HomeNational CourtCosts

Who Pays the Costs of a National Court Case?

Costs follow the event, unless the Court thinks some other order should be made. But a party is not entitled to recover costs from another party except under an order of the Court — and the Court may deal with costs at any stage, and require them to be paid immediately.

The National Court practice series, no. 233 · Costs · 5 min read

Order 22 of the National Court Rules 1983 governs costs. Rule 3 sets its reach: it applies to and in respect of costs payable or to be taxed under any order of the Court or under these Rules and costs to be taxed in the Court under any Act.

Rule 11

Following the event

If the Court makes any order as to costs, the Court shall, subject to this Order, order that the costs follow the event, except where it appears to the court that some other order should be made to the whole or any part of the costs.

Read it carefully

The rule operates if the Court makes any order as to costs. It then requires costs to follow the event — the successful party recovers — except where it appears to the court that some other order should be made, and that exception may apply to the whole or any part of the costs.

So the general rule is a starting point with a broad discretion built into it, and costs can be split issue by issue.

Rule 8

Order for payment

Subject to this Order, a party to proceedings in the Court shall not be entitled to recover any costs of or incidental to the proceedings from any other party to the proceedings except under an order of the Court.

Winning does not by itself produce a right to costs. There must be an order. Ask for costs when judgment is given, and check that the minute records the order.

Rule 9 — when no separate taxation order is needed

Costs may be taxed without any order directing taxation where —

(a) an order of the Court directs the payment of costs; or (b) proceedings are dismissed with costs; or (c) a motion is refused with costs; or (d) a party may tax costs on the discontinuance of proceedings; or (e) a party may tax costs on the acceptance of money paid into Court.

And by sub-rule (2), where proceedings are dismissed with costs or a motion is refused with costs and the costs are not paid within four days after the signing of a certificate of taxation, the party entitled may enter judgement for the taxed costs.

Rule 5

At any stage, and payable immediately

(1) The Court may, in any proceedings, exercise its powers and discretions as to costs at any stage of the proceedings or after the conclusion of the proceedings.

(2) Where the Court makes an order in any proceedings for the payment of costs, the Court may require that the costs be paid immediately, notwithstanding that proceedings are not concluded.

Sub-rule (2) has real force

An interlocutory costs order does not have to wait for the end of the case. Where the Court orders costs to be paid immediately, they are payable then — which changes the practical calculus on contested applications.

See costs of interlocutory applications.

Where the Rules fix the answer

Specific costs rules in Order 22
SituationWho pays, unless the Court otherwise ordersRule
Amending a pleading without leaveThe amending party pays the costs of and occasioned by the amendmentr 12
Applying for an extension of timeThe applicant pays the costs of and occasioned by the applicationr 14
Non-admission of a factDealt with by r 15r 15
Non-admission of a documentDealt with by r 16r 16
DiscontinuanceThe other party may tax costsr 17
Payment into CourtDealt with by r 18r 18
Offer of contributionDealt with by r 19r 19
Disobedience to a rule, judgment or orderDealt with by r 20r 20
Discovery before suitDealt with by r 21r 21
InjunctionDealt with by r 22r 22
Default judgmentCosts shall not be taxed but shall be in accordance with Table 2 of Schedule 2r 10
Rules 12 and 14 shift the default

Both put the costs on the party seeking the indulgence, unless the Court otherwise orders — whether or not that party ultimately wins the case. That is a practical reason to seek consent to an amendment or an extension rather than to apply.

Rule 13 supplies the general position for other steps: the costs of any application or other step in any proceedings shall, unless the Court otherwise orders, be paid and otherwise dealt with in accordance with the provisions of this Order or the provisions of any order relating to the general costs of the proceedings.

How much is recovered

Order 22 provides several bases of taxation

Party and party — Subdivision C, Rule 24. The ordinary basis. See party and party costs.

Common fund — Rule 32; and trustee — Rule 33, where trustee is defined as including an executor of a will and an administrator of the estate of a deceased person.

Solicitor and client — Subdivision E, Rule 35. See solicitor and client costs.

And by Rule 36 there is a scale of costs, with Rule 37 dealing with probate.

Some definitions

Rule 1: “bill” means bill of costs; “certificate” includes allocatur; “contentious business” includes all actions, suits and proceedings; and “taxed costs” means costs taxed in accordance with this Order.

Rule 7 deals with costs in other courts, and Rule 4(2) provides that the Order has effect subject to these Rules and subject to any Act — so a specific statutory costs provision prevails. See costs against the State.

Sources

Check the section yourself

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.

Disclaimer: This article provides general information about Papua New Guinea law and does not constitute legal advice. Laws may change, and their application depends on individual circumstances. You should obtain professional legal advice for your specific situation. Read the full disclaimer.