Case Summary: Kere v Wore [2025] SBCA (Solomon Islands Court of Appeal)

Citation: Kere v Wore [2025] SBCA 1; SICOA-CAC 7 of 2024 (15 January 2025)

Court: Solomon Islands Court of Appeal

Parties: 

Kasiano Kere (Appellant)

Ishmael Wore (Respondent/Applicant)

Judge: Gavara-Nanu JA

Counsels:

D Nimepo for the Appellant

G Suri for the Respondent

Nature: Application for review of Registrar’s assessment of security for costs ($10,000.00) under Rule 12 of the Court of Appeal Rules 1983.

Background

1. The Respondent (Wore) applied to review the Registrar’s assessment of security for costs at $10,000.00 for the Appellant’s (Kere) appeal.

• The underlying appeal challenged a High Court decision (Civil Case 673 of 2021) concerning a Guadalcanal Customary Land Appeal Court (CLAC) ruling.

• The Respondent argued $10,000.00 was too low, citing higher sums ($25k-$40k) in past appeals and estimating their own costs at ~$98,300.00. They sought $40,000.00.

• The Appellant argued the appeal was straightforward (half-day hearing), lacked complex issues, and $10,000.00 was sufficient.

Legal Principles Adopted

1. Registrar’s Power & Discretion (Rule 12, Court of Appeal Rules 1983): The Registrar has discretionary power to assess/request security for costs under Rule 12(1)(b)(i) & (ii). This power is quasi-judicial, not purely administrative.

• Rule 12 Breakdown:

1. Rule 12(1)(b)(i): Covers “probable expenses of preparation, certification and copying of the record.” The Registrar “requests/sets” a sum; the appellant “shall” deposit it.

• Rule 12(1)(b)(ii): Covers a “further sum” as security for potential adverse costs orders. The Registrar “fixes” this sum. The appellant must either deposit this sum or give security for it, to the Registrar’s satisfaction.

• Mandatory Reasoning: When exercising powers under Rule 12(1)(b)(i) or (ii), the Registrar must provide reasons for the sum assessed/fixed and the chosen method (deposit vs. security).

• Not Automatic: Security for costs is not compulsory in every case. The Registrar must consider whether it is in the interests of justice to request/set it.

• Factors for Assessment: When security is deemed appropriate, the sum must be fair and reasonable. Relevant factors include:

1. Appellant’s ordinary residence (inside/outside jurisdiction – Electoral Act 2018, s. 4).

• Reasonable belief appellant cannot pay respondent’s costs.

• Appellant’s known address and any intent to evade costs by changing address (Electoral Act Petition Rules 2019, r. 6(d) & (e)).

• Overall complexity and estimated duration of the appeal.

• Balancing access to justice vs. adequate remuneration (Yam v Wong [2003] SBCA 6): “it is important to reach a proper balance between the necessity of curbing the cost of litigation and preventing it from becoming so expensive as to make justice unattainable… and… providing that solicitors and counsel shall be adequately remunerated”.

• Nature of the parties (e.g., involvement of ordinary people/tribes).

Ratio Decidendi (The Binding Reason for the Decision)

1. The Registrar’s failure to provide any explanation or reasons for setting the security for costs at $10,000.00 constituted an error in the exercise of their quasi-judicial discretion under Rule 12(1)(b)(i) and (ii). This lack of reasoning invalidated the assessment.

Obiter Dicta (Persuasive Comments, Not Strictly Binding)

1. Clarification of Rule 12 Options: Detailed explanation of the distinct purposes of Rule 12(1)(b)(i) (record costs) and Rule 12(1)(b)(ii) (security for adverse costs), and the Registrar’s option under (ii) to require either a deposit or security.

• Factors List: The specific list of factors the Registrar should consider (residence, ability to pay, address, complexity, justice balance) when deciding if to set security and what amount to set, while emphasizing these are subject to the overall interests of justice.

• Quasi-Judicial Nature: The strong emphasis that the Registrar’s function under Rule 12(1)(b) is quasi-judicial, not merely administrative, elevating the requirement for reasoned decisions.

• Reference to Yam v Wong: The restatement of the principle balancing cost curbs and access to justice with adequate lawyer remuneration.

Key Takeaways

1. Reasons are Mandatory: Registrars must provide clear reasons when setting security for costs under Rule 12. Failure to do so is an error justifying court intervention.

• Quasi-Judicial Function: Assessing security for costs is a quasi-judicial act, demanding careful consideration and justification, not just administrative processing.

• Discretion Must Be Exercised Properly: The discretion under Rule 12 involves: a) deciding if security is needed (based on justice interests), and b) what fair/reasonable amount to set (considering specific factors).

• Rule 12 Structure Matters: Practitioners must understand the distinct components of Rule 12(1)(b)(i) (mandatory record costs deposit) and Rule 12(1)(b)(ii) (discretionary security for adverse costs, with deposit/security options).

• Balancing Act: Courts will consider the nature of the parties and the dispute (e.g., tribal disputes involving ordinary people) when assessing what constitutes a “fair and reasonable” sum for security, aiming to balance cost recovery for respondents with ensuring appeals aren’t priced out of reach.

• Practical Guidance: The judgment provides a valuable, non-exhaustive list of factors for Registrars (and parties making submissions) to consider when addressing security for costs applications.

Outcome

• The Registrar’s assessment of $10,000.00 was set aside due to lack of reasons.

• The Court reassessed the security for costs as $30,000.00 (comprising the original $10k? plus a further $20k ordered deposited within 21 days).

• The Appellant was ordered to pay the Respondent’s costs of the application (to be taxed if not agreed).