Practice Note CM 6

8.48 The Federal Court’s Practice Note CM 6: Pre-Discovery Conference Checklist provides that, if ‘the Court orders the parties to attend a case management conference for the purpose of resolving any issues in relation to the scope of discovery, the protocols to be used for the electronic exchange of documents and other issues relating to efficient document management in a proceeding’, then:

the parties or the Court may engage an expert or advisor to:

• attend the Pre-Discovery Conference to facilitate or mediate resolution of any issues that have arisen in relation to the matters identified in this Checklist; and/or

• complete the Checklist and prepare a Document Management Protocol in light of the agreements reached, or directions given by the Court, at the conference.^[72]

8.49 The Court’s power to engage such an expert or adviser is not referred to in this practice note.

Submissions and consultations

8.50 Even if the power to refer discovery matters to referees is in the Court’s inherent jurisdiction, or may be found in s 54A of the Federal Court of Australia Act or elsewhere, it remains to be seen whether the Federal Court should use referees in this way, rather than entirely manage the process itself or leave it to the parties. In the Consultation Paper, the ALRC asked whether special masters should be introduced to manage the discovery process in proceedings before the Federal Court. If they should be introduced, the ALRC asked, what model should be adopted?^[73] Most submissions neither clearly supported nor definitely opposed the use of special masters for discovery work, but most noted the advantages and disadvantages.

Save time

8.51 A number of submissions noted that discovery masters might be more efficient and save court time, leaving judicial officers with more time to conduct trials and prepare reasons for judgment.^[74] The Australian Taxation Office noted that special masters ‘may assist with the additional workload of a case management process’.^[75] The Law Council stated that discovery masters:

may be able to reduce the time taken with discovery. This in turn has the potential to reduce costs associated with the discovery process. A special master would also be able to assist judges, by minimising the amount of time spent on discovery, permitting a greater utilisation of a judge’s time.^[76]

Expertise

8.52 Submissions also stressed the value and importance of using persons with special expertise in e-discovery matters.^[77] The NSW Law Society’s Litigation Law and Practice Committee thought this was so important that they proposed that the Federal Court retain an ‘information technology registrar’, with information technology and legal qualifications,

to assist the Court to determine important questions in relation to the reasonability and proportionality of searches and retrieval particularly in the context of the tension between the ‘quick and cheap’ resolution of litigation and the need to identify and discover electronically stored information most relevant to the issues in dispute to ensure that the determination is also ‘just’. The information technology registrar would assist the Court in determining questions such as forensic value of search and retrieval efforts having regard to the discovery obligations of the parties and the cost and time involved in such efforts …

The specialist registrar would review the search protocols of the parties in anticipation of the pre-discovery conference and assist the Court during the pre-discovery conference to assess the proposals that are put forward by the parties in their search protocols. The purpose of the specialist registrar would be to give practical and technical advice to the Court.^[78]

8.53 They might also be particularly helpful, Michael Legg submitted,

for parties and legal representatives who do not have extensive experience with the use of information technology in relation to discovery and could therefore act as a way to balance the playing field as well as educate those parties.^[79]

8.54 Though he recommended a circumspect approach, Legg submitted that special masters be introduced ‘to assist in the formulation of a discovery plan and the conduct of a pre-discovery conference’. This would not ‘interfere with the Federal Court’s individual docket system or with case management generally’:

The judge would still remain in control of a case but they would have assistance in relation to expensive and time consuming tasks that would allow the proceedings to be dealt with more efficiently consistent with the overarching purpose.^[80]

Judge should manage discovery

8.55 That it is the judge’s job to manage discovery was perhaps the key objection made in submissions to the use of special masters. Assisting the parties in the discovery procedure and process was said to be an ‘integral part’ of the role of trial judges.^[81] Allens Arthur Robinson submitted that ‘[a] docket judge, fully apprised of all the issues in the proceeding, is in our view best placed to resolve discovery issues’.^[82] The advantage of the docket system, a group of large law firms submitted, was that:

the judge is engaged in the particular matter, familiar with the issues and thus able to ensure the just and efficient conduct of the proceedings. We do not endorse any suggestion that special masters should manage discovery as a matter of routine. The docket judge has the greatest familiarity and engagement with the proceedings and accordingly is best placed to limit discovery obligations to the real issues in dispute.^[83]

8.56 Allens Arthur Robinson suggested that special masters might be the ‘next best option’ to the docket judge managing the process, but submitted that if they were to be used, there should be a ‘clear and automatic right of appeal to the docket judge’.^[84] Parties should also be able to apply to have the docket judge deal with discovery issues at first instance.^[85]

Cost

8.57 Some submissions expressed concern about the cost. The Law Council asked about the costs of a special master in discovery and whether costs would be fixed.^[86] The Australian Government Solicitor observed that the costs of the process would need to be carefully considered.^[87]

8.58 The Law Council also noted ‘the potential that it may be too expensive for self-represented parties, impacting negatively upon those who it is designed to assist’.^[88] That the initiative ‘might unfairly disadvantage litigants with relatively unequal economic resources’ was also a concern of the Commercial Bar Association of Victoria.^[89]

8.59 Submissions also raised questions about how masters would be selected, appointed and resourced.^[90] Allens Arthur Robinson noted that ‘sufficient resources should be allocated to ensure that special masters have the necessary practical expertise and are able to resolve disputes quickly’.^[91] Some also submitted that the scope of the master’s powers would need to be considered.^[92] The Law Council asked whether the role would be as extensive as in the US.^[93] The Australian Government Solicitor observed‘the use of special masters to manage the discovery process is a potentially worthwhile mechanism to consider’, but suggested

questions as to the scope of a master’s powers, when matters are appropriately referred to a master, supervision of the master’s decisions and costs of the process would need to be carefully considered.^[94]

ALRC’s views

8.60 In the ALRC’s view, docket judges should remain primarily responsible for managing discovery. As discussed in Chapter 7, active judicial case management is necessary to control the scale and cost of discovery. In most cases, the docket judge should be able to manage the discovery process. However, in some complex cases, the Court and the parties may benefit from the assistance of a person who can engage at length and at a high degree of technical competence in the detail of a discovery process. The occasional and targeted use of such persons need not be inconsistent with active judicial case management.

Discovery registrar

8.61 The ALRC recommends that, in the rare cases in which a complex discovery matter cannot be managed by the docket judge, the judge should consider directing a trained registrar to hear the application.

8.62 In Chapter 7, the ALRC recommends judicial training that deals with management of the discovery process. This would include the technologies and practices used to discover electronically-stored information and how to evaluate discovery plans. Similar training would be suitable and necessary for registrars who might be directed to hear a discovery application. Accordingly, the ALRC recommends that a registrar in each registry of the Federal Court be trained and equipped to undertake the discovery tasks delegated to them, including preparing and critically interrogating discovery plans and making discovery orders, especially in large or complex proceedings. The relevant registrar might be the eRegistrar mentioned in Practice Note CM 6 who has been nominated to provide advice and assistance in relation to the use of technology in litigation.

8.63 There are a number of advantages in using registrars for this work, rather than referees or special masters. As noted above, registrars may exercise delegated judicial power—they are independent officers of the Court and can make binding decisions that may be reviewed by a judge, but need not be.

8.64 Referees and special masters, on the other hand, cannot exercise the judicial power of the Commonwealth.^[95] Therefore, referees must report any recommendations to the Court. Even if a referee’s report were only briefly reviewed by the Court, some double-handling of the issues would be inevitable. Referees also lack the authority to control the parties, and must return whatever remitter they have to the Court for a judge to consider some form of sanction.

8.65 Registrars are remunerated by the Court and, as such, the costs of a registrar’s services are subsidised by public funds. By comparison, referees and masters under the models discussed above would usually be paid for by the parties—at a commercial rate. The cost of the referee’s time alone may be significant, but to this cost should also be added the potential cost of argument in court about whether a referee should be appointed and later argument about the conclusions reached by the referee. These and other costs suggest that it will often not be appropriate to appoint referees for discovery work.^[96]

8.66 The main justification for the use of referees in managing discovery is to incorporate technical expertise, particularly in electronic technologies, which would improve the efficiency of the discovery process. To the extent that a specially trained registrar is able to manage discovery with a high degree of expertise, their use will be justified and should lower the overall cost of the discovery process. This cost saving would be particularly evident if, without the technical knowledge of a trained registrar, discovery would not be as expertly managed by the Court in some circumstances.

When to appoint a discovery registrar

8.67 The ALRC recommends that judicial training programs concerning discovery consider the circumstances in which a judge might choose to direct that a registrar hear a discovery application. Generally, interlocutory applications that are routine or straightforward might be considered appropriate for a registrar to determine—to allow the docket judge time to deal with more complex issues arising in the proceeding. However, a registrar highly trained and experienced in the management of discovery issues—in particular, the use of electronic technologies—might provide valuable support for judges dealing with complex discovery matters. Therefore, judicial education and training might alert judges to the potential for such registrars to determine, for example, complex discovery matters that may require discovery of very large quantities of electronically-stored information.

Discovery referees

8.68 Despite the real concerns noted above, the ALRC envisages some very limited role for referees in Federal Court discovery. Referees might be considered a ‘third best option’—to be used only when neither the docket judge nor a trained registrar were able to hear the discovery application and spend the necessary time to ensure discovery was properly managed.

8.69 The Court might usefully ask a referee to work with the parties to prepare a discovery plan and to draft discovery orders. Both the plan and the orders might be included in the referee’s report to the court. The parties may disagree with each other and the referee on appropriate orders and an appropriate plan; these disagreements should be made clear in the report, so the judge may conveniently discuss the matters with the parties in court or at a case management conference. Referees’ reports might also usefully contain recommended orders concerning the cost of discovery.^[97]

8.70 Justice Finkelstein argued that discovery masters would only need to be appointed ‘by consent of the parties’ or ‘in the discretion of the court where the court is satisfied that exceptional conditions exist (eg large scale complex litigation)’.^[98] The ALRC likewise considers that these might be suitable, if not necessarily sufficient, preconditions for the referral of discovery questions to a referee. Though there are real concerns with referring discovery matters outside the Court, the ALRC considers that for some complex discovery processes, the involvement of a trained, technical person who is independent of the parties and the lawyers may be invaluable. If the Court cannot provide such a person, the ALRC considers that the parties should be asked to work with an independent person from outside the Court. Without this check, discovery for some complex cases might not be planned or executed efficiently and at a cost proportionate to the issues in dispute.

8.71 The appointment of a referee would result in costs for the parties—which may be higher than the costs of a registrar performing this task. However, this is not to say that the cost of a referee will never justify their appointment. If a referee helped to narrow the scope of discoverable documents, or perhaps helped find an efficient and technically sound method of retrieving those documents, then the costs saved for the parties may far outweigh the cost of the referee.

8.72 Whether appointing a referee would save or increase costs in a particular case would be a suitable matter for a judge to consider before referring a question to a referee. The judge should also be wary of the potential for a well-resourced party to use the cost of referees to dissuade some parties from proceeding.

Enabling the use of discovery referees

8.73 The power to refer discovery questions to referees is arguably covered by s 54A of the Federal Court of Australia Act, and perhaps less clearly evident in O 72A of the Federal Court Rules—but the power is not entirely clear in either. Accordingly, the ALRC recommends that both the Act and the Rules be amended to provide or clarify that discovery questions and issues may be referred to referees.

8.74 The use of referees for discovery appears to be consistent with the purpose of s 54A.^[99] In any event, the Court considers that it has a similar power, as suggested by the fact that Practice Note CM 6 provides for the appointment of an expert or adviser to perform discovery work.

8.75 If the power were to be so clarified, the ALRC considers that s 54A of the Act and O 72A of the Rules are well suited to referring discovery questions to referees, should a docket judge think it necessary for the efficient conduct of a discovery process. Under s 54A and O 72A the Court has considerable discretion and flexibility as to what matters to refer, how any inquiry is to operate, who should bear the cost of the referee, how the referee should report to the Court, and how the Court might use the report. Also importantly, because the referee does not make binding decisions or impose sanctions, the power to manage the case remains with the judge.