Anton Piller orders – be careful to treat them with respect

8-February-2019 Family Law Commercial Disputes By Simone Green

In early 2018 Streeterlaw was fascinsated to read the Family Court judgment published under the name of the pseudonym “Tassinari & Pesalaccio”[1]  which said that Anton Piller Orders previously issued were to be set aside and discharged “nunc pro tunc” (ie: from the beginning). The documents seized in the course of the search were to be returned to their owners and any copies destroyed.

An Anton Piller Order (also known as a Search Order)  is rarely made because it allows the Applicant lawyers, together with an independent supervising solicitor and independent IT Technician to enter premises without notice to search and seize documents and evidence.

The story

Proceedings had been commenced by the Wife on 3 July 2012. However on 7 September 2016 (some 4 years after the proceedings had been commenced!) the Wife made an application for Anton Piller Orders against the Husband and companies associate with his family. The Order was granted and a search was executed on 9 September 2016 with records and documents copied by a Forensic IT expert during the Search.

When the proceedings were listed before the Judge immediately after the Search had been executed the Husband’s Lawyers sought to object to the Anton Piller Order and applied to have it overturned; After a number of days of hearing, they were successful in this application.

The law states that the essential preconditions of making an Anton Piller order are as follows:

  1. Extremely strong prima facie case;
  2. The damages – potential or actual must be very serious for the Applicant; and
  3. There must be clear evidence that the Defendants have in their possession incriminating documents or things and that there is a real possibility that they may destroy such material before any application inter-parties can be made.

The Husbands’ lawyers successfully argued that upon a more complete appreciation of the evidence, the Wife did not satisfy the 2nd and 3rd criteria. Unhelpfully for her, in the application for the Orders the Wife failed to adequately disclose that she had already accessed more than 154,000 of the Husband’s emails! She had also unwisely chosen not to inform the Court of the full extent of the access she had  to these documents (because she had known the Husband’s email account password!).The Wife’s access potentially included her reading legally privileged correspondence from the Husband’s own lawyers.

In light of this degree of access to emails the “damage” asserted by the risk of deletion could also not be supported. There was also evidence that, contrary to the Wife’s assertions, the wife had potential third party expert evidence to utilise to view the Husband’s email account and had not fully complied with orders to deliver-up all relevant documents because her Ipad and Laptop hard drives were deleted very shortly after the orders made for delivery-up of documents were made against her.

This Family Court decision applied general law principles and is a reminder of the seriousness of the nature of these types of applications and the high burden placed upon Applicant Solicitors in discharging their responsibility to ensure that full and frank disclosure is provided to the Court when making an application in the absence of the other parties (i.e. ex parte) such as an Anton Piller Order.

When made,  Anton Piller Orders are to be treated respectfully.

[1] a pseudonym pursuant to section 121(9)(G) of the Family Law Act 1975 (Cth).

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