Civil Procedure Regulation 2017

The regulation directly affects four classes of persons:

1. Litigants – any natural person, corporation or incorporated partnership who commences, defends or intervenes in civil proceedings in the Supreme, Land and Environment, District or Local Courts. Plaintiffs ordinarily bear filing and hearing fees (cll 9(2)(c), 10(2)(c)); cross-claimants bear them where the hearing concerns only the cross-claim. Recipients of Sheriff enforcement processes (writ of possession, levy, etc.) indirectly bear the cost when the judgment creditor passes on the Sheriff’s fee.

2. Legal practitioners and agents – a solicitor or other person carrying on proceedings on behalf of a party is jointly and severally liable for hearing allocation and hearing fees (cll 9(3), 10(3)) and for any fee imposed on a document filed at their request (cl 7(4)). They must therefore advise clients on fee exposure and manage cash-flow at critical points (allocation of hearing date, written notice of hearing fee quantum).

3. Court officers – registrars of each court and the Sheriff (or Marshal in Admiralty) are both collectors and decision-makers. They receive fees (cl 7(1)), may demand prepayment (cl 8(2)), exercise statutory powers to waive, postpone or remit (cl 11), and must apply Attorney General guidelines. In the Supreme Court’s Admiralty List the Marshal charges the same fees as the Sheriff would charge in ordinary civil proceedings (cl 6).

4. Small business corporations and pro bono / legally assisted litigants – these groups receive concessional treatment. Corporations below the $200,000 turnover threshold can access the standard rather than corporate rate (cl 4(4)). Pro bono parties and legally assisted persons enjoy postponement and potential remission (cll 12–13), which alters the cash-flow and ultimate cost burden that would otherwise apply to self-funded litigants.

The regulation does not apply to criminal proceedings in the Land and Environment Court (Class 5–7), which are governed by the Criminal Procedure Regulation 2017. It also carves out domestic and personal violence proceedings in the Local Court from large parts of the Civil Procedure Act 2005 (cl 16), thereby excluding them from the fee and case-management regime that would otherwise apply.

Indirectly, the regulation affects judgment creditors who must factor Sheriff’s execution fees (including the 3 % levy on writs for the levy of property under Sch 2 item 5) into recovery calculations, and judgment debtors whose assets may be sold after the Sheriff has incurred the preparatory fee in Sch 2 item 8.

Duties

• Payment duty: Any person requesting filing or service must pay the applicable fee in Schedule 1 or 2 at the time the document is filed or the service rendered (cll 7(1), 8(1)). Hearing allocation and hearing fees must be paid in the proportions ordered by the court or, absent order, by the plaintiff or cross-claimant as the case may be (cll 9(2), 10(2)).

• Evidence duty: A corporation seeking the lower standard fee must produce satisfactory evidence of turnover to a registrar (cl 4(4)).

• Joint liability duty: Solicitors and agents are jointly and severally liable with their clients for hearing-related fees and for fees on documents filed at their request (cll 7(3)–(4), 9(3), 10(3)).

• Notification and publication duties: The Secretary must notify the Parliamentary Counsel of the new fee-unit value and publish both the unit and the derived fees on official websites after each December CPI release (Sch 3 cl 4(1)).

Rights

• Waiver / postponement / remission rights: Registrars and the Sheriff may order that any fee (or part of it) be waived, postponed or remitted, subject to conditions (cl 11(1)–(2)). The power must be exercised consistently with Attorney General guidelines.

• Automatic postponement and potential remission for protected litigants: Pro bono parties (cl 12) and legally assisted persons (cl 13) have a statutory right to postponement until judgment. They enjoy a right to remission (or non-taking) of the fee if they lose or obtain only nominal damages without a costs order.

• Exemption rights: No fee is payable for the filing of certain notices of motion (instalment orders, writs of execution, garnishee orders, charging orders, default judgment, most Small Claims Division applications except examination orders) (cl 4(5)). Specific statutory references to the Supreme Court under the Australian Securities and Investments Commission Act 2001 (Cth) and the Corporations Act 2001 (Cth) are also fee-free (cl 4(6)).

• Corporate concession right: Qualifying small corporations may elect the standard rather than corporate fee (cl 4(4)).

• Indexation transparency right: Litigants are entitled to have fees calculated according to the published CPI-adjusted fee unit and rounded in accordance with Sch 3 cll 2–3. The “no decrease” rule protects against deflationary adjustments.

The regulation itself contains no offence-creating provisions or civil penalty regimes. Enforcement of the obligation to pay is administrative rather than punitive. A registrar may simply refuse to file a document or render a service until the fee is paid (cl 8(2)). In practice this operates as a de facto stay on the proceeding or application.

If a party fails to pay a hearing allocation or hearing fee, the court may decline to allocate or conduct the hearing. Because the party and solicitor are jointly and severally liable, the court or registrar can pursue either. Unpaid Sheriff’s fees may be added to the costs of execution and recovered from the proceeds of sale before distribution to the creditor (Sch 2 item 5 note).

The Civil Procedure Act 2005 supplies the broader enforcement context. Section 18 of the Act authorises the making of this regulation and permits regulations to prescribe fees “by reference to a scale, by reference to a fee unit or otherwise”. Failure to pay a prescribed fee can therefore be treated as non-compliance with a requirement of the Act, potentially engaging costs sanctions or case-management powers under the Act’s overriding purpose (s 56).

No criminal sanctions attach to non-payment; the sanction is procedural exclusion from the court’s processes. For lawyers, persistent non-payment could engage professional conduct rules concerning obligations to the court and to clients, but that is outside the regulation itself.

The regulation is made under s 18 of the Civil Procedure Act 2005 and must be read with the Interpretation Act 1987 (cl 3(1) note). It expressly replaces the Civil Procedure Regulation 2012, which was repealed on the same day this regulation commenced (cl 2 note).

It sits within a web of civil justice legislation:

• Uniform Civil Procedure Rules 2005: Many fees relate to steps defined in the UCPR (e.g. notices to produce under Part 34 – Sch 1 Part 5 items 1–3; preparation for sale under UCPR r 39.22 – Sch 2 item 8). Clause 7(2) deems the fee for receipt of documents produced under Part 34 to be payable by the person who served the notice.

• Land and Environment Court Act 1979: Classes 1–4 and 8 are defined by reference to ss 17–21C of that Act (Sch 1 Part 2 cl 1). Appeals under s 56A of that Act attract a specific fee (Sch 1 Part 2 item 11).

• Legal Aid Commission Act 1979 and Legal Profession Uniform Law (NSW): These statutes define “legally assisted person” for the purpose of the postponement regime in cl 13.

• Crimes (Domestic and Personal Violence) Act 2007: Section 91 proceedings in the Local Court are carved out of large tranches of the Civil Procedure Act 2005 (cl 16), preventing the fee regime from interacting with those protective orders.

• Real Property Act 1900 and Evidence Act 1995: Sheriff’s certification of writs (Sch 2 item 9) and attendance at views (Sch 2 item 10) engage these statutes.

• Subordinate Legislation Act 1989: The 2017 regulation was required to be published on the NSW legislation website and repealed its predecessor on the same day (cl 2).

The annual indexation provision (cl 5A) directly implements s 18(1)(a), (c), (e) and (f) of the Act, which authorise regulations to prescribe fees, provide for their adjustment, and deal with related matters. The CPI mechanism in Schedule 3 is therefore not an independent policy but a statutory elaboration of the enabling power.

Because the regulation is subordinate, any inconsistency with the Act would be resolved in favour of the Act. However, no such inconsistency appears; the regulation is carefully drafted to operate within the boundaries set by the Act and the Interpretation Act 1987.

The regulation has been amended six times since 2018, largely to update fee quantum and to modernise the indexation framework.

The Justice Legislation Amendment (Fees) Regulation 2023 (2023 (379)) was the most significant. It inserted cl 5A and Schedule 3, establishing the CPI-based fee unit system with effect from 1 August 2023. The explanatory note to the amending regulation states that the change implements s 18 of the Act by providing an objective, transparent and automatic method of preserving the real value of fees. It also substituted new fee tables in Schedule 1, increased most corporation multipliers, introduced the $200,000 turnover concession for small corporations (cl 4(4)), and clarified that the new indexation does not apply to fees charged before 1 August 2023 (cl 18).

Earlier amendments (2018 (313), 2019 (327), 2020 (303), 2021 (323), 2022 (335)) had substituted or varied the dollar amounts in the schedules to reflect periodic reviews. The 2022 amendments temporarily inserted a repealed cl 4A and adjusted several items before the 2023 overhaul replaced the entire Schedule 1.

These changes reflect two policy drivers: (1) fiscal – ensuring court fees keep pace with inflation rather than requiring ad hoc legislative updates every few years; (2) access to justice – maintaining a lower rate for small corporations and preserving the pro bono and legal aid protections. The shift from fixed dollar amounts to a fee-unit model with published CPI adjustments reduces future regulatory burden while satisfying the statutory obligation under s 18 of the Act to prescribe how fees are to be adjusted.

The regulation has not generated high-profile constitutional or judicial review litigation. Because it is a fee-setting instrument rather than a rights-creating or punitive one, challenges have tended to arise collaterally in costs assessments or applications for remission.

In probate and administration matters, disputes occasionally surface over the sworn gross value used to determine the tiered filing fee in Schedule 1 Part 1 item 2. Registrars’ decisions on valuation are reviewable but rarely litigated to appellate level. Similarly, decisions under cl 4(4) on whether turnover evidence is “satisfactory” are discretionary and seldom challenged.

The pro bono and legal aid postponement provisions (cll 12–13) have been considered in costs judgments where a successful pro bono litigant seeks an order that the opponent pay the court fees that were never in fact paid. Courts have accepted that the statutory remission operates only between the litigant and the court; it does not prevent a costs order that indemnifies the successful party for fees that would have been payable but for the pro bono scheme (consistent with the text of cl 12(2), which speaks only of the fee not being “taken” by the court).

No reported case has successfully impugned the validity of the CPI indexation formula. The formula’s “no decrease” rule and rounding conventions are authorised by the broad regulation-making power in s 18 of the Act. The publication obligation in Sch 3 cl 4 provides procedural fairness by ensuring litigants can ascertain the exact fee before filing.

Controversies in the legal profession have centred on the cumulative financial burden of hearing fees in long Supreme Court trials (Sch 1 Part 1 item 11), which escalate sharply after the ninth day. Practitioners argue that this structure, combined with joint-and-several liability, can chill meritorious but complex commercial litigation. The regulation has not been amended to address that concern; instead, case management under the Act’s overriding purpose is relied upon to keep trials within reasonable bounds.

Most practitioners are aware of the corporate uplift, but few realise that an incorporated partnership is caught by the same definition and uplift (cl 4(2)(b) read with cl 3(1)). A suburban accounting firm structured as an incorporated partnership will therefore pay double the standard fee even though it may feel “small”.

The turnover concession in cl 4(4) is not automatic. The corporation must produce “evidence satisfactory to a registrar”. There is no statutory definition of satisfactory evidence; in practice registrars require audited financial statements or tax returns. A company that waits until the last minute to file may discover the registrar is unavailable to assess the evidence, forcing payment of the higher fee or adjournment.

Hearing allocation fees crystallise on the earlier of actual allocation or written notice of intention to allocate (cl 9(5)). A solicitor who receives an email from a registrar stating “we propose to list this matter for hearing on … ” has triggered liability even if the client later settles. Because the solicitor is jointly and severally liable, the firm’s trust account can be debited without further notice.

Clause 7(2) contains a trap: the fee for receipt of documents produced under a Part 34 notice to produce is deemed payable by the server of the notice, not the recipient. A defendant who serves a notice to produce on a plaintiff may inadvertently become liable for the registrar’s receipt fee even though the plaintiff ultimately produces the documents.

Sheriff’s execution fees are charged “for each address at which, and each occasion on which, execution is effected or attempted” (Sch 2 items 1–6). A writ of possession that requires attendance at a large commercial building with multiple tenancies can therefore generate multiple fees on a single day. The 3 % levy on writs for the levy of property is calculated on the proceeds of enforcement, not the judgment debt; careful negotiation of a part-payment before sale can reduce the levy component.

The pro bono remission in cl 12(2)(b) requires both that damages be nominal and that no costs order be made. A pro bono plaintiff who wins with a costs order but receives only nominal damages still loses the protection and must pay the postponed fees. Conversely, a legally assisted defendant who successfully defends and obtains a costs order but no damages (because none were claimed) still benefits from remission.

Finally, the indexation in Schedule 3 operates on fee units, not on the final rounded dollar amount. A small change in the CPI can push a 0.99 fee unit item from $109 to $115 after rounding. Because the regulation is republished only once per year, practitioners must check the latest published fee unit on the NSW legislation website rather than relying on last year’s printed schedule.

Compliance begins with a three-step pre-filing audit. First, classify the proceeding by court and division and identify the exact item in Schedule 1 or 2. Second, determine whether the client is a corporation or incorporated partnership and, if so, whether the $200,000 turnover concession can be claimed; obtain and tender the necessary financial evidence to the registrar at the earliest opportunity. Third, check the list of exempt motions in cl 4(5) and the special Supreme Court references in cl 4(6) to ensure no unnecessary fee is paid.

For hearing-related fees, diarise the date a written notice of allocation or quantum is received; that is the trigger for payment. Where a cross-claim is involved, obtain an early judicial direction under cl 9(2)(a) or 10(2)(a) allocating responsibility, thereby avoiding the default rule that the plaintiff pays.

Maintain a trust-account protocol that separates court fees from counsel fees so that joint-and-several liability does not expose the firm to personal loss when a client becomes impecunious after allocation. When acting for a pro bono or legally assisted party, file the relevant declaration or letter of approval at the first directions hearing so that the registrar can note the postponement on the court file; this prevents an erroneous demand for immediate payment.

When calculating future exposure in costs budgets or settlement negotiations, apply the current published fee unit (available on the NSW legislation website after each December CPI release) and round in accordance with Sch 3 cl 3. Do not rely on the editorial note figures, which are illustrative only.

For Sheriff’s executions, instruct the client to provide accurate address details and to anticipate multiple attendances. Where a writ for the levy of property is contemplated, calculate the 3 % levy on realistic recovery rather than the judgment sum; advise the client that the Sheriff’s preparatory fee (Sch 2 item 8) is incurred as soon as notice of sale is given, even if the sale is later abandoned.

Registrars and Sheriff’s officers should maintain written guidelines issued by the Attorney General and apply them consistently when exercising the cl 11 discretion. A short-form reasons sheet recording the guideline relied upon, the financial information considered and any conditions imposed will protect the decision from collateral attack.

Finally, subscribe to the NSW legislation alert service for amendments to this regulation. Because fee tables are substituted in their entirety on each major update, a single missed amendment can result in under- or over-charging. A compliance checklist updated after each amending regulation (particularly after the annual indexation) should be circulated to all litigators in the firm.

By treating the regulation as a pricing schedule that interacts with case management timelines rather than a mere administrative footnote, practitioners can convert a potential cash-flow disaster into a predictable and manageable cost of litigation.