Rules
1 Title
These rules are the Constituency Election Petition Rules 2008.
2 Commencement
These rules come into force on 1 February 2009.
Preliminary provisions
3 Interpretation
In these rules, unless the context otherwise requires,—
Act means the Electoral Act 1993
court means the High Court
petition means an election petition presented or allowed to be heard under section 229 of the Act
Registrar of Electors means, in relation to an electoral district, the Registrar of Electors appointed under the Act for that district
Returning Officer means, in relation to an electoral district, the Returning Officer appointed under the Act for that district
working days has the same meaning as in the High Court Rules.
Compare: 1908 No 89 Schedule 2 r 796 (SR 1998/325)
Rule 3 High Court Rules: replaced, on 18 October 2016, by section 183(c) of the Senior Courts Act 2016 (2016 No 48).
4 Application of these rules
These rules apply to the determination of a petition under sections 230 to 257 of the Act.
Compare: 1908 No 89 Schedule 2 r 797 (SR 1998/325)
5 Application of High Court Rules and practice of court
(1)
The following rules of the High Court Rules do not apply:
(c)
rule 5.1 (proper registry of the court):
(d)
rule 5.22 (notice of proceeding to be filed with statement of claim):
(e)
rule 5.23 (requirements as to notice of proceeding):
(f)
rule 5.25 (proceeding commenced by filing statement of claim):
(g)
rule 5.45 (power to make order for security for costs):
(h)
rule 5.47 (filing and service of statement of defence):
(i)
rule 5.48 (requirements of a statement of defence):
(m)
Part 12 (summary judgment procedure):
(2)
The High Court Rules, other than the rules listed in subclause (1), and the general practice of the court apply unless they are modified by or inconsistent with the Act or these rules.
Compare: 1908 No 89 Schedule 2 r 798 (SR 1998/325)
Rule 5(1)(j): replaced, on 4 February 2013, by rule 4 of the Constituency Election Petition Amendment Rules 2012 (SR 2012/403).
Petitions
6 Petitions
(1)
A petition must be—
(a)
in form 1 of the Schedule, and contain the information required by that form; and
(b)
signed by the petitioner or, if there are 2 or more petitioners, each petitioner; and
(c)
filed in the registry of the court nearest to the place where the election was held.
(2)
The Registrar of the Court must send a copy of the petition to the Returning Officer as soon as it is filed.
Compare: 1908 No 89 Schedule 2 r 799 (SR 1998/325)
Service of petition
7 Service of petition
A petitioner must serve a petition as far as practicable in the same way as a statement of claim is served.
Compare: 1908 No 89 Schedule 2 r 800 (SR 1998/325)
Advertisement of petition
8 Advertisement of petition
(1)
Within 5 working days of the filing of a petition, a petitioner must, at his or her own expense, publish the petition in a newspaper circulating in the district to which the petition relates.
(2)
The court, on application by a petitioner, may cancel or vary that requirement.
Compare: 1908 No 89 Schedule 2 r 801 (SR 1998/325)
Representation of respondents
9 Respondent must file notice
Within 5 working days of being served with a petition, a respondent to a petition must file in the registry of the court in which the petition is filed a notice—
(a)
signed by or on behalf of the respondent; and
(b)
either—
(i)
appointing a solicitor to act for the respondent in relation to the petition; or
(ii)
stating that the respondent intends to act for himself or herself in relation to the petition; and
(c)
stating, for the purposes of proceedings to determine the petition,—
(i)
an address for service; and
(ii)
if a solicitor is appointed to act for the respondent, a post office box address, document exchange box number, fax number, or email address by which the solicitor will accept service of documents.
Compare: 1908 No 89 Schedule 2 r 802 (SR 1998/325)
Security for costs
10 Security by deposit of money
Security given by deposit of money must be given by the deposit of the money to the credit of the High Court Trust Account.
Compare: 1908 No 89 Schedule 2 r 803 (SR 1998/325)
11 Registrar of Court may withdraw money deposited as security
The Registrar of the Court may from time to time withdraw from the High Court Trust Account all or part of any money deposited as security if the court orders, or all parties to the proceedings agree, that that money be—
(a)
paid to a respondent, for costs, charges, or expenses incurred by or on behalf of that respondent; or
(b)
paid to a witness summoned on a petitioner’s behalf, for costs, charges, or expenses incurred by or on behalf of that witness; or
(c)
returned to a petitioner; or
(d)
otherwise disposed of under the Act.
Compare: 1908 No 89 Schedule 2 r 804 (SR 1998/325)
12 Security by bond
(1)
Security given by bond must be given by a bond in form 2 of the Schedule, containing the information required by that form.
(2)
A bond may be executed by no more than 5 sureties.
(3)
If a Registrar of the Court believes on reasonable grounds that a surety is insufficient, or that a bond is defective or inadequate, he or she may—
(a)
require a surety to lodge an affidavit of justification with the bond; or
(b)
impose any other requirement the Registrar of the Court considers necessary.
Compare: 1908 No 89 Schedule 2 r 805 (SR 1998/325)
Particulars of objections
13 Petitioner must list objections to votes
(1)
This rule applies if a petitioner in his or her petition—
(a)
alleges that a candidate not elected or returned has a majority of lawful votes; and
(b)
objects to 1 or more votes.
(2)
The petitioner must prepare a list of—
(a)
each vote objected to; and
(b)
the heads of objection to each of those votes.
(3)
The petitioner must, at least 5 working days before the day appointed for the trial of the petition, deliver a copy of the list—
(a)
to the Registrar of the Court; and
(b)
to any other party to the proceeding at that party’s address for service.
(4)
A petitioner must also deliver to the Registrar of the Court enough copies of that list to enable the Registrar to supply the copies required to be supplied under rule 15.
Compare: 1908 No 89 Schedule 2 r 806 (SR 1998/325)
14 Respondent must list objections to petition
(1)
This rule applies if—
(a)
a petitioner in a petition complains of an unlawful election or return and claims the seat for some person; and
(b)
a respondent to the petition intends to give evidence, under section 236(8) of the Act, to prove that that person was not duly elected.
(2)
The respondent must prepare a list of—
(a)
the specific grounds upon which the respondent claims that that person was not duly elected or returned; and
(b)
in relation to each of those grounds, particulars of the facts upon which the respondent intends to rely.
(3)
The respondent must, at least 5 working days before the day appointed for the trial, deliver a copy of the list—
(a)
to the Registrar of the Court; and
(b)
to any other party to the proceeding at that party’s address for service.
(4)
The respondent must also deliver to the Registrar of the Court enough copies of that list to enable the Registrar to supply the copies required to be supplied under rule 15.
Compare: 1908 No 89 Schedule 2 r 807 (SR 1998/325)
15 Inspection and supply of lists
On a request for the purpose by any person at the office of the court, the Registrar of the Court must allow the person to inspect, or supply the person with a copy of, a list delivered to the Registrar under rule 13 or 14.
Compare: 1908 No 89 Schedule 2 r 808 (SR 1998/325)
Trial of petition
16 Notice of time and place appointed for trial of petition under section 236 of Act
(1)
The court must appoint a time at which the petition is to be tried.
(2)
The court may, on application, subsequently adjourn the trial and appoint a new date.
(3)
The time appointed under subclause (1) or (2) must be at least 15 working days after the day on which the court appoints that time.
(4)
The Registrar of the Court must, at least 10 working days before the day appointed for the trial,—
(a)
give a notice of the time and place appointed for the trial to each party to the proceeding at that party’s address for service; and
(b)
publish a notice of the time and place appointed for the trial in a newspaper circulating in the district to which the petition relates.
(5)
A notice of the time and place appointed for the trial must be in form 3 of the Schedule.
Compare: 1908 No 89 Schedule 2 r 809 (SR 1998/325)
Withdrawal of petition
17 Notice of intention to apply for leave to withdraw petition under section 252 of Act
(1)
A petitioner who intends to apply to the court for leave to withdraw a petition must, at least 5 working days before the time appointed for the hearing of the application,—
(a)
serve a copy of a notice of intention to apply for leave to withdraw the petition on each respondent to the petition; and
(b)
publish a notice of intention to apply for leave to withdraw the petition at least once in a newspaper circulating in the district to which the petition relates.
(2)
A notice of intention to apply for leave to withdraw a petition must be in form 4 of the Schedule and contain the information required by that form.
Compare: 1908 No 89 Schedule 2 r 810 (SR 1998/325)
18 Form of application for leave to withdraw petition
An application for leave to withdraw a petition must be in form 5 of the Schedule.
Compare: 1908 No 89 Schedule 2 r 811 (SR 1998/325)
19 Time and place of hearing of application for leave to withdraw petition
(1)
The court must appoint a time at or after which an application for leave to withdraw a petition is to be heard.
(2)
The time appointed must be at least 6 working days after the day on which the court appoints the time.
(3)
The Registrar of the Court must, by such method as the court directs, give notice of the time and place of the hearing to—
(b)
each person who, under rule 20(b), gives notice of an intention to apply to be substituted as a petitioner.
Compare: 1908 No 89 Schedule 2 r 812 (SR 1998/325)
20 Application to be substituted as petitioner
A person may, at a hearing of an application for leave to withdraw a petition, apply to be substituted as a petitioner in respect of the petition, if (and only if)—
(a)
the person would, under section 230(1) of the Act, have been entitled to present the petition; and
(b)
the person has given the Registrar of the Court, within 5 working days after the publication of the notice of intention to apply for leave to withdraw the petition, written notice that the person intends to apply to be substituted as a petitioner in respect of the petition.
Compare: 1908 No 89 Schedule 2 r 813 (SR 1998/325)
Abatement of petition
21 Notice of abatement of petition under section 255(3) of Act
(1)
If a petition abates under section 255(1) of the Act (because of the death of a sole petitioner or of the survivor of several petitioners), the Registrar of the Court must, on learning of the death,—
(a)
serve a notice of the abatement on each respondent; and
(b)
publish the notice of the abatement at least once in a newspaper circulating in the district to which the petition relates.
(2)
A notice of the abatement must be in form 6 of the Schedule.
Compare: 1908 No 89 Schedule 2 r 814 (SR 1998/325)
22 Application to be substituted as petitioner on abatement
An application under section 255(3) of the Act (to be substituted as petitioner on the abatement of a petition) must be made by written notice given to the Registrar of the Court.
Compare: 1908 No 89 Schedule 2 r 815 (SR 1998/325)
Withdrawal and substitution of respondent before trial
23 Notice of respondent’s death or loss of seat before trial of petition under section 256(1)(a) or (c) of Act
(1)
This rule applies if, before the trial of a petition, a respondent (other than a Returning Officer or a Registrar of Electors) dies or loses his or her seat because the House of Representatives resolves that his or her seat is vacant.
(2)
The Registrar of the Court must, on learning of the death or the loss by the respondent of his or her seat, give notice of the death or loss.
(3)
The Registrar of the Court must give the notice by—
(a)
publishing the notice at least once in a newspaper circulating in the district to which the petition relates; and
(b)
leaving a copy of the notice signed by him or her, or on his or her behalf, with the Returning Officer; and
(c)
serving a copy of the notice signed by him or her, or on his or her behalf, on each petitioner.
Compare: 1908 No 89 Schedule 2 r 816 (SR 1998/325)
24 Notice of intention not to oppose petition under section 256(1)(b) of Act
(1)
A respondent to a petition (other than a Returning Officer or a Registrar of Electors) who does not intend to oppose the petition must give written notice of that intention to the Registrar of the Court at least 7 working days before the time appointed for the trial of the petition.
(2)
A respondent who gives notice must immediately—
(a)
publish the notice in a newspaper circulating in the district to which the petition relates; and
(b)
leave a copy of the notice with the Returning Officer; and
(c)
serve a copy of the notice on each petitioner.
Compare: 1908 No 89 Schedule 2 r 817 (SR 1998/325)
25 Notice of application to be admitted as respondent to oppose petition
An application under section 256(1) of the Act (to be admitted as a respondent to oppose a petition) must be made by written notice given to the Registrar of the Court.
Compare: 1908 No 89 Schedule 2 r 818 (SR 1998/325)