In Martinus Rail Pty Ltd v Qube RE Services (No. 2) Pty Limited in its capacity as trustee of the Moorebank Industrial Terminals Assets Trust [2026] NSWSC 316, Brereton J considered Martinus' application for access to third party documents which Qube had claimed privilege over, ultimately ordering partial disclosure, as well as costs due to the mixed results.
Case background
In June 2025 Qube commenced arbitration against Martinus. The arbitrator and the Court granted Martinus permission and leave to issue a subpoena to Qube's consultant, ConnellGriffin. ConnellGriffin produced documents and Qube was granted first access. Qube made a claim for legal privilege of the whole of some, and parts of other, documents produced. In March 2026, Martinus filed a motion seeking general access to the documents on the basis that Qube failed to establish its claims for privilege. The documents over which privilege was claimed were set out in schedules in an affidavit of Qube's lawyers. The schedules identify the circumstances under which privilege was claimed, and some evidence to support the claims.
Privilege claims
The claims for privilege had some evidentiary basis, and Qube had not sought to establish privilege merely by resorting to verbal formula or ritual. The evidence was imperfect and open to criticism, but this was in part due to the urgency with which the matter was brought on and because the documents were ConnellGriffin's, not Qube's. Due to the residual uncertainty, and the limited number of documents, his Honour examined the documents in unredacted form in chambers. This was despite Martinus' objections that transparency would be lost as that was inevitable when examination was carried out.
Outcome
His Honour considered the applicable principles of common law and under the Evidence Act, including that (i) it will usually be the case that the subject matter of legal advice will not be privileged, at least where the fact of advice is not confidential. That is because disclosure of the subject matter of advice will not usually disclose the content of the instructions or advice. The distinction between the subject matter of advice and the advice itself is sometimes harder to apply than to state; in some cases they bleed into one another, and (ii) a claim for client legal privilege should not be advanced unless the person asserting the claim is satisfied both that the communication is privileged and that they are able to establish the privilege on evidence. A person should not claim privilege if they merely consider that there is an argument or a possibility that the communication is privileged.