where the respondents have filed an application seeking orders for the applicant to submit to a medical examination by a particular medical practitioner
where the parties dispute the service requirements of the resulting report
whether the resulting report would attract legal professional privilege
Quick Take
1Rule 23.21(2)-(5) of the Federal Court Rules 2011 (Cth) lets a party obtain a medical examination of an opposing party by notice, without a court order. The price of that convenience is the mandatory obligation in r 23.21(5) to obtain a report and serve it on the person examined. Using the notice procedure amounts, in effect, to an election not to rely on privilege in the expert's advice.
2A party that wants the examination but also wants to keep the expert's advice privileged must seek an order under r 23.21(6). The r 23.21(5) obligation to obtain and serve a report is not ordinarily reflected in such an order, and subrule (5) gives the Court no broader power to abrogate privilege in a communication not yet made.
3A medical expert's report obtained by a party's lawyers for the purpose of advising on the proceeding attracts legal professional privilege. Because privilege is a substantive right, a pre-emptive order abrogating it requires substantial justification. Whether the Court has power to order production of a privileged document under a procedural rule was left open.
