The bank had a K1.2 million judgment. The Donigis wanted to appeal, but two years later the appeal book was still not certified and nobody had confirmed whether five of the appellants, children when the case began, still wished to be parties.
Peter Dickson Donigi and others v Papua New Guinea Banking Corporation [2001] PGSC 1; SC691
Supreme Court, Waigani — Salika, Kandakasi and Batari JJ, 2 November 2001. SCA 110 of 1999.
What happened
On 18 October 1999 the National Court entered judgment against the Donigi family and two companies for K1,215,390.06 plus interest, after refusing an adjournment, and dismissed their defence and cross-claim. An application for leave to appeal was filed on 26 November 1999. The index to the appeal book was not settled until March 2000; transcripts were not requested from the Court Reporting Service until June 2000 and were ready in October 2000; a draft appeal book was not delivered until April 2001. The bank repeatedly asked for the ages of the child appellants, who were suing by their father as next friend. Several had reached majority before the proceedings began. The appellants’ lawyers called the question irrelevant. The bank applied in August 2001 to dismiss for want of prosecution.
What was argued
The bank said the appellants had failed at every stage to act promptly and had left the proceedings in a state where they could not be heard. The appellants said they had acted with due diligence, that some delay was the bank’s, and that they were now ready to proceed.
What the Court decided
1. Under Order 7 rule 53 (now rule 48) the Court’s task is to determine whether the appellant has not done an act required by the Act or the Rules, or has otherwise not prosecuted the appeal with due diligence.
2. Filing an appeal imposes obligations: obtain and communicate an appointment to settle the appeal book; produce the reasons for judgment and notes of evidence to the Registrar; request transcripts promptly; file and serve the appeal book; set the appeal down at the first sittings after 28 days.
3. Conduct that may lead to dismissal includes failure to attend settlement of the index, failure to explain non-attendance, failure to respond to correspondence and failure to explain dilatory conduct where an explanation could properly be expected (General Accident v Ilimo Farm applied).
4. Once delay is established the onus shifts to the appellant to explain it satisfactorily.
5. Lawyers who continued to act for children who had reached majority, without obtaining their instructions, acted in breach of their warranty of authority; until that was resolved the appeal was not ready. Seven months of inaction on the point was inexcusable. Application dismissed with costs.
Did it make new law?
The decision applied Burns Philp v George and Ilimo Farm but organised them into the checklist that later courts quote. Its statement of the shifting onus was adopted word for word in Kakaraya v Somare (2004) SC762 and has been repeated ever since. No National Court decision was under review; the ruling concerned the conduct of the appeal itself.
Why it matters
Diarise the steps. Index appointment, transcript request, draft appeal book, certification and setting down each have a natural deadline, and gaps of months at any stage will need explaining.
Keep the parties in order. A change in a party’s capacity, a death or a company’s deregistration must be dealt with by amendment or fresh instructions, not ignored.
Answer the other side’s letters. Silence in the face of reasonable requests is itself evidence of want of diligence.
What it does not decide
Donigi does not say that every missed step leads to dismissal; the Court retains the discretion described in Burns Philp, and Kakaraya later held that defaults cured before the hearing may save the appeal. It does not address delay caused by the Registry, though the transcript findings assume the appellant must keep pressing. Nor does it deal with a respondent’s own delay in bringing the application, another point taken up in Kakaraya.
Recent cases applying it
- Gumaim v Abari [2021] PGSC 94; SC2167 — the Court restated the Donigi and Kakaraya approach: extent of delay, adequacy of explanation, then discretion in the interests of justice; appeal dismissed.
- The State v National Capital District Commission [2025] PGSC 94; SC2793 — the power under Order 7 rule 48(1) is discretionary and exercised on established principles, citing Donigi; application refused because the appeal book had since been served.
- Tia v Smith [2019] PGSC 89; SC1864 — Donigi and Kakaraya the authorities applied on an application under Order 7 rule 48(a).
- Girl Guides Association of PNG v Kamang [2022] PGSC 141; SC2342 — Donigi cited with Burns Philp, Ilimo Farm and Kalinoe on an application to dismiss.
Sources
- Donigi v Papua New Guinea Banking Corporation [2001] PGSC 1; SC691 (Salika, Kandakasi and Batari JJ, 2 November 2001)
- Supreme Court Rules 2012 — Order 7 rr 40–48; Supreme Court Act (Chapter 37) — ss 4, 14, 17
- Burns Philp (NG) Ltd v George [1983] PGSC 9; [1983] PNGLR 55; Kakaraya v Somare [2004] PGSC 11; SC762
- Gumaim v Abari [2021] PGSC 94; SC2167; The State v National Capital District Commission [2025] PGSC 94; SC2793; Tia v Smith [2019] PGSC 89; SC1864; Girl Guides Association of PNG v Kamang [2022] PGSC 141; SC2342
General Accident Fire & Life Assurance Corporation Ltd v Ilimo Farm Products Pty Ltd [1990] PNGLR 331 is cited as it appears in the judgment and was not separately opened for this brief.
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