Search Orders

Search orders require defendants to permit a search to take place at a specific location to enable a plaintiff to secure relevant evidence. Search orders are often conveniently referred to, as “Civil Search Warrants”. Such a reference is inaccurate and confusing. Search orders direct defendants to allow a search to take place. They do not give plaintiffs an absolute right to commence a search for evidence.

Search orders are appropriate in cases where a real risk exists that a defendant will either destroy or place beyond the reach of the Court relevant evidence. The order is granted without notice to the defendant. A Court granting the order must be satisfied that the plaintiff has a strong arguable case, that the relevant evidence does exist and that there is a real risk of it being destroyed or placed beyond the reach of the Court.

Search orders should be no wider than is necessary to secure and preserve the relevant evidence. The Court also needs to balance the rights of a defendant who is being compelled to permit a search to take place. Search orders can relate to residential addresses where privacy and quiet enjoyment considerations have to be given. Business interruption considerations should be given in respect to commercial premises.

Obtaining Search orders is far from a routine and easy task. The documentation to be prepared and filed is usually extensive and requires careful drafting. The obligation on the plaintiff to provide the Court with all available relevant evidence is not insignificant and can be very onerous.

Executing Search orders requires careful planning. Planning the execution should start well in advance of the papers being filed with the Court. At least one planning meeting should be held with the execution and search team members. Multiple site searches require considerable more planning and preparation.

A private investigator should be engaged to obtain intelligence as to the movements of the defendant(s) and the layout of the premise(s) that are to be searched. An execution of the order cannot take place unless there is someone to let the search team inside and the owner or a controller of the premises is present and has given consent for the search to proceed.

The service of the order and its execution is overseen by an independent supervising lawyer. An independent supervising lawyer who has excellent negotiation and diplomacy skills is essential. Obtaining the order is only the first step. Getting through the front door is never guaranteed. A capable independent supervising lawyer may be the difference between a successful execution and a costly failure.

The securing and gathering of electronic evidence is now a very common outcome sought from the execution of a Search order. An experienced IT forensic expert is an essential member of the execution team. Ideally, the private investigator will be able to provide the details of the likely number of PCs (desktops and laptops), servers and storage mediums that may need to be seized or cloned on site. The IT forensic expert should have sufficient acquisition equipment to enable evidence to be gathered. Additionally, a portable computer with a wireless internet connection is sometimes advisable. Acquisition and analysis of electronic evidence are separate matters that have their own considerations. Analysing evidence can be a costly process and is perhaps best left until sensible arrangements can be made with the defendant(s).

A representative of the plaintiff is a key member of the search team. The representative must be capable of identifying relevant evidence that is covered by the order. However, their direct participation in the search is not always assured, as defendants are often opposed to allowing a plaintiff or representative of the plaintiff to gain access to their premise(s) or property.

Having the defendant(s) solicitors served simultaneously or shortly after service on the defendant(s) is an important consideration. It can also significantly reduce the delay between service and the search commencing. Having the defendant(s) solicitor and/or counsel attend the search in most instances is of benefit to all parties.

The following items are very helpful when executing Search orders: a receipt book for creating an inventory and receipting items seized, evidence bags and boxes, digital camera and digital dictaphone. Executing Search orders are never easy or stress free. A campervan\mobile home is worth far more than the couple of hundred dollars they cost to hire for a day. Having meeting and storage space, cooking and coffee facilities, a toilet and power points is far more desirable than sitting for hours on end in a cramped medium sized Holden with several others prior to and at times during the execution of the order.

Chris has appeared as counsel and overseen the execution of fourteen Search orders. The various orders were granted by the High Court, Employment Court and the Employment Relations Authority. He has also obtained a Search order as part of a parallel proceeding that had been issued in both the Australian State of Victoria and Auckland. He has successfully had one Search order varied on behalf of three defendants in a copyright infringement and electronic trespass case. He has also successfully sought under urgency to have another Search order discharged by the High Court.

Chris was Counsel before the full bench of the Employment Court in Axiom Rolle PRP Valuation Services Limited v Kapadia which is the leading case on the issue of the jurisdiction of the Employment Court and the Employment Relations Authority to grant Search Orders.

Alternatives to Search Orders

Search orders are often inappropriate and/or not necessary. There are a number of effective alternative processes and procedures to enable the preservation of evidence. The High Court Rules 2008 (“HCR”) contain other procedures, which may be effective alternatives to Search orders.

HCR 9.34 empowers the Court to order the inspection, sampling and observation of any property. HCR 9.34 permits persons to enter land or to do anything for the purpose of getting access to such property. HCR 9.34 empowers the Court to make orders for examination of property for evidential purposes. Property is defined to include land and documents. Non-parties are expressly included within the ambit of HCR 9.34. As such, the HCR can be used as an effective alternative to a Search order.

HCR 7.55 empowers the Court to order the detention, custody or preservation of any property. It also permits entry onto land or to do any other thing for the purpose of giving effect to the Court’s order. The purpose of HCR 7.55 is to facilitate the interlocutory preservation of “property” or of “a fund” involved in the litigation itself, or evidence relating to the litigation, so that claims are not rendered nugatory prior to substantive hearing.

The fundamental requirement of an application under HCR 7.55 is the existence of “property”, or a “fund”, the right to which is in question. “Property” is not defined but contemplates property of a type which may be detained, placed in custody, or preserved. Whereas, HCR 9.34(3) contains a wide definition of property. A distinction may be drawn between HCR 7.55(1), directed largely if not exclusively to tangible property, and Rule 7.55(3), directed largely if not exclusively to an intangible fund. Fund is not necessarily restricted to the dictionary sense of actual stock or sum of money. There is authority for making orders against a non-party. Although, there is no provision for this in the HCR. The analogy power of Rule 1.6 (cases not provided for) could be invoked.

Applications for orders under HCR’s 9.34 and 7.55 may be heard without notice in appropriate cases. HCR 7.55 may be used in conjunction with HCR 9.34. The Court will require the same undertakings and precautions as it would when making a Search order for a without notice application made under either or both Rules.

Click here to access Chris’ review of Peter Biscoe Qc’s text Freezing and Search Orders: Freezing and Search Orders, Butterworths (2005)

Click here to access Chris’ article titled Anton Piller Orders which was published in the New Zealand Security magazine August 2005 edition of The New Zealand Security Magazine.