Peter Dickson Donigi and Diana Jeanie Donigi, Stephanie Amul Donigi, Amanda Judith Osuwe Donigi, Yasmin Amus Donigi, Caitlin Alana Iesua Donigi, Davita Marie Ann Donigi by their Next Friend and Guardian Peter Dickson Donigi and Levittown Pty Ltd and Wian Pty Limited v Papua New Guinea Banking Corporation (2002) SC691

• Jurisdiction: Papua New Guinea
• Judge: Salika J, Kandakasi J, Batari J
• Judgment Date: 02 November 2001
• Court: Supreme Court
• Citation: (2002) SC691
• Year: 2002
• Judgement Number: SC691

Full Title: Peter Dickson Donigi and Diana Jeanie Donigi, Stephanie Amul Donigi, Amanda Judith Osuwe Donigi, Yasmin Amus Donigi, Caitlin Alana Iesua Donigi, Davita Marie Ann Donigi by their Next Friend and Guardian Peter Dickson Donigi and Levittown Pty Ltd and Wian Pty Limited v Papua New Guinea Banking Corporation (2002) SC691

Supreme Court: Salika J, Kandakasi J, Batari J

Judgment Delivered: 2 November 2001

SC691

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCA NO. 110 OF 1999

BETWEEN:

PETER DICKSON DONIGI and

DIANA JEANIE DONIGI

First Appellant

AND:

STEPHANIE AMUL DONIGI,

AMANDA JUDITH OSUWE DONIGI,

YASMIN AMUS DONIGI,

CAITLIN ALANA IESUA DONIGI,

DAVITA MARIE ANN DONIGI

by their next friend and guardian

PETER DICKSON DONIGI

Second Appellants

AND:

LEVITTOWN PTY LTD

Third Appellant

AND:

WIAN PTY LIMITED

Fourth Appellant

AND:

PAPUA NEW GUINEA BANKING CORPORATION

Respondent

WAIGANI: SALIKA, KANDAKASI, BATARI, JJ

2001: 31st October

02nd November

PRACTICE & PROCEEDURES – Application to dismiss for want of prosecution – Failing to file and serve index of appeal book promptly – Failure to promptly request and obtained transcripts – Insisting upon the inclusion of irrelevant material causing delay in prosecution of appeal – Failure to promptly reply to and provide information concerning capacity of infant appellant to continue with appeal after age of majority – Infant appellant attaining age of majority but proceedings not amended or rectified to reflect that – Appeal dismissed for want of prosecution – Supreme Court Act ss. 4, 14 (1) and 17 – Supreme Court Rules O. 7 rr. 129, 33 to 35, 36, 38, 40-41, 43 to 44.

Cases Cited

Counsels

Mr. K. Frank, for the Appellant

Mr. P. Mills, for the Respondent

2nd November 2001

BY THE COURT: On the 18th of October 1999, the National Court entered joint judgement against Appellants (“the Donigis”) in the sum of K1,215,390.06 plus interest at 8% yearly from the 1st of December 1995. The Court also ordered a dismissal of the Donigi’s defence and cross claim. That followed a refusal of an application by the Donigis for an adjournment of the trial set for the 18th and 19th October 1999 sometime back. On the 26th of November 1999, the Donigis lodged an Application for Leave to Appeal against the decision leading to those orders.

The Respondent, Papua New Guinea Banking Corporation (“the PNGBC”) is now applying to dismiss that application on the basis that it has not been prosecuted with due diligence. The Donigis are opposing that application saying they have acted with due diligence and are now ready to proceed with a hearing of the application. The only issue before us is this. Has the Donigi’s prosecuted their application with due diligence?

The relevant chronology of events is this:

· 26th November 1999, Leave Application filed.

· 15th December 1999, the Donigis draft appeal book index was sent to PNGBC’s lawyers.

· 16th December 1999, parties agreed to draft index.

· 19th December 1999, appointment to settle index but vacated due to no draft index.

· 5th January 2000, Deputy Registrar requested to fix appointment to settle draft index.

· 2nd March 2000, appointment to settle draft index but deferred to 16th March 2000 due to PNGBC’s non-appearance.

· 16th March 2000, index settled.

· 21st March 2000, Donigis wrote to PNGBC requesting it to obtain transcripts and pay for them.

· 24th March 2000, PNGBC agreed to pay for the transcripts.

· 13th June 2000, the Donigis requested Deputy Registrar for the transcripts.

· 27th June 2000, Deputy Registrar asked the Donigis to direct their request to the Court Reporting Services.

· 27th June 2000 the Donigis wrote to the Court Reporting Services requesting the transcripts.

· 19th October 2000, transcripts ready for collection.

· 16th March 2001, PNGBC wrote to the Donigis requesting inter alia, the age of the second appellants (“the children”) their cause of action, the occupation of first appellant (“Mr. Donigi”) and progress of the application generally.

· 20th March 2001, PNGBC forwarded exhibits to Deputy Registrar after the Donigis filed for a dispensation of the need for the exhibits.

· 4th October 2001, PNGBC followed up on its letter of 20th March 2001 to the Donigis and confirmed not being provided with a draft appeal book yet despite an agreement for that to be done by the 26th March 2001.

· 20th April 2001, draft appeal book sent to PNGBC.

· 8th August 2001, the Donigis responded to PNGBC’s letter of 20/3/01 saying age of the children was irrelevant.

· 16th August 2001, Application to dismiss filed.

· Shortly before 19th October 2001, PNGBC requested the appeal by the children be discontinued if any of them reached age of maturity.

· 19th October 2001, the Donigis wrote to PNGBC indicating that the appeal by the children will be discontinued to avoid exposure by them to legal costs on the instructions of Mr. Donigi, with a notice of Discontinuance attached.

· 26th October 2001, PNGBC refused to endorse Notice of Discontinuance on the basis that the children may have attained age of majority and adopted the proceedings. At the same time it stated that the Donigis have not provided the age of the children.

· 26th October 2001 the Donigis informed PNGBC of the dates of birth of the children.

From this chronology of events it is clear that after lodging the leave application on the 26th of November 1999, the Donigis did not file and get an agreement or settlement of the index to the appeal book until the 16th of March 2000. That saw a passage of about 4 months. Similarly, no request for the relevant transcript was made until the 27th of June 2000. A further period of about 3 months was allowed to pass. The transcripts were made available on the 19th of October 2000. No follow-ups on the request for the transcripts was made. The Donigis did not compile the appeal book after the receipt of the transcript. They say they were waiting for certain exhibits to be provided by PNGBC, which were provided to the Court on the 20th of March 2001 by PNGBC. The appeal books were eventually compiled and delivered to PNGBC on the 20th of April 2001. PNGBC refused to certify the appeal book for a number of reasons including the inclusion and or exclusion of certain documents as well as the lack of any response to the issue of the capacity of the children to continue in the manner set out in the proceedings. By their letter of the 8th of August 2001 the Donigis lawyers took the view that the issue of the children’s capacity and the continuation of the proceedings was irrelevant. That resulted in PNGBC filing the application to dismiss the Donigi’s leave application on the 16th of August 2001. Then only after the filing of the application to dismiss, the Donigis provided the dates of birth of the children by letter dated 26th October 2001. By that time it became clear that the children’s respective ages of majority were as follows:

a) Loretta 28/5/95

b) Stephanie 19/2/96

c) Amanda 21/2/98

d) Yasmin 26/5/00

e) Caitlin 21/10/01

f) Danita 9/9/05

During arguments it was clear that the Donigis lawyers have not yet sought and obtained specific instructions from the children who have obtained age of majority.

The law on want of prosecution is well settled in our jurisdiction. It starts with Order 7 Rule 53 of the Supreme Court Rules. That rule stipulates:

“Where an appellant has not done any act required to be done by or under these rules or otherwise has not prosecuted his appeal with due diligence, the court may –

a) Order that the appeal be dismissed for want of prosecution;…

b) Fix a time peremptorily for the doing of the act and at the same time order that it be so dismissed;

c) Order that upon non compliance, the appeal shall stands dismissed for want of prosecution, or subsequently, and in the event of non compliance; or

d) Make any other order that may seem just.”

There are numerous case authorities on this provision. One of the often-cited case is General Accident Fire & Life Assurance Corporation Ltd v. Ilimo Farm Products Pty Ltd [1990] PNGLR 331. In that case, the issue of...