SEARCH ORDER SUMMARY
What is a search order?
A search order prevents the respondent from destroying or hiding evidence. It gives the plaintiff permission to enter the respondent’s premises to obtain and preserve evidence. However, there must be a real possibility that the respondent might destroy or hide the evidence.
When issuing an order, there must be a fair balance between the object of the order and the protection of the respondent and any third party. In Australia, a search order is known as an Anton Piller order.
Why are search orders called Anton Piller orders?
Australia has a common law system. In Common Law systems, an Anton Piller order is a court order that gives a plaintiff the right to search a premise and seize evidence without prior warning. ‘Anton Piller’ comes from the case of Anton Piller KG v Manufacturing Processes Ltd [1976].
This case involved the theft of trade secrets. The plaintiff, Anton Piller LG, was a German manufacturer. Piller supplied the defendant with electric motors and generators. Piller believed that the defendants were sharing confidential intellectual property information belonging to him. As a result, Piller requested a search order so he could enter their premise and search for any confidential information relating to his new product. Piller wanted to prevent the defendants from leaking information about a new product he planned to launch.
What is the purpose of a search order?
The purpose of a search order is to preserve evidence. Such evidence might need to be seized/claimed because there is a danger the respondent might destroy, conceal or remove it.
The respondent must allow the applicant’s representatives to enter, search and copy any related material. Those representatives can remove any required property and store it for safekeeping.
However, a search order is an extreme invasion of privacy. Therefore, search orders are only for serious situations.
When will a court issue a court order?
A court can only issue a search order under the following requirements:
(a) The applicant of the order has a strong case that the search will obtain the required evidence,
(b) If the search does not take place, the consequences will be serious,
(c) There is sufficient evidence that:
- The respondent possesses evidence and,
- There is a possibility that the respondent might destroy or hide the evidence.
Furthermore, the above criteria are normally very difficult to prove. As a result, search orders are rare. However, if the court does grant a search order, there must be an independent solicitor present to supervise the search. In some cases, there must also be a solicitor present that represents the respondent. The search order must clearly state how many people are in the search party.
In most cases relating to a search order, a court will balance the following:
- strength of the case,
- seriousness of the damage,
- and the potential risk of destruction.
To protect the respondent, there are a number of safeguards for search orders. For example, an independent solicitor must be present to supervise the search.
If the respondent refuses to allow the search party to enter, they can be in contempt of the court. Additionally, they will only seize items already stated in the search order and nothing else.
I received a search order, what should I do?
As soon as someone issues you with search order, you should contact a lawyer immediately. We can provide you with legal advice and support. Alternatively, if you need to issue a search order we can also help with this. As these orders are very legally complex, it is best to seek professional guidance as soon as possible.
Contact us today for a free consultation.
O‘Brien Criminal & Civil Solicitors specialise in search order cases. If someone issues you with a search order, or you need to apply for one, contact us now on (02) 9261 4281. Alternatively, you can get in touch via the contact form (below) for an assessment of your case.
