Alman v Bank of South Pacific Ltd [2010] PGNC 270; N6639 (18 August 2010)

N6639

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS No. 288 OF 2008

BETWEEN:

JOHN ALMAN
Plaintiff

AND:

BANK OF SOUTH
PACIFIC LIMITED
Defendant

Waigani: Hartshorn, J.
2010: 17^th February, 5th March & 18^th August

Claim for breach of Banker/client duty – disclosure of information

Cases:

Alan Arthur Morris v. PNG Associated Industries Ltd (1980) N260 (L)
Haiveta v. Wingti (No 1) [1994] PNGLR 160

Counsel:

Mr. A. W. Jerewai , for the Plaintiff
Mr. A. W. Daniels, for the Defendant

18^th August, 2010

1. HARTSHORN J: The plaintiff Mr. John Alman, alleges that the defendant, Bank of South Pacific Limited (BSP) owed a duty to keep secret and confidential the details of his personal account that he held with BSP at its Wewak branch. Mr. Alman further alleges that BSP breached that duty by releasing details of his account and as a consequence he has suffered loss. Mr. Alman commenced this proceeding seeking amongst others declaratory relief and damages.

2. As to the allegation that BSP released details of his account, the evidence relied upon by Mr. Alman are two of his own affidavits and an affidavit of Francis Poko. Mr. Poko had worked for Papua New Guinea Banking Corporation, and then BSP following their merger. He had only worked at head office and had no knowledge of the procedure of BSP employees in issuing bank statements.

3. Mr. Alman’s evidence is amongst others, that a freelance journalist told him that two other persons, a Mr. Burr and a Mr. Tangit had obtained a copy of a cheque made payable to Mr. Alman and a copy of his personal banking account statements (documents) from BSP Wewak and was circulating them.

4. Further, Mr. Alman gave evidence that he successfully brought proceedings for criminal defamation against Mr. Burr in the District Court at Wewak.

5. The evidence of Mr. Alman as to how persons obtained a copy of the documents is clearly hearsay and I attach little weight to it. The evidence of the District Court criminal defamation proceeding is just that.

6. There is no direct evidence as to how the documents were obtained and by whom. There is no evidence of any negligence on behalf of any employees of BSP or of any other actions or conduct of any employees of BSP that could have led to the documents being released to, or being in the possession of someone other than Mr. Alman.

7. Mr. Alman refers to a Richard Kombo attending to making some deposits on his behalf at the BSP branch, Wewak. Again there is no evidence by Mr. Kombo in this regard.

8. Mr. Stamerd Wai gave evidence for BSP that amongst others, that in the normal course of business, originals of cheques drawn by Provincial Governments would be returned to the Provincial Governments by BSP at the end of each month.

9. Mrs. Nora Suluc, a bank officer at the BSP branch, Wewak, gave evidence for BSP that amongst others, that she recalled serving Mr. Kombo when he deposited the original of the subject cheque into Mr. Alman’s account. Mrs. Suluc denied ever supplying Mr. Alman’s personal bank account statements to anyone.

10. Mr. Alman has the onus of proving his case to the satisfaction of this court on the balance of probabilities. This standard of proof was considered by Sheehan J in Haiveta v. Wingti (No 1) [1994] PNGLR 160, when he said:

“The standard of proof is the civil standard of proof on the balance of probability. Though not as onerous as the standard in criminal cases, the evidence must nonetheless be convincing commensurate with the seriousness of the matter in question. The evidence must therefore be real and substantial.”

11. These remarks are in similar vein to those of Wilson J in Alan Arthur Morris v. PNG Associated Industries Ltd (1980) N260 (L) where he said:

“In considering the standard of proof in a case such as this....., I have borne in mind the words of Lord Denning LJ (as he then was) in Bater v. Bater [1951] P 35 at pages 36 to 37:

“.......It is of course true that by our law a higher standard of proof is required in criminal cases than in civil cases. But this is subject to the qualification that there is no absolute standard in either case. In criminal cases the charge must be proved beyond reasonable doubt, but there may be degrees of proof within that standard.

As Best CJ, and many other great judges have said, “in proportion as the crime is enormous, so ought the proof to be clear”. So also in civil cases, the case may be proved by a preponderance of probability, but there may be degrees of probability within that standard. The degree depends on the subject matter. A civil court, when considering a charge of fraud will naturally require for itself a higher degree of probability than that which it would require when asking if negligence is established. It does not adopt so higher degree as a criminal court, even when it is considering a charge of a criminal nature; but still it does require a degree of probability which is commensurate with the occasion.”

12. On the evidence presented, the one fact in favour of Mr. Alman is that the copy of the personal bank statements came from BSP. As referred to earlier however, there is no evidence of how a copy of the personal bank statements came to be in the possession of someone other than Mr. Alman. There is no evidence of negligence or any actions or conduct of any employee or other person on behalf of BSP that could have led to the documents being released to or to be in the possession of someone other than Mr. Alman.

13. Given the seriousness of the allegations by Mr. Alman against BSP, and given the seriousness with which evidently, Mr. Alman considers the matter, he having claimed amongst others K205 million in damages, one would have thought the evidence presented on his behalf to prove his case would have been more compelling.

14. Mr. Alman has failed to discharge to the satisfaction of this court the onus upon him to prove on the balance of probabilities that BSP was in any way responsible for the documents being in the possession of persons other than Mr. Alman and that therefore BSP has breached its duty to keep secret and confidential his banking details.

15. The plaintiff's claim against the defendant is dismissed. The costs, of and incidental to the proceeding are to be paid by the plaintiff to the defendant.

_____________________________________________________________
Jerewai Lawyers: Lawyers for the Plaintiff

Bank of South Pacific Limited: Lawyers for the Defendant