High Court of Solomon Islands
Before: Kabui, J
Civil Appeal Case No. 011 of 1999
Hearing: 9th September 1999
Judgment: 9th September 1999
Appellants in Person
D. McQuire for thpondents
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(F.O. Kabui, J):
This is an application for security for costs under Rule 12 of the Court of
Appeal Rules 1983. This Rule states:-
(1) The appellant shall -
(a) p; firthwpoh upon the ruling ling of any notice of appeal, pay to the Registrar
the fee prescribed for the
ruling of such notice; and
(b) p; usp; upon the request of the Registrar made at anytime after the filing of
the notice of appeal-
(an">(i)
&nbssp; deposit with the Rehe Registrar such sum as the Registrar shall assess as
the probable expenses of
the preparation, certification and copying of the
record; and
l
(ii)   &nbssp; dt osit such furtheurther sum, or give security therefor to the
satisfaction of the Registrar as the
Registrar may fix as security for the
payment of all such costs as may be od to id by the appellapellant.
(2) Unless the Court otherwise wise orders -
(a) the dislissathof ppe a shal shall be sufficient authority to the
Registrar for the payment of such sum as may
have been deposited or secured
under paragraph (1)(b)(ii) of this rule to the successful respondent or
respondents in
the appeal;
i>
(b) the allewancanof peaapwith with costs shall be sufficient
authority to the Registrar for the payment of
such deposit or secuto
he apnt;
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(c) (c) such payments may be madehto the solicitors on record for the
party entitled
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However, despite this, the appe objects to my hearing this this application
on the ground that I would not be fair in
view of the fact that I had dealt
with the trial and delivered a judgment against the appellant from which
this appeal
arises. The appellant does not dispute that I have concurrent
jurisdiction under Rule 11 with the Registrar of the Court of
Appeal. She
suggests that this application should be heard by the Registrar of the Court
of Appeal. The fact however
is that the Registrar of the Court of Appeal is
on leave and cannot sit to hear this application. I feel that I do have
jurisdiction under Rule 11 as read with section 85(2)(b) of the Constitution
to hear this application in the absence of
the Registrar of the Court of
Appeal. I have therefore proceeded to hear this application in spite of the
appellant�s
objection. Whilst I can see the reasoning of the appellant in
her objection, I do not think, it is a good practice to encourage
litigants
to choose their forum as and when it suits them, I do not think I can be
accused of being biased simply on
the ground that I was the trial judge in
the High Court trial. My decision in this application is based simply on the
meaning of Rule 12 above. In the normal course of things, the preparation,
certification and copying the record etc. under
Rule 12 above is a matter
for the Registrar to do. In so doing, the Registrar would incur costs which
may be claimed
in the form of security for costs. In this case, the
Respondent has offered to do this with the consent of the Registrar for
obvious reasons. If the Registrar were to do this, it would cost much more
in that the rate per page is $5.00. The affidavit
of Mr. Smith filed in this
Court speaks for itself on this. I am sure the Registrar consented to the
Respondents doing
this because they had also done all the preparation of
documents in the trial in the High Court at no cost to the appellant.
This
application is simply a continuation of that agreed arrangement with the
Registrar. The security for costs is the
thing that is being objected to by
the appellant. Although the appellant has said she would prepare the records
herself,
I do not think she is capable of doing that by herself in this
case. The fact that the costs are connected with the service
of overseas
lawyers in the appeal is not a matter for me to decide. The appellant has
filed the appeal and the Respondents
must resist it to their utmost best and
that means getting the best lawyers they can get at their cost. This is why
it
is important that appeals must have merits in law before they can be
filed in the Court of Appeal. It is in the public interest
that litigations
must come to an end. Appeals are not automatic in all cases. This is indeed
the purpose of Rule 12 above.
It is a way of controlling appeals that do not
have merits or where the appellant may not be able to pay the appeal costs
at the end of the day if the appeal is dismissed. It is a kind of insurance
for the Respondent in an appeal situation
in appropriate cases. It makes the
appellant to stop and think whether or not the appeal is worth the expense
that will
bring upon the appellant. If it is, then the appellant must pay
security for costs to cover what may be the unnecessary expense
of preparing
appeal documents that may not be fruitful at the end of the appeal. If it is
not, then the appellant must
reconsider his or her position in throwing
money away. It is however for the appellant to decide at the end of the day.
This is the appellant�s appeal and she must hear the cost of preparing the
court records for the Court of Appeal. I therefore
grant the application and
make the orders asked for therein.
F. O. Kbr>
Judge
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