1994—No. 677 (NSW)

1994—No. 677

SUPREME COURT ACT 1970—REGULATION

(Relating to fees in pro bono cases)

NEW SOUTH WALES

[Published in Gazette No. 174 of 23 December 1994]

HIS Excellency the Governor, with the advice of the Executive Council, and in pursuance of the Supreme Court Act 1 9 7 0 has been pleased to make the Regulation set forth hereunder.

JOHN HANNAFORD,

Minister for Justice.

Commencement

1. This Regulation commences on 1 January 1995.

Amendments

2. The Supreme Court (Fees and Percentages) Regulation 1993 is

amended:

(a) by inserting after clause 4 the following clause:

Pro bono cases

4A. (1) The taking of the fee for the filing of any initiating process (or a cross-claim) on behalf of a pro bono party to proceedings is to be postponed until judgment has been given in the proceedings.

(2) The fee is not to be taken at all, or if taken must be remitted,

if in relation to the claim (or cross-claim):

(a) judgment is against that party; or

(b) judgment is in favour of that party, but damages are not awarded (or only nominal damages are awarded) in his or her favour and costs are not awarded in his or her favour.

1996—No. 677

(3) A registrar or clerk must not refuse to file or issue any document relevant to proceedings merely because, in accordance with this clause, a fee has not been taken for the filing of any initiating process (or cross-claim) on behalf of a pro bono party to those proceedings.

(4) Under this clause, a party is to be treated as a pro bono party to proceedings if he or she is being represented under the pro bono scheme of the Law Society of New South Wales or the pro bono scheme of the New South Wales Bar Association and a solicitor (in the case of the Law Society’s scheme), or a barrister (in the case of the Bar Association’s scheme), acting for the party:

(a)	certifies in writing to the registrar, or clerk, with whom the initiating process (or cross-claim) is lodged on behalf of the party that the party is being so represented; and
(b)	undertakes in writing to the registrar or clerk to pay the filing fee for that document if, at the conclusion of the proceedings, subclause (2) does not apply.

(b) by inserting after clause 7 (2) the following subclause:

(3) This clause is subject to clause 4A.

EXPLANATORY NOTE

The object of this Regulation is to insert provision for the postponement or waiver of filing fees for documents that initiate pro bono cases in the Supreme Court.

Clause 4A (to be inserted in the Supreme Court (Fees and Percentages) Regulation

1993) provides that in general the filing fee for a document by which a party initiates
pro bono proceedings (including proceedings involving a cross-claim) need only be paid
when the proceedings conclude in favour of that party.

However, that clause also provides that the fee need not be paid even if judgment is in favour of the party as long as he or she recovers only nominal damages (or no damages) and costs are not awarded in his or her favour.

The fee, if already paid, is to be refunded in circumstances where, because of the outcome, it need not have been paid.

This Regulation is made under section 130 (Fees and percentages) of the Supreme Court Act 1970.