Anton piller (search) orders

An anton piller order (Anton Piller Order) is evasive an order of a Court entitling an applicant (or plaintiff) (Applicant) to physically enter the premises of the respondent (or defendant) (Respondent) to inspect, remove or make copies of documents or other items which might be discoverable in an action or proposed action against the Respondent.  Anton Piller Orders are designed to prevent the Respondent from destroying evidence which would be discoverable in future legal proceedings.  

Anton Piller Orders are usually sought on what’s called an ‘ex-parte’ (without the presence of the Respondent) basis, so as not to put them on notice that the Applicant’s lawyer and an independent lawyer are going to attend their premises with a Court Order to obtain evidence.

What does an applicant have to prove to obtain an anton piller order?

There are three threshold requirements that must be met before a court will grant an Anton Piller Order:

• there must be an extremely strong prima facie case against a Respondent;
• the potential or actual damage must be very serious; and
• there must be clear evidence that the Respondent has incriminating evidence in their possession, and there is a real possibility they may destroy this material if they were to become aware of the Applicant’s application.

Conduct that may give rise to an Anton Piller Order

Given that the scope of Anton Piller Orders is not strictly limited, Australian case law has identified that different types of conduct that will give rise to such an order include:

• employee theft of confidential information prior to leaving to commence employment with a competitor – Leica Geosystems Pty Ltd v Koudstaal (No 3) [2014] FCA 1129;
• employee downloading client database and sending a large number of emails containing commercially sensitive information – Liberty Financial Pty Ltd (ACN 077 248 983) v Scott [2002] FCA 345 (26 March 2002);
• theft of counterfeit items containing works subject to copyright – Aristocrat Technologies Australia Pty Ltd v Global Gaming Supplies Pty Ltd [2009] FCA 1495;
• sale of items that infringed trade marks – Geneva Laboratories Limited v Nguyen [2014] FCA 1270;
• possession of digital decoding device where the respondent was suspected of using unauthorised broadcast decoding devices on the premises – Sky Channel Pty Ltd v Darcy’s Tavern Pty Ltd [2003] FCA 19 (14 January 2003); and
• employer altered documents, where it was alleged that an employer altered a number of terms in an employment contract that favoured the employer and was significantly different to the original agreement. – George Rofail v Landmark Recruitment Pty Ltd and Others [2004] NSWIRComm 260.

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

Anton Piller orders will not be granted where a Respondent has been put on notice of infringing conduct and action was not promptly taken.  Hence, any delay in taking action may indicate that the damages suffered by the Applicant are not sufficient to grant an Anton Piller order.  Further time delay in acting on threats of legal proceedings are also indicia of insufficient damages being incurred by an Applicant.  Additionally, a Court will refuse to grant and Anton Piller Order if another form of interlocutory injunction would suffice.

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Disclaimer
This page contains contains general commentary only about Anton Piller Orders.  You should not rely on the commentary as legal advice.  Specific legal advice should be obtained to ascertain how the law applies to your particular circumstances.

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