Review Pursuant to Constitution Section 155(2)(b); Application by Cloudy Bay Sustainable Forestry Limited v Pako F & C Holding (PNG) Limited (2019) SC1788

• Jurisdiction: Papua New Guinea
• Judge: Dingake J
• Judgment Date: 05 April 2019
• Court: Supreme Court
• Citation: (2019) SC1788
• Docket Number: SCREV 85 OF 2018
• Year: 2019
• Judgement Number: SC1788

Full Title: SCREV 85 OF 2018; Review Pursuant to Constitution Section 155(2)(b); Application by Cloudy Bay Sustainable Forestry Limited v Pako F & C Holding (PNG) Limited (2019) SC1788

Supreme Court: Dingake J

Judgment Delivered: 5 April 2019

SC1788

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCREV 85 OF 2018

Review Pursuant to Constitution Section 155(2)(b)

BETWEEN

Application by CLOUDY BAY SUSTAINABLE FORESTRY LIMITED

Applicant

AND

PAKO F & C HOLDING (PNG) LIMITED

Respondent

Waigani: Dingake J

2019: 18th March

05th April

SUPREME COURT – PRACTICE AND PROCEDURE – application to object to admissibility of certain parts of affidavit in support for an application for security for costs - affidavits must set out facts and not arguments - affidavits should not be argumentative, contain submissions or opinions - entire affidavit is objectionable – contents of affidavit is plainly irrelevant to the issue for security for costs – objection upheld – affidavit inadmissible

Cases Cited

Kui Valley Business Group Incorporated v Hugh Mosley and Deloitte Touche Tohmatsu (2011) N4548

William Duma v Yehiura Hriehwazi and Pacific Star Limited Trading as The National (2004) N2526

Counsel

Mr. P. Lowing, for Applicant

Mr. J. Holingu, for Respondent

5th April, 2019

1. DINGAKE J: On the 16th of February, 2019, I adjourned the Respondent’s application for security for costs to the 13th of March, 2019.

2. On the 13th of March, 2019, when the matter was called to be heard, Mr Lowing, learned counsel for the applicant, raised certain objections pertaining to the propriety or admissibility of certain paragraphs of Mr Chin’s Affidavit in Support of the respondent’s application for security for costs.

3. The details of those objections are helpfully and neatly captured by document 21, filed on the 12th of March, 2019, entitled: “Objection to Chin’s affidavit,” which I need not repeat, suffice to say, I have read the said document line by line, with extreme care.

4. The law governing how affidavits must be framed and what they must certain, which the lawyers are bound to obey in their practice of law is fairly straight forward. It is trite learning that affidavits must set out facts and not arguments. They should not be argumentative, contain submissions or opinions. The evidence canvassed in the affidavits should be relevant to the issues in controversy between the parties that the court is seized of. (Kui Valley Business Group Incorporated v Hugh Mosley and Deloitte Touche Tohmatsu (2011) N4548; William Duma v Yehiura Hriehwazi and Pacific Star Limited Trading as The National (2004) N2526).

5. There is a growing trend that lawyers in framing affidavits are increasingly paying lip service to the above golden rules, in some cases wantonly disregarding the same. This cannot be allowed to continue without putting the practice of law and the administration of justice in disrepute. Lawyers must take heed.

6. As a general rule deponents must depose only to facts within their personal knowledge.

7. I have read the affidavit of Mr Chin, line by line, I am satisfied that save for paragraphs 27 and 29, the entire affidavit is objectionable for one or all of the grounds mentioned in the...