Chief justice decries funding and fees crisis

THE outgoing Chief Justice of the Federal Court wants the government to urgently restore funding or risk the court stretching resources to a point where it starts "devouring" itself.

Patrick Keane, who moves to the High Court bench in March, said the Federal Court's judges and administrative staff had been "heroic" for their hard work, particularly as the number of judges declined from 50 to 44 nationally during his tenure.

"We have just had to keep finding ways to get fewer staff to do more work," Chief Justice Keane told Fairfax Media. "[But] at what point do you start - like a marathon runner - to consume your own flesh? There comes a point at which you are kind of devouring yourself."

Allocations to the Federal Court were $93.5 million in the 2010 budget but fell to $89.7 million in 2011 before rising to $90.2 million in last year's budget, according to annual reports.

"I think, frankly, the Commonwealth gets a very big bang for its buck out of the [Federal] Court," Chief Justice Keane said. "They buy a lot of justice for that [amount]."

He said the budget needed to be restored to 2010 levels, as the court's workload also increased 20 per cent over the past three years.

Chief Justice Keane, who has been in the role since early 2010, also spoke out for the first time against the government's decision to increase court fees, saying it pushes justice out of reach.

"User-pays theories are great for the ministry of finance but, for a long time - since Magna Carta - to no one will we sell justice," he said.

"The idea that one of the essential things that a state provides is justice is actually one of the core values of our tradition. And to have to pay very substantial fees to get in the door of a court is a matter of concern. [The Federal Court] does not impose the fees and we don't keep the money."

Although the court knew an increase was coming, it was not consulted about the size of it, he said. "I think it is pretty fair to say that our position is that we would prefer not to see the fee increases happening."

The government announced fee changes in its 2012 budget. It expects them to deliver an extra $77 million in revenue over four years.

The Attorney-General, Mark Dreyfus, said higher fees reflect the capacity of different types of litigants to pay more and encourages parties to mediate instead of litigating.

"Courts have been expensive to operate and fees have been increased to help meet some of the costs," he said. "It will allow additional funding of $38 million over four years."

Filing costs have jumped from $938 to $1080 for an individual and from $2248 to $3145 for corporations and government agencies. But the biggest change is a new category for "listed companies", which now pay $4720 to file a document and up to $16,765 per day for every day a hearing runs over 15 days.

An associate professor at the school of law at the University of NSW, Michael Legg, said the fee increases were a muddled policy decision that could push litigants into the cheaper state courts - taking revenue away from the Federal Court.

"Fees have usually increased annually to keep pace with inflation," he said. "But the most recent changes look like the federal government has gone 'here is a cash cow, let's milk it'. My biggest concern has been the way that it impacts individuals and their ability to pay."

The new fee structure encourages parties into mediation, regardless of how suitable mediation is in their dispute, Professor Legg said.

Mediation costs have increased from a flat fee to $2460 per day for listed companies, $1640 for corporations and $700 for individuals.