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This matter concerned an ex parte application for a search order relating to electronic devices located at the home of the respondent and his family. In dismissing the application as founded upon inadequate evidence, Sofronoff P emphasised that the making of a search order is an “extraordinary jurisdiction” and that making one in relation to residential premises “lies at the outer boundary of the discretion” due to the “humiliation and family distress” it may involve.
Sofronoff P and Philippides JA and Davis J
17 August 2020
The appellants applied ex parte for a search order pursuant to r 261A Uniform Civil Procedure Rules 1999 (“UCPR”) in relation to electronic devices located at the respondent’s home. , . The first appellant is the developer of a mine in Queensland while the second appellant is the developer of an associated railway line. The respondent is the “principal” of a group of activists seeking to prevent the development of the mine and railway. . The appellants intend to proceed against the respondent for breach of confidence, inducing breach of contract, intimidation and conspiracy. The search order was sought in aid of those proceedings. . It was alleged that the respondent had obtained confidential information relating to contractors engaged by the appellants and that this had been used to undertake protests that resulted in some contractors declining to work for the appellants. –.
At first instance, the application was dismissed. The appellants’ appeal was heard ex parte and as an application de novo pursuant to r 763 UCPR. . The Court of Appeal (Sofronoff P, with whom Philippides JA and Davis J agreed) refused the renewed application. .
The President observed that the principles for making a search order provided in r 261B UCPR reflected those in the seminal case of Anton Piller KG v Manufacturing Processes Ltd  Ch 55. . There was also a requirement “that the harm likely to be caused to the respondent … not be excessive or out of proportion to the legitimate objects of the order”. A search order “lies at the limits of the court’s jurisdiction” because of its conflict with long established and fundamental common law rights. . Justice Sofronoff explained that the Court had to be careful to ensure this “extraordinary jurisdiction” was not “subverted to a mere investigatory tool and must be astute to prevent its use for any purpose other than the preservation of vital evidence”. .
In his Honour’s view, “[t]he evidence in this case [was] wholly inadequate to justify the order sought”. . While the appellants had identified with adequate specificity the asserted confidential information, there was no evidence that the respondent had obtained any of it, nor that the information was held on a computer at his home. It was conceded that the names of contractors could have been obtained from other sources. –. Furthermore, the evidence of loss suffered as a result of the respondent’s alleged conduct that was provided was such as to “fall short of what is required on an application seeking the extraordinary relief claimed”. –. Justice Sofronoff contrasted the inadequacy of evidence in this case with that in Anton Piller itself, and also criticised the delay that had occurred in seeking relief. –.
His Honour had regard to the fact that, rather than relating to business premises, the search order sought would permit access to the respondent’s home and the home of his partner and children. No submissions were made about the rights of his partner and children or the possibility or likelihood that an electronic device taken under the order might belong to the respondent’s partner or children. –. Ultimately, the President observed that:
“When search orders are granted, the relevant premises are usually business premises. Surely, to permit a search of a defendant’s house, with the humiliation and family distress which that might involve, lies at the outer boundary of the discretion. This is because, for reasons that anyone can understand, the ‘shock, anger, confusion’ and the ‘sense of violation and powerlessness’ will be much greater in such a case and may be suffered not only by someone who is proved in due course to be a wrongdoer, but by entirely innocent parties as well.”  (citations omitted).