Brags Electrics Pty Ltd trading as Inscope Building Technologies v Steven Mark Gregory

[18]

10 An ex parte order is always a provisional one. Ordinarily, in the case of an ex parte injunction when the matter returns before the court, the applicant bears the onus of showing that there is a sufficient case to justify the continuation of the ex parte order on an interlocutory basis. But that does not involve an application to set aside the original ex parte order: the question in such circumstances is usually not whether the original order should be set aside, but whether it should be continued for a further period of time. Although it is true that even where an ex parte order is made "until further order", the plaintiff still bears the onus of showing that it should be continued, that is really no more than a reflection that the practical convenience of sometimes making such orders until further order does not involve any reversal of where the onus lies. Where, however, a respondent applies to set aside an ex parte order on the basis that there has been a material non-disclosure, it will then bear an onus of showing that there has been a non-disclosure. 11 The application of these principles in the special area of Anton Pillar or search orders has been considered by the Court of Appeal of England and Wales in WEA Records Ltd v Visions Channel 4 Limited [1983] 2 All ER 589. In that case, the plaintiffs suspected that the defendants were infringing their copyright by making or selling copies of films or video tapes. They made an ex parte application for an Anton Pillar order. On that application, they revealed to the judge hearing it certain information considered to be so confidential that it could not be communicated to the defendants, then or later. The judge made the ex parte Anton Pillar order, reserving liberty to the defendants to apply to vary or discharge it on 24 hours notice. The order was served and its terms duly complied with, as a result of which one of the defendants made some admissions. Subsequently, three of the defendants applied by motion for the ex parte order to be set aside, on the ground that the judge should not have made the order on the material then available to him. They further sought the return of the goods seized pursuant to the order, and claimed that the admissions made in compliance with it should be declared inadmissible.

[20]

The order was duly served on the defendants and, without asking for any time in which to exercise their right to take legal advice and without applying to the judge to vary or discharge the order, they complied with it. They could, if they had wished, have refused immediate compliance and instead have made an urgent application to have the order asset aside. This, in my judgment, i implicit in the final paragraph of the order which I have just read. However, I must emphasise, as did Buckley LJ in Hallmark Cards Inc v Image Arts Limited [1977] FSR 150, that defendants who take this line do so very much at their peril. If they succeed in getting the order discharged, all well and good. But if they fail, they will render themselves liable for penalties for contempt of court. If they fail and there is any reason to believe that, in the period between the time when the order has been served on them and the time they eventually comply with the order, they had taken any steps which were inconsistent with the order, they had, for example, destroyed any records, the consequences to them would be of the upmost gravity. Subsequently (at 594), his Lordship continued: As I have said, ex parte orders are essentially provisional in nature. They are made by the judge on the basis of evidence and submissions emanating from one side only. Despite the fact that the applicant is under a duty to make full disclosure of all relevant information in his possession, whether or not it assists his application, this is no basis for making a definitive order and every judge knows this. He expects at a later stage to be given an opportunity to review his provisional order in the light of evidence and argument adduced by the other side, and, in so doing, he is not hearing an appeal from himself and in no way the appeals inhibit him from discharging or varying his original order…In the instant case the Anton Pillar order is spent in the sense that it has been executed. However, the defendants seek to go back to the beginning of the action saying that, regardless of whether the fruits of the order are such as to show that it was abundantly justified, the judge has insufficient material to justify his action at the ex parte stage. They therefore invite us to set the ex parte order aside and order the return of the affidavits to the two personal defendants and the seized material to the defendant's solicitors. I regard this as wholly absurd. The courts are concerned with the administration of justice, not with playing a game of snakes and ladders. If it were now clear that the defendants had suffered any injustice by the making of the order, taking account of all relevant evidence, including the affidavits of the personal defendants and the fruits of the search, the defendants would have their remedy and the counter undertaking as to damages. But this is a matter to be investigated by the High Court judge who is seized of the matter and only when he has reached a decision, can this court be concerned. 13 Dunn LJ agreed, and added: It was said on behalf of the defendants that that evidence [namely the material obtained pursuant to the order] was irrelevant and inadmissible in any application to review the order either by way of an application to discharge it or by of appeal, and that on such an application, the court should confine itself to the evidence before the judge who made the order. I do not agree with that submission. Hallmark Cards Inc v Image Arts Limited [1977] FSR 150, to which Sir John Donaldson MR has referred, shows that the court looks at the reality of the situation, including any evidence filed or statement made by counsel by way of admissions after the execution of the Anton Pillar order. If consequent on the grant of the Anton Pillar order, the applicant shows that the order was in fact justified, then the fact that the evidence before the judge was not as strong as it ultimately became does not in my view provide a ground for challenging the order itself. It does not, of course, affect the situation if the order was obtained malafide or by some material non-disclosure, but none of those matters are alleged in this case, and I too would dismiss the appeal for the reasons given by Sir John Donaldson MR. 14 Purchas LJ agreed with both of the other judgments, and added: This appeal is concerned with the order made on 26 January 1983. For my part, I doubt that on an application to set aside an ex parte order which has become entirely spent, even if made to the court which made that order, let alone by way of appeal, the party against whom the order had been made can succeed save only in those very exceptional circumstances to which Sir John Donaldson MR and Dunn LJ have referred. I agree that if in so far as this motion purports to involve proceedings which took place on 26 January 1983 or on subsequent occasions, on those grounds it is misconceived.

[21]

15 In this court, the matter has been considered by Campbell J, as his Honour then was, in Austress Freyssinet Pty Ltd v Joseph [2006] NSWSC 77. In that case, Anton Pillar orders had been made and executed against the second and third defendants, but not against the first defendant, Mr Joseph, who obtained an interim stay of the orders against him pending the determination of his application to set them aside. Campbell J said (at [24]-[25]): The orders made by his Honour are ones which were not, in their terms, limited in time. Thus, for instance, order 2 required that, subject to order 6 ... he was to permit forthwith upon service of the orders, certain people to enter his premises, to permit those people to take certain steps when they were at his premises, and, again, forthwith upon service of the orders, to disclose certain information to those people. The order which I made on 2 February 2006 had the effect, in the events in which it happened, of providing a stay of those orders relating to Mr Joseph until 6.00pm this evening. The stay is one, which unless extended or in some other way varied, will therefore expire by effluxion of time by he 6.00pm this evening. The application which is made, to set the orders aside is thus one made in circumstances where, unless reason is shown why the orders should be set aside, the orders will become operative once the stay expires. Thus the situation in the present case is fundamentally different to the situation that ordinarily arises concerning ex parte applications for an injunction, where the injunction is granted for a very limited period of time, and when the matter returns to court the onus is on the person who seeks the injunction to establish matters which show that it is appropriate the injunction should be extended. In the present case, where an application is made to set aside the order, reason needs to be shown why that course should be taken. It is to be noted rule 36.16(2) says that the court may set aside or vary a judgment after it has been entered if it is given or made in the absence of a party. It is not as though there is a right to automatically have such an order set aside simply by asking. Nor is it correct that, on such an application, the person seeking to have the order set aside can require the person who has obtained the order to prove again the case in favour of making the order.

Brags Electrics Pty Ltd trading as Inscope Building Technologies v Steven Mark Gregory - [2010] NSWSC 1205 - NSWSC 2010 case summary — Zoe

At a glance

Court

Decision date

Before

Source

Judgment (44 paragraphs)

Parties

Cases Cited (1)