SC2742
PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

SCA NO. 33 OF 2024, SCA NO. 35 OF 2024,
SCA NO. 39 OF 2024

BETWEEN:
KAPAN LAPET
WEIN PAK
KAY AWASA
Appellants

AND:
MOTOR VEHICLES INSURANCE LIMITED
Respondent

WAIGANI:   DAVID J, YAGI J, DINGAKE J
29 MAY, 05 JUNE 2025

SUPREME COURT – practice and procedure -application by appellants seeking orders to set aside orders of the primary court – application by respondent to summarily dismiss appellants appeal - appellants affidavit not served on respondent – inadmissible – appellants’ counsel cannot swear affidavit - Affidavit is inadmissible - hearsay and inappropriate as lawyers ought not to depose to substantive matters of fact which their clients can swear to – appeal dismissed

Cases cited
Smith v Ruma Constructions Ltd (2002) SC695
Pena v J’s Motors Ltd [2006] PGSC 35; SC961
Barrick (Niugini) Ltd v Stanley Nekitel [2021] PGSC 15; SC2092

Counsel
Mr. Danny Gonol for the appellants
Ms. Beryl Kumo for the respondent

1.	BY THE COURT: INTRODUCTION:	Before the Court there are three related applications in SCA No. 33 of 2024 (Kapan Lapet v MVIL), SCA No. 35 of 2024 (Wein Pak v MVIL), and SCA No. 39 of 2024 (Kay Awasa v MVIL). These applications arise from similar facts and circumstances and were heard together given their common background.

2.	Two applications related to the above matters have been placed before us for determination and are the subject of this Ruling. These applications are as follows:

(1)	The Appellants’ Notice of Motion filed on 4 November 2024, seeking to set aside this Court’s orders dated 14 October 2024, and

(2)	The Respondent’s application for summary dismissal of these proceedings for failure to comply with the Court Order of the 14 October 2020 wherein the Appellants were ordered to pay into Court as security for costs the sum of K25,000.00 by the 15 November 2024.

3.	The facts that ground our determination regarding the above applications are not in dispute.

4.	The Appellants commenced proceedings in the National Court seeking damages, following injuries they allegedly sustained as passengers on diverse dates in 2014 and 2015. 

5.	The proceedings were dismissed on the 20th of March and the Appellants filed appeals on the 25th of April 2025.

6.	The Respondent successfully applied for security for costs. The said order was issued in the absence of the Appellants as the Court was satisfied that the Appellants’ lawyers were duly served with the applications and had been notified of the hearing date and time of the applications. 

7.	On the 4th of November 2024 the Appellants filed applications to set aside the orders made on the 14th of October 2024 on the basis that the order to pay K25,000.00 is:

a)	Harsh and oppressive.

b)	Is not warranted, by or is disproportionate to the requirements of the particular circumstances.

c)	Is otherwise, not in the particular circumstances, reasonably justifiable in a democratic society having a proper regard for the right and dignity of mankind.

d)	Discriminatory, prejudicial or unjust.

8.	In turn, the Respondent moved for summary dismissal of the proceedings for non-compliance with the order of 14 October 2024.

9.	The Respondent also takes issue with the competency of the Appellants’ applications and argues that same offend Order 11 Rules 25 -26 of the Supreme Court Rules. 

10.	We have considered the preliminary objection raised by the Respondent. Purely for convenience, we have assumed, in favour of the Appellants, without deciding, that the applications by the Appellants are competent.

11.	Accordingly, it is to the evidence that we turn to.

Issues for Determination

12.	The Court is required to determine:

(i)	Whether the Appellants have shown sufficient cause to justify the setting aside of the Orders of 14 October 2024;

(ii)	Whether the Respondent’s application for summary dismissal ought to be considered or allowed.

Affidavit Evidence

13.	We have considered the following evidence in arriving at the decision we have reached: 

(a)	Document No. 17 Affidavit in Response by Danny Gonol, filed on 16th July 2024 and Document No. 24 Affidavit in Support by Danny Gonol, filed on 4th November 2024, with respect to SCA No. 33 of 2024;

(b)	Document No. 27 Affidavit in Support by Wein Yakene Pak filed on 18th November 2024, Document No. 23 Affidavit in Support by Danny Gonol, filed on 4th November 2024, with respect to SCA NO 35 of 2024;

(c)	Document No. 22 Affidavit in Support by Danny Gonol, filed on 4th November 2024 and Document No. 27 Affidavit in Support by Kay Awasa filed on 18th November 2024, with respect to SCA NO 39 of 2024.

14.	With respect to SCA No. 33 of 2024 (Kapan Lapet), the Appellant’s supporting Affidavit was not served on the Respondent, and we refused to admit it as evidence. In the result, the Appellant could only rely on the Affidavit of his lawyer which was filed of record. The Affidavit was inadmissible, being both hearsay and inappropriate, as lawyers ought not to depose to substantive matters of fact which their clients can swear to. At the end of the day, we found the evidence tendered by the Appellant insufficient to sustain the relief sought.

15.	With respect to SCA No. 35 of 2024 (Wein Pak) and SCA No. 39 of 2024 (Kay Awasa), Appellants’ Affidavits were properly served and filed. However, the averments contained therein, asserting inability to comply with the security for costs order, were bald and unsupported by any corroborative evidence or other indicators of impecuniosity.

Analysis

16.	The Affidavits of the Appellants upon which reliance was placed failed to give a valid reason why the judgement was allowed to be entered in the absence of the Appellants or provide any cogent and credible evidence that would make it just to set aside the Court Order. (Smith v Ruma Constructions Ltd (2002) SC 695).

17.	With respect to the Appellants’ averments that they do not have the means and capacity to pay K25,000.00, this Court recognizes that in appropriate circumstances, orders for security for costs may be set aside where an Appellant demonstrates genuine hardship or financial incapacity. However, mere assertion is not sufficient. The onus rests with the Appellants to provide credible and specific evidence of financial hardship.

18.	In the case of Kapan Lapet, no admissible evidence was provided. The Affidavit of the Appellant’s lawyer was not sufficient to sustain the relief sought.

19.	In the cases of Wein Pak and Kay Awasa, the Appellants did file and serve their Affidavits, but the content lacked particularity and substance. The statements made were conclusory and general, without supporting documentation or details that would enable the Court to assess their financial position.

Inappropriate Affidavit by Counsel

20.	We reiterate that it is inappropriate for legal practitioners to depose affidavits on matters which are peculiarly within the knowledge of their clients. This is especially critical where the Affidavit seeks to prove facts central to the outcome of an application, such as poverty or financial hardship. Counsel’s role is to advocate, not to give evidence.

21.	In the case of Pena v J’s Motors Ltd (2006) PGSC 35; SC961 this court made a very important point that lawyers would do well to pay heed to, namely, that “affidavit evidence must be sworn by persons with knowledge of the facts and not the lawyer for the applicant.”

Conclusion

22.	Having carefully considered the submissions and the evidence before us, we find that none of the Appellants have discharged the burden of demonstrating good reason for the Court to set aside the orders of 14 October 2024. Accordingly, the applications to set aside those orders are refused.

23.	It is not in dispute that the Appellants have not complied with the orders of 14th of October 2024 within the time given. In the circumstances and acting pursuant to Order 13 Rule 16(1) of the Supreme Court Rules, we consider it appropriate to grant the Respondent’s applications to dismiss all the three appeals for non-compliance (Barrick (Niugini) Ltd v Stanley Nekitel (2021) PGSC 15; SC2092.

24.	It is also trite learning that failure to comply with a Court Order may result in dismissal of proceedings.

Orders

1.	The Appellants’ applications in SCA No. 33 of 2024, SCA No. 35 of 2024, and SCA No. 39 of 2024 to set aside the orders of 14 October 2024 are dismissed.

2.	All the three appeals are dismissed for non-compliance with the orders of 14th October, 2024.

3.	No order as to costs.
_______________________________________________________________
Lawyers for the appellants:	 Danny Gonol Lawyers
Lawyers for the respondent:	Jema Lawyers