Reef Pacific Trading Ltd v Price Waterhouse [1999] SBHC 91; HC-CAC 011 of 1999 (9 September 1999)

HIGH COURT OF SOLOMON ISLANDS

Civil Appeal Case No.011 of 1999

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> RICHARD ANTHONY BARBER
AND WILLIAM DOUGLAS McCLUSKEY

High Court of Solomon Islands

Before: Kabui, J
Civil Appeal Case No. 011 of 1999

Hearing: 9^th September 1999
Judgment: 9^th 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

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(ii) &nbsp &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 <

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