SC 922

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA No. 110 of 2004

BETWEEN

PETER YAMA
First Appellant

AND

AGATHA YAMA
Second Appellant

AND

MARY YAMA
Third Appellant

AND

PNGBC LIMITED (Now known as Bank of South Pacific Limited)
Respondent

Waigani: Sakora, J., Gabi, J. and Hartshorn, J.
2007: 31 October
2008: 9 July

SUPREME COURT - CIVIL - PRACTICE AND PROCEDURE - Order 7 Rule 53 Supreme Court Rules - Exercise of discretion on an application to strike out for want of prosecution – Disqualification of Lawyer – Conflict of Interest – Rule 10 Professional Conduct Rules – Lawyers – Fees - Rule 18 Professional Conduct Rules – Res Judicata – Second application to strike out – Unavailability of Counsel

Facts:

PNGBC by Writ of Summons commenced proceedings against the appellants (Guarantors) seeking relief inter alia, for their failure to comply with notices of demand that had been served upon them in their capacities as guarantors of companies associated with the first appellant Mr Peter Yama. Justice Davani entered default judgment against the Guarantors with damages to be assessed. The damages were later assessed. The Guarantors appealed against the decision of Justice Davani to enter default judgement but not against the assessment of damages. The application before this Court was filed by PNGBC for the appeal to be dismissed for want of prosecution and by the Guarantors to inter alia, have PNGBC’s application dismissed pursuant to s.8 (e) of the Supreme Court Act. The Guarantors also applied to this Court to disqualify or restrain Mr Andersen or Gadens Lawyers from representing or acting for PNGBC. 

Held:

1. The Guarantors are not clients of Gadens Lawyers or Mr. Erik Andersen and are therefore unable to rely on the provisions of Rule 10 Professional Conduct Rules.

2. Gadens Lawyers and Mr. Erik Andersen do not have a conflict of interest in acting for PNGBC. The application for them to be disqualified or restrained from acting for PNGBC in these proceedings is refused.

3. Where there has been an unsuccessful application to dismiss for want of prosecution, res judicata does not apply in respect of a further application as there is not a decision that finally disposes of the rights of the parties.

4. The Guarantors have not prosecuted their appeal with due diligence. They have not offered an adequate explanation for the substantial periods of delay which have occurred. They have not taken any steps to progress the appeal between the filing of this application and its hearing. There is no basis on which the court can exercise its discretion in favour of the Guarantors. The appeal is dismissed for want of prosecution.

Cases Cited:

Papua New Guinea Cases

Tenge Kai Ulo v Acting Public Prosecutor [1981] PNGLR 148 
Burns Philp (New Guinea) Limited v George [1983] PNGLR 55 
Herman Gawi v. png Ready Mixed Concrete (1983) unnumbered, unreported 
General Accident Fire and Life Assurance v Ilimo Farm [1990] PNGLR 331 
North Solomons Provincial Government v. Pacific Architecture Pty Ltd [1992] PNGLR 145
Yema Gaiapa Developers Limited v Hardy Lee (1995) SC484 
Tolom Abai v. The State (1995) N1402 
Titi Christian v. Rabbie Namaliu (1996) unreported OS No. 2 of 1995 18.7.06 
 Attorney-General, Minister for Justice and the State v Papua New Guinea Law Society (1997) SC530 
Joe Chan and PNG Arts Pty Ltd v Mathias Yambunpe (1997) SC537 
Bernard Juali v The State (2001) SC667 
Donigi v PNGBC (2002) SC691
Dan Kakaraya v. Sir Michael Somare, Koiari Tarata and Francis Kaupa (2004) SC762 
Oio Aba v. MVIL (2005) SC779 
PNG Nambawan Trophy Ltd v Dynasty Holdings Ltd (2005) SC811

Overseas Cases

Bozson v. Altrincham UDC [1903] 1 KB 547 
 
References

Supreme Court Rules 
The Doctrine of Res Judicata by Spencer-Bower and Turner 1969 2nd ed p.1

Counsel

B. Lomai, for the Appellants
E.G. Andersen and M. Peipul, for the Respondent

9 July, 2008 

1.	BY THE COURT: The respondent (PNGBC) commenced proceedings by writ of summons against the appellants (Guarantors) seeking relief inter alia, for their failure to comply with notices of demand that had been served upon them in their capacities as guarantors of companies associated with the first appellant Mr Peter Yama. Justice Davani entered default judgment against the Guarantors with damages to be assessed. The damages were later assessed. The Guarantors appealed against the decision of Justice Davani to enter default judgement but not against the assessment of damages.

2.	The applications that came before this Court were by PNGBC for the appeal to be dismissed for want of prosecution and by the Guarantors for:

i) 	PNGBC's application to be dismissed pursuant to s.8(e) Supreme Court Act,

ii) 	Mr. Erik Andersen or Gadens Lawyers (Andersen/Gadens) to be disqualified and/or restrained from representing or acting for PNGBC in this matter or any other matter involving the Guarantors and PNGBC including its agents such as a Receiver Manager or a Liquidator, pursuant to section 155(4) Constitution,

iii)	appeals SCA 110 of 2004, SCA 88 of 2006 and SCA 95 of 2003 to be consolidated,

iv) 	this appeal to be argued in the next Supreme Court sitting in November 2007.

3.	It was agreed by consent that application 2 ii) above would be heard first. The Court would then reserve its decision and immediately proceed to hear PNGBC’s application. Applications 2 iii) and iv) would be heard at a later date depending on the Court’s decision on the other applications. The Guarantors did not proceed with their application 2 i).

Disqualification/Restraint Application

4.	The Guarantors contend that Andersen/Gadens should be disqualified or restrained from acting for PNGBC as they have a conflict of interest (Gadens question). The conflict of interest allegedly arises as some of Gadens legal fees for acting for PNGBC have been charged or added to the accounts of Neisenal No. 77 Limited. The uncontested evidence is that there has never been any contractual or solicitor-client relationship between the Guarantors and Gadens. It is not disputed that PNGBC has paid legal fees to Gadens and then charged or added the amount of those legal fees to the debt owing by the Guarantors. The Guarantors contend that this is a breach of Rule 10 of the Professional Conduct Rules which is as follows:

10.	Conflict of interest.

(1)	Subject to the duty of a lawyer to the court, a lawyer shall give undivided fidelity to his client's interests, unaffected by—

(a)	any interest of the lawyer; or

(b)	any interest of any other person; or

(c)	the lawyer's perception of the public interest.

(2)	If a lawyer has any interest in a matter which—

(a)	may conflict with; or

(b)	is adverse to,

 the interests of his client, he shall decline to represent or shall withdraw from representing that client.

(3)	If a lawyer has or acquires any interest in a matter and he—

(a)	wishes to accept; or

(b)	has accepted,
instructions from a client, touching on that matter, he shall—

(a)	decline to represent; or

(b)	withdraw from representing,

that client, unless the client is fully informed in writing of the lawyer's interest in the matter and the client voluntarily assents in writing to the lawyer acting or continuing to act on his behalf.

(4)	A lawyer or a firm of lawyers shall not represent or continue to represent conflicting interests in litigation.

(5)	A lawyer or a firm of lawyers shall only represent or continue to represent two or more parties in any matters, other than litigation if—

(a)	to do so is not likely to prejudice the interests of the client; and

(b)	the client is fully informed of the nature and implications of the conflict; and

(c)	the client voluntarily assents in writing to the lawyer or firm of lawyers acting or continuing to act; and

(d)	in the case of any town in which there are two or more firms of lawyers practising, the client has declined to place his instructions with another firm.

(6)	A lawyer shall not give advice, other than the advice to secure the services of another lawyer, to a person who is not his client, where he knows the interests of that person are in conflict with or likely to be in conflict with the interests represented by him of his client.

(7)	Where a lawyer has accepted instructions from two clients in a matter and a conflict develops between the interests of those clients, the lawyer shall immediately inform each of the clients that he has forthwith ceased to act for them and that they each must instruct other lawyers.

(8)	Where—

(a)	a lawyer has represented a client; or

(b)	because of a lawyer's association with a law firm he has had access to a client's confidences,

that lawyer shall not thereafter use such information against that client's interest or for the benefit of any other person.

(9)	If Counsel forms the view that there is a conflict of interest between his client and his instructing lawyer, he shall advise that it would be in the client's interest to instruct another lawyer and such advice shall be given either in writing to the lawyer or at a conference at which both the lawyer and the client are present.

5.	It is apparent that the scheme of Rule 10 is to regulate the relationship between a lawyer and his client. Section 1 Professional Conduct Rules inter alia, defines a client as "any person from whom a person accepts instruction". There is no evidence that Gadens have ever accepted instructions from the Guarantors. In this instance the client of Gadens is PNGBC, not the Guarantors. Gadens and its lawyers only have a duty to their client PNGBC, subject to the lawyers’ duty to the court, to give ‘undivided fidelity’ to their client’s interests. They do not owe a similar duty to the Guarantors. Rule 10 is inter alia, for the protection of a client. The Guarantors are not clients of Andersen/Gadens and they are therefore unable to avail themselves of the provisions of Rule 10 as they contend.

6.	The Guarantors further contend that Rule 18 Professional Conduct Rules prohibits Gadens’ fees from being charged or added by PNGBC to the debt owing by the Guarantors. Rule 18 Professional Conduct Rules is as follows:

18.	Fees and Trust Accounts.

(1)	A lawyer shall comply with the provisions of the Act with respect to costs and to the operation and maintenance of trust accounts.

(2)	A lawyer shall not claim his costs in a letter of demand for debt or damages or other relief written on behalf of a client unless his client has a right to recover such costs.

(3)	A lawyer shall not in the course of his practice—

(a) give or agree to give an allowance in the nature of an introduction fee or spotter's fee to any person for introducing professional business to him; or

(b) receive or agree to receive any such allowances 	referred to in Paragraph (a) from any person for introducing or recommending clients to that person.

(4)	A lawyer shall, within a reasonable time after being requested by his cient, render a bill of costs covering all work performed for that client to which the request relates.

(5)	A lawyer shall charge no more than is reasonable by way of costs for his services having regard to—

(a)	the complexity of the matter, the time and skill involved; and

(b)	any scale of costs that might be applicable; and

(c)	any agreement as to costs between the lawyer and his client.

7.	In our view there is no specific provision in Rule 18 that could in any way be interpreted to prohibit PNGBC from charging or adding the fees that it has paid Gadens to the debt owing by the Guarantor. Even if there was a breach of such a provision it would not lead to the conclusion that Andersen/Gadens had a conflict of interest and therefore should be disqualified or restrained from acting for PNGBC.

8.	The Guarantors further contend that Gadens are in breach of Order 22 National Court Rules as they should provide bills of costs in taxable form to the Guarantors. No specific rule in Order 22 was cited on behalf of the Guarantors. For completeness, we refer to 2 Rules in the Order that may have had some relevance. Order 22 Rule 3 is as follows:

3. Application

This Order applies, subject to its terms, to and in respect of costs payable or to be taxed under any order of the Court or under these Rules and costs to be taxed in the Court under any Act.

9.	There is no evidence before this court of any orders being made by the National Court for costs to be paid or taxed.

10.	Order 22 Rule 47 applies to proceedings for the taxation of costs under s. 63 Lawyers Act. Order 22 Rule 47(2) provides that an application to the court under s.63 Lawyers Act shall be made in writing and shall be filed. Again, there is no evidence before this court of any such application being made.

11.	In our view this contention is misconceived. Gadens’ bills of costs are rendered to its client PNGBC. If PNGBC wished to take issue with a particular bill of costs it could avail itself of the relevant provisions of the Lawyers Act and/or the National Court Rules. The Guarantors are not able to avail themselves of such provisions in respect of bills of costs rendered to PNGBC. In any event, if there had been the breaches as contended by the Guarantors, such breaches do not lead to the conclusion that Anderson/Gadens had a conflict of interest and therefore should be disqualified or restrained from acting for PNGBC.

12.	The application for the order seeking the disqualification/restraint of Andersen/Gadens specifies reliance upon s.155(4) Constitution although Counsel for the Guarantors relied heavily on the arguments already considered. It was contended on behalf of PNGBC that under s.155(4) Constitution, the National and Supreme Courts have the inherent power to do what is equitable in the circumstances to do justice should existing law be silent in the manner of dealing with a particular issue; the particular issue being whether a mortgagee has the right to add its costs of recovering a debt to the amount due. 

13.	It is our view that it is not necessary to consider this contention as the issue whether a mortgagee has the right to add its costs of recovering a debt to the amount due was not before the National Court and is therefore not properly before this court.

14.	That said, it appears to us that even if this court came to the conclusion that a mortgagee does not have the right to add its costs of recovering a debt to the amount due, and it is to be understood that the court has not given any consideration to or makes any determination concerning that issue, such a conclusion may give the Guarantors some relief or a cause of action against PNGBC but that relief or cause of action would not lead to Andersen/Gadens being disqualified or restrained from acting for PNGBC. 

15.	Accordingly for the reasons given above application 2 ii) of the Guarantors is refused.

Dismissal Application

16.	PNGBC applies inter alia, for an order that pursuant to Order 7 Division 19 Rule 53 Supreme Court Rules, that the appeal be dismissed for want of prosecution.

17.	 Order 7 Rule 53 provides:

53.	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 upon non compliance, the appeal shall stand dismissed for want of prosecution, or subsequently, and in the event of non compliance, order that it be so dismissed; or

(c)	make any other order that may seem just.

18.	The rule places the onus on the appellant to prosecute the appeal with due diligence. A number of Supreme Court decisions have considered Order 7 Rule 53. The following cases are referred to in the case of PNG Nambawan Trophy Ltd v Dynasty Holdings Ltd (2005) SC811. The general propositions from those cases can be summarised as:

(1)	An appeal may be struck out if it is not set down as required by the rules and the power to dismiss in this instance remains discretionary.

(2)	The discretion is to be exercised having regard to all the
circumstances of the case including inter alia,

(a)	the length and reasons for delay on the appellant’s part;

(b)	the extent to which, having regard to any delay, evidence likely to be adduced may lose its cogency;

(c)	the availability of a transcript, and

(d)	any negotiations between the parties.

Burns Philp (New Guinea) Limited v. George [1983] PNGLR 55 Kidu CJ, Kapi DCJ and Andrew J considering r25 of the Supreme Court Rules 1977. Now see O7 r48.

(3)	where the applicant has established failure on the part of the appellant to do an act the onus then shifts to the appellant to explain the failure to do the act or the delay: Tenge Kai Ulo v. Acting Public Prosecutor [1981] PNGLR 148 (Kidu CJ, Kapi J Pratt J.)

(4)	Matters relevant to the want of due diligence include failure to promptly serve the Notice of Appeal, failure to attend on settlement of the appeal book, failure to explain non attendance: Yema Gaiapa Developes Limited v. Hardy Lee (1995) SC484, Amet CJ, Kapi DCJ Los J, failure to respond to correspondence: Attorney-General, Minister for Justice and the State v. Papua New Guinea Law Society (1997) SC530 Amet CJ, Kapi DCJ and Los J and also Donigi v. PNGBC (2002) SC691 Salika, Kandakasi and Batari JJ and failure to provide any explanation for dilatory conduct where an explanation could properly be expected: Bernard Juali v. The State (2001) SC667 Los, Sevua and Kandakasi JJ; The absence of explanation is fatal to a respondent to an application for dismissal where an explanation could quite properly be expected: General Accident Fire and Life Assurance v. Ilimo Farm [1990] PNGLR 331, Kapi DCJ, Sheehan and Brown JJ

(5)	The discretionary powers under O7 r 53(a) should not be exercised in favour of the respondent where no explanation for want of due diligence is made. That a lawyer cannot be present because he is appearing before another judge may be an adequate explanation: Joe Chan and PNG Arts Pty Ltd v. Mathias Yambunpe (1997) SC537 Kapi DCJ, Los and Jalina JJ.. 7 months delay in applying for the transcript of evidence to be prepared requires a proper explanation and the absence of one may result in the appeal being dismissed: Donigi v. PNGBC (supra).

(6) The Court must consider the whole of the circumstances in which an application for dismissal on the grounds of want of prosecution is brought, in particular, events that have taken place since the application was filed. The application to dismiss should be prosecuted with due diligence. Where an appellant has not done what the Rules require in the time required, but has made good its omissions before the application to dismiss is heard, the application may not be successful: Dan Kakaraya v. Michael Somare, Koiari Tarata and Francis Kaupa (2004) SC762 Los, Sawong and Cannings JJ.

19.	The Guarantors filed an application for leave to appeal on 12 August 2004. Leave to Appeal was granted by consent on 19 August 2004. The Guarantors contend inter alia, that there have been and continue to be disagreements with the lawyers for PNGBC as to the composition of the appeal book. These disagreements, the unresolved Gadens question and that a decision on an application to a single Supreme Court Judge for a stay of proceedings had not been delivered, were the reasons for the delay in prosecuting the appeal contended by the Guarantors before the Supreme Court in April 2006. The Supreme Court delivered its decision refusing PNGBC’s application to dismiss for want of prosecution in November 2006 (first application to dismiss). The Guarantors contend that the reasons that the first application to dismiss was refused was because the Supreme Court was of the view that the Gadens question was to be argued and determined first and that the decision on the stay application had not been given.

20.	Those two aspects have been satisfied. The decision on the stay application was delivered on the 30th January 2007 and we have now determined the Gadens question.

21.	The Guarantors further contend that the only period that should be considered by this court in determining whether there has been a want of prosecution is from 1st February 2007 (the day after the decision on the stay application was delivered) to 3rd May 2007 (the day before PNGBC filed its present application to dismiss on 4th May 2007). In our view, the argument that as a decision on a stay application was being awaited, the Guarantors could not continue to take steps to prosecute their appeal is not sustainable. One would have thought that if an appellant does not have a stay of proceedings he would wish to prosecute his appeal with the utmost diligence. 

22.	The Guarantors further contend that whatever occurred prior to the 30th January 2007 has been argued and the Supreme Court has ruled upon those arguments. Therefore it is contended, those arguments are now res judicata. Counsel for the Guarantors did not refer the Court to any authorities in support of this contention.

Res Judicata

23.	As referred to above, this is PNGBC’s second application in this appeal for it to be dismissed for want of prosecution, the first application to dismiss being dismissed with costs to the Guarantors. The first application to dismiss was heard in April 2006 and so the Court was concerned with the period from the filing of the notice of appeal to that date. If res judicata applies then it could be argued that this court should only be concerned with the period from when the first application to dismiss was argued. 

24.	Does res judicata apply? Res judicata is a legal doctrine recognised in Schedule 2.8(1) (d) of the Constitution. 

25.	In the Supreme Court case of Titi Christian v. Rabbie Namaliu (1996) unreported OS No. 2 of 1995 18.7.06, there was considerable discussion and agreement by the Court on the principle of res judicata but disagreement upon its application. In Tolom Abai v. The State (1995) N1402, Sheehan J. stated the principle thus: 

It is simple law that a claim that has been tried in a Court of Law and a decision lawfully made on it cannot be tried again in respect of the same matters. The legal term for this is res judicata which means ‘the matter is decided’. That is, a final judgment by a competent Court on the merits of a claim has been made and is conclusive – final - as to the rights of the parties and those claiming through them. Such a decision is a bar to any new action involving the same claim or cause of action. 

26.	Earlier, in Herman Gawi v. png Ready Mixed Concrete (1983) unnumbered, unreported, Bredmeyer J. considered the 6 probanda postulated in The Doctrine of Res Judicata by Spencer-Bower and Turner 1969 2nd ed p.1, all of which must be established by the party setting up res judicata. For our purposes they are: 

a) was the earlier decision a judicial decision? 

b) was the judicial decision pronounced? 

c) did the judicial tribunal have competent jurisdiction? 

d) was the judicial decision final? 

e) did the judicial decision involve a determination of the same question? 

f) are the parties the same?

27.	In this instance all but the fourth probanda are established. Further consideration is required as to the fourth probanda; whether the decision was final. 

28.	This court in North Solomons Provincial Government v. Pacific Architecture Pty Ltd [1992] PNGLR 145, in an appeal from a National Court order dismissing an application to set aside a judgment that had been entered for failure to file a Notice of Intention to Defend, adopted the test advanced in Bozson v. Altrincham UDC [1903] 1 KB 547 namely:

Does the judgment or order, as made, finally dispose of the rights of the parties? If it does, then I think it ought to be treated as a final order; but if it does not, it is then, in my opinion, an interlocutory order.

29.	This court in Oio Aba v. MVIL (2005) SC779 in considering an objection to competency referred to the North Solomons Case (supra) and adopted the same test in determining whether a National Court decision striking out proceedings was final or interlocutory.

30.	The above cases concerned National Court decisions. There is a paucity of authority concerning whether certain decisions of this court or indeed other final courts of appeal in other common law jurisdictions, are final or interlocutory. Notwithstanding that this court is the final court of appeal we are of the view that the above test should be adopted in determining the nature of certain decisions of this Court.

31.	As the order of this court was to dismiss the first application to dismiss, it did not finally dispose of the rights of the parties. All that the dismissal of the first application to dismiss means is that this court has decided that on the material that was then produced for its consideration, no order for dismissal for want of prosecution should be made. Consequently the order is not final but is of an interlocutory nature. That being so, the fourth probanda required for res judicata has not been established. In our view therefore, the principles of res judicata do not apply to the decision of this court to dismiss the first application to dismiss.

32.	We mention further that it is our view that in order for this court to correctly consider an application to dismiss for want of prosecution it is necessary that the total period of the appeal be given consideration and not merely a part. The application before this court is not the same as the first application to dismiss as further evidence has been given on behalf of the parties. This further evidence, which relates to the period commencing after the hearing of the first application to dismiss, should not be considered in isolation as to do so, in our view, would not allow this court to properly consider whether the appeal has been prosecuted with due diligence.

Appeal Book

33.	The Guarantors further contend that the proposed appeal book was served on the lawyers for PNGBC on 24 April 2006 and 7 June 2007 but on both occasions the appeal books were returned unsigned due to a disagreement as to the inclusion of certain documents.

34.	As to the preparation of the appeal book, PNGBC contends that its lawyers, Gadens, prepared the index to the appeal book and it was settled on 10 September 2004. Again, Gadens collated the appeal books and forwarded them to the lawyers for the Guarantors on 20 October 2004. By 25 October 2004 PNGBC, by its lawyers actions had progressed the appeal to the stage where 3 alternative dates for hearing of the appeal in December 2004 were offered by the Supreme Court Registry. The lawyers for the Guarantors did not execute the appeal books and did not respond to the offered dates for the hearing of the appeal. On 18 July 2005 the lawyers for the Guarantors rejected and returned the appeal books which had been sent to them by the lawyers for PNGBC on 25 October 2004.

35.	The main ground of objection to the appeal books was that the lawyers for the Guarantors wanted to include further material that was not included in the index that had been settled by the Supreme Court Registrar in October 2004. This rejection of the appeal books was the first step taken by the Guarantors to progress the appeal since the application for leave to appeal was granted on 19 August 2004. The other steps, being the drafting and settling of the index and the preparation of the appeal books, had been performed by the lawyers for PNGBC. The lawyers for PNGBC wrote to the lawyers for the Guarantors by letter dated 21 July 2005 and refused to include the additional documents in the appeal books as they had not been before Justice Davani in the National Court and also were not in the index that had been settled by the Supreme Court Registrar.

36.	After the first application to dismiss was filed in March 2006 the lawyers for the Guarantors by letter dated 24 April 2006, produced an incomplete appeal book to the lawyers for PNGBC. The decision on the first application to dismiss was delivered on 3 November 2006. By letter dated 19 April 2007 the lawyers for PNGBC wrote to the lawyers for the Guarantors warning that a failure to forward the appeal books would result in a further application to dismiss being filed. On the 4th May 2007 a further application to dismiss the appeal was filed and served. On the 11th May 2007 the lawyers for the Guarantors again requested to include further documentation in the appeal book. The lawyers for PNGBC responded by letter dated the 14th May 2007 refusing to agree to include the further material. On the 8 June 2007 the lawyers for the Guarantors again forwarded incomplete appeal books to the lawyers for PNGBC. By letter dated 11 June 2007 the lawyers for PNGBC wrote to the lawyers for the Guarantors objecting to the content of the appeal books as they did not comply with the index that had been settled.

37.	The lawyers for PNGBC wrote to the lawyers for the Guarantors by letter dated 12 July 2007. In that letter, the failure of the lawyers for the Guarantors to respond to a previous letter to them dated 11 June 2007 regarding objections to the content of the appeal book was noted.

38.	The disagreement concerning the content of the appeal books was ongoing from 18 July 2005 when the lawyers for the Guarantors requested for further material to be included. This request was about 8 months after the appeal books had been forwarded to them. In our view, if the Guarantors were concerned with the composition of the appeal books and had not obtained the consent of PNGBC to amend the appeal books, an appropriate application should have been made. It is for the appellant to prosecute the appeal with due diligence. The fact that a respondent does not agree with the request of an appellant as to a particular matter concerning the prosecution of the appeal is not a reason to delay the progression of the appeal for a lengthy period. It is incumbent upon an appellant to make an appropriate application on a particular issue to have it resolved to enable the progression of an appeal to continue.

39.	In our view the lawyers for the Guarantors have been at the very least, dilatory in their responsibility to progress the preparation of the appeal books. The contention that the lawyers for PNGBC are to blame in not agreeing to extra documents being included in the appeal books is not sustainable. Throughout, it has been the lawyers for PNGBC who have been attempting to progress the appeal. They drafted and settled the index to the appeal books and prepared the appeal books when this should have been attended to by the lawyers for the Guarantors. They responded to the various requests of the lawyers for the Guarantors but the lawyers for the Guarantors took months to reply or to take a further step. The lawyers for the Guarantors, it appears to us, have not actively prosecuted the appeal and have only acted when pushed by the lawyers for PNGBC or when an application to dismiss has been filed and served.

Counsel unavailability

40.	The Guarantors further contend that from 1 March 2006 to 31 July 2007 their Counsel Mr. Lomai, was engaged in campaigning in the National General Election and was therefore unavailable to attend to this appeal. In this regard we note however that Mr. Lomai appeared as Counsel for the Guarantors on the hearing of the first application to dismiss on 28 April 2006. Be that as it may, we note that it has been held that if a lawyer cannot be present at a particular hearing because he is appearing before another judge, this may be an adequate explanation for want of due diligence: Joe Chan and PNG Arts Pty Ltd v. Mathias Yambunpe (supra). 

41.	In our view however, the argument in effect, that an appeal cannot progress for 14 months because of the unavailability of Counsel is not sustainable unless the respondents agree that there be no such progression. There is no evidence of such agreement. Clearly Mr. Lomai knew that he would be unavailable for 14 months. A decision then had to be made in consultation with his clients, including the Guarantors, whether other lawyers from his firm were able to properly take carriage of matters in his stead. If they were unable to, his clients, including the Guarantors should have been informed that they should seek alternative representation whether by instructing other lawyers or by having their matters briefed out to other lawyers.

42.	A litigant is entitled to counsel of his choice but that is subject to the counsel being available. We reject this contention by the Guarantors.

Conclusion

43.	It was incumbent on the Guarantors to take all necessary steps to prosecute this appeal. It was incumbent upon their lawyers to make all necessary attendances to have the appeal brought on for hearing.

44.	Order 7 Rule 48 Supreme Court Rules requires that an appeal be set down at the first sittings of the Court to be held after the expiration of 28 days from the institution of the appeal. When years pass by without the appeal being listed for hearing, in breach of that rule, it is incumbent upon the appellant to explain every delay which has occurred after the time limited for setting the appeal down for hearing.

45.	The explanations given on behalf of the Guarantors in our view are not satisfactory. They do not by any measure adequately explain the delay in prosecuting the appeal. An appellant itself and by its lawyers has a duty to the court as well as to the respondent in an appeal, to comply with the rules and have an appeal set down for hearing as promptly as possible.

46.	The Guarantors have not prosecuted their appeal with due diligence. They have not offered an adequate explanation for the substantial periods of delay which have occurred. They have not taken any steps to progress the appeal between the filing of this application and its hearing. There is no basis on which the court can exercise its discretion in favour of the Guarantors. The appeal is dismissed for want of prosecution.

47.	Costs of the appeal are to be paid by the Appellants to the Respondent.

_______________________________

Lomai & Lomai Lawyers: Lawyers for the Appellants
Gadens Lawyers: Lawyers for the Respondent