IN THE COURT OF APPEAL OF
THE REPUBLIC OF VANUATU
(Civil Jurisdiction)
 
CIVIL APPEAL CASE No.04 of 2001
 
BETWEEN:
 
ANNA SPOONER
Appellant
 
AND:
 
THE GOVERNMENT OF VANUATU
First Respondent
 
AND:
 
VANUATU FINANCIAL SERVICES COMMISSION
Second Respondent
 
Coram: Mr. Justice Bruce Robertson
Mr. Justice John von Doussa
Mr. Justice Daniel Fatiaki
 
Counsel: Mr. K. Mataskelekele for the Appellant
Mr. Rowan Downing & Ms Viran Molisa for the Respondents
 
Hearing date: 26 October 2001
Date of Judgment: 01 November 2001
 
JUDGMENT
 
This appeal concerns the ruling of the Supreme Court (Coventry J) on 5th December 2000 striking out the plaintiff’s Statement of Claim on the ground that it disclosed no reasonable cause of action.
 
The plaintiff according to the Statement of Claim had deposited 4,000,000VT into a fixed deposit account at the Olilian Bank Limited (‘the Bank’) which carried on business in Vanuatu under a banking licence issued to it on 25 January 1995 under the provision of the Banking Act [CAP.63] as amended by the Banking (Amendment) Act 9 of 1995. This latter amendment had the effect of interposing the second defendant the Vanuatu Financial Services Commission (‘VFSC’) between the Minister who ultimately grants a banking licence and an applicant for a licence.
 
Suffice to say for present purposes, the Bank collapsed in 1997 and the plaintiff lost her fixed deposit. The plaintiff has issued proceedings against the defendants seeking to recover the fixed deposit together with interest and a sum of 10,000,000VT for loss of business opportunity in not being able to utilise the money to establish an exclusive men’s clothing shop.
 
The Statement of Claim pleads:
 
“8 The First and Second Defendants have a statutory duty of care in respect to the Plaintiff.
 
PARTICULARS
 
(a) To ensure such bank is a fit and proper bank to hold such banking licence.
 
(b) To ensure such bank holds sufficient reserves to meet payment of such deposit on defalcation of the bank.
 
(c) To ensure the bank complies with the laws of the Republic of Vanuatu including filing annual returns.
 
(d) To warn investors in the event of any failures of the said bank.
 
9. In breach of such duties the First and Second Defendants:-
 
(a) Failed to ensure the Olilean Bank Limited was a fit and proper bank to hold a Bank Licence.
 
(b) Failed to require reserves sufficient to meet any or all defalcations.
 
(c) Failed to ensure the bank complied with the laws of Vanuatu.
 
(d) Failed to warn investors.
 
10. As a result of such failure the Plaintiff has suffered loss.
 
PARTICULARS
 
(a) Deposit - VT 4,000,000
 
(b) Interest 1995-1997 @ 7% - VT 840,000
 
(c) Loss of business opportunity - VT 10,000,000 Total VT 14,840,000
 
WHEREFORE THE PLAINTIFF CLAIMS against the First and Second Defendants jointly and severally;”
 
In summary, the defendants are sued in that ‘(they) granted a banking licence to the Olilian Bank to conduct business as a local bank’ and are in breach of ‘a statutory duty of care in respect to the plaintiff’. The particulars of breach allege various failures on the part of the defendants without distinction as to their respective functions or roles in the grant of the licence to the bank, and without reference to any particular statutory provisions, or dates, or period of time as there should have been. It is also significant that no allegation of malice or ‘bad faith’ is made against the defendants in the Statement of Claim either in the grant of the banking licence to the bank or in the particular failures averred. Nor is there a claim based on a common law duty of care founded upon either an imposed statutory duty or in the defendants’ failure to revoke the Bank’s licence sooner than it did.
 
In the result the first defendant in its Statement of Defence filed on 20 October 1999, other than admitting that a banking licence was granted to the Bank, denied any role in the issuance of the licence. In similar vein, the second defendant Commission (VFSC) denied that the licence was granted by it.
 
In the course of exchanges between counsel for the Appellant and members of this Court during oral argument on the appeal counsel indicated that if the Appellant were permitted to replead her case she would allege:
 
(a) that the Minister under Section 4 of the Banking Act exercised his discretion to grant the banking licence unreasonably or carelessly having regard to information about the bank which was then before him.
 
(b) The VFSC failed to commence to inspect the accounts and annual returns of the bank soon enough or sufficiently well to take remedial action by cancelling the bank’s licence pursuant to the powers in Section 7(2)(a) of the Financial Services Act and Section 4(4) of the Banking Act before the Appellant lost her money.
 
The first of these allegations concerns events leading up to the grant of the licence in the first instance, and the second allegation concerns ongoing supervision of the bank after the licence was granted. Both allegations, like the original pleadings, base the causes of action on breach, or careless breach, of statutory power to exercise discretionary statutory powers, not positive statutory duties. Counsel informed the Court that he had no instructions or information to justify alleging bad faith against any public officer. Misfeasance in public office is not alleged.
 
In X (minors) v. Bedfordshire CC (1995) 3 All E.R. 353 Lord Browne-Wilkinson helpfully identifies four separate categories of private law claims against public authorities for damages as follows (at P.363/4):
 
“(A) Actions for breach of statutory duty simpliciter (i.e. perspective of carelessness);
 
(B) Actions based solely on the careless performance of a statutory duty in the absence of any other common law right of action;
 
(C) Actions based on a common law duty of care arising either from the imposition of the statutory duty or from the performance of it; and
 
(D) Misfeasance in public office, i.e. the failure to exercise, or the exercise of, statutory powers either with the intention to injure the plaintiff or in the knowledge that the conduct is unlawful.”
 
The plaintiff’s claim undoubtedly belongs to category (A) or category (B) of the foregoing classification. In referring to category (A) his Lordship said (at p.364):
 
“This category comprises those cases where the Statement of Claim alleges simply: (i) the statutory duty; (ii) a breach of that duty; (iii) damage to the plaintiff. The cause of action depends neither on proof of any breach of the plaintiff’s common law rights nor on any allegation of carelessness by the defendant.
 
The principles applicable in determining whether such statutory cause of action exists are now well established,… The basic proposition is that in the ordinary case a breach of statutory duty does not, by itself, give rise to any private law cause of action. However, a private law cause of action will arise if it can be shown, as a matter of construction of the statute, that the statutory duty was imposed for a limited class of the public and that Parliament intended to confer on members of that class a private right of action for breach of the duty.”
 
In so far as a category (B) claim is concerned Lord Browne-Wilkinson said (at p.365):
 
“This category comprises those cases in which the plaintiff alleges (i) the statutory duty and (ii) the ‘negligent’ breach of that duty but does not allege that the dependant was under a common law duty of care to the plaintiff… in my view the careless performance of or statutory duty does not itself give rise to any cause of action in the absence of either a statutory right of action [category (A)] or a common law duty of care [category (C)].”
 
In this latter regard his Lordship accepted that a common law duty of care may arise in the performance of statutory functions but a distinction had to be drawn between the exercise of a statutory duty and in seeking to establish liability at common law for negligence in the exercise of statutory discretion ‘the first requirement is to show that the decision was outside the ambit of the discretion altogether: if it was not a local authority cannot itself be in breach of any duty of care owed to the plaintiff’.
 
Later after referring to Anns v. Merton Borough Council [1977] 2 All E.R. 492 and Rowling v. Takaro Properties Ltd [1987] UKPC 2; [1988] 1 All E.R. 163, Lord Browne-Wilkinson said (at p.371):
 
“Where Parliament has conferred a statutory discretion on a public authority, it is for that authority, not for the Courts, to exercise the discretion: nothing which the authority does within the ambit of the discretion can be actionable at common law. If the decision complained of falls outside the statutory discretion, it can (but not necessarily will) give rise to common law liability. However it the factors relevant to the exercise of the discretion include matters of policy (e.g. social policy, the allocation of finite financial resources between the different calls made upon social aims as against the risk to the public inherent in doing so), the Court cannot adjudicate on such policy matters and therefore cannot reach the conclusion that the decision was outside the ambit of the statutory discretion. Therefore a common law duty of care in relation to the taking of decisions involving policy matters cannot exist.”
 
A little later in his judgment his Lordship observed that ‘a common law duty of care cannot be impose on a statutory duty if the observance of such common law duty of care would be inconsistent with, or have a tendency to discourage the due performance by the local authority of its statutory duty’.
 
In the present case we are firmly of the view that if liability in damages were to be imposed on the defendant in the exercise of their respective statutory duties and discretion under the Banking Act and the VFSC Act, it is very likely that they would adopt an overly cautions and more defensive approach to their duties and may well lead to an unacceptable level of interference in the conduct and management of licenced financial institutions through an over-zealous exercise of examination and audit powers or by (Ed: incomplete)
 
Later in his judgment his Lordship said (also at p.364): “although the question is one of statutory construction…, it is significant that your Lordships were not referred to any case where it had been held that statutory provisions establishing a regulatory system… for the benefit of the public at large had been held to give rise, to a private right of action for damages for breach of statutory duty. Although regulatory… legislation affecting a particular area of activity does in fact provide protection for those individuals particularly affected by that activity, the legislation is not to be treated as being passed for the benefit of those individuals but for the benefit of society in general.”
 
The principle that the existence of a private right of action for beach of statutory duty depends on the construction of the statute concerned has also been accepted in the High Court of Australia: See Byrne v. Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410 at 424.
 
It is necessary therefore to consider the provisions of the Banking Act [CAP.63]. Pursuant to Section 2 it is an offence to carry out a banking business in Vanuatu without a licence issued under the Act. Section 3 then provides for an application for a banking licence to be made to the VFSC and Section 4(1) provides that the Minister may grant a licence ‘after consultations with the Commission and the Reserve Bank’. Section 6(2) prohibits however, the grant of a licence to a bank incorporated in Vanuatu unless the ‘aggregate of its capital issued and paid up in cash… and its unimpaired reserves is not less than VT50,000,000’. The Minister is also empowered to revoke a banking licence, again, after consultations wit the above-mentioned authorities and after giving appropriate notice to the bank [Section 4(4)] or he may refuse to grant the licence altogether and ‘need not give any reason for so refusing’.
 
The grounds upon which the Minister may revoke a banking licence was particularly relied upon by counsel for the appellant and is set out in full. They are (so far as relevant):
 
“(a) for any contravention of any provisions of this Act or rule made thereunder; or
 
(c) if in the opinion of the Commission the licenced financial institution concerned is carrying on business in… Vanuatu in a manner detrimental to the public interest or to the interest of the depositors of such institution; or
 
(d) if the financial institution concerned goes into liquidation or is wound up or otherwise dissolved.”
 
The Minister is vested with other powers under the Act including, the power to conduct audits and examinations of the books and affairs of a bank (Section 15); and the power to appoint a suitably qualified person to advise about the proper conduct of a bank’s business (Section 17).
 
Under Part III of the Act licenced banks are required to maintain certain minimum amounts of paid up capital and reserves dependant on whether it is incorporated outside or within Vanuatu and in respect of the latter, Banking Rules made by the Minister requires the maintenance of ‘a minimum level of capital and reserves within Vanuatu of VT50,000,000’.
 
The Vanuatu Financial Services Commission for its part, was established under an Act of Parliament (No.35 of 1993) as a body corporate (Section 2) consisting of a Commissioner, the Governor of the Reserve Bank, the Attorney General and several other members appointed by the Minister of which ‘at least two of whom shall have previous knowledge and experience of financial business’, and all of whom hold office for three years and thereafter, are eligible for reappointment (Section 3).
 
Pursuant to Section 7(2) the Commission has the following specific duties:
 
“(a) to seek, through the provision of effective services for the supervision of financial business to protect the public in Vanuatu and elsewhere against financial loss arising out of dishonesty, incompetence or malpractice on the part of persons engaged in financial business in or from within Vanuatu;
 
(b) to protect and enhance the reputation of Vanuatu as a centre for the carrying on of financial business and to develop Vanuatu as such a centre;
 
(c) to be responsible for the general administration of and for the collection of fees, charges and other revenue due under the Acts specified in Schedule 1; (including the Banking Act CAP.63)
 
(d) to act internationally as the national authority or representative of Vanuatu in respect of matters relating to the supervision and regulation of financial business;
 
(e) to provide advice and assistance to the Government and in particular to prepare and submit to the Government reports and make recommendations on the regulation of financial business and on legislation relating to financial business or to persons, companies and other undertakings engaged in financial business in or from within Vanuatu;
 
(f) to assist and advise the Government on matters relating to any Act or Regulation directly or indirectly relevant to financial business.”
 
Lord Goff in Davis v. Radcliffe (1990) 2 All E.R. in words that could just as easily apply to the above provisions said at p.541: “No doubt, in establishing a system of licensing for banks, regard was being had (though this is not expressly stated in the long title of the Act) to the fact that the existence of such a licensing system should provide an added degree of security for those dealing with banks…, including in particular those who deposit money with such banks. But it must have been the statutory intention that the licensing system should be operated in the interests of the public as a whole; and, when those charged with its operation are faced with making decisions with regard, for example, …to revoking licences, such decisions can well involve the exercise of judgment of a delicate nature affecting the whole future of the relevant bank…, and the impact of any consequent cessation of the bank’s business…, not merely on the customers and creditors of the bank, but indeed on the future of financial services in the island. In circumstances such as these, competing considerations have to be carefully weighed and balanced in the public interest, and, in some circumstances, …it may for example be more in the public interest to attempt to nurse an ailing bank back to health than to hasten its collapse. The making of decisions such as these is a characteristic task of modern regulatory agencies; and the very nature of the task, with its emphasis on the broader public interest is one which militates strongly against the imposition of a duty of care being imposed on such an agency in favour of any particular section of the public.”
 
In the present case there can be no doubting that the principal legislation under consideration namely, the Banking Act [CAP.63], may be accurately described as legislation ‘establishing a regulatory system… affecting a particular area of activity’ i.e. in controlling, through means of a licencing scheme, the person(s) who may operate a bank or banking business in Vanuatu. That much is clear from the long title of the Act which reads: “To provide for the regulation of the business of banking and for purposes connected therewith.”
 
Plainly, amongst those affected or protected by such regulation are depositors of the bank such as the plaintiff, but the Banking Act is in no sense confined in its application to such ‘a limited class of the public’ who might reasonably be expected to have dealings with the Bank or would be directly or indirectly affected by its de-registration or collapse.
 
It must be noted also that the plaintiff’s complaint is not about any positive actions that the defendants had taken that caused her to lose her fix deposit, rather, her particularised complaints concerns their failure or omission to take steps to prevent the loss occurring.
 
This distinction which Lord Nicholls describes as ‘fundamentally sound in this area of the law’ in Stovin v. Wise (1996) 3 All E.R. 801 at 806 “… is based on a recognition that it is one matter to require a person to take care if he embarks on a course of conduct which may harm others. He must take care not to create a risk of danger. It is another matter to require a person, who is doing nothing, to take positive action to protect others from harm for which he was not responsible, and to hold him liable in damages if he fails to do so… There must be some special justification for imposing an obligation of this character. Compulsory altruism needs more justification than an obligation not to create danger to others when acting for one’s own purposes.”
 
Lord Hoffmann in the same case, with whose decision the majority of the Court agreed, expressed a similar view in formulating the test for negligent omission or failure to exercise statutory power, when his Lordship said (ibid at p.827): “Whether a statutory duty gives rise to a private cause of action is a question of construction… It requires some examination of the provisions of the statute to decide whether it was intended to confer a right to compensation for breach.” And later (at p.828): “The minimum preconditions for imposing a duty of care upon the existence of a statutory power (in respect of an omission to exercise the power), if it can be done at all, are, first, that it would in the circumstances have been irrational not to have exercised the power, so that there was in effect a public law duty to act, and, secondly, that there are exceptional grounds for holding that the policy of the statute requires compensation to be paid to persons who suffer loss because the power was not exercised.”
 
The power to revoke a licence however, is not unlimited (Section 4(4)) and is undoubtedly quasi-judicial in character as evidenced by the right to be heard conferred under Section 4(5) before a revocation order can be made.
 
Nowhere in the Banking Act is the Minister given power to control the day-to-day management or affairs of any bank. His power is essentially limited to allowing a bank to conduct business by the grant of a licence or closing it down by the revocation of a licence. This alone is a powerful incentive for a bank to operate its affairs in conformity with the provisions of the Act but it cannot guarantee a banks continued credit worthiness or that no loss will be caused to depositors by determined fraudsters or improvident bank managers.
 
As was said by Lord Keith of Kinkel in delivering the judgment of the Privy Counsel in Yuen Kun Yeu v. A.G. of Hong Kong (1988) IAC 175 at 197:
 
“…reliance on the fact of registration as a guarantee of the soundness of a particular company would be neither reasonable nor justifiable, nor should the Commissioner reasonably be expected to know of such reliance, if it existed.”
 
We are unable to discern any intention on the part of the legislature that the Minister in considering whether to grant a banking licence under the Act owes any statutory duty to potential depositors, the breach of which would give rise to a private right of action.
 
In our view, given the nature of the economy of Vanuatu and its importance as an international financial centre and tax-free haven, it cannot be imputed that Parliament intended in enacting the Banking Act and VFSC Act to provide a government guarantee for persons dealing with licenced financial institutions including banks.
 
In so far as the VFSC is concerned we are satisfied that Sections 21, 22 & 23 individually and collectively militate against the imposition of a duty of care not to expose the plaintiff to the risk of losing her deposit in the performance by the VFSC of it s statutory duties.
 
In the first place, Section 21 of the Act renders the VFSC immune from any civil suit or prosecution ‘… for any matter of thing or act done… in good faith by the Commission under this or under any other any other Act or regulation’; secondly, Section 22(1) of the Act specifically empowers the Minister ‘…in writing to requires the Commission to make good…’ any failure on its part to comply with the provisions of this or any other Act or regulation and, should the Commission fail to comply with the Minister’s requirement then subsection (2) of Section 22 empowers the Minister to apply to the Supreme Court for appropriate remedies. Plainly the VFSC is responsible and in our view, is answerable to the Minister for the exercise of its statutory duties and functions and to no one else; finally, Section 23 of the Act prohibits any form of execution by attachment of property being issued against the Commission. This is a major obstacle to money judgment being awarded against the Commission and also militates against the imposition of a duty of care.
 
Needless to say in order for the plaintiff to successfully plead any cause of action against the VFSC it would be necessary to aver that the action, matter, or thing complained about was not ‘done in good faith’ and to provide detailed particulars in support thereof. No allegation of that kind is made by the plaintiff in this case.
 
In our opinion Coventry J was correct in ordering that the plaintiff’s claim be struck out, and this appeal must be dismissed.
 
DATED at PORT-VILA, this 1st DAY of NOVEMBER, 2001
 
BY THE COURT
J.B. ROBERTSON
J J. von DOUSSA
J D. FATIAKI J