Costs in an election petition run on their own scheme, separate from Order 22 of the National Court Rules 1983.
Sections 223 to 225
223 — Costs. The National Court may award costs against an unsuccessful party to a petition.
224 — Deposits applicable for costs. If costs are awarded to a party against the petitioner, the deposit lodged under Section 209 is applicable in payment of the sum ordered, but otherwise the deposit shall be paid to the petitioner.
225 — Other costs. All other costs awarded by the National Court, including any balance above the deposit payable by the petitioner, are recoverable as if the order of the Court were a judgement of the National Court, and the order, certified by the Court, may be entered as a judgement of the National Court and enforced accordingly.
— Organic Law on National and Local-level Government Elections
The deposit is applied first; the balance is then enforceable through Order 13 in the ordinary way.
And there are always at least two respondents — the successful candidate and the Electoral Commission — each of whom may obtain costs. Advise petitioners of this before the petition is filed.
Rule 19
(1) The Court may make such orders as to costs as it deems fit.
(2) A party may apply to the Court at the end of the hearing for a different rate of costs other than the rates of costs specified in Schedule 2.
(3) If parties do not agree to the costs, the Registrar shall tax the costs in accordance with Schedule 2 or the rate of costs ordered by the Court.
(4) A party aggrieved by the taxation of costs may within seven days after the taxation apply to a Judge of the National Court for a full review of the taxation.
The reference to “Schedule 2” in subrules (2) and (3) appears to be to the costs schedule, which in the Rules as published is Schedule 3. Schedule 2 contains the Forms. Read the subrules as directing taxation against the costs scale.
Subrule (2) is used at the end of the hearing — a party who wants a rate other than the scale must ask then, not at taxation.
Schedule 3
An allowance of up to K450.00 per hour for institution of proceedings, interlocutory proceedings, preparing (including where necessary filing, serving or delivering) any document, opinions and conferences, attendances, and preparation for trial.
Letters out — K50.00; letters in — K25.00 (add charges if faxed or emailed). Phone calls in and out may be charged at the hourly rate, with proof from Telikom of time spent.
Copy documents — K3.00 per page, all sizes.
Fixed amounts are provided for a directions hearing, for any other applications, for appearing and arguing a petition (with a reduced rate for the second and subsequent days), and of K350.00 for taking a deferred judgment.
And: where the trial Judge has certified the fees, costs and expenses of a second lawyer resident within the jurisdiction or for an overseas counsel — there shall be allowed the same amount as for the first lawyer.
Lawyers’ travel — a lawyer required to travel from the town where they practise is allowed reasonable travel and accommodation expenses. Where overseas counsel is certified, return business class airfares to Brisbane and reasonable hotel expenses. Within the town of trial, a total of half an hour for journey to and the journey back from the Court of K225.00.
Witnesses — K50.00 per day; a witness on salary or wages may be allowed the amount actually lost, at the taxing officer’s discretion, on proof by affidavit annexing proof of loss signed by the employer. A witness who does not reside in the town of trial is allowed a reasonable additional sum for travel by PMV or by sea or air, accommodation and local transport; where a witness stays with relatives or friends, K40.00 per day may be allowed. A witness attending in more than one cause is entitled to a proportionate part only in each cause.
Parties — for every hearing and trial attended: actual travel and accommodation expenses and reasonable costs for meals, hire car or taxi.
K1,000.00 for preparing the bill of costs and copies, lodging, attending taxation, vouching and completing the bill, paying the taxing fee and lodging for certificate or order.
K1,000.00 for a review — preparing and filing the notice of motion to review the taxing officer’s decision, objections or answers, and attending the hearing.
Rule 20
(1) Where parties agree in writing, the Registrar shall pay out the security deposit as agreed between the parties without requiring any further authority or action.
(2) Where there is a dispute as to distribution, the parties awarded costs may share the deposit in equal proportion to the number of parties.
(3) Where a party is awarded costs, after the taxation of those costs, the Registrar shall pay out the share of the security deposit of that party up to the taxed costs amount without further order.
Rule 19(4) allows a party aggrieved by the taxation within seven days after the taxation to apply to a Judge for a full review of the taxation.
Seven days is short. Attend the taxation, take a note of the items disallowed and the reasons, and decide immediately.
Note also that a review under Rule 19(4) is quite different from a review of the substantive decision, for which the only route is the Supreme Court under Constitution section 155(2)(b) — see reviewing an election petition decision.
Sources
- Organic Law on National and Local-level Government Elections — ss 209, 212(1)(j), 220, 223–225
- Election Petition Rules 2017 — rr 19, 20; Sch 3 Parts 1–6
- National Court Rules 1983 — O 13; O 22
Schedule 3 Part 2 is set out as a table in the published Rules, and the individual lawyers’ fee amounts do not reproduce unambiguously from the PDF on PacLII. Only the K350.00 for taking a deferred judgment is stated here as a figure; check the published Rules for the remaining Part 2 amounts before preparing a bill.
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.