8.1 This chapter considers whether persons should be called on to assist judges of the Federal Court of Australia and parties to help manage discovery and prepare discovery plans. A number of models, with many common characteristics, are considered: Federal Court registrars; masters under r 53 of the Federal Rules of Civil Procedure (US); masters proposed by the Victorian Law Reform Commission (VLRC); referees under s 54A of the Federal Court of Australia Act 1976 (Cth); and the expert or adviser referred to in a current Federal Court practice note.
8.2 The ALRC concludes that the docket judge should remain primarily responsible for managing discovery. However, in some cases being able to call upon the assistance of an additional, properly trained person may bring considerable cost and time savings to a discovery process, particularly in complex cases involving extensive electronic discovery. The ALRC concludes that this properly trained specialist in managing discovery, if not the docket judge, should be a registrar. Accordingly, the ALRC recommends that registrars 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 ALRC also 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.
8.3 While acknowledging some real concerns, the ALRC concludes that there might be a role for referees in some, very limited, circumstances. If neither the docket judge nor a trained registrar were able to hear the discovery application and ensure discovery were properly managed, the ALRC concludes that it may sometimes be appropriate for the Court to ask a referee to work with the parties to prepare a discovery plan, draft discovery orders and report back to the Court. The ALRC therefore recommends that the Federal Court of Australia Act and the Federal Court Rules (Cth) be amended to provide clearly that the Court may refer discovery questions to a referee.