Anton Piller Orders

Author: Jasmine Burrows, Progressive Legal

Introduction

In the world of legal proceedings, the need to preserve and secure crucial evidence is paramount to ensuring a fair and just trial. To address situations where evidence could be destroyed, removed, or concealed, the legal system has established a mechanism known as an Anton Piller order. This article provides an overview of Anton Piller orders, shedding light on their purpose, their origins, the application process, Court considerations, and safeguards.   

What is an Anton Piller order? 

Anton Piller orders are legal mechanisms that allow an applicant to search a Defendant’s premises and seize evidence without prior notice or warning. They are often referred to as search orders or civil search warrants.  

They are similar to police search warrants but are used only in civil cases. The primary purpose of these orders is to prevent the destruction, removal, or concealment of evidence relevant to a case. The orders are typically used in intellectual property cases but can be used in other cases as well if the Judge allows it.  

What is the purpose of an Anton Piller order? 

The main purpose of an Anton Piller order is to stop the Defendant tampering with any evidence that may be relevant to a Court case. It allows the applicant to investigate, remove, or obtain copies of items like documents, data, and hard drives.  

It prevents the defendant from meddling with discovery and frustrating a trial by not presenting relevant documents and evidence.  

It also ensures that the applicant has access to infringing items that would influence their case at trial.   

To ensure that a defendant does not interfere with any evidence, applications for Anton Piller orders are made ex-parte (without the Defendant’s notice or presence before the Court).  

What is the Origin of Anton Piller orders? 

Anton Piller orders originate from the case, Anton Piller KG v Manufacturing Processes Ltd and Others (1976). The case involved a pharmaceutical company, Anton Piller KG, accusing the respondents, Manufacturing Processes Ltd, of revealing confidential information to other competitor manufacturers. The court had to decide whether an order for inspection and removal of documents should be granted to the Anton Piller KG. 

This case established the legal basis for the use of Anton Piller orders. The decision recognised that traditional legal remedies were often inadequate to prevent the destruction of crucial evidence. This was especially important in this case where the Appellant’s claim was entirely reliant on the possession of such evidence. 

What happens if an Anton Piller is ordered? 

Once the Applicant is granted an Anton Piller order, a search party is allowed to enter the premises of the Defendant.  This will occur without any prior notice or warning. The Defendant will typically be allowed to obtain legal advice prior to allowing entry. The search party will often include: 

• a lawyer representing the Applicant; 
• an independent lawyer to overlook the search; and  
• any other necessary experts (i.e. an IT expert for intellectual property cases).  

Typically, the search party should exclude the Applicant, as well as any other individuals connected to the Applicant, except for the Applicant’s lawyer. The order should explicitly state the maximum number of individuals allowed in the search party. The size of the search party should be kept to a minimum, considering what is reasonably feasible. 

The applicant’s search party is only permitted to seize according to the terms of the order. The independent lawyer’s role is to supervise the search and ensure the order is being executed accordingly. If the search is conducted unlawfully, the applicant risks significant fines and imprisonment for disobeying Court orders.  

When will the court grant an Anton Piller order? 

Given that Anton Piller orders are reserved for extreme circumstances, there is a strict test that must be applied to obtain the order. There are 3 requirements that the Court will assess: 

1. There must be a strong prima facie (upon initial assessment) case against the Defendant. 
2. The damage – potential or actual – must be very severe for the Applicant. 
3. There must be clear evidence that the Defendants possesses relevant documents or evidence, and there is a real possibility that they may destroy this material if they become aware of the Anton Piller proceedings.  

When will a Court refuse to grant an Anton Piller order?

There are certain circumstances where the Court will reject an application for an Anton Piller order. The Court will not issue an Anton Piller order if a subpoena or another form of interlocutory injunction would suffice.

Additionally, if there is a delay in requesting the order, the Court will not grant it, as this might suggest that the damages suffered would not be substantial. 

How do I apply for an Anton Piller order? 

Since the Anton Piller order is made without the Defendant’s knowledge, the Applicant has the full responsibility to disclose all relevant facts, including any defences by the Defendant. The Applicant must also give undertakings to the Court regarding costs and confidentiality.  

To support their application, Applicants typically submit affidavits, which should include the following information: 

• Reasons to justify the requested order; 
• Description or categories of the materials being sought in the search; 
• Damage that the Applicant may suffer; 
• Details about the independent lawyer who will be part of the search party; and 
• If the premise is residential, relevant information about the sole occupant, especially if they could be a woman, child or vulnerable person

What if the Defendant refuses to comply with an Anton Piller order? 

 If the Defendant refuses to comply with an Anton Piller order and refuses entry, this will risk making them guilty of contempt to Court.  

Contempt of Court refers to any act that disrespects or obstructs the authority, dignity, or processes of the Court.  

The Court has the power to impose penalties for contempt, which may include fines or imprisonment.

How does the Court protect the Defendant’s rights? 

Anton Piller orders are powerful tools that can significantly impact an individual’s civil liberties. To prevent potential abuses, Courts impose a range of safeguards to protect the interests of the Defendant, including: 

Independent supervision 

 An independent supervising solicitor, appointed by the Court, oversees the search process to ensure compliance with the order and to protect the rights of the Defendant. 

Legal privilege and privacy 

The order should respect the principles of legal privilege and individual privacy rights. The supervising solicitor must carefully examine the seized materials and exclude any irrelevant or legally privileged documents. 

Prompt Court review 

Following the execution of the order, the Court reviews the actions taken to ensure that the process was fair, justified, and in compliance with the order’s terms. 

Case Law

Geneva Laboratories Limited v Nguyen [2014] FCA 1270 

This case was concerned with the sale of items that breached registered trade marks. The Applicant held the registered ownership of four trade marks used for the identification of the skincare product ‘Bio-Oil’ in Australia. The Defendants were suspected of trading counterfeit Bio-Oil products in pharmacies throughout Sydney. The court issued an Anton Piller order to permit to search and seizure of the counterfeit products.  

Leica Geosystems Pty Ltd v Koudstaal (No 3) [2014] FCA 1129 

This case concerned the theft of confidential information by an employee at the company, Leica Geosystems. The employee was suspected of downloading mass amounts of confidential business information to a personal hard drive. This employee allegedly did so prior to starting a new role at a competitor company.  

An Anton Piller order was ordered to search for the hard drive and seize any information relating to Leica Geosystems.  

Liberty Financial Pty Ltd (ACN 077 248 983) v Scott [2002] FCA 345 (26 March 2002) 

This case concerned an employee illegally downloading commercially sensitive information from the company, Liberty Financial. The employee sent several emails containing confidential client details to his personal email address. The Court issued an Anton Piller order for the seizure of the client details from the Defendant’s email address.  

Key Takeaways

Anton Piller orders are a powerful tool in the legal world that ensure the pursuit of justice while upholding the fundamental principles of fairness and due process. By allowing the Aapplicant to search and seize evidence without prior notice, these orders protect against the destruction or concealment of crucial materials. 

If you need help with an Anton Piller order, please contact us at Progressive Legal. Feel free to fill out the form on this page, or simply give us a call on 1800 820 083.  

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