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Search orders – carry out with care ∠

Search orders – carry out with care

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Feature Articles
Independent solicitors must act to ensure the procedural integrity of executing court-ordered search orders.

By Mark Yorston and Joshua Strong

Search orders (formerly known as Anton Piller orders) have been made by the courts now for over
30 years,1 yet a decision by a court to make such an order remains one of the most contentious in
a civil proceeding.
Scott J in Bhimji v Chatwani2 observed that: “Anton Piller orders... stand, as has been said on many
occasions, at the extremity of the court’s jurisdiction. Some may think they go beyond it. They
involve the court in the hypocrisy of pretending that the entry and search are carried on because
the owners of the premises have consented to it”.
Dockray and Laddie3 described the orders as “offensive weapons” and graphically noted that:
“[T]hey have the ability to harm their victims in many ways. Service of an ex-parte order coupled
with the demand for immediate entry into the premises is likely to produce strong emotional
reactions; shock, anger, confusion, a sense of violation and powerlessness are common
recollections, even when the orders are served by sensitive and tactful solicitors.
The execution of an order may cause severe, sometimes irreparable, physical disruption to a
defendant’s business or daily life; the process may take hours to complete. Files may be ransacked,
trade disrupted and staff frightened and demoralised. An order may positively demand physical
disruption as where the seizure of filing cabinets, equipment and trading stock is ordered or when
computer records are required to be copied... An order may also cause irreparable harm to
reputation... Piller orders may do all these pernicious things without any hearing at which the
defendant can put his case”.4
It follows that the courts will only make such an order where the applicant is able to establish first,
that an extremely strong prima facie case exists, and second, that the potential for, or the existence
of, actual damage to the applicant is very serious.
Third, there must be evidence that the respondents have in their possession material which may be
destroyed by them if warning were given, such as by service of an inter-parte application.5
To assist practitioners, the Supreme Court6 and the Federal Court7 have both set out detailed
practice notes on the manner in which an application for a search order ought to be made and the
material which must be produced to the court at the time the application is made.
It is a requirement of the courts that each search party carrying out the search pursuant to the
order of the court be accompanied by an independent solicitor. The independent solicitor is usually
selected by the applicant’s legal representatives, although the LIV holds a list of those practitioners
who have the appropriate experience and who have indicated a preparedness to accept this role.
While all solicitors are officers of the court and as such have a duty to carry out their responsibilities
in a manner which advances the administration of justice, the practice notes recognise the
importance of the role of the independent solicitor who brings a degree of impartiality to the
process and, in effect, becomes the eyes and ears of the court while the search is being carried out.
In Federal Court Practice Note No 24, the duties of the independent solicitor are set out as
including:
service of the order, the application and all supporting affidavits;
offering to explain to the respondent the terms of the search order;
explaining to the respondent that he or she has the right to obtain legal advice;
supervising the carrying out of the search;
ensuring that lists are made of any things which are taken from the searched premises and ensuring that all parties have a signed copy
of that list;
taking custody of all things which are removed from the premises;
if it is considered necessary, removing a computer from the premises for safe keeping or for copying the hard drive and ensuring the
return of the computer;
providing a written report to the court as to the manner of execution of the order; and
attending the court on the return date of the application to obtain further orders from the court regarding the release or otherwise of
material which is in the custody of the independent solicitor.

Before the search

On receipt of a request to act as an independent solicitor, the solicitor should:
request details of the respondent and if the respondent is a corporate entity, the names of any persons who are known to be
associated with that entity and conduct a firm-wide conflict check;
obtain the details of the nature of the proceeding in which the searches are to be sought, including the number of premises which will
need to be searched;
consider at this early stage the likelihood of criminal charges being brought against a respondent. If it is considered likely, the
respondent may wish those items which are the subject of the search to be held separately until such time as the court can rule on
whether they can be used in the civil proceeding. The independent solicitor should alert the respondent to the possibility that listed
documents or things may incriminate the respondent or expose him or her to a civil penalty. In such a case, it is especially important
that the independent solicitor emphasises the steps which may be taken by the respondent to ensure that such documents or things
are held separately, until such time as the court can rule on whether they can be used in the civil proceeding. Consideration may also
need to be given as to the likelihood that the physical integrity of the material may need to be safeguarded by having those who
conduct a search wear gloves. It may also be necessary, once the search has been completed, for the seized items to be stored at the
solicitor’s office in a secure area where access is strictly controlled by the independent solicitor;
identify who is likely to be present at the premises. If it is a domestic home where the sole occupant is likely to be female or a child
under the age of 18 years, it is preferable that the independent solicitor be female or, if that is not possible, that the independent
solicitor be accompanied by a female;
inquire as to whether a person or persons likely to be present at the premises may be considered “vulnerable” for any reason such as
ill health (mental or physical), inability to understand English etc. Regard should be had as to whether, based on the available
information, the search order is to be executed on a day which may have special religious or cultural significance for persons who are
likely to be at the premises;
forward a correspondence including curriculum vitae and consent to give under taking to the applicant’s solicitors;
arrange a briefing session between the applicant’s legal representatives and the independent solicitor and any other persons named in
the draft search order, including the independent computer expert (if one is needed). It is especially important to understand, if
possible, how many computers may need to be investigated, so as to ensure an appropriate number of personnel will be available.
During the briefing it is important that everybody understands the terms of the order and the nature of listed things which may be
seized and which have been included in the schedule attached to the order; and
at the time of the search, if multiple premises are to be searched, then steps should be taken to ensure that the searches commence
at the same time and that all parties, including each of the independent solicitors, are able to communicate with each other. While the
practice notes provide that the order may be served any time between 9am and 2pm, it is generally preferable that it be as close to
9am as possible, especially if it is anticipated that the search may be drawn out because there are several computers to deal with. A
further half an hour should be allowed to explain the order to the respondent, as well as up to two hours for the respondent to contact
their legal advisers.

The search
On arrival at the premises to be searched, the independent solicitor must ensure that the search
party does not enter the premises until the independent solicitor is satisfied that all relevant steps
have been taken to enable the search to commence.
It is the responsibility of the independent solicitor to serve the search order and to ensure that the
respondent understands what is to occur and the effect of the order. It is important the respondent
understands not only their rights to obtain advice from their own legal advisers but also their rights
concerning self-incrimination and their ability to dispute the seizure of documents or listed things
on grounds such as legal professional privilege, self-incrimination or relevance.
It is good practice to take the respondent
through the order paragraph by paragraph to ensure, as far as possible, that they understand the
order. While it may take some time, it also serves as a time to defuse some of the tension which is
inevitably present. Once the explanation has been concluded and the respondent has been provided
with an opportunity to speak to their own legal adviser, then the search can commence. If multiple
rooms are being searched, it is helpful to draw a diagram of the premises and identify where any
items of relevance are located within the premises.
Documents and listed things seized from individual rooms should be boxed and identified as
emanating from that room, which can be noted on the diagram. At the same time, a list of all the
documents and listed things is compiled and a copy provided to the respondent before leaving the
premises.
The independent solicitor should also keep a diary of events which occur. The diary should
commence with the initial briefing and record all relevant happenings during the search.
After the search
At the conclusion of the search the independent solicitor is required to take custody of the seized
items and retain them securely until further order of the court. Depending on the volume of the
material, it may be necessary to ensure that arrangements have been made for suitable vehicles to
transport the items.
It is preferable if the seized items are stored in a secure room to which access is strictly controlled
to preserve the chain of evidence should that become relevant at some stage. If large volumes of
documents are required to be copied for a respondent after inspection at the office of the
independent solicitor, it may be necessary to have the documents copied externally. If that is
required, the independent solicitor will need to be present to oversee the copying to ensure that the
integrity of the documents is preserved.
If it has been necessary to remove any computers from the premises, the independent solicitor will
need to liaise with the computer expert to ensure that the computers are returned within the time
period arranged with the respondent and ensure that the independent computer expert has
satisfied the respondent that the computers are operating satisfactorily on their return.
Conclusion
The courts will only continue to make search orders if they are satisfied as to the integrity of the
process. The importance of the role undertaken by the independent solicitor in maintaining that
integrity cannot be overstated.
MARK YORSTON is a consultant at Wisewoulds and an accredited commercial litigation specialist.
JOSHUA STRONG is an articled clerk at Wisewoulds.
1. See Anton Piller KG v Manufacturing Processes Ltd [1976] Ch 55.
2. [1991] 1 WLR 989 at 1001.
3. Martin Dockray and Hugh Laddie, “Piller problems” (1990) 106 LQR 601.
4. Note 3 above, at 603-4.
5. Note 1 above, at p61 per Ormrod LJ (see also r37B.03 Supreme Court (General Civil Procedure) Rules
2005).
6. Supreme Court of Victoria, “Search orders”, Practice Note 2 of 2006.
7. Federal Court of Australia, “Search orders (also known as ‘Anton Piller orders’)”, Practice Note 24,
5 May 2006.

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