ATTACHMENT 8

ATTACHMENT 8

Anton Piller or “Search Orders” in civil litigation

Anton Piller orders, or ‘search orders’ under the Uniform Civil Procedure Rules 2005
(NSW), have the object of preserving evidence necessary to an applicant’s claim which is
at imminent risk of destruction, tampering or removal from the jurisdiction.

A court may grant a search order if the following requirements set out in UCPR r 25.20
(or, identically, in 7.43 of the Federal Court Rules 2011) are satisfied:

(a) the applicant has a strong prima facie case on an accrued form of action; and

(b) the potential or actual loss if the order is not made will be very serious; and

(c) there is sufficient evidence that the respondent

(i) possesses important evidentiary material; and

(ii) there is a real possibility that the respondent might destroy such material.

In applying this test courts have elaborated on what is required by each element.
Rather than applying the elements mechanically, Brereton J expressed the view that they
were “factors to be taken into account in the exercise of a discretion, rather than essential
proofs” in an exercise involving the balancing of the strength of the applicant’s case, the
seriousness of the actual or potential damage, the gravity of the risk of destruction, and,
significantly, the potential injury to the (often absent) respondent.1

‘Strong prima facie case’ is a departure in wording from comparable concepts arising in
different contexts such as ‘triable issue’ and suggests that the applicant must affirmatively
satisfy the court that on the state of the presently available information there is a genuine
likelihood of success on the substantive claims.

The critical element requiring a ‘real possibility’ of the risk to the evidence has been
interpreted to mean a probability that is more than fanciful or insubstantial, ‘a degree of
likelihood that gives rise to a genuine concern’, without the need for mathematical
calculations of a more than 50% chance.2

An Anton Piller order is usually granted ex parte, and is regarded as a drastic form of
discovery, often granted even before service of originating process. To reflect the
invasiveness of such an order, courts have remarked on the ‘heavy burden’ to be
discharged by ex parte applicants in meeting these evidential requirements.3



_______________________________________________________________________________________________




1 Brags Electric Pty Ltd t/a Inscope Building Technologies v Gregory [2010] NSWSC 1205, [18].
2 Rickard v Swenrick Building & Construction Pty Ltd [2006] VSC 382.
3 Microsoft Corp v Goodview Electronics Pty Ltd [1999] FCA 754 (Bransen J); Australian Football
League v Hard on Sports Pty Ltd [2012] VSC 475, [18] (Vickery J).