Federal Court of Australia

Basseal v Access Programs Australia Ltd [2026] FCA 1655

ORDERS

THE COURT ORDERS THAT:

1.    The applicant submit to an independent medical examination by Ms Olga Skiadopoulos, psychologist, of Medicolegal Assessments Group at Suite 507, Level 5, 83 York St, Sydney NSW 2000 on 10 November 2026 at 10.00am, for a duration of up to 2 hours.

2.    The applicant do all things reasonably requested and answer all questions reasonably asked by Ms Skiadopoulos for the purposes of the examination.

3.    Subject to any order as to costs made in this proceeding, the respondents bear the costs and expenses charged by Ms Skiadopoulos for conducting the examination.

4.    Subject to the applicant’s production of valid tax receipts within 7 days of the examination, the respondents pay to the applicant by transfer into a bank account nominated by the applicant:

(a)    the total cost of reasonable travel expenses of the applicant in connection with the examination; and

(b)    the reasonable costs of attendance at the examination by a medical expert nominated by the applicant.

5.    Orders 2, 3 and 4 of Registrar Morgan dated 18 June 2026 be vacated.

6.    By 4.00pm on 6 November 2026, the respondents are to file and serve any lay evidence sought to be relied on at trial.

7.    By 4.00pm on 4 December 2026, the respondents are to file and serve any expert evidence sought to be relied on at trial.

8.    By 4.00pm on 29 January 2027, the applicant is to file and serve any lay and expert evidence in reply.

9.    The matter be listed for case management on a date to be fixed in February 2027.

10.    The costs of the interlocutory application filed on 16 October 2026 be reserved.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

KENNETT J:

1    Timetabling orders made by a Registrar in this proceeding currently require the respondents to file any lay and expert evidence sought to be relied on at trial by 4.00pm on 6 November 2026. By an interlocutory application filed on 16 October 2026, the respondents sought an order that the applicant (Mr Basseal) attend a medical examination by a psychologist, Ms Olga Skiadopoulos, on 10 November 2026. The application also seeks consequent revisions of the timetable, so that:

(a)    only the respondents’ lay evidence would be due on 6 November 2026, with any expert evidence due for filing on 4 December 2026;

(b)    Mr Basseal would file any evidence in reply by 29 January; and

(c)    a further case management hearing would occur thereafter.

2    Mr Basseal does not resist the proposed orders requiring him to attend the proposed examination and do all things reasonably requested by Ms Skiadopoulos. The respondents proposed an order that they reimburse Mr Basseal for his travel expenses and, at the hearing of the application, counsel indicated that his clients were also content to bear the costs of Mr Basseal having a medical expert of his choice attend the examination with him. The revised timetable was not substantially in dispute.

3    The only controversy was as to the service of Ms Skiadopoulos’s report on Mr Basseal. The applicants have agreed to provide Mr Basseal with a copy of her report if they decide to rely on it in the proceeding. Mr Basseal submits that the respondents should be ordered to provide the report to him in any event (which also entails, by implication, that they would be obliged to obtain a report in writing).

4    Mr Basseal relies in this connection on r 23.21 of the Federal Court Rules 2011 (Cth), which provides (relevantly) as follows.

23.21  Examinations by a medical expert

Application of this rule

(1)    This rule applies to a proceeding if:

(a)    a person’s (the relevant person’s) physical or mental condition is relevant to a matter in question; and

(b)    the relevant person is a party or a person for whose benefit a party is claiming relief.

Party may request medical examination

(2)    A notice requesting the relevant person to submit to an examination by a specified medical expert at a specified time and place may be served on the party referred to in paragraph (1)(b) by another party to the proceeding.

(3)    The relevant person may have a medical expert of their choice attend the examination.

(4)    A party who serves a notice under subrule (2) must, on request by the relevant person, pay to the relevant person a reasonable sum to meet the travel and other expenses incurred by the relevant person in connection with the examination, including the expenses of having a medical expert chosen by the relevant person attend the examination in accordance with subrule (3).

(5)    The party who serves a notice under subrule (2) must, as soon as reasonably practicable after the examination:

(a)    obtain a medical report from the medical expert referred to in that subrule; and

(b)    serve a copy of that report on the relevant person.

Court may order medical examination

(6)    The Court may:

(a)    order the relevant person to submit to an examination by a medical expert (including an order that the relevant person submit to an examination by a specified medical expert at a specified time and place); and

(b)    make any other order the Court considers appropriate in relation to the examination.

(7)    If the Court makes an order under subrule (6) requiring the relevant person to submit to an examination by a medical expert, the relevant person must do all things reasonably requested, and answer all questions reasonably asked, by the medical expert for the purposes of the examination.

5    It will be noted that the procedure proposed by the respondents bears several similarities to that provided for in r 23.21(2)-(4). The outcome of that procedure in r 23.21(5) is a report which is served on the person who is the subject of the medical examination.

6    However, rather than invoking that procedure, the respondents have chosen to approach the Court seeking an order under r 23.21(6). They submit that the report of Ms Skiadopoulos is to be obtained by their legal advisers for the purpose of advising on the proceeding (including whether the report should be sought to be relied on) and will for that reason at least initially be privileged. They further submit that that privilege, which is a substantive and not merely a procedural right (Glencore International AG v Commissioner of Taxation of the Commonwealth of Australia [2019] HCA 26; 265 CLR 646 at [21] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ)), should not be abrogated by an order requiring disclosure of the report if they do not propose to rely on it (or if no decision has been made in that respect).

7    The proposition that advice from Ms Skiadopoulos is being sought for the purpose of giving legal advice about the conduct of the proceeding is supported by the affidavit of the respondents’ solicitor. On that basis, I accept that any report she provides will be subject to legal professional privilege (cf, eg AWB Limited v Honourable Terence Rhoderic Hudson Cole (No 5) [2006] FCA 1234; 155 FCR 30 at [41] (Young J)) and would therefore not normally be required to be disclosed until it was filed in the proceeding (at which point privilege would be waived). A pre-emptive order abrogating that privilege requires substantial justification. 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.

8    The intended effect of r 23.21(2)-(5) is not explained to any substantial degree in the Explanatory Statement for the Federal Court Legislation Amendment Rules 2022 (Cth), which inserted the rule. Nor have I found any decisions of the Court addressing this issue.

9    In my view, the preferable understanding of r 23.21(2)-(5) is that they provide a mechanism for a party to obtain a medical examination of an opposing party (or a person in the opposing party’s camp), without a requirement to file an interlocutory application and persuade the Court to order such an examination. The quid pro quo for that convenience is that the report of the expert must be shared with the person examined. In effect, an election is made not to rely on any privilege in the expert’s advice. A party who seeks to have the opposing party submit to a medical examination, and to keep the doctor’s advice to itself in accordance with the ordinary operation of legal professional privilege, must persuade the Court that an order should be made under subrule (6).

10    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). 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.

11    For these reasons, I will not order that the respondents obtain a report from Mr Skiadopoulos and serve it on Mr Basseal. They will have to take those steps in the ordinary course if they wish to call her as an expert witness.

12    I note that, after the hearing yesterday, the respondents filed further written submissions. These were filed without leave, other than in respect of one reference to an authority, and I have therefore not had regard to them.

Associate:

Dated:    3 November 2026