Costs orders are discretionary, and appellate courts are slow to interfere with them. The Supreme Court Act reflects that by requiring leave.
Section 14(3)(c)
No appeal lies to the Supreme Court without leave — from an order of the National Court as to costs only that by law are left to the discretion of the National Court.
“As to costs” — the order must concern costs.
“Only” — costs must be the sole subject. An order that decides substantive rights and costs is not an order as to costs only, and the costs component travels with the substantive appeal.
“That by law are left to the discretion” — the costs in question must be discretionary. Where a statute or rule fixes an entitlement to costs, an order departing from it is not an exercise of discretion, and paragraph (c) does not apply.
When costs are not the only issue
A party appealing a substantive judgment and the costs order that followed it is not caught by paragraph (c). The appeal is not as to costs only.
That matters practically: if the substantive appeal succeeds, the costs order below will usually fall with it, and the Supreme Court can make the appropriate order under section 16 — which allows it to give such judgment as ought to have been given in the first instance.
Where the only complaint is about costs, leave is required.
The notice of appeal must state whether the whole or part only and what part of the judgment is appealed from.
So an appellant must be explicit about whether costs are part of the appeal or the whole of it — which is precisely the question paragraph (c) turns on.
The discretion, and interfering with it
In The State and Davis v Barker [1977] PNGLR 386 the Supreme Court stated the approach to an appeal against the exercise of a discretion. To substitute its own discretion the appellate court must be satisfied that the judge below —
exercised the discretion upon a wrong principle; or allowed extraneous or irrelevant matters to guide or affect them; or mistook the facts; or did not take into account some matter for consideration —
and that the decision was clearly wrong, or that otherwise injustice might be done. Following House v The King (1936) 55 CLR 499 and Evans v Bartlam [1937] AC 473.
Leave is a threshold. The substantive difficulty is that a costs order is a discretionary decision, and the appellant must identify an error of the kind Barker describes — not merely argue for a different result.
A ground that says the judge should have ordered costs the other way, without identifying a wrong principle, an irrelevant consideration, a mistake of fact or an overlooked matter, will not succeed.
Where the order is for indemnity costs
An order for costs on an indemnity basis rests on findings about the conduct of the litigation. In Paki v Motor Vehicle Insurance Ltd [2010] PGSC 2; SC1015 the Supreme Court ordered indemnity costs where the appellant’s actions had caused the respondent an enormous amount of wasted time, effort and money and his conduct had been improper, unreasonable and blameworthy.
An appeal against such an order engages those findings, and so may raise questions of mixed fact and law rather than a pure exercise of discretion.
See indemnity costs.
Where the costs power comes from
In Thiess Bros (Pacific) Pty Ltd v Chief Collector of Taxes [1982] PGSC 23; [1982] PNGLR 385 the Supreme Court held that the power of a court or tribunal to award costs must be conferred by statute and is not part of a court’s inherent powers.
In the National Court that power is in Order 22 of the National Court Rules 1983. In the Supreme Court there is no equivalent, and the gap is filled by sections 6(2) and 8(1)(e) of the Supreme Court Act — see Moses v Magiten [2006] PGSC 25; SC875 and costs in the Supreme Court.
Is it worth it?
- Is it really costs only? If you are also appealing the substance, paragraph (c) does not apply.
- Can you identify a Barker error? Wrong principle, irrelevant matter, mistake of fact, or a matter overlooked. If not, the appeal will fail whatever leave is granted.
- Is the amount worth the exposure? An unsuccessful costs appeal attracts its own costs order, and the Supreme Court’s costs are not trivial.
- Have you diarised the 40 days? The leave application must be filed within the same period as an appeal — Tsang v Credit Corporation [1993] PGSC 18; [1993] PNGLR 112.
Sources
- Supreme Court Act (Chapter 37) — ss 6, 8, 14(3)(c), 16
- Supreme Court Rules 2012 — O 7 r 9; O 12
- The State and Davis v Barker [1977] PNGLR 386
- Thiess Bros (Pacific) Pty Ltd v Chief Collector of Taxes [1982] PGSC 23; [1982] PNGLR 385
- Paki v Motor Vehicle Insurance Ltd [2010] PGSC 2; SC1015
Before relying on anything here, read the current text of the Supreme Court Rules 2012 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.