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Cloudy Bay Sustainable Forestry Ltd v Pako F & C Holding (PNG) Ltd [2019] PGSC 24; SC1788 (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: 18^th March
05^th 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

5^th April, 2019

1. DINGAKE J: On the 16^th of February, 2019, I adjourned the Respondent’s application for security for costs to the 13^th of March, 2019.
2. On the 13^th 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 12^th 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 objection, document 21, filed of record.
8. In a nutshell, I am satisfied Mr. Chin’s affidavit is predominantly not based on facts, it is argumentative and contains arguments that are irrelevant to the issues before the court.
9. Paragraph 29 of Mr Chin’s affidavit, although it seems to make factual averments, the contents thereof are plainly irrelevant to the issue of security for costs.
10. In the result, I uphold the objections, and hold that the said affidavit is inadmissible and should be taken off the court file, and or struck out.

Leahy Lewin Lowing Sullivan Lawyers: Lawyer for Applicant
Mr. J. Holingu: Lawyer for Respondent