Australia and New Zealand Banking Group (PNG) Ltd v Melanesian Trustee Services Ltd [2019] PGNC 100; N7805 (9 April 2019)

N7805

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS No. 55 OF 2019

BETWEEN
AUSTRALIA AND NEW ZEALAND BANKING GROUP (PNG) LIMITED
Plaintiff

AND
MELANESIAN TRUSTEE SERVICES LIMITED
First Defendant

AND
OXLEY EQUITIES LIMITED
Second Defendant

AND
CHRISTOPHER HNANGUIE – Chairman of the Securities Commission of Papua New Guinea
Third Defendant

Waigani: Dingake J
2019: 3^rd and 9^th April

Cases Cited

Telikom PNG Limited v Independent Consumer and Competition Commission (2008) SC906

Counsel:

Ms. Tusais, for Plaintiff
Mr. Haiara , for First Defendant
Ms. Wal, for Second Defendant
Mr. Kopunye, for Fourth Defendant

9^th April, 2019

1. DINGAKE J: By way of Notice of Motion filed with this Court on the 23^rd of March, 2019, document 20 filed on record, the Applicant seeks the following orders:
   • 1.1 . “Pursuant to National Court Rules Order 1 Rule 7 the requirement for three (3) clear days service of the Notice of Motion and supporting Affidavit be dispensed with and the Applicant be granted leave to proceed with this application on short notice or ex parte, as the case might be.”
   • 1.2 . “Pursuant to National Court Rules Order 12 Rule 1 and Constitution Section 155(4) and Order 12 Rule 9 of the National Court Rules this Court take judicial notice of the Orders of the National Court made 13^th March, 2019 in proceeding CIA 90 of 2018 and make the following orders:-
     1. Until full and final determination of these proceedings or until further Order of this Court, the first Defendant be allowed to operate its own account and the accounts of Pacific Balance Fund and its subsidiary entities’ with the Plaintiff subject to the Plaintiffs normal banking terms and condition without any restrictions, direction and intimidation from the third and fourth Defendants and Securities of PNG under Section 48(6) of the Capital Market Act.”
2. Paragraph 1.1 above is not of moment because the Applicant served the Defendants accordingly.
3. A similar application filed by Australia and New Zealand Banking Group (PNG), on the 22^nd March, 2019, document 18, filed of record, was not moved and determined. It remains pending.
4. Before the commencement of proceedings the applicant applied to amend the Notice of Motion mentioned above, by adding to the order sought in 1.2a, the following: “and Section 40(1) of the Securities Act of 2015.”
5. The application was not opposed and I see no reason not to grant it. The amendments are granted as prayed.
6. The Notice of Motion filed on the 23/03/2019 is supported by the Affidavit of Justin Haiara, the lawyer in charge of this matter.
7. At the heart of the dispute encapsulated in the Notice of Motion as is plain from the supporting Affidavit of Mr. Haiara, is an account held with Australia and New Zealand Banking Group (PNG) by the applicant, Melanesian Trustee Services Limited, in its capacity as a trustee.
8. The aforesaid account remains inoperative on account of restrictions placed on it by the fourth Defendant, the Securities Commission of Papua New Guinea.
9. It is plain from the Affidavit of Mr. Haiara that on the 13^th of March, 2019, in proceeding CIA 90 of 2018, my sister Nablu, J issued the following orders:

9.1. The relief sought in first and second Respondents’ Notice of Motion filed 6^th February, 2019 is refused and dismissed.

9.2. The restrictions and or directions issued by the Chairman of Securities Commission of Papua New Guinea to the ANZ Bank in relation to the bank accounts of Melanesian Trustees Services Limited and the Pacific Balance Fund and its subsidiary entities contained in numerous letters including those dated 7^th August, 2018, 1^st November, 2018 and 7^th December, 2018 are stay pending the final determination of the appeal or earlier order of the court.

9.3. The first and second Respondents’ and their servants or agents are restrained from issuing directions pursuant to Section 48(6) of the Capital Market Act 2015 pending the final determination of the appeal or earlier order of the court.

9.4. Cost be in the course.

9.5. Matter returns to court on 19^th March, 2019 at 9:30am for Mention and Directions.

9.6. The time of entry of these orders is abridged to the date of settlement by the registrar which shall take place forthwith.

10. The first and second Respondent’s Notice of Motion filed on the 6^th of February, 2019, referred to above, sought to dismiss the appeal mounted by the Applicant on a number of grounds, including, that the Applicant’s license expired on the 17^th of December, 2018 and was not renewed.
11. The supporting Affidavit of the Applicant does not enclose the reasoned judgment or ruling of my sister Nablu, J. The lawyers advised the court that a written judgment is still awaited.
12. Despite the above orders of the 13^th of March, 2019, the Applicant is still unable to operate the account with ANZ Bank because upon service of the orders of the National Court of the 13^th March, 2019, on ANZ Bank, the bank, through its lawyers was of the view that since ANZ Bank was not a party to proceeding CIA 90 of 2018, it was not bound by the said orders.
13. It was on account of the above position by ANZ Bank, that the applicant, filed this application, in which the ANZ Bank is a party for the orders captured in paragraph one (1) of this ruling.
14. Learned counsel for the bank Ms. Tusais informed the court that the bank although not opposed to the relief sought by the Applicant does not consent to same.
15. The application was opposed by the second and third Defendants, on a number of grounds, including that the Applicant’s license having expired cannot be permitted to operate the account.
16. I have considered the evidence of all the parties herewith filed of record and the applicable law.
17. It is trite learning that in an application initiated by a Notice of Motion as the present one is, a party stands or falls on the papers filed of record.
18. The Applicant is required by law to place the necessary evidence that supports the relief sought.
19. In my mind the issue of whether the Applicant can operate an account in its position of trustee without a license or whether it has the requisite license is critical. It is both a question of law and fact. The applicant must adduce evidence that it is so licensed if that is a requirement of the law.
20. The Applicant’s supporting Affidavit does not establish that it has a license to operate the account.
21. In the exchange with the bench, Mr. Haiara, conceded that such a license has not been annexed. He seemed to suggest the license is there. However, he did not ask for an adjournment to attach it.
22. In an application for an injunction an Applicant is bound to disclose all the relevant and necessary information that might affect the grant of the injunction sought. In this case the license is one such relevant evidence.
23. The Applicant has not adduced evidence before me that explains why the first and second Respondents Notice of Motion filed on 6^th of February, 2019, which raised the issue of the license was dismissed. This court cannot speculate.
24. The Applicant contended that the matter of whether the applicant has a license or not or whether same has expired was judicially determined by my sister Nablu, J. This Court was not furnished with any evidence to show that the issue of the license was raised and conclusively determined, or that indeed the Applicant does have a license or that possession of a license to operate the account is not a requirement.
25. It seems to me that without any evidence such as the transcript or the Court’s judgment, in the matter before Nablu J, this Court cannot establish whether the matter of the license was conclusively determined or the Court granted the relief sought based on some other considerations.
26. The applicant has failed to discharge the onus that lies with it that the matter of the license, (namely that the applicant does not have a license to operate the account, the subject matter of this proceedings), has finally been judicially determined in a matter involving the same parties (Telikom PNG Limited v Independent Consumer and Competition Commission (2008) SC906).
27. Having regard to the above, I do not agree that this matter is res judicata. Firstly, this application that now involves ANZ Banking Group (PNG) has not been brought before this Court before. Res Judicata, which essentially means that a final decision pronounced by the court of competent jurisdiction with respect to a matter, involving the same parties disposes once and for all the matters decided so that they cannot afterwards be raised for re – litigation between the same parties or their privies. This is not so in this case.
28. The Applicant has fallen short of establishing res judicata, as defined above.
29. Section 44 of the Capital Market Act provides that:

“A license that has been issued in accordance with the provisions in this division shall expire 12 months after the date of issue or on such later date as may be specified by the commission in writing.”

30. On the basis on the above provision alone, the Applicant was bound to prove to the Court, at the very least, that it has a license to operate the account.
31. Having reached the conclusion that there is no evidence that the applicant has a license to operate the account, it is unnecessary to deal with the balance of arguments by the parties.
32. In the result, having regard to the circumstances of this case, and the evidence furnished, I am satisfied the relief sought is not supported by evidence and ought to fail.
33. The formal orders of the court are that the application is dismissed with costs.

___________________________________________________________
Ms. Tusais: Lawyers for Plaintiff
Haiara’s Legal Practice: Lawyers for First Defendant
Ms. Wal: Lawyers for Second Defendant
Kopunye Lawyers: Lawyers for Third Defendant