2008/239

Court Martial Appeals (Fees and Allowances) Regulations 2008

Anand Satyanand, Governor-General

Order in Council

At Wellington this 4th day of August 2008 
Present:His Excellency the Governor-General in Council

Pursuant to section 26A of the Court Martial Appeals Act 1953, His Excellency the Governor-General, acting on the advice and with the consent of the Executive Council, makes the following regulations.

Contents

1 Title
2 Commencement
3 Interpretation
4 Application of regulations
5 Base hourly rate of remuneration
6 Certified scale of fees
7 Classification of examiners
8 Remuneration of examiners and assessors
9 Remuneration of special commissioners
10 Payment of witnesses
11 Travelling expenses
12 Special allowance for travelling time
13 Other expenses
14 Claims for fees
15 Certification of claim
16 Power to approve lesser fee
17 Payment of claim
18 Power to refer certain claims to presiding Judge
19 Revocation and saving

Regulations

1 Title

These regulations are the Court Martial Appeals (Fees and Allowances) Regulations 2008.

2 Commencement

These regulations come into force on 1 July 2009.

3 Interpretation

In these regulations, unless the context otherwise requires,—
Act means the Court Martial Appeals Act 1953
assessor means an assessor to the Court appointed under section 11(f) of the Act
base hourly rate of remuneration has the meaning given to it by regulation 5
certified scale of fees means the certified scale of fees payable under these regulations prepared by the Chief of Defence Force in accordance with regulation 6
Chief of Defence Force means the officer appointed under section 8 of the Defence Act 1990
examiner means a person appointed by the Court to conduct the examination of a witness under section 11(c) of the Act
presiding Judge means the Judge who presides at any sitting of the Court under rule 43 of the Court Martial Appeal Court Rules 2008
special commissioner means a special commissioner appointed by the Court to inquire into, and report on, a question arising on an appeal under section 11(e) of the Act
year means a period of 12 months starting on 1 July.

4 Application of regulations

(1) These regulations apply to all work done by the following persons on or after 1 July 2009 in relation to an appeal or any proceedings preliminary or incidental to an appeal under the Act:
(a) an examiner:
(b) a special commissioner:
(c) an assessor.

(2) These regulations apply to witnesses attending on the order of the Court or examined in any proceedings incidental to an appeal under the Act.
(3) Nothing in these regulations applies to work done by a member of the Armed Forces.

5 Base hourly rate of remuneration

For the purposes of these regulations, the base hourly rate of remuneration for work done in any year is the same as the senior hourly rate of remuneration determined by the Solicitor-General under regulation 4 of the Crown Solicitors Regulations 1994 for work done in that year.

6 Certified scale of fees

(1) The Chief of Defence Force must, before the start of each year, prepare and certify a scale of all fees, travelling expenses, and allowances payable in accordance with regulations 5, 8, 11, and 12 in respect of work to which these regulations apply.
(2) A copy of the scale must be given to the Registrar.

7 Classification of examiners

(1) If work to which these regulations apply is done by an examiner, the Registrar must determine whether that examiner is to be regarded for the purposes of these regulations as a senior examiner, an intermediate examiner, or a junior examiner.

(2) A person must be regarded as a senior examiner for the purposes of these regulations if —
(a) he or she has practised at the bar for a continuous period of more than 7 years; and

(b) his or her experience includes appearances—
(i) in criminal trials and other litigation involving complex legal issues; or
(ii) as lead counsel in more than 10 separate contested proceedings before a court-martial, the Court Martial, the Summary Appeal Court, or the Court Martial Appeal Court.

(3) A person must be regarded as an intermediate examiner for the purposes of these regulations if he or she does not qualify as senior counsel but—
(a) he or she has practised at the bar for a continuous period of more than 4 years; and

(b) his or her experience includes appearances—
(i) in criminal trials; or
(ii) as leading counsel in more than 5 separate proceedings before a court-martial, the Court Martial, the Summary Appeal Court, or the Court Martial Appeal Court.

(4) A person who does not qualify as a senior or intermediate examiner must be regarded as a junior examiner for the purposes of these regulations.

8 Remuneration of examiners and assessors

(1) The remuneration payable to an examiner or an assessor for work to which these regulations apply is at the following rate per hour:
(a) in the case of a senior examiner or an assessor, the base hourly rate of remuneration:

(b) in the case of an intermediate examiner, 80% of the base hourly rate of remuneration:

(c) in the case of a junior examiner, 65% of the base hourly rate of remuneration.

(2) However, the remuneration payable to an examiner or an assessor for an attendance in respect of an appeal is at the rate prescribed for that examiner or assessor by subclause (1), multiplied in each case by 4 for each half-day or part of a half-day.

9 Remuneration of special commissioners

The Court must fix the remuneration of a special commissioner as if that special commissioner were an expert witness, within the range set out in clause 1(1) of the Schedule of the Witnesses and Interpreters Fees Regulations 1974.

10 Payment of witnesses

(1) A witness for a person to whom legal aid has been granted may be paid fees, allowances, and expenses in accordance with the Witnesses and Interpreters Fees Regulations 1974.
(2) Subclause (1) is subject to any direction of the Court.

11 Travelling expenses

(1) A person who is required to travel more than 5 kilometres from his or her usual place of business in connection with the work to which these regulations apply is allowed the following travelling expenses:
(a) fares paid for public transport:
(b) if a private motor vehicle is used, a mileage allowance payable at the rate of the mileage allowance approved under section 4(4) of the Fees and Travelling Allowances Act 1951 as payable to a member of a statutory Board who uses a private vehicle when travelling in the service of the Board:
(c) a subsistence allowance for each day or part of a day the person is away from his or her usual place of residence, payable at the rate of the subsistence allowance approved under section 4(2) of the Fees and Travelling Allowances Act 1951 as payable to a member of a statutory Board who is travelling in the service of the Board:
(d) the cost paid for hiring a rental car, if that cost, together with the subsistence allowance under paragraph (c) and the special allowance provided for in regulation 12, is not more than the total of the fares, subsistence allowance, and special allowance that would have been payable if public transport had been used.

(2) However, in relation to subclause (1)(a), receipts must be produced for fares that exceed 10% of the base hourly rate of remuneration if these are not fixed by law or readily ascertainable.

12 Special allowance for travelling time

(1) A special allowance at the following rate is payable for each hour occupied in travelling for work to which these regulations apply, in addition to the travelling expenses provided for in regulation 11:

(a) in the case of a senior examiner or an assessor, 66% of the base hourly rate of remuneration:

(b) in the case of an intermediate examiner, 53% of the base hourly rate of remuneration:
(c) in the case of a junior examiner, 43% of the base hourly rate of remuneration.

(2) The special allowance is not payable in addition to any other payment, for preparation or otherwise, for the same time.

13 Other expenses

(1) The fees prescribed in these regulations are inclusive of all charges for receiving instructions, preparation, correspondence, research, reports, preparing and checking judgments, and attendances.
(2) However, other necessary expenses (for example, toll charges) are payable to the extent that the Registrar is satisfied that the expenses are fair and reasonable both as to nature and cost.

14 Claims for fees

A person who claims fees, expenses, and allowances under these regulations must, on the completion of the work to which the claim relates,—
(a) prepare and sign a voucher setting out full particulars of the claim; and
(b) give the voucher to the Registrar.

15 Certification of claim

(1) The Registrar must certify that the fees, expenses, and allowances claimed are payable under these regulations if—
(a) he or she is satisfied that they are in accordance with the certified scale of fees; or

(b) these regulations require them to be fixed by reference to a maximum and—
(i) the claim does not exceed the maximum; and
(ii) in the Registrar’s opinion, they are fair and reasonable; or

(c) in respect of a claim for fees, there are no appropriate fees provided for in these regulations and the fees claimed are, in the Registrar’s opinion, fair and reasonable and for each hour actually involved do not exceed,—
(i) in the case of a senior examiner or an assessor, the base hourly rate of remuneration:
(ii) in the case of an intermediate examiner, 80% of the base hourly rate of remuneration:
(iii) in the case of a junior examiner, 65% of the base hourly rate of remuneration.

(2) Subclause (1) is subject to regulations 16 and 18.

16 Power to approve lesser fee

(1) Subclause (2) applies if, in the Registrar’s opinion,—
(a) the time involved or the nature of the service actually performed does not justify the payment of the full fees set out in the certified scale of fees; or
(b) the work involved in a transaction or proceeding is reduced by the fact that the transaction or proceeding is one of a series of transactions or proceedings that are similar or arise out of the same set of circumstances.

(2) If this subclause applies, the Registrar must approve a lesser fee that he or she thinks is fair and reasonable and must certify this on the voucher.

17 Payment of claim

(1) The Registrar must forward the certified voucher to the Registrar of the Court Martial for the purpose of this regulation.
(2) If the Registrar of the Court Martial is satisfied that the services charged have been duly performed, he or she must certify this and arrange payment.

18 Power to refer certain claims to presiding Judge

(1) Subclause (2) applies if—
(a) the fee claimed by an examiner or assessor is more than the amount that, in the opinion of the Registrar, could properly be claimed under regulation 14, and is claimed because of exceptional circumstances; or
(b) the Registrar doubts whether the fee claimed by an examiner or assessor is a proper fee for the Registrar to certify.

(2) If this subclause applies,—
(a) the Registrar must refer the voucher, with a memorandum setting out his or her reasons, to the presiding Judge; and
(b) the presiding Judge may authorise the fee he or she considers fair and reasonable.

19 Revocation and saving

(1) The Courts Martial Appeals (Fees and Allowances) Regulations 1997 (SR 1997/188) are revoked.
(2) The Courts Martial Appeals (Fees and Allowances) Regulations 1997, despite their revocation by subclause (1), continue to apply to work done before 1 July 2009.

Michael Webster,for Clerk of the Executive Council.

Explanatory note

This note is not part of the regulations, but is intended to indicate their general effect.
These regulations, which come force on 1 July 2009, replace the Courts Martial Appeals (Fees and Allowances) Regulations 1997.
The regulations provide for the payment of fees, allowances, and expenses to—

an assessor, examiner, or a special commissioner appointed by the Court Martial Appeals Court (the Court) for work done on or after 1 July 2009 in connection with an appeal, or any proceedings preliminary or incidental to an appeal, under the Court Martial Appeals Act 1953 (the Act):
witnesses attending on the order of the Court or examined in proceedings incidental to an appeal under the Act.

Regulation 6 provides for the establishment of a scale of fees, travelling expenses, and allowances payable in respect of work to which the regulations apply. In the case of fees payable to an examiner or assessor under regulation 8, the scale is established relative to the fees payable under the Crown Solicitors Regulations 1994. Those regulations require the Crown Solicitor, in each year, to determine what is called the senior hourly rate of remuneration. Under regulation 5 of these regulations, this figure is the base hourly rate of remuneration for work to which the regulations apply and the fees payable to examiners and assessors are expressed as a percentage of this rate. For examiners, this depends on the person's classification under regulation 7 as senior, intermediate, or junior.
Regulation 9 requires the Court to fix the fees payable to a special commissioner as if he or she were an expert witness, within the range in set out in clause 1(1) of the Schedule of the Witnesses and Interpreters Fees Regulations 1974.
Regulation 10 provides for the payment of fees, allowances, and expenses, in accordance with the Witnesses and Interpreters Fees Regulations 1974, to a witness for a person to whom legal aid has been granted.
Regulations 11 to 13 provide for the payment of various allowances and expenses, including for transport, travelling time, and subsistence costs, in connection with work to which the regulations apply.
Regulations 14 to 18 set out the procedure to be followed in relation to a claim for fees, expenses, and allowances under the regulations, including certification and payment of the claim.

Issued under the authority of the Acts and Regulations Publication Act 1989.
Date of notification in Gazette: 7 August 2008.
These regulations are administered by the New Zealand Defence Force.