PMSI Group v Wilson

Supreme Court of NSW|2003-03-28|Before: Campbell J, Powell JA

CITATION : PMSI Group v Wilson [2003] NSWSC 263 HEARING DATE(S) : 28 March 2003 JUDGMENT DATE : 4 April 2003 JURISDICTION: Equity JUDGMENT OF : Campbell J DECISION : Anton Piller order made

CATCHWORDS : PROCEDURE - miscellaneous procedural matters - Anton Piller order - form of order - need for Supervising Solicitor - need for plaintiff to be able to obtain person to act as Supervising Solicitor - other matters relevant to form of order PMSI Group Pty Limited - Plaintiff PARTIES : Andrew James Wilson - First Defendant Grand Entrance Control Pty Limited - Second Defendant FILE NUMBER(S) : SC 2128/03 COUNSEL : R Weaver - Plaintiff SOLICITORS : Watson Mangioni - Plaintiff

2128/03 PMSI GROUP PTY LIMITED v ANDREW WILSON & ANOR JUDGMENT 1 HIS HONOUR: On 28 March 2003 I made an Anton Piller order in this matter. An Anton Piller order is one which the Court makes only in exceptional circumstances. These reasons for judgment relate to the form of that order. 2 As Duty Judge, I was approached by legal representatives of the plaintiff in chambers on the evening of 27 March 2003. They brought with them documentation including a draft Anton Piller order, which they asked me to make. The draft order was one which appeared to be closely modelled on the order made in Polygram Records Pty Ltd v Monash Records (Aust) Pty Ltd (1985) 10 FCR 332; 72 ALR 35. That is unsurprising, as Ritchies Supreme Court Procedure, paragraph 23.3.9 refers the reader to that case for the form of an Anton Piller order. 3 That form of order is, in my view, not a satisfactory one. It omits many of the procedural safeguards which should be included in such an order. Also, being an order which was designed to be served on a corporation, at its business premises, it does not contain the sort of safeguards which are appropriate when such an order is served on defendants who include a natural person, and at a dwelling house. For those reasons, I was not prepared to make the order in the terms sought. 4 Overnight, the legal representatives prepared a revised draft order, which I further modified before making it on 28 March 2003. 5 The judgment of Powell JA in Long v Specifier Publications Pty Ltd (1998) 44 NSWLR 545 collects many of the principles applicable to this type of order. A precedent can be found in the White Book (2000 edition), in an annotation to Part 25 of the Civil Procedure Rules (Interim Remedies and Security for Costs) at 25 CPD - 016. Ough & Flenley, The Mareva Injunction and Anton Piller Order: Practice and Precedents (2nd ed 1993) also collects relevant principles. 6 Many of the considerations which enter into the making of the order will be apparent on its face. There are some, however, which I specifically mention. 7 The form of the obligation imposed by the order is one which is affected by the jurisdictional basis upon which the order is made. It is an order which the Court makes in personam, against the defendant. Thus, it takes the form of an order directing the defendant to permit the identified people to enter the defendant's premises, and to carry out the activities of searching for and retaining the items which are identified. If the defendant does not obey that order, the defendant will be in contempt of court. However, the Court does not have power, in the making of an order of this kind, to authorise the person who is executing it to commit what would otherwise be a civil wrong - the Court cannot turn what would otherwise be a trespass on the part of the person executing the order into a non-trespass. Hence the order does not take the form of a search warrant. 8 The role of the Supervising Solicitor is most important. The Supervising Solicitor must be a solicitor who is independent of the solicitor for the plaintiff, and who has experience in the execution of Anton Piller orders. This particular Supervising Solicitor was a woman, because the premises proposed to be entered were a dwelling house, where it was reasonable to expect that a woman might possibly be alone at the premises at the time the order was executed. It is not appropriate for the Court to make an order on terms which might result in a woman being in her home with no one else present other than men executing the order. 9 While in the present case the plaintiff was able to nominate a Supervising Solicitor who is a woman, it would be desirable for the Law Society, if it does not already do so, to maintain a list of solicitors who are experienced in the execution of Anton Piller orders, and willing to receive instructions to act as a Supervising Solicitor. If the courts are going to require the presence of a Supervising Solicitor when an Anton Piller order is executed, it is important, in the interests of there being equal access to justice, that the ability of a plaintiff to obtain such an order should not depend, in practical terms, on whether the plaintiff's solicitor happens to know of someone who is able and willing to act as Supervising Solicitor. 10 In the present case I was prepared to make an order on the plaintiff giving an undertaking to the Court to file an affidavit establishing that the Supervising Solicitor had experience in execution of orders like the present order. While that course sometimes needs to be followed when an ex parte order is made in circumstances of urgency, it is preferable, if possible, for the application for the Anton Piller order to be accompanied by evidence of the identity and experience of the Supervising Solicitor. 11 The requirement for the Supervising Solicitor to prepare a written report promptly after execution of the order, the requirement to serve the report on the defendant, and the granting of liberty to apply on very short notice, are all designed to ensure that the process of execution of the order is as open and as subject to the control of the Court as is possible under the circumstances. If it is possible for the return of the summons to be before the judge who made the order, that should be done. 12 The time when the order can be executed should be limited, ordinarily, to hours which approximate ordinary business hours. This is partly so that there is not the extra degree of intrusiveness that is involved in someone's home or office premises being entered under compulsion at night or in the very early hours of the morning, and partly so that there is a likelihood that the person served will be able to obtain legal advice. Ordinarily, the opportunity to get legal advice should be afforded to the defendant before his is required to actually give the consent that the order requires him to give. 13 Making the whole order subject to a proviso which preserves the privilege against self-incrimination and legal professional privilege of the defendant, is an essential limitation on the order. 14 As this order is one made on an ex parte application, I say nothing about the merits of the plaintiff's claim in the proceedings. 15 The form of order is one produced under some pressure in the course of a busy Duty Judge List. Any value it might have as a precedent is qualified accordingly. 16 The form of order is:

A. the plaintiff providing undertakings to the Court; (i) to obey any order the Court may make as to damages should it consider that the defendants have sustained any damage by reason of these orders which the plaintiff ought to pay; (ii) to obey any order the Court may make as to damages should it consider any innocent parties other than the defendants have sustained any damage by reason of these orders which the plaintiff ought to pay; (iii) not to use any document or information obtained as a result of execution of the order other than for the purposes of these proceedings without the leave of the Court; (iv) not to seek to inspect or seize any item pursuant to this order without giving the Defendant, or if the Defendant is not present, some person who in the opinion of Rosalind Persaud ("the Supervising Solicitor"), is a responsible adult present at the premises, the opportunity (for a period of not less than two hours after the first arriving at the premises, or such later period as the Supervising Solicitor deems fit) to obtain legal advice; (v) to file by 5.00 pm on Monday, 31 March 2003, an affidavit establishing that Rosalind Persaud has experience in the execution of orders like the present order; (vi) to cause the Supervising Solicitor to prepare a written report on what occurred on execution of this order, and that the Plaintiff will file that report within 36 hours after the completion of execution of this order and promptly thereafter serve a copy of that report on the Defendant. B. The plaintiff's solicitor undertaking to the Court to prepare a detailed list of items removed such list to be verified by the Supervising Solicitor and to preserve in safe custody the goods, information and records listed in the Schedule to the plaintiff's Notice of Motion;

the defendants be ordered: A. (i) to permit such persons, not exceeding 3 members, employees or agents of the plaintiffs solicitors, Watson Mangioni, together with Rosalind Persaud, solicitor, to enter the premises occupied by the first and second defendants at 1533 Pacific Highway Wahroonga NSW 2076 at any time between 9.00 am and 5.00 pm on 28, 31 March 2003 or 1 April 2003 to search for seize and retain the goods, information and records listed in the Schedule to this Notice of Motion. (ii) to deliver up to the plaintiff's solicitors such goods, information and records as are listed in the Schedule to this Notice of Motion. B. That the plaintiff's solicitors, their employees or agents, be authorised to view, copy and download information and records as are listed in the Schedule to this Notice of Motion they may seize or have delivered up to them as may reasonably appear to the plaintiff's solicitors to relate to the plaintiff's business or the subject matter of these proceedings, PROVIDED THAT nothing in this order requires the Defendants to permit inspection or seizure of any document or item concerning which the Defendants claim a privilege against self-incrimination or legal professional privilege. In the event of any such claim against self-incrimination or legal professional privilege such document or item the subject of such claim shall be placed immediately in the custody of Rosalind Persaud until further order. 2. [ex parte injunction not relevant to these reasons]

That this Motion be adjourned to Wednesday, 2 April 2003 before the Duty Judge for hearing inter partes . Schedule

Liberty be granted to any party to apply to the Duty Judge or to me on two-hours' notice. **********

Last Modified: 04/07/2003 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

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