Appeal costs in the National Court can exceed the amount at stake in a District Court case. Part XI contains its own mechanism for awarding and collecting them, which differs from the ordinary National Court costs regime.
The power to award costs
Section 230(1)(f) lets the National Court, on the hearing of an appeal, make “such further or other order as to costs or otherwise as the case requires”. The discretion is the ordinary one: costs follow the event unless there is reason to depart, and the Magistrates’ Manual’s general point that in Papua New Guinea a court’s costs powers depend on statute applies here too. The National Court may order the costs of the appeal, and may also revisit the costs order made below under section 230(1)(c) or (e).
Payment to the Registrar
(1) Where the National Court makes an order as to the costs of an appeal, it shall direct them to be paid to the Registrar of the National Court, to be paid over by him to the party entitled, and may limit a time within which the costs are to be paid.
(2) If costs are not paid within the time limited or, if no time is limited, within seven days after the making of the order, the Registrar, on application by the party entitled and on payment of the prescribed fee, shall give to the party applying a certificate that the costs have not been paid.
The Manual summarises the sequence: costs are paid to the Registrar; if not paid on time, the party entitled applies for a certificate; the certificate, produced to a magistrate, is enforced as an order for the payment of money. The seven-day default period is short, and a party ordered to pay should ask the National Court to fix a longer time if needed.
Enforcement
(1) On production to a Magistrate of a certificate under section 234 the payment of the costs may be enforced in the same manner as an order of a Court for the payment of a sum of money, or by putting the recognizance (if any) in suit, or both.
(2) Where the appellant has made a deposit under section 222 the National Court may order the money to be applied, so far as it extends, (a) firstly to the costs both of the appeal and of the decision below; (b) secondly to the sum adjudged by the Court to be paid; and (c) the residue repaid to the appellant.
(3) Where the decision appealed against is quashed or set aside, the whole amount of the deposit shall be repaid to the appellant.
| Situation | Route |
|---|---|
| Costs against an appellant who gave a recognizance | Certificate to a magistrate; enforced by warrant of execution or garnishee as a money order, or by forfeiting the recognizance under s 272 with the surety liable |
| Costs against an appellant who made a deposit | Applied out of the deposit under s 235(2), costs first |
| Costs against a respondent | Certificate to a magistrate; enforced as a money order under Part IX |
| Appellant succeeds | Deposit repaid in full; costs of the appeal may be ordered against the respondent |
| Costs against the State | No execution; certificate under the Claims By and Against the State Act s 13(2) |
The costs of the hearing below
Section 235(2)(a) refers to “the costs both of the appeal and of the conviction, order or adjudication”, so a deposit can be applied to the District Court costs as well. The District Court’s own costs orders are made under section 260 within the Regulation scale, and the National Court on appeal may affirm, vary or reverse them. Where the appeal is allowed, the appellant should ask for the costs below to be reversed; where it is dismissed, the respondent should ask for them to be affirmed and for the costs of the appeal.
How much
Costs of the appeal are National Court costs, assessed under Order 22 of the National Court Rules and its scale, or fixed by the judge, not under Schedule 4 of the District Courts Regulation, which governs only costs in the District Court. That is why appeal costs can dwarf the sum in dispute, and why an appellant should weigh the exposure before appealing a small civil order. The National Court’s costs rules are explained in the National Court series on costs. Order 18 rule 10(4) allows summary determination of a non-compliant appeal, and costs follow.
The recognizance and the surety
The recognizance under section 222 is conditioned to pay such costs as the National Court awards. If the appellant does not pay, section 235(1) allows it to be put in suit: the Court adjudges it forfeited under section 272, and the surety is liable for the sum. Section 269 then lets the surety recover from the appellant. This is the real risk a surety on appeal takes, and it is why a surety should know the likely costs before signing. See the recognizance on appeal.
Criminal appeals
Costs in criminal appeals are less common but available under section 230(1)(f). Section 261 excludes costs against the complainant on the dismissal of an indictable charge, and section 260A’s cautions about costs against informants inform the National Court’s discretion where a conviction is quashed. A successful appellant against conviction may ask for the costs of the appeal against the informant, subject to those principles; see costs for an acquitted defendant.
The District Courts Act is not on PacLII; it is available on vLex.
Before relying on anything here, read the current text of the District Courts Act (Chapter 40) and check for later amendments. The Act is not on PacLII; the figures and time limits quoted in this series come from the consolidation to No 8 of 2000, and the District Courts (Amendment) Act 2009 changes some of them once it is brought into operation. 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.