Martinus Rail Pty Ltd v Qube RE Services (No. 2) Pty Limited in its capacity as trustee of the Moorebank Industrial Terminals Assets Trust

Qube RE Services (No. 2) Pty Limited (Qube) commenced an arbitration in June 2025. It makes claims against Martinus Rail Pty Ltd (Martinus). Pursuant to permission granted by the Arbitrator, the Hon. Robert McDougall KC, and to leave granted by this Court, Martinus issued a subpoena to ConnellGriffin, who was a consultant to Qube. ConnellGriffin produced documents in answer to that subpoena. Qube was granted first access to those documents and makes a claim for client legal privilege over the whole of 4 documents and parts of a further 17 documents.

By a notice of motion filed on 11 March 2026, Martinus seeks general access to the documents produced by ConnellGriffin on the basis that Qube has failed to articulate or establish its claims for privilege.

The relevant documents that are the subject of the claims for privilege have been identified in two schedules, being schedules 1 and 2 to the affidavit of Mr Peter Pether affirmed 17 March 2026. The schedules identify what is said to be the circumstances under which privilege is claimed. In respect of each relevant document, there is some evidence from Qube’s solicitor, Mr Pether, in support of the claims for privilege.

The claims for privilege have some evidentiary basis. This is not a case where Qube has advanced no evidentiary basis to support its claims for privilege: cf Rinehart v Rinehart [2016] NSWCA 58 at [27]. Qube has not sought to establish privilege merely by resorting to verbal formula or ritual: see Grant v Downs (1976) 135 CLR 674 at 689 per Stephen, Mason and Murphy JJ. Counsel for Qube accepted that the evidence was imperfect, and acknowledged that there can be some criticisms of the privilege schedules. Counsel pointed out that the matter had come on with some urgency and contended that Qube was handicapped to some extent because the documents are not Qube’s documents, but were produced by a consultant. It is, of course, for the person claiming privilege to assert and establish the privilege. If privilege cannot be proved it should not be claimed.

I formed the view that there was sufficient residual uncertainty about the existence of the privilege that it was appropriate for me to examine the documents in an unredacted form. The task was manageable because it concerned only 21 documents. The Court has the power to examine the documents and should not be hesitant to exercise the power: see Esso Australia Resources Limited v Commissioner of Taxation of the Commonwealth of Australia (1999) 201 CLR 49; [1999] HCA 67 at [52] per Gleeson CJ, Gaudron and Gummow JJ.

I recognise that it should not be thought that a Court will necessarily be able to examine a document and determine whether it is privileged merely from that examination. However, inspection of the document, together with an appreciation of the other evidence relied upon to support the claim, may enable the Court to more comfortably conclude whether the claim for privilege has been established or not.

Martinus did not consent to me examining the documents or urge me to do so. It submitted that transparency is lost if I examine documents that it is not entitled to see. I accept that examination of the documents by me means that my rulings will be based on evidence that Martinus has not seen. However, that is inevitable whenever the power to examine documents is exercised.

I concluded that I would be better placed to make the correct rulings if I had the benefit of examining the documents. Having regard to the evidence in support of the claims for privilege, I considered that the results of my examination of the documents would be as likely to be to Martinus’s benefit as to its disadvantage.

Martinus submitted that if I were to examine the documents, I should do so in the privacy of my chambers rather than in Court. Qube’s preference was for me to undertake the process of examination in open Court, to afford Qube an opportunity to make further submissions (in a necessarily oblique way) about the documents. I apprehended that Martinus was concerned about an additional denial of procedural fairness if that were to occur. To avoid that risk, I chose to examine the documents in my chambers.

Apart from 4 documents, the claims for privilege were made over redacted portions of either:

The parties addressed me as to the applicable legal principles. Both referred to various observations made by Murphy JA (Martin CJ and Newnes JA agreeing) in Carey v Korda (2012) 45 WAR 181; [2012] WASCA 228. That decision contains a useful statement and consideration of relevant common law principles (which remain relevant in considering sections 118 and 119 of the Evidence Act 1995 (NSW)). It is especially helpful in considering the principles in the context of a solicitor’s bill of costs, or like documents: see [62]-[68]. Other helpful decisions cited in Carey v Korda include Lake Cumbeline Pty Ltd v Effem Foods Pty Ltd (t/as Uncle Ben’s of Australia) (1994) 126 ALR 58 and AWB Ltd v Cole (2006) 152 FCR 382; [2006] FCA 571.

In my examination of the documents, I have had regard in particular to the following matters, which are especially relevant given the character of the documents:

I have annexed to these reasons two schedules. The schedules are in the form that I referred to in [3] above, save that I have deleted a column headed “[meta] File path” and have added a column that sets out my rulings in light of my consideration of the evidence, submissions and the documents themselves (including the parts of the documents that are the subject of the privilege claim). I have identified communications as either “privileged” or “not privileged”. I have used the page numbers in 2 folders that were handed to me containing all of the relevant documents. It should be easy for both parties, using the folders in an unredacted form, to understand my rulings.

The results of the application have been mixed. I have upheld some claims for privilege and rejected others. Any person attacking a claim for privilege will be at a disadvantage in that they do not know precisely what has been withheld on the grounds of privilege. It could not reasonably be said that Martinus should have been more selective in its attack. In those circumstances, my preliminary view is that Martinus’s costs should be its costs in the cause.

I make the following orders: