Federal Court: Basseal v Access Programs Medical Report Privilege Not Waived for Unrelied Report

• The Federal Court refused to order respondents to obtain and serve a psychologist's report on an applicant in Basseal v Access Programs Australia Ltd.
• The court determined that the psychologist's report would be protected by legal professional privilege, as it was intended to inform legal advice.
• Justice Kennett stated that a pre-emptive order abrogating privilege requires substantial justification and questioned the court's power to compel production under a procedural rule.
• Federal Court Rules 2011 r 23.21(2)-(5) allow for medical examinations without interlocutory applications, but require sharing the report, implying a waiver of privilege.
• To maintain privilege over a medical report while compelling an examination, a party must demonstrate necessity under r 23.21(6).

A pre-emptive order abrogating that privilege requires substantial justification.

In the case of Basseal v Access Programs Australia Ltd [2026] FCA 1655, Australia's Federal Court addressed a dispute concerning the disclosure of a psychologist's report commissioned for litigation. The respondents in the matter had filed an interlocutory application on October 16, 2026, seeking an order for the applicant to undergo a medical examination by a psychologist. This request was made in the context of timetabling orders issued by a registrar, which set a deadline of 4:00 p.m. on November 6, 2026, for the filing of all lay and expert evidence for trial.

The respondents expressed willingness to cover the applicant's travel expenses or the costs associated with his chosen medical expert accompanying him to the examination. The applicant did not object to the proposed revised timetable or the requirement to attend the medical examination and cooperate with the psychologist. However, a significant disagreement arose between the parties regarding the service of the psychologist's report on the applicant. The respondents, referencing r 23.21(6) of the Federal Court Rules 2011 (Cth), indicated they would provide a copy of the report only if they decided to rely on it during the proceeding. Conversely, the applicant, citing r 23.21, insisted on receiving a copy of the written report regardless of the respondents' intent to rely on it.

The Federal Court ultimately declined to order the respondents to obtain the psychologist's report and serve it on the applicant. The court acknowledged the similarity between the procedure suggested by the respondents and the process outlined in r 23.21(2)-(4) of the Federal Court Rules, which typically mandates the service of such a report on the person examined. However, the court clarified that these steps would only be necessary if the respondents intended for the psychologist to serve as an expert witness in the case.

A central aspect of the court's decision was its recognition that the psychologist's report would be subject to legal professional privilege. Based on an affidavit presented, the court accepted that the respondents' solicitor intended to use the psychologist's findings to inform legal advice concerning the conduct of the proceeding. Justice Kennett, presiding over the Federal Court, emphasized that legal professional privilege, being a substantive legal right, would ordinarily prevent the disclosure of such a report until it was formally filed in the proceeding, at which point the privilege would be considered waived. Justice Kennett further stated that "A pre-emptive order abrogating that privilege requires substantial justification," and questioned whether the court even possessed the power to compel the production of a privileged document through a procedural rule.

The Federal Court's ruling provided important clarification on the application of Federal Court Rules 2011 r 23.21, particularly subrules (2) through (5). The court explained that these subrules offer a mechanism for a party to compel an opposing party to undergo a medical examination without the need for an interlocutory application or a court order specifically mandating the examination. This streamlined process offers a significant convenience to litigants.

However, Justice Kennett highlighted the inherent 'quid pro quo' associated with this convenience: the report generated by the expert must be shared with the individual who underwent the examination. This effectively constitutes an election by the commissioning party not to assert legal professional privilege over the expert's advice. To maintain privilege over a medical report while still subjecting an opposing party to an examination, the court indicated that a party must demonstrate the necessity for such an order under r 23.21(6). The court clarified that the requirement under r 23.21(5) to obtain and serve a report is not typically intended to be reflected in an order made under subrule (6).

This Federal Court legal professional privilege ruling in Basseal v Access Programs underscores the critical distinction between different pathways for expert report disclosure in Australia. Lawyers commissioning medical examination reports for litigation in the Federal Court must carefully consider the interplay between legal professional privilege and Federal Court Rules 2011 r 23.21. If a party wishes to maintain privilege over such a report and avoid automatic disclosure, they should seek an order under r 23.21(6) rather than relying on the general procedure outlined in r 23.21(2)-(5).

The decision by Justice Kennett clarifies that simply seeking an examination under the general provisions of r 23.21 implies an election not to rely on privilege, thereby necessitating the sharing of the expert report. This ruling provides crucial guidance for practitioners navigating expert evidence disclosure, particularly concerning medical examinations, and reinforces that waiver of privilege for expert evidence is a significant consideration when utilizing the Federal Court Rules.

Lawyers commissioning medical examination reports for litigation in the Federal Court must carefully consider the interplay between legal professional privilege and Federal Court Rules 23.21. If a party wishes to maintain privilege over such a report and avoid automatic disclosure, they should seek an order under r 23.21(6) rather than relying on the general procedure, which implies an election not to rely on privilege.

Source: Original reporting via LexisNexis