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Preservation of Evidence: Anton Piller Orders

Successful Anton Piller applications permit the applicant’s authorised representatives to enter a proposed defendant’s premises to search, inspect and take possession of evidence relating to the applicant’s claim. These orders are also known as search orders under the Victorian Supreme Court and County Court legislation.

The order originated from the case Anton Piller K.G. v. Manufacturing Process Ltd [1976] 1 All ER 779, where the Court ruled that it had an inherent jurisdiction to make search orders of this sort where there was a “grave danger” that property or “vital evidence” would be removed or destroyed. The plaintiff in the case had to show that this would be necessary for justice to be done and that there would be no real harm to the defendant or his case.

Applicants seeking an Anton Piller order must not only establish a very strong case from the particular factual circumstances but also show that the defendant possesses evidence vital to the case, and that there is a very real possibility that the respondent will destroy the evidence. Applicants are to make a full and frank disclosure to the Court including possible defences known to the applicant as well as any possible doubt on the applicant’s financial ability to meet any undertakings as to damages.

Parties can apply for an Anton Piller order without notice served on the other side. Anton Piller orders are not search warrants, but are orders enforceable against a defendant personally that allow the plaintiff to enter the premises, or be subject to proceedings for contempt of Court.

Anton Piller orders are most commonly used in civil litigation, especially litigation commenced by the Australian Securities and Investments Commission (“ASIC”). These orders are also used in breach of copyright matters, allowing a plaintiff to search and remove infringing articles from the defendant’s premises for preservation pending trial. Pursuant to the Family Law Rules 2004, an Anton Piller order may also be used in family law proceedings.

There are several rules that the Supreme Court has set down with regards to the conduct of the search. These rules are generally concerned with protecting the defendant’s rights. For example, the search should generally be executed only during business hours, and an independent legal practitioner must be present at the premises when the search is ongoing. The applicant has to give an undertaking as to damages, as well as pay the reasonable costs of the independent legal practitioner. The applicant’s solicitor must also undertake not to disclose to the applicant, any information attained as a result of the execution of the search order unless permitted by the Court.

Anton Piller applications are made by filing the appropriate forms at the relevant courts. All applications are to be accompanied by affidavits in support containing details such as a description of the items sought, the location of the items, reasons as to why the order is sought, the prejudice to be suffered by the applicant if the order was not made, details of the independent solicitor to be appointed, and if the premises are residential, whether or not the applicant believes that the occupant of the premises is likely to be female, a minor, and/or a person reasonably considered to be in a vulnerable position.

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