Federal Court Rules Medical Exam Report Covered by Legal Privilege

Australia's Federal Court, in *Basseal v Access Programs Australia Ltd [2026] FCA 1655*, ruled that a report from a psychologist examining an applicant, if obtained by respondents to inform legal advice on the conduct of proceedings, would be subject to legal professional privilege, thereby refusing to order its production to the applicant.

This decision reinforces the broad scope of legal professional privilege (LPP) in Australian federal courts, particularly concerning expert reports commissioned for the dominant purpose of litigation. For practitioners, it clarifies that even medical or psychological reports, typically seen as factual, can fall under LPP if their primary purpose is to assist in providing legal advice or conducting litigation, rather than merely for factual disclosure. This has significant implications for discovery processes, the strategic use of expert evidence, and the balance between procedural fairness and the fundamental protection afforded by LPP. The court's emphasis on the 'dominant purpose' test is crucial for understanding the boundaries of this privilege.

The ruling hinges on the common law doctrine of legal professional privilege, which protects confidential communications made for the dominant purpose of obtaining or providing legal advice or for use in current or anticipated litigation. The Federal Court Rules 2011 (Cth), specifically r 23.21, which deals with medical examinations and the exchange of reports, was central to the dispute. The Court acknowledged the similarity between the respondents' suggested procedure and r 23.21(2)-(4), which typically calls for the service of such reports, but ultimately prioritized the dominant purpose test for LPP. This case highlights the tension between procedural rules designed for transparency and the overarching protection of privileged communications.

The key parties involved in this matter were the Federal Court of Australia, the applicant (Basseal), and the respondents (Access Programs Australia Ltd). The specific case citation is *Basseal v Access Programs Australia Ltd [2026] FCA 1655*. The dispute arose from an interlocutory application filed by the respondents seeking orders related to a psychologist's examination of the applicant, with the core disagreement revolving around the service of the resulting report to the applicant.

Attorneys must carefully consider the dominant purpose for which expert reports, including medical or psychological assessments, are commissioned. To ensure LPP protection, the retainer for such experts should clearly articulate that the report's primary purpose is to assist in providing legal advice or preparing for litigation. Conversely, when seeking disclosure from an opposing party, practitioners should be prepared to argue against LPP claims by demonstrating that the report's dominant purpose was not legal advice or litigation, or that an exception applies. This decision underscores the importance of strategic planning in expert evidence management and the precise drafting of instructions to experts to safeguard privilege.