Discovery masters—Justice Finkelstein’s proposal

8.30 At a workshop on case management in 2008 conducted jointly by the Federal Court and the Australian Law Council (Law Council), Justice Finkelstein outlined a proposal for the introduction of discovery masters in the Federal Court with broad authority. This included a draft of a proposed new O 72A of the Federal Court Rules, prepared along the lines of r 53 of the US Federal Rules of Civil Procedure.^[40] Justice Finkelstein proposed that the rule provide that:

Unless the appointing order directs otherwise, a master may:

(A) regulate all discovery proceedings and disputes;

(B) take all appropriate measures to perform the assigned duties fairly and efficiently; and

(C) if conducting an evidentiary hearing, exercise the assigned duties fairly and efficiently.^[41]

8.31 However, there are three differences between Justice Finkelstein’s model and the US model. First, r 53 allows a master to impose sanctions^[42] but the proposed O 72A does not. Secondly, r 53 allows a party 20 days in which to file objections to a master’s report,^[43] whereas Justice Finkelstein only allowed seven days.^[44] Thirdly, Justice Finkelstein limited a discovery master’s rulings to managing pre-trial discovery,^[45] whereas r 53 allows a master to be involved at any stage.

8.32 However, for pre-trial discovery, Justice Finkelstein would allow masters to direct the proceedings.^[46] Order 72A also mirrors the court’s powers of review in r 53.^[47] Also consistent with r 53, the costs of a discovery master in a particular case would be paid for by the parties, rather than the court.^[48]