will not except to a limited extent, acquire goods or services, or goods or service of a particular kind or description, directly or indirectly from a competitor of such person or from a competitor of a body corporate related to such person;
(e) will not, or will not except to a limited extent, re-supply goods, or goods of a particular kind or description, acquired directly or indirectly from a competitor of such person or from a competitor of a body corporate related to such person; or
(f) in the case where the person supplies or would supply goods, will not re-supply the goods to any person, or will not, or will not except to a limited extent, re-supply the goods –
i) to particular persons or classes of persons or to persons other than particular persons or classes of persons; or
ii.) in particular places or classes of places or in places other than particular places or classes of places.
(3) A person also engages in the practice of exclusive dealing if such person refuses –
(a) to supply goods or services to a person;
(b) to supply goods or services to a person at a particular price; or
(c) to give or allow a discount, allowance, rebate or credit in relation to the supply or proposed supply of goods or services to a person, for the reason that the person or, if the person is a body corporate, a body corporate related to that body corporate -
(d) has acquired, or has not agreed not to acquire, goods or services, or goods or services of a particular kind or description, directly or indirectly from a competitor of such person or from a competitor of a body corporate related to such person;
(e) will not, or will not except to a limited extent, re-supply goods, or goods of a particular kind or description, acquired directly or indirectly from a competitor of such person or from a competitor of a body corporate related to such person; or
(f) in the case where the person supplies or would supply goods, will not re-supply the goods to any person, or will not, or will not, except to a limited extent, re-supply the goods –
i) to particular persons or classes of persons or to persons other than particular persons or classes of persons; or
ii.) in particular places or classes of places or in places other than particular places or classes of places.
(4) A person also engages in the practice of exclusive dealing if such person –
(a) acquires, or offers to acquire, goods or services; or
(b) acquires, or offers to acquire, goods or services at a particular price,
on the condition that the person from whom such person acquires or offers to acquire the goods or services or, if that person is a body corporate, a body corporate related to that body corporate will not supply goods or services, or goods or service of a particular kind or description, to any person, or will not, or will. not except to a limited extent, supply goods or services, or goods or services of a particular kind or description –
(c) to particular persons or classes of persons or to persons other than particular persons or classes of persons; or
(d) in particular places or classes of places or in places other than particular places or classes of places.
(5) A person also engages in the practice of exclusive dealing if such person refuses –
(a) to acquire goods or services from a person; or
(b) to acquire goods or services at a particular price from a person,
for the reason that, the person or, if the person is a body corporate, a body corporate related to that, body corporate has supplied, or has not agreed not to supply, goods or services, or goods or services of a particular kind or description –
(c) to particular persons or classes of persons or to persons other than particular persons or classes of persons; or
(d) in particular places or classes of places or in places other than particular places or classes of places.
(6) a person also engages in the practice of exclusive dealing if such person –
(a) supplies, or offers to supply, goods or services;
(b) supplies, or offers to supply, goods or services at a particular price; or
(c) gives or allows, or offers to give or allow, a discount, allowance, rebate or credit, in relation to the supply or proposed supply of goods or services by such person,
on the condition that the person to whom such person supplies or offers or proposes to supply the goods or services or, if that person is a body corporate, a body corporate related to that body corporate will acquire goods or services of a particular kind or description directly or indirectly from another person.
(7) A person also engages in the practice of exclusive dealing if such person refuses –
(a) to supply goods or services to a person;
(b) to supply goods or services at a particular price
to a person; or
(c) to give or allow a discount, allowance, rebate or credit in relation to the supply of goods or services to a person,
for the reason that the person or, if the person is a body corporate, a body corporate related to that body corporate has not acquired, or has not agreed to acquire, goods or services of a particular kind or description directly or indirectly from another person.
(8) A person also engages in the practice of exclusive dealing if such person grants or renews, or makes it known that It will not exercise a power or right to terminate, a lease of, or a license in respect or, land or a building or part of a building on the condition that another party to the lease or license or, if that other party is a body corporate, a body corporate related to that body corporate -
(a) will. not, or will not except to a limited extent-
i) acquire goods or services, or goods or services of a particular kind or description, directly or indirectly from a competitor of such person or from a competitor of a body corporate related to such person; or
ii) re-supply goods, or goods of a particular kind or description, acquired directly or indirectly from a competitor of the corporation or from a competitor of a body corporate related to such person;
(b) will not supply goods or services, or goods or services of a particular kind or description, to any person, or will not, or will. not except to a limited extent, supply goods or services, or goods or services of a particular kind or description –
i) to particular persons or classes of persons or to persons other than particular persons or classes of persons; or
ii) in particular PI Aces or classes of places or in places other than particular places or classes of places; or
iii) will acquire goods or services of a particular kind or description directly or indirectly from another person not being a body corporate related to such person.
(9) A person also engages in the practice of exclusive dealing if such person refuses to grant or renew, or exercises a power or right to terminate, a lease of, or a license in respect of, land or a building or part of a building for the reason that another party to the tease or license or, if that. other party in a body corporate, a body corporate related to that body corporate -
(a) has acquired, or has not agreed not to acquire, goods or services, or goods or services of a particular kind or description, directly or indirectly from a competitor of such person or from a competitor of a body corporate related to such person;
(b) has re-supplied, or has not agreed not to re-supply, goods, or goods of a particular kind or description, acquired directly or indirectly from a competitor of such person or from a competitor of a body corporate related to such person;
(c) has supplied goods or services, or goods or services of a particular kind or description-
i) to particulars persons or classes of persons or to persons other than particular persons or classes of persons; or
ii) in particular places or classes of places or in places other titan particular places or classes of places; or
(d) has not acquired, or has not agreed to acquire, goods or services of a particular kind ,,r description directly or indirectly from another person not being a body corporate related to such person.
(10) Sub-section (1) does not apply to the practice of exclusive dealing constituted by a person engaging in conduct of a kind referred to in sub-section (2), (3), (1) or (5) or paragraphs (8)(a) or, (b) or (9)(a), (b) or (c) unless-
(a) the engaging by the person In that, conduct has the purpose, or has or is likely to have the effect, of substantially lessening competition; or
(b) the engaging by the person In that conduct, and the engaging by the person, or by a body corporate related to the person, in other conduct of the same or a similar kind, together have or are likely to have the effect, of substantially lessening competition.
(11) Sub-sections (8) and (9) do not apply with respect to-
(a) conduct engaged in by, or by a trustee for, e religious, charitable or public benevolent institution, being conduct engaged in for or in accordance with the purposes or objects of that institution; or
(b) conduct engaged in pursuance of a legally enforceable requirement made by, or by a trustee for, a religious, charitable or public benevolent institution, being a requirement mode for or in accordance with the purposes or objects of that institution.
(12) Sub-section (1) does not apply with respect to any conduct engaged In by a bode corporate by way of restricting dealings by Another body corporate if those bodies corporate are related to each other.
(13) In this section –
(a) a reference to a condition shall be read as a reference to any condition, whether direct or indirect and whether having legal or equitable force or not, and includes a reference to A condition the existence or nature of which is ascertainable only by inference from the conduct, of persons or from other relevant circumstances;
(b) a reference to competition, in relation to conduct to which a provision of this section other than sub-section (8) or (9) applies, shall be read as a reference to competition in any market in which-
i) any person engaging in the conduct; or any body corporate related to that person; or
ii) any person whose business dealings are restricted, limited or otherwise circumscribed by the conduct or, if that person is a hotly corporate, any body corporate relayed to that body corporate,
supplies or acquires, or is likely to supply or acquire, goods or services or would, but for the conduct, supply or acquire or be likely to supply or acquire, goods or services; and
(c) a reference to competition, in relation to conduct to which sub-sections (8) or (9) applies, shall be as a reference to competition in any market )n which the person engaging in the conduct or any other person the business dealings of which are-restricted, limited or otherwise circumscribed by the conduct, or any body corporate related t. a either of those persons. supplies or acquires, or is likely to supply or acquire, goods or services or would, but for the conduct, supply or acquire, or he likely to supply or acquire, goods or services.
47. Resale price maintenance.
A person shall be guilty of an offence under this Decree who engages in the practice of resale price maintenance.
48. Price discrimination.
(1) A person shall be guilty of an offence who in trade or commerce, discriminate between purchasers of goods of like grade and quality in relation to -
(a) the prices charged for the goods;
(b) any discounts, allowances, rebates or credits given or allowed in relation to the supply of the goods;
(c) the provision of services in respect or the goods; or
(d) the malting of payment for services provided in respect of the goods,
if the discrimination is of such magnitude or is of such a recurring or systematic character that it has or is likely to have the effect of substantially lessening competition in a market for goods, being a market in which the corporation supplies, or those persons supply, goods.
(2) Sub-section (1) does not apply in relation to a discrimination if-
(a) the discrimination makes only reasonable allowance for differences in the cost or likely cost of manufacture, distribution, sale or delivery resulting from the differing places to which, methods by which or quantities in which the goods are supplied to the purchasers; or
(b) the discrimination is constituted by the doing of an act in good faith to meet. a price or benefit offered by a competitor of the supplier.
(3) In any proceeding for a contravention of sub-section (1), the onus of establishing that that sub-section does not apply in relation to a discrimination by reason of sub-section (2) is on the party asserting that, sub-section (1) does not so apply.
(4) A person shall not, in trade or commerce-
(a) knowingly induce or attempt to induce a corporation to discriminate in a manner prohibited by sub-section (?.t?); or
(b) enter into any transaction that, to his knowledge would result in his receiving the benefit of a discrimination that is prohibited by that sub-section.
(5) In any proceeding against a person for a contravention of sub-section (4), it is a defence if that person establishes that he reasonably believed that, by reason of sub-section (2), the discrimination concerned was not. prohibited by sub-section (1)-
49. Mergers.
(1) A person shall be guilty of an offence who acquires, directly or indirectly, any shares in the capital, or any assets, of a body corporate if –
(a) as a result of the acquisition, the person would be, or be likely to be, in a position to dominate a market for goods or services; or
(b) in a case where the person is in a position to dominate a market for goods or services-
i) the body corporate or another body corporate that is related to that body corporate is, or is likely to be, a competitor of the person or of a body corporate that is related to the person; and
ii) the acquisition would, or would be likely to, substantiality strengthen the power of the person to dominate that market.
(2) A person shall not acquire, directly or indirectly, any shares in the capital, or any assets, of a corporation if-
(a) as a result of the acquisition, the person would be, or he likely to be, in a position to dominate a market, for goods or services; or
(b) in a case where the person is in a position to dominate a market for goods or services–
i) the corporation or a body corporate that is related to the corporation is, or is likely to be, a competitor of the persons; and
ii) the acquisition would, or would be likely to, substantially strengthen the power of the person to dominate that market.
(3) If-
(a) a body corporate, and a body corporate that is, or two or more bodies corporate each of which is related to or associated with the one person together are, in a position to dominate a market for goods or services; or
(b) a person, and a body corporate that is, or two or more bodies corporate each of which is, related to or associated with that person together are in a position to dominate a market for goods or services,
the person shall be deemed for the purposes of this section to be in a position to dominate that market.
(4) For the purposes of this section, a body corporate shall be taken to be associated with another body corporate (not being another body corporate that is related to the first-mentioned body corporate) if one of those bodies corporate (in this sub-section referred to as the "dominant body corporate") is, either alone or together with another body corporate that is, or other bodies corporate each of which is, related to the dominant body corporate, or associated with the dominate body corporate by another application or other applications of this sub-section, in a position to exert, whether directly or indirectly, a substantial degree of influence over the activities of the other body corporate.
(5) For the purposes of sub-section (4), the fact that a body corporate is in a position to exert a substantial degree of influence over the activities of another body corporate by reason only that –
(a) those bodies corporate are in competition in the same market; or
(b) one of those bodies corporate supplies, goods or services to the other,
shall be disregarded.
(6) In this section-
(a) a reference to a market for goods or services shall be construed as a reference to a substantial market for goods or services in Fiji; and
(b) a reference to dominating a market for goods or services shall be construed as a reference to dominating such a market either as a supplier or as an acquirer of goods or services in that market.
50. Acquisition outside Fiji.
(1) Where a person acquires, outside Fiji, otherwise than by reason of the application of paragraph (7)(b), a controlling interest in any body corporate and, by reason, but no t necessarily by reason only, of the application of paragraph (7)(b) in relation to the controlling interest, obtains a controlling interest in a corporation of each of 2 or more corporations, the Minister may, on the application of any person is satisfied that –
(a)as a result of the obtaining by the person of the last-mentioned controlling interest, the person would he, or he likely to he, in a position to dominate a substantial market for goods or services in Fiji.
(b) in a case where the person is in a position to dominate such a market –
i) the body corporate or another body corporate that is re, related to that body corporate is, or is likely to be, a competitor of the person or of a body corporate 1,hn(, is related to the person; and
ii) the acquisition would, or would be likely to, substantially strengthen the power of the person to dominate H?int market; and
(c) the obtaining by the person of the last-mentioned controlling interest would not, in all the circumstances, result, or be likely to result, in such a benefit to the public that, the obtaining of that controlling interest should be disregarded for the purposes of this section,
make a declaration accordingly.
(2) Where an application under sub-section (1) is made –
(a) the Minister shall give to –
(i) each corporation in relation to which the application relates, a notice in writing stating that the application has been made; and
(ii)
(b) the applicant or applicants notice that they are entitled to appear, or be represented at an investigation or inquiry to be conducted under this Decree.
(3) An application under sub-section (1) may be made at any time within 6 months after the date of the acquisition referred to in that sub-section in relation to which the application is made.
(4) The Minister may, on the application any person or on his own motion, revoke a declaration made under sub-section (l)
(5) The Minister shall state in writing its reasons for making, refusing to make or revoking a declaration under sub-section (1).
(6) After the end of 3 months after a declaration is made under sub-section (1) in relation to the obtaining of a controlling interest In a corporation or 2 or more corporations by a person or, if the person, before the end of that period of 3 months, makes an application for an extension of that period, after the end of such further period (not exceeding 6 months) the corporation or each of the corporations, as the case may be, shall not, while the declaration remains in force, carry on business in the market to which the declaration relates.
(7) For the purposes of this section –
(a) a person shall be taken to hold a controlling interest in a body corporate if t It e body corporate is, or, if the person were a body corporate, would be, a subsidiary of the person (otherwise than by reason of the application of Section 4(5) (1) (b); and
(b) where a person holds a controlling a Interest (including a con trolling interest held by virtue of another applications or other applications of this paragraph) in a body corporate and that body corporate –
i) controls the composition of the board of directors of another body corporate;
ii) is in a position to cast, or control the casting of, any votes that might be cast at a general meeting of another body corporate; or
iii) holds sharer; in the capital of another body corporate,
the person shall be deemed (but not. the exclusion of any other person) to control the composition of t (that board, to be in a position t o cast, or control the casting of, those votes or to hold those shares, ns the case may be.
(2) A person commits an offence under this Decree who contravenes or fails to comply with any order or declaration matte by the Minister under Section 50(6) of this Decree.
51. Penalty for Part III.
Every person who commits an offence against this Decree is liable:-
(a) In case of an individual not less than $1000.00 and not exceeding $15,000.00 or to imprisonment, for a term not exceeding 2 years or to both such a fine and such imprisonment, and, if the offence is a continuing one, to a further fine of not less than $250.00 for every day or part of a day during which the offence that continued;
(b) In case of a body corporate, a fine not less than 55,000.00 but: not exceeding $30,000.00 and if the offence is a continuing one to a further fine of not less than $,500.00 for every day or part of:, clay during which the offence has continued.
52. Forfeiture of goods.
(1) If on the conviction of any person for an offence against Part III of this Decree the goods or any of the goods in respect of which the proceedings were taken are found to be the property of the convicted person, the convicting Court, in addition to imposing any other penalty, may make an order for the forfeiture of those goods or, any of them to the State.
(2) All goods forfeited under this section shall, on forfeiture become the property of the State otherwise disposed of as the Minister may direct.
(3) The net proceeds derived from the sale or other disposition of any such goods (after defraying the cost of sale or other disposition and any claims in respect thereof made and proved innocent persons shall be paid to the Consolidated Fund.
PART IV - CONSUMER PROTECTION
Division 1 - General Rules
53. Interpretation.
(1) For the purposes of this Division, where a person makes a representation with respect to any future matter (including the doing of, or the refusing to do, any act) and the person does not. have reasonable grounds for making the representation, the representation shall be taken to be misleading.
(2) The onus of grounds for making a (1) is on the person.
(3) Subsection (1) shall not be taken to limit by implication the meaning of a reference in this Division to a misleading representation, a representation that is misleading in a material. particular or conduct that is misleading or is likely or liable to mislead.
54. Misleading or Deceptive Conduct.
(1) A person shall not, in trade or commerce engage in conduct that is misleading or deceptive or is likely to mislead or deceive.
(2) Nothing in this Division shall be taken as limiting by implication the generality of subsection (1).
55. Unconscionable Conduct.
(1) A person shall not, in trade or commerce, in connexion with the supply or possible supply of goods or services to a person (in this section referred to as the customer), engage in conduct that is, in all. the circumstances, unconscionable.
(2) Without limiting the matters to which regard may be had for the purpose of determining whether a supplier tins contravened subsection (1) in connexion with the supply or possible supply of goods or services, regard may be find to –
(a) the relative strengths of the bargaining positions of the supplier and the customer;
(b) whether, as a result of conduct engaged in by the supplier, the customer was required to comply with conditions that were not reasonably necessary for the protection of the legitimate interests of the supplier;
(c) whether the customer was able to understand any documents relating to the supply or possible supply of the, goods or services;
(d) whether any undue influence or pressure was exerted on, or any unfair tactics were rued against, the customer (or person acting on behalf of the customer) by the supplier or a person acting on behalf of the supplier in relation to the supply or possible supply of the goods or services; and
(e) the amount for which, and the circumstances under which, the customer could have acquired identical or equivalent goods or services from a person other than the supplier.
(3) A supplier shall not lie taken for the purposes of this section to engage in unconscionable conduct in connection with the supply or possible supply of goods or services to a customer only because the. supplier institutes legal proceedings in relation to that supply or possible supply or refers a dispute or claim in relation to that supply or possible supply to arbitration.
(4) For the purpose of determining whether a supplier has contravened subsection (I) in connexion with the supply or possible supply of goods or services to a customer –
(a) regard shall. not be had to any circumstances that were not reasonably foreseeable at the time of the alleged contravention; and
(b) regard may be had to conduct engaged in, or circumstances existing, before the commencement of this Decree.
(5) Any person who fails to comply or contravenes this section is guilty of an offence.
56. False or Misleading Representation.
(1) A person shall not, in trade or commerce, in connexion with the supply or possible supply of goods or services or in connexion with the promotion by any means of the supply or use goods or services-
(a) falsely represent that goods are of a particular standard, quality, grade, composition, style or model or have had a particular history or particular previous use which they do not have;
(b) represent that services are of a particular standard, quality or grade they do not have;
(c) represent that goods are new or unused, if they are not or are reconditioned or reclaimed;
(d) represent that a particular person has agreed to acquire goods or services when that other person has not;
(e) represent that goods or services have sponsorship, approval, performance, characteristics, accessories, uses or benefits they do not have;
(f) represent that the person has sponsorship approval or affiliation the person does not have;
(g) make a representation concerning that a price advantage of goods or services exists if it does not;
(h) make a representation concerning the availability of facilities for the repair of goods or of spare parts for goods when they are not;
(i) make false or misleading representation concerning the place of origin of goods;
(j) make a false or misleading representation concerning the need for any goods or services; or
(k) make representation concerning the existence, exclusion or effect of any condition, warranty, guarantee, right or remedy that person does not have.
(2) A person who contravenes this section shall be guilty of an offence.
57. Misleading Advertisement.
Any person who:-
(a) to promote, directly or indirectly, the supply of any goods or services; or
(b) to promote any business or trade interest, publishes or cause to be published any advertisement containing a false or misleading statement of fact,
shall be guilty of an offence.
58. False representations and other misleading or offensive conduct in relation to land.
(1) A person shall not, in trade or commerce, in connexion with the sale or grant, or the possible sale or grant, of an interest in land or in connexion with the promotion by any means the sale or grant of an interest in land-
(a) represent that the person has sponsorship, approval or affiliation it does not have;
(b) make a false or misleading representation concerning the nature of the interest in the land, the price payable for the land
(2) A person shall not use physical force or undue ????•or coercion in connection with the sale or grant, or possible grant or grant, of an interest in land or the ???? for and interest in land.
(3) Nothing in this section shall be taken as implying other provisions of this Division do not apply in relation to the supply or acquisition, or the possible supply or position, or interests in land.
(4) A person who contravenes this section shall be guilty offence.
(5) In this section, "interest", in relation to land means-
(a) a legal or equitable estate or interest in the land;
(b) a right of occupancy of the land, or of a building or part of a building erected on the land, arising by virtue of the holding of shares, or by virtue of a contract to purchase shares, in an incorporated company that owns the land or building; or
(c) a right, power or privilege over, or in connexion with, the land.
59. Misleading conduct to which Industrial Property convention applies.
(1) A person shall not, in trade or commerce, engage in conduct that is liable to mislead the public as to the nature, the manufacturing process, the characteristics, the suitability for their purpose or the quantity of any goods.
(2) A person who contravenes this section shall be guilty of an offence.
60. Misleading Conduct in Relation to Employment.
(1) A person shall not, in relation to employment that is to be, or may be, offered by the person or by another person, engage in conduct that is liable to mislead persons seeking the employment as to the availability to, nature, terms or conditions of, or any other matter relating to, the employment.
(2) A person who contravenes this section shall be guilty of an offence.
61. Cash Price To Be Stated In Certain Circumstances.
(1) A person shall not, in connexion with the supply or possible supply of goods or service or in connexion with the promotion by any means of the supply or use of goods or services, make a representation with respect to an amount that, if paid, would constitute a part or the consideration for the supply or the goods or services unless the person also specified the cash price for the goods or services.
(2) A person who contravenes this section shall be guilty of an offence.
62. Certain Misleading Conduct In Relation To Goods.
(1) A person shall not, engage in conduct that is liable to mislead the public as to the nature, the manufacturing process, the characteristics, the suitability for their purpose. or the quantity or any goods.
(2) A person who contravenes this section shall be guilty of an offence.
63. Certain Misleading Conduct In Relation To Services.
(1) A person shall not, engage in conduct and make representation purporting to be on behalf of some other person that is capable of obtaining services or goods and is liable to mislead the public as to the nature, the characteristics, the suitability for their purpose or the quantity of any services.
(2) A person who contravenes this section shall be guilty of an offence.
64. Offering Gifts and Prizes.
(1) A person shall not, in trade or commerce, in connexion with the supply or possible supply of goods or services or in connexion with the promotion by any means of the supply or use of goods or services, offer gifts, prizes or other free items and does not provide them as offered shall be guilty of an offence.
65. Bait Advertising.
(1) A person shall not, in trade or commerce, advertise goods or services for supply at a specified price if there are reasonable grounds, of which the person is aware, or ought reasonably to be aware, for believing that the person will not be able to offer for supply those goods or services at that price for a period that is, and in quantities that are, reasonable having to the nature of the market in which the person carries on business and the nature of the advertisement.
(2) A person who has, in trade or commerce, advertised goods or services for supply at a specified price shall offer the goods or services for supply at that price for a period that is, and in quantities that, reasonable having regard to the nature of the market in which the person carries on business and the nature of the advertisement.
(3) A person who contravenes this section shall be guilty of an offence.
(4) in proceedings for an offence in relation to a failure to otter goods or services to a person (in this subsection refereed to as the "customer") in accordance with subsection (2), it is a defence if it is established that -
(a) the defendant offered to supply, or to procure another person to supply, goods or services of the kind advertised to the customer within a reasonable time, in a reasonable quantity and not the advertised price; or
(b) there are reasonable grounds, of which the person is aware, or ought, reasonably to be aware, for believing that the person will not be able to supply the goods or services within the period specified by the person or, if no period Is specified, within a reasonable time.
66. Referral Selling.
(1) A person shall not, in trade or commerce, induce a consumer to acquire goods or services by representing that the consumer will, after the contract for the acquisition for the goods and services is made, receive a rebate, commission or other benefit in return for giving the person the names of prospective customers or other services assisting the person t supply goods or services to other consumers, if receipt of the rebate, commission or other benefit is contingent on an event occurring after that contract is made.
(2) A person who contravenes this section shall be guilty of an offence.
67. Accepting Payment Without Being Able to Supply As Ordered.
(1) A person shall not in trade or commerce, accept payment or other consideration for goods or services where, at the time of the acceptance-
(a) the person intends-
i) not to supply the goods or services; or
ii) to supply goods or services materially different from the goods or services in respect of which the payment of other consideration is accepted; or
(b) there are reasonable grounds, of which the person is aware, or ought reasonably to be aware, for believing that the person will not be able to supply goods or services within the period specified by the person or, if no period is specified, within a reasonable time.
(2) A person who contravenes this section shall be guilty of an offence.
68. Misleading Representation About Certain Business Activities.
(1) A person shall not, in trade or commerce, make a representation that is false or misleading in a material particular concerning the profitability or risk or any other material aspect of any business activity that the person has represented as one that can be, or can be to a considerable extent, carried on at or from any place of residence.
(2) Where a person, in trade or commerce, invites, whether by advertisement or otherwise, other persons to engage or participate, or to offer or apply to engage or participate, in a business activity requiring the performance by the other persons of work, or the investment of money by the other persons and the performance by them of work associated with the investment, the inviter shall not make, with respect to the profitability or risk or any other material aspect of the business activity, a representation that is false or misleading in a material particular.
(3) A person who contravenes this section shall be guilty of an offence.
69. Harassment and Coercion.
(1) A person shall not use physical force or undue harassment coercion in connexion with the supply or possible supply of gods or services to a consumer or the payment for goods or services by a consumer.
(2) A person who contravenes this section shall be guilty of an offence.
70. Application of certain Provisions to prescribed information providers.
(1) Nothing in sections 54, 56, 62, 63, or section 68 applies to a prescribed publication of matter by a prescribed information provider, other than-
(a) a publication of matter in connexion with-
(i) the supply or possible supply of goods or services; or
(ii) the promotion by any means of the supply of use of goods or services;
where –
iii) the goods or services were relevant goods or services, in relation to the prescribed information provider; or
iv) the publication was made on behalf of, or pursuant to a contract, arrangement or understanding with –
(A) a person who supplies goods or services of that kind; or
(B) a body corporate that is related to a body corporate that supplies goods or services of that kind;
(b) a publication of an advertisement.
(2) For the purposes of this section, a publication by a prescribed information provider is a prescribed publication if-
(a) in any cases- the publication was made by the prescribed information provider in the course of carrying on a business of providing information; or
(b) in the case of a person who is a prescribed information provider by virtue of paragraph (a), (b) or (c) of the definition of "prescribed information provider" in subsection (3) (whether or not the person is also a prescribed information provider by virtue of another operation of that definition)- the publication was by way of a radio or television broadcast by the prescribed information provider.
(3) In this section-
"prescribed information provider" means a person who carries on a business of providing information and, without limiting the generality of the foregoing, includes a person to whom or each of the members of an organisation to which, a license has been granted under.
Division 2 - Unsolicited Goods and Services
71. Assertion of Right to payment for Unsolicited Goods or Services, or for Making Entry in Directory.
(1) A person shall not, in trade or commerce, assert. a right to payment from another person for unsolicited goods unless the person asserting the right has reasonable cause to believe that there is a right to payment.
(2) A person shall not, in trade or commerce, assert a right to payment from another person for unsolicited services unless the person asserting the right has reasonable cause to believe that there is a right to payment.
(3) A person shall not assert a right to payment from another person of a charge for making in a directory of an entry relating to the other person, or to the profession, business, trade or occupation of the other person, unless the person asserting the right knows, or has reasonable cause to believe, that the other person has authorised the making of the entry.
(4) A person is not liable to make any payment to another person and is entitled to recover by action in a court of competent jurisdiction against another person any payment made by the person to the other person, in full or part satisfaction of a charge for the making of an entry in a directory unless the first-mentioned person has authorised the making of the entry.
(5) For the purposes of this section, a person shall be taken to assert a right to payment from another person for unsolicited goods or unsolicited services, or of a charge for the making of an entry in a directory, if the first-mentioned person-
(a) makes a demand for the payment or asserts a present or prospective right to the payment;
(b) threatens to bring any legal proceedings with a present or prospective right to the payment;
(c) places or causes to be placed the name of the other person on a list of defaulters or debtors, or threatens to do so, with a view to obtaining the payment;
(d) invokes or causes to be invoked any other collection procedure, or threatens to do so, with a view to obtaining the payment; or
(e) sends any invoice or other document stating the amount of the payment or setting out the price of the goods or services or the charge for the making of the entry and not stating as prominently (or more prominently) that no claim is made to the payment, or to payment of the price or charge, as the case may be.
(6) A person shall not be taken for the purposes of this section to have authorized the making of an entry in a directory unless -
(a) a document authorizing the malting of the entry has been signed by, or with the authority of, the person;
(b) the document specifies-
i) the name of the directory;
ii) the name and address of the person publishing the directory;
iii) particular of the entry; and
iv) the amount of the charge for the making of the entry or the basis on which the charge is, or is to be, calculated; and
(c) a copy of the document has been given to the person before the right to payment of a charge for the making of the entry is asserted.
(7) For the purposes of this section, an invoice or other document purporting to have been sent by or on behalf of a person shall be deemed to have been sent by that person unless the contrary is established.
(8) A person who contravenes this section shall be guilty of an offence.
(9) In a proceeding against a person in respect of a contravention of this section-
(a) in the case of a contravention constituted by asserting a right to payment from another person for unsolicited goods or unsolicited services- the burden lies on the defendant of proving that the defendant of proving that the defendant had reasonable cause to believe that there was a right to payment; or
(b) in the case of a contravention constituted by asserting a right to payment from another person of a charge for the making of an entry in a directory - the burden lies on the defendant of proving that the defendant knew or had reasonable cause to believe that the other person. had Authorized the making of the entry.
72. Liability of Recipient of Unsolicited Goods.
(1) A person to whom unsolicited goods are supplied by another person, in trade or commerce, is not liable to make any payment for the goods and is not liable for the loss of or damage to the goods other than loss or damage resulting from the doing of a wilful and unlawful act in relation to the goods during the period specified in subsection (4).
(2) Subject to subsection (3), where a person sends, in trade or commerce, unsolicited goods to another person-
(a) neither the person who sends the goods nor any person claiming under that person is entitled after the expiration of the period specified in subsection (4) to take action for the recovery of the goods from the person to whom the goods were sent; and
(b) upon the expiration of that period the goods become, by force of this section, the property of the person to whom the goods were sent freed and discharged from all liens and charges of any description.
(3) Subsection (2) does not apply to or in relation to unsolicited goods sent to a person if-
(a) the person has at any time during the period specified in subsection (4) unreasonably refused to permit the sender or the owner of the goods to take possession of the goods;
(b) the sender or the owner of the goods has within that period taken possession of the goods; or
(c) the goods were received by the person in circumstances in which the person knew, or might reasonably be expected to have known, that the goods were not intended for the person.
(4) The period referred to in subsections (1), (2) and (3) is-
(a) if the person who receives the unsolicited goods gives notice with respect to the goods to the sender in accordance with subsection (5)-
i) the period of 30 days next following the day on which the notice is given; or
ii) the period of 90 days next following the day on which the person received the goods,
whichever first expires; and
(b) in any other case- the period of 90 days next following the day on which the person received the goods.
(5) A notice referred to in subsection (4) shall be in writing and shall –
(a) state the name and address of the person who received the goods;
(b) state the address at which possession may be taken of the goods if it is an address other than that of the person; and
(c) contain a statement to the effect that the goods are unsolicited goods.
73. False Orders.
(1) A person shall not make a request in the name of another person that goods be sent to that other person where, if those goods were sent to that other person, those goods would be unsolicited goods.
(2) Any person who contravenes this subsection (1) shall be guilty of an offence.
(3) In a prosecution for an offence against this section the burden lies on the defendant to prove his authority to make the request.
Division 3- Mock Auctions.
74. Prohibition on Mock Auctions.
(1) A person shall not promote or conduct a mock auction of goods.
(2) Subject to subsection (3) an auction of goods in a mock auction if, but only if, during the course of the auction-
(a) goods are sold for less than the highest bid made by the purchaser, or part of the purchase price is repaid or credited to the purchaser;
(b) the right to bid for any lot is restricted to persons who have bought. or agreed to buy other goods; or
(c) any goods are given away or offered as gifts.
(3) An auction is not a mock auction by virtue of paragraph (a) of subsection (2) if it is proved that the reduction in price or the repayment or credit ( as the case may be) was made-
(a) because of a defect of which the auctioneer became aware after the highest bid was made; or
(b) because of damage sustained after that bid was made.
(4) A person who contravenes this section shall be guilty of an offence.
(5) For the purposes of proceedings for an offence against this section-
(a) a statement purporting to be a statement of fact, made by or on behalf of the auctioneer during the course of an auction of goods and tending to show that the auction is a mock auction is admissible as conclusive evidence of the fact stated; and
(b)anything done, before or after an auction, in or about the place where the auction has been or is to be held, if done in connexion with the auction, shall be taken to be done during the course of the auction.
Division 4- Door to Door Sales.
75. Interpretation.
(1) In this Division unless the contrary intention appears-
"contract to which this Division applies" means a contract to which this Division applies by virtue or section 76;
"cooling-off period" in relation to a prescribed contract, means the period of l4 days commencing on and including the day on which the contract is made;
"dealer" means a person who in the course of door-door trading-
(a) enters into negotiations with another person with a view to the making of a contract for the supply of goods or services to that other person; or
(b) calls on another person for the purpose of entering into such negotiations;
whether or not that person is or is to be the supplier of the goods or services;
"door-to-door trading" means the trading practice under which-
(a) a person-
i) goes from place to place; or
ii) makes telephone calls, seeking out persons who may be prepared to enter, as consumers, into contracts for the supply of goods or services; and
(b) that person or some other person then or subsequently enters into negotiations with those perspective consumers with a view to the making of such contracts;
"negotiations" includes any discussion or dealing directed towards the making a contract (whether or not the terms of the contract are open to negotiation);
"prescribed contract" has the meaning assigned by section 78;
"related contract or instrument" in relation to a contract to which this division applies, means-
(a) a contract of guarantee or indemnity that is related to the contract;
(b) an instrument related to the contract that creates a mortgage or charge in favour of the supplier or dealer, or a person nominated by the supplier or dealer; or
(c) any other contract or instrument (not being an instrument of the kind referred to in paragraph (b) that is collateral or related to the contract.
(2) In this Division-
(a) a reference to the consumer or supplier under a contract for the supply of goods or services extends to any person to whom the rights of the original consumer or supplier under the contract are assigned or transferred, or pass by operation of law; and
(b)a reference to negotiation of a contract to which this Division applies is a reference to negotiation of a contract that would, on its formation, be a contract to which this Division applies.
(3) For the purposes of this Division, a contract is a contract for the supply of goods or service to a person (being a party to the contract) if it provides for the supply of goods or services wither to that person or some other person but on the order of that person.
76. Contracts to Which This Division Applies.
(1) Subject to this section, this Division applies to a contract for the supply of goods or services to a consumer (whether or not the law of Fiji is the proper law of the contract) if the following conditions are satisfied-
(a) negotiations leading to the formation of the contract (whether or not they are the only negotiations that precede the formation of the contract) take place between the consumer and a dealer in each other’s presence in Fiji at a place other than trade premises of the supplier;
(b) the dealer attend at that place-
i) in the course of door-to-door trading; and
ii) otherwise than at the unsolicited invitation of the consumer.
(2) For the purposes of paragraph (b) of subsection (1)-
(a) in determining whether an invitation is solicited or unsolicited, any solicitation by way of-
i) printed or written material delivered but not addressed personally to the consumer which contains a readily legible and easily understood statement soliciting an invitation; or
ii) advertisement addressed to the public or a substantial section of the public,
shall be disregarded; but
(b) except as provided in paragraph (a), where an invitation arises from a communication initiated by the supplier or dealer, the invitation shall not be regarded as unsolicited.
77. Prohibition of Certain Contractual Terms.
(1) A contract to which this Division applies shall not contain -
(a) a provision purporting to provide that the contract, or any proceeding arising from the contract, is governed by the law of a piece other than Fiji;
(b) a provision purporting to provide that legal proceedings arising out of, or in relation to, the contract are justifiable only by the courts of a place other than Fiji;
(c) a provision purporting to exclude, restrict, or modify any right conferred on a consumer by this Division; or
(d) a provision of a kind prohibited by the regulations.
(2) Where a contract to which this Division applies contain a provision contrary to subsection (1), the provision is void and the supplier and the dealer each commit an offence against this Decree.
(3) In this section "contract to which this Division applies" includes a related contract or instrument.
(4) Any person who contravenes this section is guilty of an offence.
78. Definition of Prescribed Contract.
(1) Subject to this section, a contract to which this Division applies is a prescribed contract if the total consideration payable by the consumer under, or in respect of, the contract-
(a) is not ascertainable at the time of the making of the contract; or
(b) is ascertainable at the time of the making of the contract and exceeds the prescribed amount.
(2) Where-
(a) two or more contracts relate to substantially the same transaction; and
(b) the transaction could have been affected by a single contract which would, in that case, have constituted a prescribed contract,
then each of the contracts that would not, if it stood alone, constitute a prescribed contract becomes a prescribed contract and, for the purpose of ascertaining the cooling-off period in relation to such a contract, it shall be deemed to have been made when the last of the contracts was made.
(3) The following are not prescribed contracts:-
(a) a contract of insurance;
(b) a contract solely for the provision of credit;
(c) a contract of a kind declared by the regulations not to be a prescribed contract.
(4) In this section, "the prescribed amount" means $5.00 if another amount is prescribed in the regulations, that other amount.
79. Requirements in Relation to Prescribed Contracts.
(1) The following requirements shall be complied with in relation to a prescribed contract-
(a) the contract shall set out in full all the contractual terms, including-
i) the total consideration to be paid or provided by the consumer or, if the total consideration is not ascertainable, at the time the contract is made, the manner in which it is to be calculated; and
ii) if the contract provides for the carrying out of work of a prescribed nature- detailed particulars of the work (including any such particulars required by the regulations);
(b) the contractual terms shall be printed or typewritten ( apart from any insertion or amendments to the printed or typewritten form, which may be handwritten);
(c) the making of the contract shall be completed by the consumer signing the contract after it has already been executed by or on behalf of the supplier;
(d) the consumer shall be given a duplicate of the contract immediately after the making of the contract;
(e) where the dealer is not the supplier, the contract shall set out the full name and address of the dealer and identify that person as the dealer;
(f) the contract shall contain immediately above the place provided for the signature of the consumer the statement "THIS CONTRACT IS SUBJECT TO A COOLING-OFF PERIOD OF 14 DAYS" printed in upper case in type not smaller than 4mm;
(g) the consumer shall be given 2 notices at or immediately before the making of the contract-
i) one being a notice, in the prescribed form, explaining the right of the consumer to rescind the contract; and
ii) the other being a notice, in the prescribed for, that may be used by the consumer to rescind the contract;
(h) the notices referred to in paragraph (g) shall-
i) be printed or typewritten ( apart from any insertion, which may be handwritten);
ii) set out the full name and address of the supplier and identify that person as the supplier; and
iii) be separate from, and not attached to, and other document.
(i) the printing or typewriting of the contract, the statement referred to in paragraph (f), and the notices referred to in paragraph (g), shall be readily legible and conform with the requirements of the regulations;
(j) any handwriting (apart from a signature or initial) in the contract or a notice referred to in paragraph (g) shall be readily legible.
(2) If any of the requirements of subsection (1) is not complied with, the supplier and the dealer each commit an offence against this decree.
(3) Where a consumer acknowledges, in writing, receipt of a document required to be given under subsection (1), the acknowledgements evidence, but not conclusive evidence, that the document was given to the consumer as required by that subsection.
80. No Consideration During Cooling-off Period.
(1) If a supplier or dealer accepts any money or other consideration from a consumer under a prescribed contract or a related contracted or instrument before the expiration of the cooling-off period, the supplier and the dealer each commit an offence against this Decree.
(2) Subject to Subsection (3), if services are supplied under a prescribed contract before the expiration of the cooling-off period, the supplier commits an offence against this Decree.
(3) Subsection (2) does not apply to the supply of services of a kind excluded by the regulations from the application of that subsection.
81. Prohibited Hours.
(1) Except by prior appointment, a dealer shall not call on a person-
(a) at any time on a Sunday or a public holiday;
(b) on a Saturday after 9.00pm
(c) on any other day-
i) between midnight and 8.00am; or
ii) between 8.00pm and midnight,
for the purpose of negotiating a contract to which this Division applies or for an incidental or related purpose.
(2) Any dealer who calls on a person in contravention of this section is guilty of an offence.
82. Duties of Dealers.
(1) A dealer who calls at premises for the purpose of negotiating a contract to which this Division applies or for an incidental or related purpose shall leave the premises at the request of the occupier of the premises or any person acting with the actual or implied authority of the occupier.
(2) A dealer who calls on a person for the purpose of negotiating a contract to which this Division applies or for an incidental or related purpose shall, as soon as it is practicable to do so-
(a) make known to that person the purpose of the call; and
(b) produce to that person an identity card setting out-
i) the dealer’s full name and address; and
ii) if the dealer is not the supplier, the supplier’s full name and address.
(3) Any dealer who acts in contravention of this section is guilty of an offence.
83. Right of Rescission.
(1) A consumer may rescind a contract to which this Division applies (whether or not the contract is a prescribed contract) within 12 months of the date of the contract-
(a) if the contracted or a related contract or instrument contains a provision contrary to section 77; or
(b) if the supplier or a dealer commits an offence against sections 69, 81 or 82 in the course of, or in relation to, the negotiations leading to the formation of the contract.
(2) A consumer may rescind a prescribed contract-
(a) at any time before the expiration of the cooling-off period; or
(b) if there has been a failure to comply with any of the requirements of section 79 in relation to the contract-within 12 months of the date of the contract; or
(c) if the supplier or dealer commits an offence against section 80 in relation to the prescribed contract or a related contract or instrument- with 12 months of the date of the prescribed contract.
(3) A right of rescission conferred by this section may be exercised-
(a) notwithstanding affirmation of the contract by the consumer; and
(b) notwithstanding that the contract has been fully executed.
84. Exercise of Right of Rescission.
(1) A consumer exercises a right of rescission conferred by this Division by giving to the supplier a notice of rescission-
(a) in writing in the form prescribed by the regulations or in a form that clearly indicates an intention on the part of the consumer to rescind the contract; and
(b) (except in the case of a notice in respect of a prescribed contract during the cooling-off period) stating the ground of rescission.
(2) A notice of rescission sent by post to a supplier in accordance with section 135 shall be deemed to have been given to the supplier at the time of posting.
85. Restitution.
(1) Where a con tract to which this Division applies is rescinded under this Division, restitution shall be made by the parties to the contract as follows-
(a) the supplier shall return or refund to the consumer any consideration or the value of any consideration given by the consumer under the contract or a related contract or instrument;
(b) the consumer shall-
i) return or refund to the supplier any goods or the value (as at the date of supply) of any goods received from the supplier under the contract; and
ii) pay to the supplier the value of any services supplied under the contract up to the time of rescission (but not including the value of any such services supplied under a prescribed contract before the expiration of the cooling-off period in contravention of this Division).
(2) Where the consumer makes goods available for collection by the supplier at the place at which they were received from the supplier for the period of 28 days from the date of rescission of the contract and the supplier fails to collect the goods before the expiration of that period, the consumer shall de deemed to have made restitution in respect of those goods as required by subsection (1) and the goods shall become the property of the consumer free of any other right or interest.
(3) Where the consumer returns the goods to the supplier under this section but has failed to take reasonable care of the goods, the consumer is liable to pay compensation to the supplier for the damage to or depreciation in the value of the goods, but the consumer is not liable for any such damage or depreciation attributable to normal use of the goods or circumstances beyond the control of the consumer.
(4) Where restitution of goods is not possible ( because the goods have been consumed or affixed to land, because a third party has acquire an interest in the goods, or for any other reason), the impossibility of restitution of the goods is not a bar to rescission under this Division but, in that event, the consumer is liable to pay to the supplier the value of the goods as at the date of supply.
(5) The obligations imposed by this section may be enforced by action in any court, of competent jurisdiction.
(6) A court convicting a supplier of an offence against this Division is competent to make orders, on the application of the prosecutor, for the enforcement of obligations imposed by this section.
(7) A person who fails to comply with an order under subsection (6) commits an offence against this Decree.
86. Related Contracts or Instruments.
Where a contract to which this Division applies is rescinded under this Division, any related contract or instrument is void.
87. Consumer not Competent to Waive of Rights.
The consumer under a contract to which this Division applies is not competent to waive any right conferred by this Division.
88. Prohibition of Certain Actions.
(1) Where a contract to which this Division applies has been rescinded, or is capable of being rescinded, under this Division, no person shall, for the purpose of recovering an amount alleged to be payable by the consumer under the contract or a related contract or instrument-
(a) bring, or assert an intention to bring, legal proceedings against the consumer;
(b) place the name of the consumer or cause the name of the consumer to be placed, on any list of defaulters or debtors, or assert an intention of placing the name of the consumer, or causing the name of the consumer to be placed, on any such list; or
(c) take any other action against the consumer.
(2) Subsection (1)(a) does not prohibit-
(a) the bringing of, or asserting of an intention to bring, legal proceedings to determine whether or not a contract to which this Division applied has been, or is capable of being rescinded under this Division; or
(b) the continuation of such proceedings (for the purpose of recovering an amount alleged to be payable by the consumer under the contract or a related contract or instrument) where it is determined that the contract has been, or is not capable of being, so rescinded.
(3) Where a person is convicted or no offence against subsection (1) (b), the court may order the person responsible for keeping any list on which the name or the consumer has been wrongfully placed to remove the name from that list.
(4) A person who fails to comply with an order under subsection (3) commits an offence against this Decree.
89. Evidentiary Matter Concerning This Division.
Where it is alleged in any proceedings that-
(a) a contract for the supply of goods or services is a contract to which this Division applies or a prescribed contract it shall be presumed, unless the contrary is proved, that the contract is such a contract;
(b) a contract is a related contract to a contract to which this Division applies it shall be presumed, unless the contrary is proved, that the contract is such a contract;
(c) a person was acting as a dealer within the meaning of this Division it shall be presumed, unless the contrary is proved, that the person was so acting.
PART V- CONDITIONS AND WARRANTIES
IN CONSUMER TRANSACTIONS.
Division 1-Warranty
90. Interpretation
In this Division-
“express warranty", in relation to goods, means an undertaking, assertion or representation in relation to-
(a) the quality, performance or characteristic of the goods;
(b) the provision of services that are or may at a time be required in respect of the goods;
(c) the supply of parts that are or may at any time be required for the goods; or
(d) the future availability of identical goods, or of goods constituting or forming part of a set, of which the goods in relation to which the undertaking, assertion or representation is given or made form part, given, or made in connection with the supply of the foods or in connection with the promotion by any means of the supply or use of the goods, the natural tendency of which is to induce persons to acquire the goods.
91. Actions in respect of unsuitable goods.
(1) Where-
(a) a corporation, in trade or commerce, supplies goods manufactured by the corporation to another person who acquires the goods for re-supply;
(b) a person (whether or not the person who acquired the goods from the corporation) supplies the goods (otherwise than by way of sale by auction) to a consumer;
(c) the goods are acquired by the consumer for a particular purpose that was, expressly or by implication, made known to the corporation, either directly, or through the person from whom the consumer acquired the goods or a person by whom any antecedent negotiations in connexion with the acquisition of the goods were conducted;
(d) the goods are not reasonably fit for that purpose, whether or not that is a purpose for which such goods are commonly supplied; and
(e) the consumer or a person who acquires the goods from, or derives title to the goods through or under, the consumer suffers loss or damage by reasons that the goods are not reasonably fit for that purpose,
the corporation is liable to compensate the consumer or that other person for the loss or damage and the consumer or that other person may recover that amount of the compensation by action against the corporation in a court of competent jurisdiction.
(2) Sub-section (1) does not apply-
(a) if the goods are not reasonably fit for the purpose referred to in that sub-section by reason of-
i) an act or default of any person (not being a corporation or a servant or agent of the corporation); or
ii) cause independent or human control, occurring after the goods have left the control of the corporation; or
(b) where the circumstances show that the consumer did not rely, or that it was unreasonable for the consumer to rely, on the skill or judgement of the corporation.
92. Actions in respect of false descriptions.
(1) Where-
(a) a corporation, in trade or commerce, supplies goods manufactured by the corporation to another person who acquires the goods for re-supply;
(b) a person (whether or not the person who acquired the goods from the corporation) supplies the goods (otherwise than by way of sale by auction) to a consumer by description;
(c) the goods do not correspond with the description; and
(d) the consumer or a person who acquires the goods from, or derives title to the goods through or under, the consumer suffers loss or damage by reason that the goods do not correspond with the description,
the corporation is liable to compensate the consumer or that other person for the loss or damage and the consumer or that other person may recover the amount of the compensation by action against the corporation in a court of competent jurisdiction.
(2) Sub-section (1) does not apply if the goods do not correspond with the description referred to in that sub-section by reason of-
(a) an act or default of any person (not being the corporation or servant or agent of the corporation); or
(b) a cause independent of human control, occurring after the goods have left the control of the corporation.
(3) A corporation is not liable to compensate person for loss or damage suffered by the person by reason that goods do not correspond with a description unless the description was applied to the goods-
(a) by or on behalf of the corporation; or
(b) with the consent of the corporation, whether express or implied.
(4) If the goods referred to in sub-section (1) are supplied to the consumer by reference to a sample as well as by description, it is not a defence to an action under this section that the bulk of the goods corresponds with the sample if the goods do not also correspond with the description.
93. Action in respect of goods of unmerchantable quality.
(1) Where-
(a) a corporation, in trade or commerce, supplies goods manufactured by the corporation to another person who acquires the goods for re-supply;
(b) a person (whether or not the person who acquired the goods from the corporation) supplies the goods (otherwise than by way of sale by auction) to a consumer;
(c) the goods are not of merchantable quality; and
(d) the consumer or a person who acquires the goods from, or derives title to the goods through or under, the consumer suffers loss or damage by reason that the goods are not of merchantable quality,
the corporation is liable to compensate the consumer or that other person for the loss or damage and the consumer or that other person may recover the amount of the compensation by action against the corporation in a court of competent jurisdiction.
(2) Sub-section (1) does not apply-
(a) if the goods are not of merchantable quality by reason of-
i) an act or default of any person (not being the corporation a servant or agent of the corporation); or
ii) a cause independent of human control,
occurring after the goods have left the control of the corporation;
(b) as regards defects specifically drawn to the consumer’s attention before the making of the contract for the supply of the goods to the consumer; or
(c) if the consumer examines the goods before that contract is made, as regards defects that the examination ought to reveal.
(3) Goods of any kind are of merchantable quality within the meaning of this section if they are as fit for the purpose or purposes for which goods of that kind are commonly bought as it is reasonable to expect having regard to-
(a) any description applied to the goods by the corporation;
(b) the price received by the corporation for the goods (if relevant); and
(c) all other relevant circumstances.
94. Actions in respect of non-correspondence with samples.
(1) Where-
(a) a corporation in trade or commerce, supplies goods manufactured by the corporation to another person who acquires the goods for re-supply;
(b) a person (whether or not the person who acquired the goods from the corporation) supplies the goods (otherwise than by way of sale by auction) to a consumer;
(c) the goods are supplied to the consumer by reference to a sample;
(d) the bulk of the goods does not correspond with the sample in quality or the goods have a defect, rendering them unmerchantable, that is not, or would not be, apparent on reasonable examination of the sample; and
(e) the consumer or a person who acquires the goods from, or derives title to the goods through or under, the consumer suffers loss or damage by reason that the bulk does not correspond with the sample in quality or by reason that the goods have that defect,
the corporation is liable to compensate the consumer or that other person for the loss or damage and the consumer or that other person may recover the amount of the loss or damage by action against the corporation in a court of competent jurisdiction.
(2) Sub-section (1) does not apply where-
(a) the sample is not supplied by the corporation;
(b) the supply by sample is made without the express or implied concurrence of the corporation; or
(c) the failure of the bulk of the goods to correspond with the sample in quality or the existence of the defect is due to-
i) an act or default of any person, (not being the corporation or a servant or agent of the corporation) or a cause independent of human control, occurring after the goods have left the control of the corporation; or
ii) other circumstances that were beyond the control of the corporation and that it could not reasonably be expected to have foreseen.
95. Actions in respect of non-compliance with express warranty.
(1) Where-
(a) a corporation, in trade or commerce, supplies goods (otherwise than by way of sale by auction) manufactured by the corporation to a consumer; or
(b) a corporation, in trade or commerce, supplies goods manufactured by the corporation to another person who acquires the goods for re-supply and a person (whether or not the person who acquires the goods from the corporation) supplies the goods (otherwise than by way of sale by auction) to a consumer,
and-
(c) the corporation fails to comply with an express warranty given or made by the corporation in relation to the goods; and
(d) the consumer or person who acquires the goods from, or derives title to the goods through or under, the consumer suffers loss or damage by reason of the failure,
the corporation is liable to compensate the consumer or that other person for the loss or damage and the consumer or that other person may recover the amount of the compensation by action against the corporation in a court of competent jurisdiction.
(2) For the purposes of any action instituted by a person against a corporation under this section, where-
(a) an undertaking, assertion or representation was given or made in connection with the supply of goods or in connection with the promotion by any means of the supply or use of goods; and
(b) the undertaking, assertion or representation would, if it had been given or made by the corporation or a person acting on its behalf, have constituted an express warranty in relation to the goods,
it shall be presumed that the undertaking, assertion or representation was given or made by the corporation or a person acting on its behalf unless the corporation proves that it did not give or make, and did not cause or permit the giving or making of, the undertaking, assertion or representation.
Division-2 Manufacturer and Importer-Liability
96. Actions Against Manufacturer and Importer.
(1) In this Division-
(a) a reference to the quality of goods includes a reference to the state of condition of the goods;
(b) a reference to antecedent negotiations in relation to the acquisition of goods by a consumer shall be read as a reference to any negotiations or arrangements conducted or made with the consumer by another person in the course of a business carried on by the other person whereby the consumer was induced to acquire the goods or which otherwise promoted the acquisition of the goods by the consumer; and
(c) a reference to the person by whom any antecedent negotiations were conducted shall be read as a reference to the person by whom the negotiations or arrangements concerned were conducted or made;
(d) "Manufactured" includes grown, extracted, produced, processed and assembled.
(2) Corporation Deemed to be a Manufacturer.
Where:-
(a) a corporation holds itself out to the public as the manufacturer of goods;
(b) a corporation causes or permits the name of the corporation a name by which the corporation carries on business or a brand or mark of the corporation to be applied to goods supplied by the corporation; or
(c) a corporation causes or permits another person, in connexion with the supply or possible supply of goods by that other person, or in connexion with the promotion by that other person by any means of the supply or use of goods, to hold out the corporation to the public as the manufacturer of the goods,
the corporation shall be deemed, for the purposes of this Division, to have manufactured the goods.
(3) Importer Deemed to be a Manufacturer.
Where:-
(a) goods are imported into Fiji by a corporation that was not the manufacturer of the goods; and
(b) at the time of the importation the manufacturer of the goods does not have a place of business in Fiji,
the corporation shall be deemed, for the purposes of this Division, to have manufactured the goods.
(4) Application of name, brand or mark.
For the purposes of paragraph (3)(b) -
(a) a name, brand or mark shall be deemed to be applied to goods if it -
i) is woven in, impressed on, worked into or annexed or affixed to the goods; or
ii) is applied to a covering, label, reel or thing in or with which the goods are supplied; and
(b) if the name of a corporation, a name in which a corporation carries on business or a brand or mark of a corporation is applied to goods, it shall be presumed, unless the contrary is established, that the corporation caused or permitted the name, brand or mark to be applied to the goods.
(5) Covering.
The reference in sub-section (4) to a covering includes a reference to a stopper, glass, bottle, vessel, box, capsule, case, frame or wrapper and the reference in that sub-section to a label includes a reference to a band or ticket.
(6) Corporation deemed to be Importer.
If goods are imported into Fiji on behalf of a corporation, the corporation shall be deemed, for the purposes of this Division, to have imported the goods into Fiji.
(7) Compensation For Unfit Goods.
(1) Where-
(a) a corporation in trade or commerce, supplies goods manufactured by the corporation to another person who acquires the goods for re-supply;
(b) a person (whether or not the person who acquired the goods from the corporation) supplies the goods (otherwise than by way of sale by auction) to a consumer;
(c) the goods are acquired by the consumer for a particular purpose that was, expressly or by implication, made known to the corporation, either directly, or through the person from whom the consumer acquired the goods or a person by whom any antecedent negotiations in connexion with the acquisition of the goods were conducted;
(d) the goods are not, reasonably fit for that purpose, whether or not that is a purpose for which such goods are commonly supplied,
the corporation is liable to compensate the consumer or that other person for the loss of damage anti the consumer or that other person may recover the amount of the loss or damage by action against the corporation in a court of competent jurisdiction.
97. Supply of facilities for repair or parts:
(1) Where-
(a) a corporation in trade or commerce, supplies goods (otherwise than by way of sale by auction) manufactured by the corporation to a consumer; or
(b) a corporation in trade or commerce, supplies goods manufactured by the corporation to another person who acquires the goods for re-supply and a person (whether or not the person who acquired the goods from the corporation) supplies the goods (otherwise than by way of sale by auction) to a consumer, and-
(c) at a time (in this section referred to as the "relevant time") after the acquisition of the goods by the customer-
i) the goods require to be repaired but facilities for their repair are not available to the consumer or a person who acquires the goods from, or derives title to the goods through or under, the consumer; or
ii) a part is required for the goods but the part is not reasonably available to the consumer or a person who acquires the goods from, or derives title to the goods through or under, the consumer;
(d) the corporation acted unreasonably in failing to ensure that facilities for the repair of the goods were, or that the part was, reasonably available to the consumer or that other person at the relevant time; and
(e) the consumer or that other person suffers loss or damage by reason of the failure of the corporation to ensure that facilities for the repair of the goods were, or that the part was, reasonably available to the consumer or that other person at the relevant time,
the corporation is to compensate the consumer or that other person for the loss or damage and the consumer or that other person may recover the amount of the compensation by action against the corporation in a court of competent jurisdiction.
PART VI INFORMATION AND SAFETY PROVISIONS.
Division 1 - Information Provision
98. Information Standards.
(1) The Director shall with the approval of the Minister may provide by specification an information standard for a specified kind of goods or services.
(2) A specified information standard for goods shall consist of requirements for, and for the form and manner of disclosure of such information as to-
(a) the price, performance, composition, contents, methods of manufacturer or processing, design, construction, finish or packaging of the goods;
(b) the place of manufacture or production of the goods;
(c) the identity of the manufacturer, producer or supplier of the goods;
(d) the date of the manufacture or production, and the durable life of the goods, and
(e) use, care and storage of the goods,
as is reasonably necessary to give a person acquiring or using the goods information as to their origin, quantity, quality, nature, durability, value, or use.
(3) A specified information standard for services shall consist of requirements for, and the form and manner of disclosure of such information to be communicated to a person to whom the services are supplied as to reasonably necessary to give the person information as to the nature, the characteristic or suitability for purpose (including the proper use) of the services.
(4) Specifications under this section may be made to apply subject to -
(a) the means of supply or the class of contract, agreement or act, that constitutes the supply;
(b) the persons to whom goods or services are supplied or by whom they are likely to be used;
(c) the purpose for which goods or services are acquired;
(d) in the case of the supply of goods, whether or not the goods are to be used in Fiji oe elsewhere;
(e) any exemption or circumstances defined in the specification.
99. Compliance With Information Standard.
(1) A person shall not, in trade or commerce, supply goods or service-
(a) to a consumer; and
(b) in relation to which there is a prescribed information standard,
unless that prescribed information standard is complied with.
(2) If-
(a) a person supplies goods or services in contravention of subsection (1); and
(b) another person suffers loss or damage by not having particular information relating to the goods or services but would not have suffered it if the prescribed information standards had been complied with,
the person who suffers the loss or damage shall be deemed, for the purposes of this Decree, to have suffered it by the supplying of the goods or services.
(3) A person who contravenes this section shall be guilty of an offence.
(4) If a person is found guilty of the offence of supplying goods in contravention of subsection (1), any court before which he is found guilty, in addition to imposing any penalty, may order the goods to be forfeited to the state.
Goods forfeited to the State under this subsection my be disposed of in such manner as the Minister directs.
(5) in this Division, the word "supply" includes offer to supply and in relation to the supply of goods includes expose, exhibit or have in possession for supply.
Division 2 - Safety Provisions
100. Safety Standards.
(1) The Minister may by regulations prescribe a safety standard for a specified kind of goods or services.
(2) A prescribed safety standard for goods shall consist of such requirements as to-
(a) performance, composition, contents, methods of manufacture or processing, design, construction, finish or packaging of the goods;
(b) the testing of the goods during, or after the completion of manufacture or processing;
(c) the form and manner of disclosure of warnings, instructions or other information to accompany the goods or to be communicated to a person to whom the goods are supplied; and
(d) equipment or accessories to be supplied with the goods, as are reasonably necessary to prevent or reduce risk of injury, including physical, mental or psychological injury, to any person.
(3) A prescribed safely standard for services shall. consist of such requirements as to-
(a) the manner in which services are to be supplied; and
(b) the form and manner of disclosure of warnings, instructions or other information to be communicated to a person to whom services are to be supplied,
as are reasonably necessary to prevent, or reduce risk of injury, including physical., mental or psychological injury, to any person.
(4) Regulations under this section may be made to apply subject to -
(a) the means of supply or the class of contract, agreement or act that, constitutes the supply;
(b) the persons to whom goods or services are supplied or by whom they are likely to be used;
(c) the purpose for which goods or services are acquired;
(d) in the case of the supply of goods, whether or not the goods are to be used in Fiji or elsewhere;
(e) Any exemption or circumstance defined in the regulations.
101. Compliance with Safety Standard.
(1) A person shall not, in trade or commerce, supply goods or services in relation to which there is a prescribed safely standard unless that safety standard is complied with.
(2) If-
(a)a person supplies goods or cervices in contravention of subsection (1); and
(b) another person suffer loss or damage because of a defect in, or a dangerous characteristic of, the goods or services, or by not having particular information in relation to the goods or services, but would not have suffered it if the prescribed safety standard had been complied with,
the person who suffers the loss or damage shall be deemed, for the purposes of this Decree, to have suffered it by the supplying of the goods or services.
(3) A person who contravenes this section shall be guilty an offence.
(4) Any court, that hears and determines any charge. for an offence that a person supplied goods in contravention of subsection (1), whether or not the defendant is convicted of the offence, may order the goods to be forfeited to the Crown.
Goods forfeited to the State under this subsection may be disposed of in such manner as the Minister directs.
(5) In this Division, the word "Supply" includes offer to supply and in relation to the supply of goods includes expose, exhibit or have in possession for supply.
PART VII - MINISTERIAL PROHIBITION
102. Minister May Make Orders Prohibiting or Restricting Supply of Dangerous or Undesirable Goods or Services.
(1) The Minister, if in his opinion any goods or services of any kind are likely to cause the death of any person or to injure or adversely affect the health or well being of any person whether physical, mental or psychological, may by order published in the Gazette -
(a) prohibit the supply of those goods or service; or
(b) authorize supply of those goods or services subject to conditions or restrictions prescribed in the order.
(2) An order made under subsection (1) shall take effect from the date of publication in the Gazette or from such later date as is specified in the order.
(3) The Director shall, before the Minister makes an order under subsection (2), cause to be given to any person that in his opinion has an interest in the matter, a notice in writing accompanied by a copy of the order he intends to make calling on that person to show cause in writing why he should not make that order.
(4) A person called upon to show cause by the Director, if he wishes to show cause, shall make written submissions to the Director so that these submissions are received by the Director within 14 days of receipt by that person of the notice and copy of the order from the Director. The Minister shall consider any such submissions prior to making the order under subsection (1).
(5) In this Division the word "supply" includes offer to supply and in relation to the supply of goods includes expose, exhibit or have in possession for supply.
103. Offence to Contravene Order Under s.102.
(1) A person shall not supply goods or services in contravention of an order made under section 102.
(2) Any person who contravenes this section is guilty of an offence.
104. Seizure etc , of Goods in Certain Cases.
(1) An Inspector may at, any time seize and detain goods that he suspects on reasonable grounds are intended for supply or have been supplied in contravention of an order made under Section 102.
(2) Where a person is charged with an offence against section 102, the court before which the complaint is heard, if it is satisfied that any goods that are the subject of the charge are goods in respect of which an order under section 102, has been made, may, whether or not that person is convicted of the offence charged, order the goods to be forfeited to the state.
(3) A person claiming to he entitled to goods that have been seized and detained pursuant to subsection (1) may, within 28 days after the date of the seizure of the goods, apply to a the Court for an order for the delivery to him of those goods.
(4 ) Notice of the application shall he served by the applicant on the Director prior to the hearing of the application.
(5) The Director shall be entitled to appear at the hearing of the application as respondent and may be represented at the hearing either by an inspector appointed by him or by counsel or solicitor.
(6) In a proceeding upon an application under subsection (3)-
(a) If the Court, is satisfied that any of the goods in question are roods in respect of which an order has been made under section 102, he may order them to be forfeited to the State; and
(b) If he is not so satisfied, he may order them to be delivered to any person that appears to him to be entitled to them.
(7) Upon the expiration of 28 days after the date of seizure of goods pursuant to subsection (1), if no application for the delivery of the goods has been duly made, the goods shall be forfeited to the State.
(8) Where an application for delivery of those goods has been made under subsection (3) but has been withdrawn before it is heard then upon –
i) the withdrawal of the application; or
ii) the expiration of 28 days after the dale of seizure of the goods, whichever is the later,
the goods shall be forfeited to the State.
(9) Goods forfeited to the State under this section may be disported of in such manner as the Minister directs.
PART VIII - ENFORCEMENT AND REMEDIES
Division 1- Powers of Inspectors
105. Powers of Inspectors.
(1) For the purpose of the discharge by the Department of any of its functions under this Decree, or for any other purposes of this Decree, an Inspector may at all responsible times –
(a) enter any premises he knows or reasonably suspects –
i) are being used for the production, manufacture, assembly, preparation, storage or supply of goods or the supply of services; or
ii) have been or are being or are likely to be used by any person in connexion with a contravention of this Decree;
(b) enter any premises where he knows or reasonably suspects that records are kept relating to the supply of goods or services or relating to a contravention of this Decree;
(c) enter any premises that, he knows or reasonably suspects to be used by any person for printing or as an office in connexion with the trade or commerce of printing any newspaper or other publication which he knows or reasonably suspects to be associated with any contravention of this Decree;
(d) enter any commercial. broadcasting or television station, which he knows or reasonably suspects to he associated with any contravention of this Decree;
(e) in any premises entered by him –
i) search for, examine, take possession of or make copies of or extracts from records relating to goods or services supplied or to be supplied or relating to any matter the subject, of an investigation under this Decree;
ii) search for and examine goods found thereon;
iii) exercise any power under this Decree to seize goods without payment: or take any goods found thereon, upon payment or tendering of a reasonable price therefore;
iv) seize without payment any brochures, leaflets, books, writing, documents or other materials that he knows or reasonably suspects have been, are being, or are likely to be used to advertise, promote or make representations with respect to any matter in contravention of this Decree;
v) open any room, place or container or package that he knows or reasonably suspects to contain goods;
vi) question with respect; to matters under this Decree any person he finds thereon;
(f) make such inquiry and examination ion as he believes to be necessary or desirable to assist the discharge or exercise of any function or power under this Decree or to ascertain whether any contravention of this Decree has been, is being, or is likely to be committed.
No provision of this subsection shall be taken to authorize forcible entry by an inspector to any premises save under the authority of a warrant obtained by him pursuant to subsection(3).
(2) Before an Inspector enters any part of premises which part is used as a dwelling he shall, save where he has the permission of the occupier of that part to his entry, obtain from a Resident Magistrate a search warrant to enter.
(3) A Resident Magistrate who is satisfied upon the information of an Inspector that there is reasonable cause to suspect that any place has been or is being or is likely to be used in connexion with a contravention of this Decree or for the keeping bf records relating to a contravention of this Decree may issue his search warrant directing the Inspector to enter the place specified in the search warrant for the purpose of his exercising therein the powers conferred on art Inspector by this Decree.
(4) A search warrant issued under this section shall be, for a period of one month from its issue, sufficient authority;
(a) to the Inspector to whom it is directed and to all persons acting in aid of him to enter the place specified in the search warrant; and
(b) to the Inspector to whom it is directed to exercise in respect of the place specified in the search warrant all the powers conferred on an Inspector by this Decree.
(5) For the purpose of gaining entry to any place an Inspector may call to his aid such persons as he considers necessary and such persons, while acting in aid of an Inspector in the lawful exercise by him of his power of entry, shall have a like power of entry.
(6) Where an Inspector has taken possession of records or of other property for the purposes of this Decree he may –
(a) in the case of any records, retain the same for so long as is necessary for those purposes, but the person otherwise entitled to possession thereof, if he so requests it is entitled to be furnished as soon as practicable with a copy thereof certified by the Director to be a true copy and such a certified copy shall be received in all court and elsewhere as evidence of the matters contained therein as if it were the original;
(b) in the case of other property, subject to the express provisions of this Decree, retain the property for so .long as is necessary for those purposes, and thereafter dispose of it as the Director directs.
106. Power to Obtain Information.
(1) In relation to any matter relevant to the operation or enforcement of this Decree, an Inspector may require a person (either by oral or written requisition) to furnish -
(a) any information;
(b) any records or a copy thereof,
in the person's possession.
(2) For the purpose of subsection (1) a person shall be taken to be in possession of -
(a) information, if he has the information or is entitled to access to the information;
(b) records, if he has them in his possession or if he has them under control in any place, whether for his own use or benefit or for another's use or benefit and although another person has the actual possession or custody of the records.
(3) A requisition made under subsection (1) may require that the information or records or copy thereof be furnished –
(a) to the Inspector or another Inspector or to an officer of the Department specified;
(b) at the place the requisition is made or at another place;
(c) forthwith or at, by or within a time specified;
(d) in person, or by certified mail or in another manner specified;
(e) by means of, or accompanied by, verification in the form of, a statutory declaration made in accordance;
(f) in the case of in formation, orally or in writing.
(4) A person shall not –
(a) refuse or fail to furnish any information, records or a copy thereof as required of him under this section;
(b) in response to a requisition made under this section furnish information, records or copies thereof that is or are false or misleading in a material particular.
is guilty of an offence under this Decree.
(5) A person shall not be entitled to refuse or fail to furnish information or records or a copy thereof on the ground only that the information, or records or copy thereof would tend to incriminate him.
(6) if in response to a requisition authorized by paragraph (a) of subsection (1), a person furnishes information that would tend to incriminate him in any offence, other than an offence defined in paragraph (b) of subsection (4), the information furnished shall not be admissible in evidence against him in proceedings in any court or tribunal other than the Small Claims Tribunal.
This subsection does not apply to information as to the name and address of the person or as to his ownership of, control over or position in, any business.
(7) Where a person records or stores any matter by means of a mechanical, electronic or other device, the duty imposed by this section to produce any records containing those matters shall be construed as including a duty to produce the matters in written form if that is demanded.
The duty imposed by this section to produce a copy of any records shall be construed as a duty to produce a clear reproduction.
(8) An Inspector or officer of the Department may take notes or copies of or extracts from records or a copy thereof produced under this section.
(9) Records furnished under this section may be retained for so long as it is necessary to do so for the purposes of this Decree, but the person otherwise entitled to possession thereof, if he so requests it, is entitled to be furnished as soon as practicable with a copy thereof certified by the Director to be a true copy and such a certified copy shall be received in all courts and elsewhere as evidence of the matters contained therein as if it were the original.
107. Obstruction.
(1) A person shall not obstruct an Inspector in the exercise of his powers under this Decree.
(2) For the purposes of this Decree a person shall be deemed to obstruct an Inspector in the exercise of his powers under this Decree if he –
(a) assaults, abuses, intimidates or insults an Inspector or any other person assisting an Inspector in the exercise of his powers under this Decree;
(b) directly or indirectly deliberately prevents any person from being questioned by an Inspector or from furnishing under this Decree any information or records or copies thereof or attempts to do so; or
(c) in any other way obstructs or attempts to obstruct an inspector in the exercise of his powers under this Decree.
(3) Any person who contravenes this section shall be guilty of an offence.
Division 2 - Offences, Court Enforcement and Remedies
108. Penalties.
(1) Subject to subsections (2) and (3) any person guilty of an offence under this Decree for which no other penalty is provided is liable on conviction to a fine not exceeding $5,000 for a first offence and $10,000 for a second or subsequent offence.
(2) Where a person is convicted of any offence against this Decree and the court by which he is convicted is of opinion that the offence was committed to defraud, that person shall be liable, in addition to or instead of any other penalty, to imprisonment for a term not exceeding three years.
(3) The maximum penalty for an offence under a provision of this Decree committed by a body corporate is a fine that is five times the fine provided for in the provision or, as the case may be, a fine that is five times the fine provided for in subsection (1).
(4) If a person is convicted of an offence under this Decree and the court considers that the commission of the offence caused another person to suffer pecuniary loss, the court may order the convicted person to pay to the other person a specified amount of compensation for the loss.
(5) The court may make such an order whether or not it imposes a penalty for the offence.
(6) The amount ordered to be paid may be recovered in a court of competent jurisdiction as a debt due by the convicted person to the other person.
(7) Unless otherwise expressly provided, any goods or articles in connection with which any offence against this Decree is committed may, on conviction of any person guilty of the offence, be forfeited to the State by order of the court, and such forfeiture may, in the case of articles, extend to the whole of any similar articles found on the defendant's premises or in his possession at the time the offence was committed.
109. Continuing offences.
(1) Where a person commits an offence defined in section 106, by failing to furnish information or to produce records or a copy thereof -
(a) his obligation to furnish the information or produce the records or a copy thereof, as the case may be, continues until he complies with the requirement notwithstanding that in a particular case a time w as specified at, by or within which compliance was required grid that time has passed;
(b) he shall commit a continuing offence in respect of each day after the day of conviction during which the failure to comply with the requisition continues;
(c) he shall be liable to a penalty not less than $10.00 for each day during which the offence continues; and
(d) he may be prosecuted from time to time in respect thereof.
110. Direction To Secure Compliance.
(1) Where any goods, package or label do not comply in every respect with the provisions of this Decree or of .any regulations or orders made thereunder, or where any provision of this Decree or of any regulations or orders made thereunder has not been complied with in relation to any goods, package or label, the Inspector may direct in writing any person who has contravened these provisions by such non compliance, to take within the time specified not exceeding 14 days, such steps as may be so specified to prevent any further contravention and to remedy the matters in respect of which the non-compliance has occurred.
(2) The issue of a direction under this section shall not affect any proceeding under this Decree which has been or may be taken for the non-compliance which gave rise to the direction.
(3) Any person, to whom a direction under this section is issued, who does not comply with the direction shall be guilty of an offence.
111. Powers to Institute and Conduct Proceedings.
The Director or an inspector may, although he is not a barrister and solicitor, institute, conduct or defend before a court any charge, information, complaint or other proceeding arising under this Decree or any regulations or orders made thereunder.
112. Liability of Employer, Agent and Employee.
(1) Any manager, agent or employee who in the course of his duties does or omits to do any act which if done or omitted to be done by his principal or employer would be an offence against any of the provisions of this Decree or of any regulations or orders made thereunder shall himself be guilty of such offence, and shall be liable to the penalties provided therefore under this Decree or, as the case may be, such regulations or orders.
(2) Every principal or employer shall be answerable for the acts or omissions of his manager, agent or employee in relation to the matters provided for by this Decree and any regulations or orders made thereunder, and if any manager, agent or employee commits an offence against any of the provisions of this Decree or of such regulations or orders the principal or employer shall also be guilty of such offence and shall be liable to the penalties provided therefore under this Decree or, as the case may be, such regulations or orders, unless he proves that the offence was committed without his consent and connivance and that he took all reasonable steps to prevent its commission.
113. Officers of Corporate Bodies.
Where any offence against this Decree or against any regulations or orders made thereunder is committed by a company, firm or other association of individuals, every person who at the time of the offence was a director, manager, secretary or other similar officer of such company, firm or association, or who was at that time concerned in or purported to act in the management of its affairs, shall be severally liable to prosecution and punishment in like manner as if he had himself committed the offence, unless he proves that the offence was committed without his consent and connivance and that he took all reasonable steps to prevent its commission.
114. Offence Due to fault of Other Person.
Where the commission by any person of an offence against this Decree or against any regulations or orders made thereunder is due to the act or default of some other person that other person shall be guilty of an offence, and a person may be charged with and convicted of the offence by virtue of this section whether or not proceedings are taken against the first-mentioned person.
115. Defence of Mistake, Accident etc.
(1) In any proceedings for an offence against this Decree or against any regulations or orders made thereunder it shall, subject to subsection (2), be a defence for the person charged to prove-
(a) that the commission of the offence was due to a mistake or to reliance on information supplied to him or to the act or default of another person, an accident or some other cause beyond his control;
(b) that he took all reasonable precautions and exercised all due diligence to avoid the commission of such an offence by himself or any person under his control.
(2) If in any case the defence provided by subsection (1) involves the allegation that the commission of the offence was due to the act or default of another person or to reliance on information supplied by another person, the person charged shall not, without leave of the court, be entitled to rely on that defence unless, within a period ending seven clear days before the hearing, he had served on the prosecutor a notice in writing giving all information in his possession identifying or assisting in the identification of that other person.
116. Forfeiture Proceedings.
(1) The Director may, without instituting any prosecution, apply to the court for the forfeiture of any goods seized under this Decree, and the court in its discretion may make such an order; but if the court declines to make such an order, the Director shall return such goods to the owner.
(2) Where any goods have been seized under this Decree and at the expiration of six months from such seizure-
(a) no prosecution has been instituted in relation thereto; or
(b) no application has been made for an order under subsection (1),
the Director shall return them to the owner thereof on the receipt of an application in that behalf made in writing by such owner.
(3) Upon conviction of a person guilty of an offence against this Decree, the court may, if it thinks fit, in addition to or without inflicting any other penalty, order that any goods in respect or by means of which the offence was committed shall be forfeited to the State, unless the owner of such goods or any person acting oh his behalf or having a right in those goods shows cause to the contrary.
(4) All goods forfeited to the State under this Decree shall be dealt with or disposed of as the Minister may direct.
117. Compensation Provisions.
Where the offence in respect of which any person is convicted is an offence whereby the accused has gained any advantage over any other person in consequence of that offence, the court may, if it thinks fit, whether in addition to or without inflicting any other penalty, order the convicted person to pay to the other person such sum as may in the opinion of the court serve to compensate him for the loss sustained in consequence of the offence and for any loss of time and expenses which he may have incurred.
118. Proceedings Other Than Under This Decree.
(1) No proceeding or conviction for any offence punishable under this Decree shall affect any civil remedy to which the person aggrieved by the offence may be entitled.
(2) This Decree shall not exempt any person from any other proceeding for an offence which is punishable otherwise than under this Decree, so however, that no person shall be punished twice for the same offence.
119. Protection of Officers.
No suit, prosecution of other Legal proceedings shall lie against the Director, any inspector or any other officer administering this Decree, for anything done in good faith under the provisions of this Decree or of any regulations or orders made thereunder.
120. Innocent Publication of Advertisement.
In proceedings for an offence committed against this Decree or against any regulations or orders made thereunder, by the publication of an advertisement, it shall be a defence for the person charged to prove that he is a person whose business it is to publish or arrange for the publication of advertisements and that he received the advertisement, for publication in the ordinary course of business and did not know and had no reason to suspect that its publication would amount to an offence.
121. Presumption.
Where any goods are found in the possession or control of any person carrying oil trade or on any premises which are used for trade, that person or, as the case may be, the occupier of those premises shall be deemed for the purposes of this Decree, unless the contrary is proved, to have those goods in his possession for supply.
122. Conduct by Directors, Servants or Agents.
(1) If, in a proceeding under this Decree in respect of conduct engaged in by a body corporate, it is necessary to establish the state of mind of the body corporate, it is sufficient to show that a director, servant or agent of the body corporate, being e director, servant or agent by whom the conduct was engaged in within the scope of the person's actual or apparent authority, had that state of mind.
(2) Any conduct engaged in on behalf of a body corporate –
(a) by a director, servant or agent of the body corporate within the scope of the person's actual or apparent authority; or
(b) by any other person at the direction or with the consent or agreement (whether express or implied) of a director, servant or agent of the body corporate, if the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the director, servant or agent,
shall be deemed, for the purposes of this Decree, to have been engaged in also by body corporate.
(3) If, in a proceeding under this Decree in respect of conduct engaged in by a person other than a body corporate, it is necessary to establish the state of mind of the person, it is sufficient to show that a servant or agent of the person, being a servant or agent by whom the conduct was engaged in within the scope of the servant's or agent's actual or apparent authority, had that state of mind.
(4) Conduct engaged in on behalf of a person other than a body corporate –
(a) by a servant or agent of the person within the scope of the Actual or apparent authority of the servant or agent; or
(b) by any other person at the direction or with the consent or agreement whether express or implied) of a servant or agent of the first mentioned person, if the giving of the direction, consent or agreement is within the scope of the actual. or apparent authority of the servant or agent,
shall be deemed, for the purposes of this Decree, to have been engaged in also by the first-mentioned person.
(5) A reference in this section to the state of mind of a person includes a reference to the knowledge, intention, opinion, belief or purpose of the person and the person's reasons for that intention, opinion, belief or purpose.
(6) For the purposes of this section, the term "conduct" also includes the making of any omission, inadvertently or otherwise.
123. Vicarious Liability.
If a body corporate commits an offence against this Decree, each director or member of the governing body of the body corporate shall, subject to section 124, be deemed also to have committed the offence and is liable to be proceeded against and punished accordingly.
124. Defence in Proceedings for an offence Against this Decree.
(1) Subject to subsection (3), in a prosecution for an offence against this Decree it is a defence if the defendant establishes -
(a) that the contravention in respect of which the proceeding was instituted was due to reasonable mistake; or
(b) that the contravention in respect of which the proceeding was instituted was due to reasonable reliance on information supplied by another person; or
(c) that-
i) the contravention in respect of which the proceeding was instituted was due to the act or default of another person, to an accident or to some other cause beyond the defendant's control; and
ii) the defendant took reasonable precautions and exercised due diligence to avoid the contravention.
(2) In subsections (1)(b) and (1)(c), "another person" does not include a person who was –
(a) a servant or agent of the defendant; or
(b) in the case of a defendant being a body corporate, a Director, servant or agent of the defendant,
at the time when the contravention occurred.
(3) If a defence provided by subsection (1) involves an allegation that a contravention was due to reliance on information supplied by another person or to the act or default of another person, the defendant is not, without leave of the court, entitled to rely on that defence unless the defendant has, not later than 7 days before the day on which the hearing of the proceeding commences, served on the person by whom the proceeding was instituted a notice in writing giving such information that would identify or assist in the identification of the other person as was then in the defendant's possession.
(4) In a proceeding under this Decree in relation to a contravention of a provision of this Decree committed by the publication of an advertisement, it is a defence if it is established that the defendant is a person whose business it is to publish or arrange for the publication of advertisements and that the defendant received the advertisement for publication in the ordinary course of business and did not know and had no reason to suspect that its publication would amount to a contravention of a provision of this Decree.
(5) The provisions of section 9 of the Criminal Procedure Code, (Cap 17) to the extent that it provides exculpation from criminal responsibility for an act or omission that constitutes an offence against this Decree, and the provisions of section 10 of the Criminal Procedure Code do not apply in respect of any offence against this Decree.
125. Injunctions.
(1) An injunction under this section may be granted by the Court –
(a) against a person in the course of proceedings against that person for an offence against this Decree; or
(b) at any other time.
(2) If the Court is satisfied, on the application of the Minister, the Director or any other person that a person has engaged, or is proposing to engage, in conduct that constitutes or would constitute –
(a) a contravention of a provision of this Decree;
(b) attempting to contravene such a provision;
(c) aiding, abetting, counselling or procuring a person to contravene such a provision;
(d) inducing or attempting to induce, whether by threats, promises or otherwise, a person to contravene such a provision;
(e) being in any way, directly or indirectly, knowingly concerned in, or party to, the contravention by a person of such a provision; or
(f) conspiring with others to contravene such a provision,
the Court may grant an injunction in such terms as the Court determines to be appropriate.
(3) The power of the Court conferred by subsection (2) to grant an injunction restraining a person from engaging in conduct –
(a) includes, but is not limited to, the power to grant an injunction restraining a person from carrying on a business of supplying goods or services (whether or not as part of, or incidental to, the carrying on of another business) –
i) for a specified period;
ii) except on specified terms and conditions;
(b) does not include the power to grant an injunction restraining a person from engaging in conduct that constitutes or would constitute a contravention solely of sections 54 or 55 unless-
i) the application is made by the Minister or the Director on the grounds that a consumer is, or consumers generally are, or would be, adversely affected by the conduct; or
ii) the application is made by a person who is, or would be, adversely affected by the conduct.
(4) If the Court is satisfied on application by the Minister or the Director that a person has engaged in conduct constituting a contravention of a provision of this Decree the Court may grant an injunction requiring that person to take specified action (which may include the disclosure of information or the publication of advertisements) to remedy any adverse consequences of his contravening any provision of this Decree.
This subsection does not apply in relation to conduct that constitutes a contravention solely of section 55.
(5) The power of the Court to grant an injunction restraining a person from engaging in conduct may be exercised –
(a) whether or not it appears to the Court that the person intends to engage again, or to continue to engage, in conduct of that kind;
(b) whether or not the person has previously engaged in conduct of that kind; and
(c) whether or not there is an imminent danger of substantial damage to any person if the first, mentioned person engages in conduct or that kind.
(6) The power of the Court to grant an injunction requiring a person to do an act or thing may be exercised –
(a) whether or not it appears to the Court that the person intends to refuse or fail again, or to continue to refuse or fail, to do that act or thing;
(b) whether or not the person has previously refused or failed to do that act or thing; and
(c) whether or not there is an imminent danger of substantial damage to any person if the first mentioned person refuses of fails to do that act or thing.
(7) An interim injunction may be granted under this section pending the final determination of the application.
(8) A final injunction may, by consent of the parties, be granted under this section without proof that proper grounds for the injunction exist.
(9) Where the Minister or the Director applies for an injunction under this section, no undertaking as to damages or costs will be required.
(10) The Minister or the Director may give an undertaking as to damages or costs on behalf of some other applicant and, in that event, no further undertaking will be required.
(11) An injunction under this section may be rescinded or varied at any time.
126. Actions for Damages.
(1) A person who suffers loss or damage by an act or omission of another person that is a contravention of Part III or VI of this Decree may recover the amount of the loss or damage by action against the other person or against any person involved in the contravention.
(2) An action under subsection (1) may be commenced at any time within 3 years after the date on which the cause of action accrued.
(3) Subsection (1) does not apply –
(a) in relation to a contravention of section 54 unless the loss or damage is suffered by a consumer; or
(b) in relation to a contravention of section 55.
127. Compensation and other Remedial Orders.
(1) If in proceedings instituted under, or for an offence against, this Decree the Court is satisfied that a person who is a party to the proceeding has suffered, or is likely to suffer, loss or damage by reason of a contravention of this Decree, then whether or not any other order is made or relief granted in those proceeding, the Court may, for the purpose of compensating that person or preventing or reducing the extent of the loss or damage, make orders under this section against the parson who committed the contravention of a person involved in the contravention.
(2) Whether or not other proceedings have been instituted under this Decree in relation to a contravention of this Decree, the Court may –
(a) on the application of a person who has suffered, or is likely to suffer, loss or damage by reason of the contravention; or
(b) on the application of the Director on behalf of one or more such persons made with the written consent of each such person,
make orders under this section, for the purpose of compensating such a person or preventing or reducing the extent of the loss or damage, against, the person who committed the contravention or a person involved in the contravention.
Without limiting the foregoing, an application referred to in paragraph (b) may be brought in the course of proceedings in which a person is found guilty of an offence against this Decree constituted by the contravention.
(3) An application under subsection (2) maybe commenced –
(a) in the case of a contravention of section 55 at any time within two years after the day on which the cause of action accrued; or
(b) in any other case - at any time within three years after the day on which the cause of action accrued.
(4) For the purpose of determining whether to make an order under this section in relation to a contravention of section 54, the Court may have regard to the conduct of the parties to the proceedings since the contravention occurred.
(5) The orders that may be made under this section are of the following kinds:-
(a) an order for payment of the amount of the loss or damage;
(b) an order avoiding, or refusing to enforce, in whole or part, a contract or instrument;
(c) an order for the variation of a contract or instrument;
(d) an order directing the refund of money or the return of property;
(e) an order directing the repair of, or provision of parts, for, goods or the supply of specified services;
(f) an order directing the payment of an amount of money in lieu of some other act required by an order being done;
(g) any other order the Court thinks appropriate.
An order may be expressed to take effect from a date prior to the making of the order.
(6) It shall not be competent to the Court to make an order under this Section by reason only of loss or damage suffered or likely to be suffered by a person because of a contravention of section 54 or section 55 unless the person is a consumer.
128. Mode of Enforcement of Compensation.
(1) Without derogating from any other right to enforce an order made under section 127-
(a) if an order made under section 127 orders a person to pay an amount of money, upon the filing of that order in the registry of a court that has jurisdiction in an action for debt for that amount, the order shall be enforceable as an order made by that Court;
(b) any other amount of money a person is liable to pay as a consequence of an order made under section 127 may be recovered from him by action as for a debt in any court of competent jurisdiction.
129. Power of Court to Prohibit Payment or Transfer of Money or Other Property.
(1) Where –
(a) proceedings have been brought in the Court against a person for an offence against this Decree;
(b) an application has been made under section 125 for an injunction against a person in relation to a contravention of a provision of this Decree;
(c) an action has been commenced under section 126 against a person in relation to a contravention of a provision of this Decree; or
(d) an application for an order under section 127 has been or may be made against a person in relation to a contravention of a provision of this Decree,
the Court may, on the application of the Minister or the Director, make an order or orders specified in subsection (2) if the Court is satisfied that –
(e) it is necessary or desirable to do so for the purpose of preserving money or other property held by or on behalf of a person referred to in paragraph (a), (b), (c) or (d), as the case may be (in this section referred to as the "relevant person"), if the relevant person is liable or may become liable under this Decree to pay money by way of a fine, damages, compensation, refund or otherwise or to transfer, sell or return other property; and
(f) if will not unduly prejudice the rights and interests of any other person.
(2) The orders referred to in subsection (1) are-
(a) an order prohibiting, either absolutely or subject to conditions, a person who is indebted to the relevant person or to an associate of the relevant person from making a payment in total or partial discharge of the debt to, or to another person at the direction or request of, the person to whom the debt is owed;
(b) an order prohibiting, either absolutely or subject to conditions, a person who is holding money or other property on behalf of the relevant person or on behalf of an associate of the relevant person from paying all or any of the money, or transferring, or otherwise parting with possession or the other property, to, or to another person at the direction or request of, the person on whose behalf the money or other property is held;
(c) an order prohibiting, either absolutely or subject to conditions the taking or sending by any person of money of the relevant person or of an associate of the relevant person to a place outside the State;
(d) an order prohibiting, either absolutely or subject to conditions, the taking, sending or transfer by any person of other property of the relevant person or of an associate of the relevant person to a place outside the State; and
(e) an order appointing, where the relevant person is a natural person, a receiver or trustee of the property or of part of the property of the relevant person with such powers as are specified in the order.
(3) Subject to subsection (4), an order under this section may be expressed to operate-
(a) for a period specified in the order; or
(b) until proceedings under any other provision of this Decree in relation to which the order was made have been concluded.
(4) An order under this section made on an application ex parte shall not be expressed to operate for a period exceeding 30 days.
(5) A person who contravenes or fails to comply with an order by the Court under this section that is applicable to the person commits an offence against this Decree.
(6) Nothing in this section affects the powers that the Court has apart from this section.
(7) A reference in this section to a person who is an associate of a relevant person is a reference to –
(a) a person holding money or other property on behalf of the relevant person; or
(b) if the relevant person is a body corporate – a wholly owned subsidiary of the relevant person.
PART IX – General
130. Impersonation.
A person shall not falsely represent that he is an Inspector or that he is an officer of the Fair Trading Department.
131. Savings of Rights and Remedies.
Nothing in this Decree derogates from any right of action or other right or remedy that a person has apart from this Decree.
132. Contracting Out Prohibited.
This Decree has effect notwithstanding that any provision in any contract or agreement purportedly provides expressly or implied to the contrary.
133. Limitation of Action.
(1) No liability shall be incurred by the State or any person –
(a) on account of any disclosure made to the Committee, the Director, an Assistant Director, any officer or any Inspector of the Department; or
(b) on account of any disclosure or publication made by the Director or on the Director's behalf,
concerning –
(c) the supply of goods or services;
(d) the commercial or business reputation of any person associated with the supply of goods or services;
(e) the quality or standard of goods or services supplied by any person;
(f) a contravention or alleged contravention of this Decree or the operation or enforcement of this Decree.
(2) Without derogating from the foregoing provisions, no liability shall be incurred by the State, the Minister, the Director, a person acting on the Director's behalf, an officer of the Department or an Inspector on account of any act or thing-
(a) done or omitted to be done pursuant to this Decree; or
(b) done or omitted to be done bona fide for the purposes of this Decree and without negligence.
(4) The provisions of this Decree shall be read and construed subject to the provisions of any other Decree that limit the liability of the State or any other person.
134. Preservation of Secrecy.
(1) A person who is or was at any time a member of the Committee, or the Director, an Assistant Director or an officer of the Department, or an Inspector shall not, save in the course of his duty under this Decree or where it is competent to him so to do by reason of a provision of this Decree, directly or indirectly, communicate information that came to his knowledge as a consequence of his holding that appointment or position.
(2) It is competent-
(a) to the Director, an Assistant Director, an officer of the Department, and an Inspector to communicate to a person whose complaint concerning any matter has been investigated by the Department, or to a Small Claims Tribunal, information concerning that matter, which has come to his knowledge as a result of the investigation and which is of a class of information that the Director has authorised, either generally or in a particular case, to be so communicated;
(b) to the Director or a person authorized in that behalf by the Director to make a disclosure or publication concerning any of the matters referred to in paragraphs (c) to (f) (both inclusive) of section 133(1);
(c) to the Director or a person authorized in that behalf by the Director to communicate to the appropriate Minister or official of the State in right of the Republic of Fiji information which the Director considers should be communicated for the purpose of the administration of any law of the Republic of Fiji.
(3) The provisions of subsection (1) shall not be construed to prohibit any person referred to in that subsection when called as a witness in any legal proceedings from answering any question that he is compellable to answer in those proceedings.
(4) In no case shall a person referred to in subsection (1) disclose or be compelled to disclose the source or information that came to his knowledge in consequence of his holding an appointment or position under this Decree.
This subsection does not apply in any case where the person or the body that is the source of the information consents to the disclosure.
135. Service of Documents, etc.
(1) Where under this Decree a document or a notice may be, or is required to be, given to a person, the document or notice may be given –
(a) in the case of a person who is neither a body corporate nor a firm –
(i) by delivering it to him personally;
(ii) by leaving it at that person's place of residence last known to the person giving the document or notice with someone who apparently resides there, or at that person's place of business or employment last known to the person giving the document or notice with someone who is apparently employed there.
(iii) by sending it by post to that person's place of residence, business or employment last known to the person giving the document or notice;
(b) in the case of a body corporate –
(i) by delivering it to the secretary of the body corporate personally;
(ii) by leaving it at the registered office of the body corporate or at the place or principal place of business of the body corporate in Fiji with a person apparently employed there;
(iii) by sending it by post to the registered office of the body corporate or to the place or principal place of business; or
(c) in the case of a firm-
(i) by delivering it to a member of the firm personally;
(ii) by leaving it at the place or principal place of business of the firm in Fiji last known to the person giving the document or notice with a person apparently employed there;
(iii) by sending it by post to the place or principal place of business of the firm in Fiji last known to the person giving the document or notice.
(2) A reference in subsection (1) to the registered office of a body corporate includes a reference to a registered office that is outside Fiji.
136. Evidence.
(1) In any proceedings under this Decree-
(a) Where
(i) a published statement is intended, or apparently intended, to promote the supply or use of any goods or services; and
(ii) a name, business name, address, telephone number, post office box number, facsimile number, telex number, or newspaper office reply number specified in the statement is that of a person, or the agent of a person, who –
(A) is the owner, whether alone or jointly with another person or other persons, of such goods;
(B) is a supplier of such goods or services;
(C) has an interest, otherwise than as owner, in such goods, or
(D) has an interest, otherwise than as supplier, in the supply of such services,
it shall be presumed, unless the contrary is proved, that the person or agent, as the case may be, caused the statement to be published;
(b) in which it is alleged that a person in contravention of section 56 falsely represented that a vehicle as at a particular time had not travelled more than a specified distance-
(i) the distance shown on the odometer of the vehicle at any time shall be deemed, unless the contrary is proved, to be a representation to all persons that the vehicle had not travelled more than the distance so shown;
(ii) evidence that at any time before the representation was made that the distance shown on the odometer of the vehicle was greater than the distance specified in the representation shall be evidence and, unless the contrary is proved, conclusive evidence that the representation was false;
(c) in relation to an offence against section l 06 in respect of a failure to furnish information or to produce records or a copy thereof, an allegation or averment in a charge that a person failed as required to furnish information, or produce records or a copy thereof shall be evidence and, unless the contrary is proved, conclusive evidence of the matter so, alleged or averred;
(d) it shall not be necessary to prove the appointment of an Inspector or other officer or his authority to do any act, make any requirement or give any order;
(e) the authority of any person to take any proceeding shall be presumed unless the contrary is proved;
(f) a printed document that purports –
(i) to be a standard, rule, code or specification of an association or body referred to in, or prescribed under, the regulations; and
(ii) to have been published or issued by or on behalf of that association or body,
is evidence of that standard, rule, code or specification.
(2) In a proceeding against a person under section 126 or in an application under section 129 for an order against a person, a finding of any fact by court made in proceedings under Section 125 or for an offence against this Decree in which that person has been found to have contravened, or to have been involved in a contravention of, a provision of this Decree in evidence of that fact and the finding may be proved by production of a document under the seal of the court from which the finding appears.
137. Regulations.
The Minister may make regulations not inconsistent with this Decree with respect to -
(a) all matters required or permitted by this Decree to be prescribed by regulation or to be prescribed and in respect of which no other means of prescription is specified; and
(b) all matters necessary or expedient to be prescribed for the proper administration of this Decree or to achieve the objects and purposes of this Decree;
(c) prescribing a penalty for any offence against any regulation not exceeding –
(i) a fine of $5,000 for a first offence or a fine of $10,000 for a second or subsequent offence;
(ii) where a court is of opinion that an offence under the regulations of which a person is convicted was committed to commit fraud, imprisonment for a term not exceeding three years in addition to or instead of any fine; and
(iii) where an offence has been committed by a body corporate a fine which is five times the fine provided for under sub-paragraph (i) of this paragraph.
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Made this 6th day of May 1992.
P.K. GANILAU
President of the Sovereign Democratic Republic of Fiji
and Commander-in-Chief
Administered by the Ministry of Trade and Commerce.
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URL: http://www.paclii.org/fj/legis/num_act/ftd1992130
