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 & PROCEDURE – 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 whether the appellant prosecuted his appeal with due diligence was considered. The Supreme Court held that, the appellant did not prosecute his appeal with due diligence and dismissed the appeal. In so doing, the Supreme Court considered several factors. They included a failure to attend on settlement of the appeal book, failure to explain non-attendance, failure to respond to correspondence and failure to provide any explanation for dilatory conduct where an explanation could properly be expected. The Court found that, the appellant failed to attend on the Deputy Registrar; to serve a notice of appeal contemporaneously; to respond to letters endeavoring to reach a consensus on the right to pursue recovery pending appeal. It found these failures indicative of want of due diligence: see page 334.

The case cited and many others say that, once a case of delay or want of prosecution is established, the onus then shifts to a respondent to an application to dismiss (the appellant) to satisfactorily explain the delay. If there is a failure in that obligation or there is no reasonable explanation provided, an application to dismiss may be granted.

It has also been emphasized in many cases such as Burns Philip (New Guinea) Limited v. George [1983] PNGLR 55, at p.56 (in the context of the then equivalent of Order 7 Rule 53):

"None of this is to say that r.25 will be regarded lightly. It is the rule of court and any appeal which does not meet its requirements is at risk of being dismissed."

For further authorities on this, see Public Prosecutor v. Marai [1996] PNGLR 81 and Joe Chan and PNG Arts v. Mathias Yambunpe (1997) SC 537.

The right of appeal stems out of the provisions of Section 4 for both civil and criminal matters and Section 14(1) of the Supreme Court Act for criminal matters. Section 17 of the Act places a limit of forty (40) days or within such further time as extended by a Judge on application made to him within that period of forty (40) days for one to exercise his right of appeal. Order 7 Rules 1 to 9 deal with how an appeal can be instituted. The next four Rules of that Order provides for service of appeal documents on each of the parties affected by an appeal.

Once an appeal has been instituted O.7 rs.33 to 35 require the appellant, on filing a notice of appeal, to get from the proper officer at the Registry, an appointment to settle the appeal book. Once an appointment has been obtained, that should be communicated to the person on whom the notice of appeal has been served. Rules 36 to 38 require an appellant to obtain and produce to the Registrar reasons for the Judgement appealed against and copies of notes of evidence taken by the primary Judge certified by his Associate or other authorised person. Thereafter, Rules 40 and 41 require an appellant to prepare, file and serve a draft index of the papers, which are to constitute the appeal book. Rule 43 goes on to require an appellant to prepare an appeal book which is to be filed and served on each of the parties affected by the appeal in accordance with Rule 44.

After all the foregoing, Rule 48 provides that an Appeal must be set down for hearing at the first sittings of the Court to be held after the expiration of twenty eight (28) days from the institution of the appeal. The appeal should be set down at least twenty-one (21) days before the day appointed for the commencement for the sittings.

Where an appellant fails to do any of the above or fails to duly prosecute his appeal, rule 53 gives a respondent the right to apply for a dismissal of the proceeding. The power to dismiss an appeal on an application such as this is a discretionary one. That discretion, is usually exercised where there is a case of undue delay on the part of an appellant to prosecute his appeal without any satisfactory explanation for such a delay. Where, an appellant fails to do any of the acts required by the Supreme Court Act or the Rules, it also paves the way for the Court to dismiss the proceedings. Further, where an appellant has done all the acts required by the Act or the Rules but does not take any steps to prosecute his appeal it attracts an exercise of the discretion in favour of a dismissal. Support for these propositions can be drawn from the Judgements in the case of Burns Philip (New Guinea) Ltd v. Maxine George (supra) at page 56, Tenge Kai Ulo v. Acting Public Prosecutor & Anor [1981] PNGLR 148 at page 149 to 150, General Accident Fire & Life, Assurance Corporation Ltd v. Ilimo Farm Products Pty Ltd (supra) at page 334 and Arthur Ageva v. Bobby Gaigo [1987] PNGLR 12 at page 14 (second last paragraph) to page 15.

In the present case, the Donigis had their draft index of appeal book settled on 16th of March 2000. That was about 4 months after the lodgment of the leave application on the 26th of November 1999. Order 7 rr.40 and 41 provide that an appellant shall file and serve a draft index "before the date appointed for settlement." The Deputy Registrar fixed the 19th of December 1999 for a settlement of the index. The Donigis failed to file and serve their index of appeal book before that date and the appointment was deferred to accommodate their convenience.

Once the draft index was settled on the 16th of March 2000, the Donigis were required to compile the appeal book but they did not. They attribute the delay to non-availability of the relevant transcripts and certain exhibits. Order 7 rr. 36-39 provide that an "appellant shall obtain and produce to the Registrar, if required:–

a)	"the reasons for judgement of primary judge or court; and

b)	a copy of the notes of evidence taken by the primary judge certified by his Associate or other authorised person"

and if any error is detected have them corrected. Presently, all proceedings before the National Court are being recorded. This makes it possible for a transcript of the proceedings to be made available almost immediately subject to the speed of getting that processed. In any case, it is clear that a settlement of the draft index to an appeal book is to take place after the transcripts have been obtained.

There may of course be delays in obtaining the transcripts from the relevant court officers or authorities. This could be allowed for in the fixing of dates for a settlement of draft index. This in our view necessarily requires a close communication between an appellant and his/her respondent as well as the Registrar or the Deputy Registrar of the Supreme Court. In any event, an appellant is required to obtain the relevant transcripts. That means in our view, a request for the transcripts if required, to be made promptly. This should be done at the time of lodging the appeal as there is nothing else to be done to facilitate the making of such a request and that nothing could be done unless the transcript is first obtain if we strictly go by the rules. Nevertheless, in the spirit of expediting an appeal, it is good practice to prepare a draft index subject to change only on the number of the pages of the transcript. Such a draft should be filed and tentative dates for its settlement should be fixed even before the transcripts are actually received.

In the case before us, the request for the transcript was made on the 27th of June 2000. That was 7 months after the lodgment of the leave application. No explanation is provided for the failure to request the transcript on the same day or soon after the lodging of the leave application. There was some attempt in June 2000, by the Donigis to pass on the responsibility to PNGBC. However, that in our view is not a good explanation for a failure to request and obtain the transcript promptly by them as appellants. 

In relation to the exhibits, there is no provision in the rules as to when, how and who should obtain them. We are of the view that the provision applying to transcripts as discussed above applies to exhibits because, exhibits are part of the evidence called by a party and are part of the transcript. However, whether transcripts and or exhibits should be required and included in an appeal book should be guided by Order 7 r. 43(e) in that only relevant transcripts and exhibits should be included in an appeal book.

For the case before us, we are unable to work out how certain exhibits were with PNGBC and not with the court in its relevant file. In any case, there is no dispute that the exhibits were not relevant for the purposes of the leave application. This were was because the application is against the National Court refusing the Donigis application for an adjournment and the Court proceeding to deal with the case in the way it did. The exhibits concerned PNGBC’s damages or evidence of its claim against the Donigis. Nevertheless, both parties proceeded on the basis that, those exhibits were required for the Appeal. This in our view is demonstrative of a failure on the part of the Donigis lawyers to closely examine the grounds of their client’s application and the relevant rules of the court more particularly, O. 7 r. 43(e). If they did that they would have found that they were wasting time on irrelevant exhibits. 

That failure resulted in unnecessary delays in a prompt prosecution of this appeal. However we will disregard this factor because of the fact that PNGBC had the exhibits in its position. It then agreed to their relevance and failed to promptly furnish them. It is therefore unfair to penalize the Donigis on this aspect as the cause of the delay in expediting the appeal process.

Of more importance, in our view is the Donigis failure to promptly respond to a request by PNGBC to provide the age or dates of births of the children. That issue was legitimately raised given that the proceedings were jointly for and by the children. The request was made on the 16th of March 2001. Following no response, follow-ups were made on the 4th of April, 16th and 13th of May and the 26th of October 2001. This resulted in a provision of the information required under cover of letter dated 26th of October 2001. Earlier on the 8th of August 2001, the Donigis lawyers took the position that the issue raised by PNGBC over the children’s position was irrelevant. They continued to maintain that position during the arguments before us. Yet they provided no authority as to how they could still continue to conduct proceedings on behalf of the children who have since attained majority before, at and or after the issue of the leave application through a next of friend. 

Mr Mills of counsel for the PNGBC drew our attention to the case of Feeney v. Pieper [1964] QWN 23 at page 55, and argued that once a minor turns majority the authority of the next of friend ceases. He then drew our attention to the case of Cavberry v. Davies (formerly an infant but now of full age) and Another [1968] 2 All ER 817 at paragraph D page 818 per Harman LJ and submitted that, once an infant acting through a next friend attains age of majority the proceedings should be amended to show that fact if the person decides to adopt the proceedings. This must be accompanied by a formal notice filed with the Court showing that the infant has attained majority (per Feeney’s case). This requires before hand seeking of specific instructions from the person concerned as to whether he or she wishes to adopt the proceedings after a full and detailed advise on the nature of the proceedings and how he or she is affected or could be affected.

Our National Court Rules do provide for proceedings to be issued for or against infants through next of friends. There is no similar provision in the Supreme Court. Despite that infants have had no difficulty going before the Supreme Court as in this case through their next friends.

Both the National and Supreme Court Act or the Rules are silent on what should happen when an infant attains his/her age of majority. There is however, provision in the Frauds and Limitations Act 1988 which could be interpreted and applied in terms of Mr. Mill’s submissions, particular in relation to the need to seek the specific instructions of an infant who as attained majority of his position in relation to proceedings issued or defended on behalf of him through his next of friend. The relevant provisions are sections 14 and 22, which read as follows:

"14	Promises by Infants

Where a person, not being of full age-

(a)	incurs a debt; or 
(b)	enters into a simple contract; or
(c)	makes a promise,

and that person, on attaining full age-

(d)	in respect of Paragraph (a), promises to repay the debt; or 
(e)	in respect of Paragraph (b) or (c), ratifies the contract or the promise, as the case may be,

no action shall be brought to charge that person upon the promise referred to in Paragraph (d) or upon the ratification referred to in Paragraph (e) unless that promise or ratification, as the case may be, is in writing signed by that person."

"22.	Extension of limitation period in case of disability.

(1)	Subject to the provisions of this section, where-

(a)	a right of action in respect of which a period of limitation is specified by this Act accrues to a person; and

(b)	on the date when the right of action accrues the person is under a disability.

the action may be brought at any time before the expiration of six years commencing on the date when the person ceases to be under the disability, notwithstanding that the period of limitation has expired."

In the light of these provisions and given that an infant may be open to liability, we consider it appropriate that an infant acting through a next of friend subsequently attaining majority should be required and or allowed to make an educated decision as to whether he or she should adopt the proceedings. Accordingly, we consider the practice spoken of in the cases Mr Mills relies on, appropriate to the circumstances of our country in the absence of any authority to the contrary. They apply as part of our underlying law pursuant to Sch. 2.2 (1) of the Constitution.

Although, this may be the first formal pronouncement of these principles in our country, we are of the view that the position always remained that way by virtue of the adoption of the common law under Sch. 2.2(1) and the existence of provisions like sections 14 and 22 of the Frauds and Limitations Act. It was therefore incumbent upon the Donigis Lawyers to answer the requests of PNGBC promptly and as a matter of importance because that raised the important question of whether the lawyers or Mr Donigi had the necessary instructions to continue with the proceedings once the children reached their majority. Without the support of any authority the Donigis lawyers took the position that the issue raised was irrelevant.

We are of the view that the issue raised by PNGBC was a legitimate one. It related to the capacity of the children to continue with the proceedings. It also concerned Mr Donigi and the Donigis lawyers to continue with the proceedings on behalf of the children, most of whom reached majority. Legally Mr Donigi’s authority to act for the children who reached majority ceased upon them reaching that age. That required the lawyers to fully advise the children of the nature of the proceedings and then seek their specific instructions as to whether the children were adopting the proceedings or not. If the children decided to adopt the proceedings, notice of their reaching majority and choosing to adopt the proceedings should have been given. If the lawyers were unclear as to what to do, they should have applied to the Court for appropriate orders or directions but they did not. As long as this issue remained unanswered the proceedings could not proceed.

Based on the evidence before us, especially the letter dated 26th October 2001 from Maladinas lawyers to Blake Dawson Waldron lawyers, it is clear that the Donigi’s lawyers paid no attention to this issue at all. The children Loretta, Stephanie and Amanda had reached their majority before the National Court proceedings leading to this appeal were issued. Yet they proceeded through a next of friend. The child Yasmin reach majority on the 26th of May 2000 followed by Caitlin on the 21st of October 2001. No steps were taken to effect the necessary changes to the proceedings despite PNGBC repeatedly raising the issue. The position remains the same even up to this time. In other words, no meaningful steps were taken to ensure that the children were actively participating in the proceedings. (see: NSC Insurance Ministerial Corporation v. Abua Ifoul [1999] CCA 433 and Yonge v. Toynel [1908-10] All ER 204)

The Donigi’s lawyers have been acting and a continuing to do so in breach of their implied warranty of authority that they had the lawful and valid instructions to act for the children. This means the appeal is not in a state of readiness to proceed.

Apart from the Donigi’s lawyers determining this issue to be irrelevant there is no other explanation for a failure to take the appropriate steps up to this time. This saw a period of 7 months pass. That delay is in excusable. This shows a clear case of want of prosecution.

For these reasons, we uphold the application to dismiss the leave application. Accordingly we order a dismissal of the application for leave with costs against the Appellants.

There were other arguments of PNGBC such as the Donigis not applying for leave without waiting for the appeal books, placing reliance on Yakam and Anor Ors v. The Merriams SC 533. We are not convinced by these arguments because Mr. Mills or his client by its conduct agreed with the Donigis that the appeal book had to be filed before listing the application for hearing.
________________________________________________________________
Lawyer for the Appellant	:	Lomai Lomai
Lawyer for the Respondent	:	Blakes Dawson Waldron