NSW Supreme Court partly grants client legal privilege claim in arbitration case

• nine of the consultant’s invoices 
• six rail planning services timesheets 
• one electronic diary record 
• one document with handwritten notes 

On 11 March 2026, the plaintiff moved for general access to the documents the consultant had produced. The plaintiff asserted that the defendant failed to articulate or establish its privilege claims. 

The plaintiff did not want the judge to examine the documents, which would allegedly impact transparency. According to the plaintiff, if the judge did proceed with the examination, he should do so in the privacy of his chambers, not in the court. 

The defendant preferred that the judge examine the documents in open court to give it an opportunity to make further submissions regarding the documents. 

Claim partly succeeds

Justice Peter Brereton of the Supreme Court of New South Wales issued orders seeking to: 

• Allow the plaintiff to access the portions of the documents he identified as “not privileged” in two schedules annexed to his decision 
• Prevent the plaintiff from accessing the portions classified as “privileged” 

Brereton saw some evidentiary basis in the privilege claims. He acknowledged that examining the documents would mean that he would base his rulings on evidence the plaintiff had not seen. However, he found that inevitable whenever exercising his examination power. 

Brereton explained that he would be in a better position to issue the correct rulings if he had examined the documents. He found that the examination would be manageable, given the number of documents, and would just as likely benefit the plaintiff as disadvantage it. 

Brereton examined the documents in his chambers to avoid risking an additional denial of procedural fairness. In his examination, he considered the following matters: 

• Privilege would generally attach to confidential instructions given to and advice received from legal practitioners 
• Privilege would attach to documents or communications that, if voluntarily disclosed, would waive privilege in otherwise privileged communication, which would likely happen where the documents or communications disclosed material from which legal practitioners’ instructions or advice were disclosed 
• Privilege would not usually attach to the subject matter of legal advice, at least where the fact of advice was not confidential, given that disclosing the subject matter would not usually disclose the content 
• Privilege might attach to an apparently innocuous communication that might disclose privileged communications when linked with other material, with the person asserting the privilege needing to establish the link and the fact that disclosing the pertinent materials would disclose otherwise privileged communications 
• One should not assert a client legal privilege claim unless they were satisfied that there was privileged communication and that they could back the privilege with evidence