How Do I Challenge a Decision of the Securities Commission in Papua New Guinea?

The Securities Commission refuses a licence, revokes a trustee’s approval or imposes a penalty. What happens next depends on which Act the decision was made under, how quickly you move and whether you ask for the right order.

Step one: review by the Board

The Securities Commission (Amendment) Act 2023 replaced section 111 so that the review is conducted by the Board, the seven-member governing body described in how the Commission is governed. Sections 453 and 454 of the Capital Market Act 2015 contain the same 30-day review right for decisions under that Act. Section 112 of the Securities Commission Act 2015 makes decisions final “except as otherwise provided” but lets a dissatisfied person appeal to the National Court.

Step two: appeal to the National Court on a question of law

Section 114 limits the appeal. As amended in 2023, a person dissatisfied with “an outcome of a review under Section 111” as erroneous on a point of law may appeal to the National Court by way of case stated “on a question of law only”. The steps are strict: within 14 days of the determination the appellant lodges a notice of appeal with the Commission and serves every other party; within a further 14 days the appellant lodges a written case setting out the facts, the grounds of the determination and the question of law, and serves it. The Court may extend the time for the notice of appeal (section 114(5)). Only legal error, not a dispute about the facts, reaches the judge.

Licensing decisions: 14 days under section 56

Licensing decisions have their own provision. Section 56 of the Capital Market Act requires an aggrieved person to appeal to the National Court within 14 days of being notified. The Court may confirm the decision, set it aside or refer the matter back to the Commission, and must take into account the interests of investors and the public. Section 56(3) says the appeal “shall not affect the decision of the Commission which shall take effect immediately upon issue, unless the appellant sought an order against the Commission restraining the Commission from effecting its decision”.

Melanesian Trustee Services Ltd v Securities Commission of Papua New Guinea [2023] PGNC 356; N10524 shows how sharp that edge is. After its licence as trustee of the Pacific Balance Fund was revoked a second time on 25 September 2023, MTSL appealed and applied for a “stay” of the decision. Anis J held that section 56(3) permits only an interim restraining order sought before the decision is implemented, not a general stay; that other sources of power such as the National Court Rules cannot be invoked in a section 56 appeal; and that because the revocation had already been effected on service, there was nothing left to restrain. The lesson: a licensee who expects an adverse decision must be ready to seek a restraining order the moment it issues. See the MTSL case explained.

Other statutory appeals and judicial review

Several Capital Market Act provisions carry their own appeal clauses: a body corporate served with a direction under section 19 may appeal within 14 days; a person aggrieved by a trading prohibition under section 21 may appeal to the National Court, whose decision is final. Section 455 states that decisions of the Minister, including on appeal from the Commission, are final, but the consolidated Act does not clearly identify any decision that is appealable to the Minister.

Where no statutory appeal fits, or where the complaint is about jurisdiction, bias or procedure rather than the merits, judicial review under Order 16 of the National Court Rules 1983 is available, with leave. In Oil Search Ltd v Tongayu [2021] PGNC 22; N8785 the Commission argued that Oil Search should have appealed under section 21(5) rather than seeking declarations by originating summons, and that section 115 of the Securities Commission Act barred the proceeding. Anis J held the originating summons competent: the company was not aggrieved by a Commission decision but sought confirmation of approvals already granted, and the words “may appeal” in section 21(5) do not exclude judicial review, a writ or an originating summons. Section 115, retitled “Protection of members” in 2023, gives the Commission, its Board, CEO and officers immunity from civil and criminal proceedings for acts done in good faith; it is an immunity, not a bar to appeal or review of the decision.