Background
In an employment proceeding, the respondents applied for orders requiring the self-represented applicant, David Basseal, to attend an independent psychological examination by Ms Olga Skiadopoulos. They also sought revised deadlines for evidence after the examination.
Mr Basseal did not oppose attending the examination, and the parties substantially agreed on costs and the revised timetable. The dispute concerned whether the respondents had to obtain a written report from the psychologist and give it to Mr Basseal regardless of whether they intended to rely on it at trial.
The Court’s Holding
Kennett J ordered Mr Basseal to attend the examination, cooperate reasonably with the psychologist, and permitted him to have a medical expert attend. The respondents were ordered to bear the examination costs and reasonable travel and attendance costs, subject to receipts, and the evidence timetable was revised.
The Court refused to require the respondents to obtain and serve the psychologist’s report. Because the respondents sought the examination by court order under r 23.21(6) of the Federal Court Rules 2011 (Cth), rather than using the notice procedure in r 23.21(2)-(5), any report obtained for legal advice would initially attract legal professional privilege. The mandatory service requirement in r 23.21(5) was the quid pro quo for using the notice procedure; it did not ordinarily apply to a court-ordered examination or justify pre-emptively overriding privilege.
Key Takeaways
- A party may seek a court-ordered medical examination while preserving privilege over the resulting expert advice.
- The report-sharing obligation in r 23.21(5) applies to the rule’s notice-based examination procedure.
- If the respondents elect to rely on the psychologist as an expert witness, they must obtain and serve the report in the ordinary course.
Why It Matters
The decision distinguishes the two pathways in r 23.21 for medical examinations. Parties using the streamlined notice procedure must share the resulting report, while parties seeking a court order may retain privilege unless and until they deploy the expert evidence.
It also confirms the weight given to legal professional privilege as a substantive right when courts are asked to make procedural disclosure orders.