The entitlement is clear. The mechanics of recovery are not the ordinary ones.
Section 11
In a suit to which the State is a party, the rights of parties, as nearly as possible, are the same, and judgement may be given and costs awarded, as in a suit between other persons.
Costs follow the event under Order 22 Rule 11 of the National Court Rules 1983, taxation proceeds before the Registrar under Division 4, and a certificate issues under Rule 59.
Note also section 6 of the Claims Act: no fees are payable by the State for filing, issuing, sealing or otherwise dealing with any document. That affects the State’s own disbursements, not the plaintiff’s entitlement.
Section 13
(1) In any suit, execution or attachment, or process in the nature of execution or attachment, may not be issued against the property or revenue of the State.
So the ordinary route in Order 22 Rule 62 — entering judgment for the certified costs and enforcing it under Order 13 — is not available against the State. See execution against the State.
Section 13(2) — where a judgement is given against the State, the registrar, clerk or other proper officer of the court by which the judgement is given shall issue a certificate in Form 1 to the party in whose favour the judgement is given.
The certificate is then served on the Solicitor-General under section 14(1), who must within 60 days from the date of service … endorse the certificate in Form 1; and on receipt of the endorsed certificate the Departmental Head responsible for finance matters shall, within a reasonable time, satisfy the judgement out of moneys legally available.
From order to payment
| Step | Ordinary defendant | The State |
|---|---|---|
| Costs order | Order 22 r 11 | Same — s 11 of the Claims Act |
| Taxation | Registrar as taxing officer, O 22 Div 4 | Same |
| Certificate of taxation | O 22 r 59 | Same |
| Judgment for the costs | O 22 r 62, or r 9(2) if unpaid within four days | Same, but subject to s 12(2) |
| Payment order | May be ordered | Prohibited — the Court may not include any order as to time or method of payment, s 12(2) |
| Enforcement | Order 13 | Barred — s 13(1); certificate under ss 13(2) and 14 instead |
Notwithstanding anything in the National Court Rules, a court giving judgement against the State may not include any order as to time or method of payment for satisfaction of the judgement.
So an order that the State pay taxed costs within a stated period cannot be made. Time and method belong to the section 14 process.
Section 14(5)
No action — (a) for or in the nature of mandamus; or (b) for contempt of court — or otherwise lies against the Solicitor-General or the Departmental Head responsible for finance matters in respect of the satisfaction of a judgement under this Act,
other than for failure to observe the requirements of Subsection (2), (3) or (4), as the case may be, or unless other exceptional circumstances can be shown to the satisfaction of the court.
The duties in subsections (2), (3) and (4) — endorse within 60 days; satisfy within a reasonable time out of moneys legally available; and, if by instalments, satisfy within a reasonable time — are expressly outside the immunity.
A costs creditor whose certificate has not been endorsed within the 60 days is within the first exception, and may seek relief under Order 16. Keep the dates: certificate issued, served, and the 60 days from service.
A threshold question
Sections 12 to 15 apply where the judgment is against the State. A defendant that is a statutory authority with its own legal personality — one that may sue and be sued in its own name — is not, without more, the State.
Where the defendant is such a body, the ordinary position applies: judgment for the taxed costs under Order 22 Rule 62, enforceable under Order 13.
Identify the correct defendant at the outset — see who can be a party. The answer determines both the notice requirements and how any costs order will be satisfied.
Order 1 Rule 3 of the ADR Rules 2022 defines the State as the Independent State of Papua New Guinea and entities and bodies that are funded and or controlled by the State — but for mediator fees, Order 2 Rule 7(16) provides that it does not include any State-owned enterprise that engages in commercial activity, or its subsidiaries.
Different instruments draw the line differently. Check the one that governs.
The other direction
Section 15 — where in any suit a judgement is given in favour of the State against any person, the State may enforce the judgement against him by such execution, attachment or other process as could be had in a suit between other persons. The full Order 13 machinery is open to it.
Section 10 — a wider security for costs power than Order 14 Rule 25, available notwithstanding anything in the National Court Rules where costs awarded in favour of the State may not be recovered.
A plaintiff who succeeds against the State has a genuine entitlement to costs, and the same taxation process as anyone else. What differs is timing: the certificate must issue, be served correctly under the section 7 method, be endorsed within 60 days, and then be satisfied within a reasonable time.
Build that into the advice at the outset, together with the section 5 notice requirement and the 60-day defence period. Litigation against the State is slower at both ends.
Sources
- Claims By and Against the State Act 1996 — ss 5–7, 9–15
- National Court Rules 1983 — O 13; O 14 r 25; O 16; O 22 rr 9, 11, 59, 62, Div 4
Before relying on anything here, read the current text of the National Court Rules 1983 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.