Anton Piller orders. What are they?
Anton Piller orders are named after the English case of Anton Piller KG v Manufacturing Processes Limited in 1975 that dealt with the theft of trade secrets.
In the Anton Piller case Lord Denning explained the situation, and the solution:
“Let me say at once that no court in this land has any power to issue a search warrant to enter a man’s house so as to see if there are papers or documents there which are of an incriminating nature, whether libels or infringements of copyright or anything else of the kind. No constable or bailiff can knock at the door and demand entry so as to inspect papers or documents. The householder can shut the door in his face and say, “Get out.”
That was established in the leading case of Entick v. Carrington.[7] None of us would wish to whittle down that principle in the slightest. But the order sought in this case is not a search warrant. It does not authorise the plaintiffs’ solicitors or anyone else to enter the defendant’s premises against his will. It does not authorise the breaking down of any doors, nor the slipping in by a back door, nor getting in by an open door or window.
It only authorises entry and inspection by the permission of the defendants. The plaintiff must get the defendant’s permission. But it does do this: It brings pressure on the defendants to give permission. It does more. It actually orders him to give permission – with, I suppose, the result that if he does not give permission, he is guilty of contempt of Court.”
They can only be issued in line with a three-step process because the accused party does not have the ability to defend their position. They are exceptional. (Anton Piller order on the Federal Court website).
A three step process:
- Needs to be an extremely strong prima facie case against the respondent.
- Must be demonstrated there is likely damage, potential or actual,that is very serious for the applicant.
- Must be clear evidence that the respondents have in their possession relevant documents or things and that there is a real possibility that they may destroy such material.
Anton Piller orders are more commonly used in financial and property matters, to prevent an ex-spouse from interfering in the “discovery” process (exchanging relevant financial information). For example, attempts may be made to frustrate a court by destroying documents or evidence before a judge has the chance to be presented with such evidence.
Anton Piller orders typically allow a spouse’s authorised representative (usually an independent lawyer, sometimes also an IT specialist) to enter their ex-spouse’s premises to search, inspect and take possession of evidence (including computer records) relating to a claim.
The tests involved
Being successful in obtaining an Anton Piller order through the courts requires that three tests are met.
First, there must be an extremely strong prima facie case. In one particular case, it was undisputed that the parents had snatched the child from the grandmother in quite a violent incident and that they had refused to comply with orders to return the child. The prima facie case was assisted by admissions made by the parents. These admissions were that information about the child’s current location or carers was held on mobile phones of the parents, even though the parents would not concede that the phones held by the correctional centre were the relevant phones.
Second, the potential or actual damage must be very serious. Here, it’s clear that the safety of a small infant could be at stake, so the situation could not be more serious.
Thirdly, there must be clear evidence that the person subject to the order has the incriminating documents or things in their possession, and there is a real possibility that they may destroy this material if they become aware of the Anton Piller application. In this case, as noted, the court found that the parents had admitted to having such incriminating information on phones they owned (though not the ones held by the correctional centre). Further, the court found there was a risk the parents would attempt to remove such information from the phones if they had the chance.
If you have any queries about Anton Piller orders, please contact Canberra family lawyer Cristina Huesch or one of our other solicitors on (02) 6223 2400. Alliance Family Law has experienced solicitors on hand to advise on Anton Piller orders.
You should be aware that the cost can be very high, as there is the initial cost of drafting documents to support the order, going to court to argue about the order, then paying the independent solicitor and possibly other individuals to assist with fulfilling the order. The costs involved mean such orders should only be sought where they are absolutely necessary, such as in this case. If you are at the receiving end of an Anton Piller order and do not already have a lawyer, we can also help you—please contact us immediately.
Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance Family Law.
