Martinus Rail Pty Ltd v Qube RE Services (No. 2) Pty Limited in its capacity... [2026] NSWSC 316 | Case summary | Zoe

NSWNSWSC

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

Supreme Court of NSW|2026-04-01|Before: Brereton J

View on NSW Caselaw

At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2026-04-01

Before

Brereton J

Catchwords

EVIDENCE – commercial arbitration – documents produced on
subpoena – client legal privilege – whether Court
should examine the
documents – privilege claims upheld in part and rejected in part

Source

Original judgment source is linked above.

Catchwords

EVIDENCE – commercial arbitration – documents produced onsubpoena – client legal privilege – whether Courtshould examine thedocuments – privilege claims upheld in part and rejected in part

Judgment

Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.

Medium Neutral Citation: 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

Hearing dates: 20, 23 and 24 March 2026

Date of orders: 1 April 2026

Decision date: 01 April 2026

Jurisdiction: Equity - Commercial Arbitration List

Before: Brereton J

Decision: Privilege upheld in part and access granted to non‑privileged portions of documents.

Catchwords: EVIDENCE – commercial arbitration – documents produced on subpoena – client legal privilege – whether Court should examine the documents – privilege claims upheld in part and rejected in part

Legislation Cited: Evidence Act 1995 (NSW)

Cases Cited: AWB Ltd v Cole (2006) 152 FCR 382; [2006] FCA 571
Carey v Korda (2012) 45 WAR 181; [2012] WASCA 228
Esso Australia Resources Limited v Commissioner of Taxation of the Commonwealth of Australia (1999) 201 CLR 49; [1999] HCA 67
Grant v Downs (1976) 135 CLR 674; [1976] HCA 63
Lake Cumbeline Pty Ltd v Effem Foods Pty Ltd (t/as Uncle Ben’s of Australia) (1994) 126 ALR 58; [1994] FCA 837
Rinehart v Rinehart [2016] NSWCA 58

Texts Cited: N.A.

Category: Procedural rulings

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:
Privilege will generally attach to confidential instructions given to, and advice received from, legal practitioners.
Privilege will attach to documents or communications which, if disclosed voluntarily, would waive privilege in a communication that was otherwise privileged. That will likely occur where the documents or communications disclose material from which instructions or advice received from legal practitioners are disclosed, either directly or by a process of inference.
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.
Sometimes a particular communication may appear innocuous by itself, but when linked with other material there is a disclosure of privileged communications. That may justify a claim of privilege over that seemingly innocuous material. In these circumstances, it is incumbent upon the person asserting the privilege to establish the link and the fact that the disclosure of the relevant materials would disclose otherwise privileged communications. How this is best done will depend on the circumstances.
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.
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:
Martinus is it to have access to the portions of the documents that I have recorded as “not privileged” in the schedules annexed to these reasons as Annexures A and B but is not to have access to those portions recorded as “privileged”.
There will be an order that Martinus’s costs of the notice of motion will be its costs in the cause unless either party advises my Associate, by 5pm on Thursday on 9 April 2026, that they wish to be heard on costs.

| No | Document ID | Document date as provided by ConnellGriffin | Document title | Document type | Circumstances under which privilege is claimed | Ruling | | Privileged document | | 1. | COG.0001.0019.0577 | 20/02/2026 | Memo to S Barney re August Adjudication Applications.docx | Electronic File | Privilege is claimed under section 119 of the Evidence Act. This document was prepared for the dominant purpose of Qube being provided with legal services in relation to anticipated adjudication proceedings under the Building and Construction Industry Security of Payment Act 1999 (NSW) and potential arbitration proceedings. | The paragraph immediately under the heading “Status of Response” on page 2 is privileged, otherwise the document is not privileged. | | Part privileged document | | 1. | COG.0001.0019.0488 | 20/02/2026 | EC_CG invoice-4163_222031_Sep 23.pdf | Electronic File | Privilege is claimed under section 119 of the Evidence Act. This document has been redacted to prevent the disclosure of the subject matter of confidential communications and the contents of confidential documents, including meetings which took place between Qube and its legal advisors for the dominant purpose of Qube being provided with legal services in relation to ongoing adjudication proceedings under the Building and Construction Industry Security of Payment Act 1999 (NSW) and anticipated arbitration proceedings. | Page 4 • Item Date 1/09/2023 first portion privileged, second portion not privileged. • Item Date 4/09/2023 not privileged. Page 5 – not privileged. Page 7 – not privileged. Page 9 – not privileged. | | 2. | COG.0001.0019.0516 | 20/02/2026 | EC_CG invoice- 4270_222031_Nov 23.pdf | Electronic File | Privilege is claimed under section 119 of the Evidence Act. This document has been redacted to prevent the disclosure of the subject matter of confidential communications and the contents of confidential documents, including meetings which took place between Qube and its legal advisors for the dominant purpose of Qube being provided with legal services in relation to anticipated and ongoing adjudication proceedings under the Building and Construction Industry Security of Payment Act 1999 (NSW), ongoing proceedings in the Supreme Court of New South Wales and anticipated arbitration proceedings. | Page 19 • Item Date 6/11/2023 not privileged. • Item Date 8/11/2023 privileged. Page 20 – privileged. Page 21 – privileged. Page 22 – privileged. Page 23 • Item Date 27/11/2023 not privileged. • Item Date 28/11/2023 privileged. Page 24 – privileged. | | 3. | COG.0001.0019.0524 | 20/02/2026 | EC_CG invoice- 4331_222031_Nov 23.pdf | Electronic File | Privilege is claimed under section 119 of the Evidence Act. This document has been redacted to prevent the disclosure of the subject matter of confidential communications and the contents of confidential documents, including meetings which took place between Qube and its legal advisors for the dominant purpose of Qube being provided with legal services in relation to anticipated and ongoing adjudication proceedings under the Building and Construction Industry Security of Payment Act 1999 (NSW), ongoing proceedings in the Supreme Court of New South Wales and anticipated arbitration proceedings. | Page 27 • Item Date 6/11/2023 not privileged. • Item Date 8/11/2023 privileged. Page 28 – privileged. Page 29 – privileged. Page 30 – privileged. Page 31 • Item Date 6/11/2023 not privileged. • Item Date 8/11/2023 privileged. Page 28 – privileged. Page 29 – privileged. Page 30 – privileged. Page 31 • Item Date 27/11/2023 not privileged. • Item Date 28/11/2023 privileged. Page 32 – privileged. | | 4. | COG.0001.0019.0532 | 20/02/2026 | EC_CG invoice- 4340_222031_Dec 23.pdf | Electronic File | Privilege is claimed under section 119 of the Evidence Act. This document has been redacted to prevent the disclosure of the subject matter of confidential communications and the contents of confidential documents, including meetings which took place between Qube and its legal advisors for the dominant purpose of Qube being provided with legal services in relation to ongoing proceedings in the Supreme Court of New South Wales and anticipated arbitration proceedings. | Page 34 – privileged. Page 35 – privileged. Page 36 – not privileged. | | 5. | COG.0001.0019.0537 | 20/02/2026 | EC_CG invoice- 4429_222031_Jan 24_Stat Dec.pdf | Electronic File | Privilege is claimed under section 119 of the Evidence Act. This document has been redacted to prevent the disclosure of the subject matter of confidential communications and the contents of confidential documents, including meetings which took place between Qube and its legal advisors for the dominant purpose of Qube being provided with legal services in relation to ongoing proceedings in the Supreme Court of New South Wales and anticipated arbitration proceedings. | Page 40 – privileged. Page 41 – privileged. Page 42 • Item Date 24/1/2024 privileged. • Item Date 29/1/2024 ($2560) not privileged. • Item Date 29/1/2024 ($1720) privileged. Page 43 – privileged. | | 6. | COG.0001.0019.0548 | 20/02/2026 | EC_CG invoice- 4558_222031_Feb 24.pdf | Electronic File | Privilege is claimed under section 119 of the Evidence Act. This document has been redacted to prevent the disclosure of the subject matter of confidential communications and the contents of confidential documents, including meetings which took place between Qube and its legal advisors for the dominant purpose of Qube being provided with legal services in relation to ongoing adjudication proceedings under the Building and Construction Industry Security of Payment Act 1999 (NSW), ongoing proceedings in the Supreme Court of New South Wales and anticipated arbitration proceedings. | Page 51 • Item Date 6/2/2024 ($2560) words up to “meetings” not privileged, balance privileged. • Item Date 6/2/2024 ($1720) privileged. Page 52 – privileged. | | 7. | COG.0001.0019.0561 | 20/02/2026 | EC_CG invoice- 4596_222031 Mar 2024.pdf | Electronic File | Privilege is claimed under section 119 of the Evidence Act. This document has been redacted to prevent the disclosure of the subject matter of confidential communications and the contents of confidential documents, including meetings which took place between Qube and its legal advisors for the dominant purpose of Qube being provided with legal services in relation to ongoing adjudication proceedings under the Building and Construction Industry Security of Payment Act 1999 (NSW), proceedings in the Supreme Court of New South Wales and ongoing arbitration proceedings. | Page 63 – privileged. Page 64 • Item Date 7/3/2024 privileged. • Item Date 11/3/2024 not privileged. Page 65 – privileged. Page 66 – privileged. | | 8. | COG.0001.0019.0579 | 20/02/2026 | Monthly Timesheet - Miff Storey - 1839 Moorebank Intermodal - Contract Management.pdf | Electronic File | Privilege is claimed under section 119 of the Evidence Act. This document has been redacted to prevent the disclosure of the subject matter of confidential communications and the contents of confidential documents, including meetings which took place between Qube and its legal advisors for the dominant purpose of Qube being provided with legal services in relation to ongoing adjudication proceedings under the Building and Construction Industry Security of Payment Act 1999 (NSW). | Privileged. | | 9. | COG.0001.0019.0605 | 20/02/2026 | Moorebank notes.pdf | Electronic File | Privilege is claimed under section 119 of the Evidence Act. This document has been redacted to prevent the disclosure of the subject matter of confidential communications and the contents of confidential documents, including meetings which took place between Qube and its legal advisors for the dominant purpose of Qube being provided with legal services in relation to ongoing adjudication proceedings under the Building and Construction Industry Security of Payment Act 1999 (NSW). | Privileged. | | 10. | COG.0001.0019.0688 | 20/02/2026 | Rail Planning 1839-2023- 12.pdf | Electronic File | Privilege is claimed under section 119 of the Evidence Act. This document has been redacted to prevent the disclosure of the subject matter of confidential communications and the contents of confidential documents, including meetings which took place between Qube and its legal advisors for the dominant purpose of Qube being provided with legal services in relation to ongoing proceedings in the Supreme Court of New South Wales and anticipated arbitration proceedings. | Page 94 • Item Date 18/12/2023 not privileged, otherwise privileged. | | 11. | COG.0001.0019.0712 | 20/02/2026 | Rail Planning 1839-2024- 03.pdf | Electronic File | Privilege is claimed under section 119 of the Evidence Act. This document has been redacted to prevent the disclosure of the subject matter of confidential communications and the contents of confidential documents, including meetings which took place between Qube and its legal advisors for the dominant purpose of Qube being provided with legal services in relation to ongoing adjudication proceedings under the Building and Construction Industry Security of Payment Act 1999 (NSW) and anticipated arbitration proceedings. | Page 112 – not privileged. Page 114 – not privileged. Page 117 – privileged. Page 119 • Item Date 5/3/2024 not privileged. • Item Date 7/3/2024 privileged. • Item Date 11/3/2024 not privileged. • Item Date 13/3/2024 privileged. • Item Date 14/3/2024 privileged. • Item Date 19/3/2024 not privileged. Page 122 – not privileged. Page 123 – privileged. | | 12. | COG.0001.0019.0770 | 20/02/2026 | Rail Planning Services 1839-2023-11.pdf | Electronic File | Privilege is claimed under section 119 of the Evidence Act. This document has been redacted to prevent the disclosure of the subject matter of confidential communications and the contents of confidential documents, including meetings which took place between Qube and its legal advisors for the dominant purpose of Qube being provided with legal services in relation to ongoing proceedings in the Supreme Court of New South Wales. | Page 151, 152 • Item Date 6/11/2023 not privileged. • Item Date 27/11/2023 not privileged. • Otherwise, all privileged. | | 13. | COG.0001.0019.0799 | 20/02/2026 | Rail Planning Services 1839-2024-01.pdf | Electronic File | Privilege is claimed under section 119 of the Evidence Act. This document has been redacted to prevent the disclosure of the subject matter of confidential communications and the contents of confidential documents, including meetings which took place between Qube and its legal advisors for the dominant purpose of Qube being provided with legal services in relation to ongoing proceedings in the Supreme Court of New South Wales and anticipated arbitration proceedings. | Page 173 – privileged. Page 177 – privileged. | | 14. | COG.0001.0019.0823 | 20/02/2026 | Rail Planning Services 1839-2024-02.pdf | Electronic File | Privilege is claimed under section 119 of the Evidence Act. This document has been redacted to prevent the disclosure of the subject matter of confidential communications and the contents of confidential documents, including meetings which took place between Qube and its legal advisors for the dominant purpose of Qube being provided with legal services in relation to ongoing proceedings in the Supreme Court of New South Wales and anticipated arbitration proceedings. | Page 200 – not privileged. Page 204 – privileged. | | 15. | COG.0001.0019.1150 | 20/02/2026 | RPS_CG invoice- 4130_222031_Aug23.pdf | Electronic File | Privilege is claimed under section 119 of the Evidence Act. This document has been redacted to prevent the disclosure of the subject matter of confidential communications and the contents of confidential documents, including meetings which took place between Qube and its legal advisors for the dominant purpose of Qube being provided with legal services in relation to ongoing adjudication proceedings under the Building and Construction Industry Security of Payment Act 1999 (NSW). | Page 223 – privileged. | | 16. | COG.0001.0019.1166 | 20/02/2026 | Scanned_File_2025120117 3542.pdf | Electronic File | Privilege is claimed under section 119 of the Evidence Act. This document has been redacted to prevent the disclosure of the subject matter of confidential communications and the contents of confidential documents, including meetings which took place between Qube and its legal advisors for the dominant purpose of Qube being provided with legal services in relation to ongoing adjudication proceedings under the Building and Construction Industry Security of Payment Act 1999 (NSW). | Page 244 – not privileged. Page 256 – privileged. Page 257 – not privileged. | | 17. | COG.0001.0019.1197 | 20/02/2026 | SIN001132.pdf | Electronic File | Privilege is claimed under section 119 of the Evidence Act. This document has been redacted to prevent the disclosure of the subject matter of confidential communications and the contents of confidential documents, including meetings which took place between Qube and its legal advisors for the dominant purpose of Qube being provided with legal services in relation to ongoing arbitration proceedings. | Not privileged. |

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

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment

JUDGMENT

Annexure A

Annexure B

Parties

Legislation Cited (2)

Cases Cited (5)

Cited By (2)