How you can get a “civil” search warrant to prevent your adversary destroying evidence.

Friday , 9, September 2016 Leave a comment


There is a process of “Discovery” available when you have valid concern that if you initiate legal action against a party, they would destroy evidence before the matter makes it to court and then you have no proof.

Discovery can mean a number of things, not just documents and computer records, it can also cover inspection, detention, custody or preservation of any property.

The Rules under Order 37 Rules 1,2,3 of the Victorian Supreme Court provide an adequate procedure usually where the adversary may be asked by the Court to deliver documents to you, but this does not cover the scenario where a defendant would likely destroy material or hide it.

At Common Law, when Lord Denning was faced with such a situation, where it was likely if the Plaintiff filed regular proceedings the evidence would likely be tampered with or destroyed, he reintroduced ex.parte orders to cover the discovery.

antonpiller

What this means when the order is ex.parte is the other party is not made aware of the Court Order until after it is executed.   Similar to a search warrant.

You can seek authorisation on an ex.parte basis for entry into a defendants premises in order to inspect, remove, or make copies of the documents which belong to the plaintiff, which you may need in evidence to support your case.   This is especially so in Tort, when some party has committed a civil wrong eg: obtaining and holding in their possession private material about you or your company without consent in breach of privacy laws.

The Anton Piller Order is a Court Order that the defendant allow you to enter their premises, and inspect, remove, or make copies of the documents which belong to the plaintiff.

If the defendant refuses permission, then the defendant is automatically in contempt of court and the court can draw adverse inferences from the refusal.   The Anton Piller Order requires the defendant to permit inspection, and even though it is executed with the presence of Court Staff, it does not authorise you plaintiff to enter by force, like a Police search warrant does.   However there is penalty for non-compliance.

There are three things you need to prove in order for the Court to grant an Anton Piller Order since you are making the application ex.parte and your adversary may not even be aware you are initiating action, you must demonstrate the the following basic elements :

1. There must be an extremely strong prima facie case of the wrong doing committed by the Tortfeasor.
2. The damage must be very serious to you.
3. You need to have clear evidence that the defendant has incriminating documents/data/information.
4. You need to demonstrate that if you initiated action by regular means, the defendant would likely destroy the evidence if the application is made on notice.

So where could this order be used?

In Civil Proceedings where the wrongdoer is causing you damage and if you were to initiate regular court proceedings it would be futile as they would destroy the evidence soon as they found out you were taking action.  This could be in situations of partnership break downs in business or personal life, in cases where there is theft of intellectual property or financial records involved,  or it may be used in cases where things like cyber crimes are being committed and  the proof you need could easily be erased.

So with an Anton Piller Order you can sing “bad boys, bad boys, whatchya gonna do, whatchya gonna do when I come for you

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