Election petition reviews are the one kind of Supreme Court proceeding with its own scale of costs. It is higher than the general scale in some respects and lower in others, and it is tied to the security deposit paid on the application for leave.
The rules that apply it
40. The Court may make such orders as to costs as it deems just. 41. The rates of cost specified in the Third Schedule shall apply unless a party applies for and the Court orders a different rate. 42. If parties do not agree to the costs, the Registrar shall tax the costs in accordance with the Third Schedule or, if the Court orders, at the rate ordered by the Court. 43. A party aggrieved by the taxation may, within 7 days, apply to a Judge for a review of the taxation.
Order 12 Rule 12(1) confirms that the general Fourth Schedule does not apply to proceedings under Order 5 Division 2, sub-division 14. The Third Schedule governs the leave application, the review and any objection to competency within it.
The scale
| Part and item | Allowance |
|---|---|
| Part 1, item 1: pre-trial fees for instituting proceedings, interlocutory proceedings, documents, opinions and conferences, attendances and preparation | Up to K650 an hour |
| Part 1, item 2: preparation of the review book | K700, plus K1 a page for the original and all copies |
| Part 1, item 3: letters | K75 out, K40 in, plus Telikom charges if faxed or emailed; phone calls at the hourly rate with proof of time |
| Part 1, item 4: copies | K4 a page |
| Part 2: lawyer’s fees | Directions hearing K800; any other application K600; appearing and arguing the review, first day K3,000, second and subsequent days two-thirds; taking a deferred judgment K600; a certified second lawyer or overseas counsel the same as the first |
| Part 3: travelling | Reasonable travel and accommodation for a lawyer from another town; return business class fares to Brisbane and reasonable hotel expenses for certified overseas counsel; K375 for the half-hour journey to and from Court |
| Part 4: witnesses | Villagers K10 a day; wage earners the wages actually lost on proof from the employer; travel by PMV or sea and accommodation at the taxing officer’s discretion; K30 a day where staying with relatives |
| Part 5: taxation | Preparing the bill and attending taxation K1,500; review of taxation K1,500 |
Compared with the general scale
The general Fourth Schedule allows K150 to K450 an hour and caps an appearance at K3,000 a day; the Third Schedule allows up to K650 an hour before trial but fixes the first hearing day at K3,000 flat and later days at K2,000. The general scale allows economy airfares for out-of-town lawyers and overseas counsel only where certified; the Third Schedule allows business class to Brisbane for certified overseas counsel. The general scale allows other witnesses up to K400 a day for wages lost; the Third Schedule allows village witnesses K10 a day. The differences reflect the nature of the work: short, intense, lawyer-heavy, with witnesses who have already been heard in the National Court. See the general scale of costs.
Taxation and review
If the parties do not agree the amount, the Registrar taxes the bill on the Third Schedule under Rule 42. The bill is drawn in the form in Part 2 of the Fourth Schedule with the Third Schedule rates. A party aggrieved applies to a Judge within 7 days under Rule 43; this is shorter than the review period for ordinary taxations under Order 12 Division 37. Rule 48 penalises a lawyer whose bill is taxed down by a sixth or more by disallowing the costs of preparing it and attending the taxation.
Payment out of the deposit
44. Where the parties agree in writing for the security deposit to be paid out, the Registrar pays it out as agreed, as endorsed by a Judge. 45. Where there is a dispute as to distribution, the parties awarded costs share the deposit in equal proportion to their number. 46. The Registrar pays out a party’s share after taxation of that party’s costs. 47. Where a successful party does not claim the deposit within 3 months after the decision, it is refunded to the applicant, as ordered by a Judge.
The K5,000 deposited under Rule 13 on the application for leave is the first source of payment of a costs order against the applicant. Where taxed costs exceed it, the balance is enforced in the ordinary way. See the security deposit and enforcing a costs order.
Asking for a different rate
Rule 41 allows a party to apply for a different rate, and the Court to order it. That is the route for a respondent who has instructed senior counsel at a fee the scale does not approach, or for a party who says the applicant’s conduct warrants costs on an indemnity basis. The application is made at the hearing when costs are argued, under Rule 40, and not later at taxation, where the Registrar is bound by the Schedule or the order. The process from leave to hearing is in what happens after leave in an election petition review.
Sources
- Supreme Court Rules 2012 — O 5 rr 13, 40–48; O 12 rr 12, 37; Third Schedule; Fourth Schedule Part 2
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.