Judge notes psychologist’s opinion may inform solicitor’s legal advice on conduct of proceeding
Australia’s Federal Court has refused to order three respondents to obtain a report from a psychologist who would examine the applicant and serve it on him upon determining that the resulting report would be subject to legal professional privilege.
In Basseal v Access Programs Australia Ltd [2026] FCA 1655, a registrar issued timetabling orders requiring the respondents to file any lay and expert evidence for trial by 4:00 p.m. on 6 November 2026.
Through an interlocutory application filed on 16 October 2026, the respondents sought the following:
Under the respondents’ proposed timetable:
The respondents were willing to bear the applicant’s travel expenses or the costs of his chosen medical expert accompanying him to the psychologist’s examination.
The applicant did not object to the revised timetable or to the proposed orders requiring him to attend the medical examination and to do everything reasonably requested by the psychologist.
However, the parties disputed the service of the psychologist’s report on the applicant.
Citing r 23.21(6) of the Federal Court Rules 2011 (Cth), the respondents agreed to give the applicant a copy of the report if they chose to rely on it in the proceeding. The respondents alleged that:
Relying on r 23.21 of the Federal Court Rules, the applicant wanted the respondents to obtain the written report and provide him with a copy in any event.
The Federal Court acknowledged the similarity between the respondents’ suggested procedure and the procedure in r 23.21(2)-(4), which called for the service of the psychologist’s report on the person subject of the medical examination.
However, the court did not order the respondents to obtain the report from the psychologist and serve it on the applicant. According to the court, the respondents would need to take those steps in the ordinary course if they wanted the psychologist to serve as an expert witness.
The Federal Court recognised that the psychologist’s report would be subject to legal professional privilege.
Based on the relevant affidavit, the court accepted that the respondents’ solicitor would be turning to the psychologist’s findings for the purpose of giving legal advice regarding the conduct of the proceeding.
Given that legal professional privilege would apply, the court would not ordinarily require disclosure of the report until its filing in the proceeding, at which point privilege would be waived.
“A pre-emptive order abrogating that privilege requires substantial justification,” wrote Justice Kennett for the Federal Court. “Indeed, because legal professional privilege is a substantive legal right, there may be a question whether the Court has power to order the production of a privileged document pursuant to a procedural rule.”
Interpreting rr 23.21(2)–(5) of the Federal Court Rules, the court said these subrules enabled a party to obtain a medical examination of an opposing party without having to file an interlocutory application and to persuade the court to order the examination.
“The quid pro quo for that convenience is that the report of the expert must be shared with the person examined,” Justice Kennett wrote. “In effect, an election is made not to rely on any privilege in the expert’s advice.”
To subject the opposing party to a medical examination and to keep the doctor’s advice to itself pursuant to the usual operation of legal professional privilege, the court explained that a party should show the necessity of such an order under r 23.21(6).
“On this understanding, there is no reason to treat the requirement of r 23.21(5) to obtain and serve a report as something ordinarily to be reflected in an order under subrule (6),” Justice Kennett wrote. “Nor, for that matter, does subrule (5) mean that the Court has any broader power to abrogate privilege in a communication that has not yet occurred.”
On 30 July 2026, the Federal Court of Australia found that ALS Limited had waived legal professional privilege over at least some information in a report prepared by McGrathNicol, following disclosure of the information in an Australian Securities Exchange announcement.
On 23 December 2025, the Federal Court ordered a plaintiff to pay two parties’ costs in connection with interlocutory processes that requested the production of documents over which the parties asserted legal professional privilege.
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