Election petition reviews are expensive for respondents, who must answer within days, and the Rules put a sum on the table from the start. It is a fixed deposit, not an order made on application, and it is a precondition to being heard.
The rules
12. The filing fee for the application for leave shall be K750.00. 13. At the time of filing the application for leave, the applicant shall deposit in the Registrar’s Trust Account, the sum of K5,000.00 as security for costs.
Both sums are payable when the Form 5A application for leave is filed at Waigani under Rule 10(g), which itself must happen within 14 days of the National Court decision under Rule 14. The Registry will not accept the application without the fee, and the deposit is paid at the same time so that the receipt can be produced at the leave hearing. Together with the personal service and affidavit of service required by Rule 15, they are part of the compressed first fortnight. See how to file an election petition review.
Why the Rules require it
The deposit does two things. It deters applications brought to delay a declared result, because the applicant puts K5,000 at risk before a Judge has looked at the merits. And it guarantees that a respondent who succeeds, typically the sitting member and the Electoral Commission, recovers at least something towards the costs of a review that must be answered at speed. The same policy underlies the security for costs that the National Court requires when an election petition is filed under the Organic Law, of which the review deposit is the appellate counterpart.
What happens to it
44. Where parties agree in writing for the security deposit to be paid out to any party or parties, the Registrar shall pay out the deposit as agreed, as endorsed by a Judge. 45. Where there is a dispute as to the distribution, the parties awarded costs may share the deposit in equal proportion to the number of parties. 46. The Registrar shall pay out the share of a party awarded costs after the taxation of the costs of that party. 47. Where a successful party does not claim the deposit within 3 months after the decision, the deposit shall be refunded to the applicant, as ordered by a Judge.
| Outcome | Deposit | Rule |
|---|---|---|
| Leave refused, or review dismissed, costs against applicant | Paid to the respondents awarded costs, after taxation, by agreement endorsed by a Judge or in equal shares | rr 44–46 |
| Review succeeds, costs in applicant’s favour | Refunded to the applicant on a Judge’s order | r 47 by analogy; the deposit was security for the respondents’ costs only |
| No order as to costs | Refunded to the applicant | r 47 |
| Costs awarded but not claimed within 3 months | Refunded to the applicant | r 47 |
| Taxed costs exceed K5,000 | Deposit paid out; balance enforced as a judgment debt | r 46; O 12 Division 9 |
| Application withdrawn | Costs under O 11 r 30(2); deposit applied to them | O 11 rr 29–30 |
Taxation comes first
Rule 46 makes taxation the trigger for payment out. Costs in a review are taxed by the Registrar on the Third Schedule under Rule 42 unless agreed, with a 7-day review to a Judge under Rule 43. A respondent who wants the money therefore lodges a bill promptly after the decision, because the three-month clock in Rule 47 runs from the decision, not from the taxation. See the election petition review scale of costs.
Compared with security for costs on an appeal
On an ordinary appeal, security for costs is ordered only in special circumstances, on application to a Judge under section 18 of the Supreme Court Act and section 5(1)(c), in an amount the Judge fixes, and default leads to the appeal being deemed abandoned under section 18(2). The election petition review deposit is different in every respect: it is fixed by the Rules at K5,000, it is paid without any order, it is paid before leave, and it is not a condition whose breach abandons the review but a precondition to filing. A Judge cannot reduce it, though Rule 39 permits dispensation with a requirement of the Rules in an appropriate case, and an applicant who genuinely cannot raise it would have to invoke that rule. See security for costs on appeal.
Practical points
The deposit is paid to the Registrar’s Trust Account, not to the respondents, and the receipt is kept on the file. Where several applicants review the same decision, each pays. Where the applicant is a candidate funded by supporters, the deposit is still the applicant’s and is refunded to the applicant. The deposit earns no interest for the applicant. And because Rule 38 provides that the filing of a review does not stay the National Court decision, the deposit buys no protection against the declared result taking effect. See what happens after leave in an election petition review.
Sources
- Supreme Court Rules 2012 — O 5 rr 10–15, 38–47; O 11 rr 29–30; O 12 Division 9
- Supreme Court Act (Chapter 37) — ss 5, 18
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.