AUSTRALIA Law and Practice Contributed by: Joachim Delaney and Ranjani Sundar, HFW
ments or things might be destroyed or suppressed. The availability of search orders came after the deci - sion in Anton Piller KG v Manufacturing Processes Ltd [1976] Ch 55. The key matters the court will take into consideration when determining whether or not to grant a search order include whether: • there is a strong prima facie case; • the damage suffered by the applicant is serious; • the defendant is in clear possession of incriminat - ing documents or items in general; and • there is a real possibility that the defendant might destroy, or otherwise cause to be unavailable, important evidentiary material that is in the defend - ant’s possession. It is incumbent on the applicant of an ex parte search order (or a freezing order) to ensure they have fully disclosed all facts material to the determination of the application to the court, including any defences available to the respondent and any correspondence exchanged between the parties relating to the dispute. This was emphasised in Direct Flow Pty Ltd t/a Arthur Rubber v Andrew Peterson t/a Maxx Rubber [2023] NSWSC 318, where the New South Wales Court of Appeal refused to grant the plaintiff access to materi - als collected on the execution of a search order. The court considered that the plaintiff’s non-disclosure to the court of communications between the parties prior to the application of the search order was mate - rial in that (i) it did not bring to the court’s attention matters which the defendant may have tendered as evidence; and (ii) if the relevant information had been disclosed, there was a high probability that the court would have dismissed the original search order appli - cation. In Element Zero Pty Ltd v Fortescue Ltd [2025] FCA 206, the Federal Court noted that courts have discretion upon discovering a material non-disclosure to set aside search orders, although “different courts and commentators have identified there to be differ - ent approaches to the exercise of the relevant discre - tion, some adopting a narrower approach and others a broader approach” (at [19]). A claimant may also seek other forms of interim relief to preserve evidence. Specifically, these orders include detention, custody or preservation of property
that is relevant to the proceedings by way of an inter - locutory injunction or the appointment of a receiver. 2.3 Obtaining Disclosure of Documents and Evidence From Third Parties Before the commencement of proceedings, evidence may also be obtained through the application for pre- action discovery from relevant third parties. Specifi - cally, a claimant is able to apply for a Norwich Pharma - cal order (derived from the case of Norwich Pharmacal Co v Commissioners of Customs and Excise [1974] AC 133) if the court has determined that “the interests of justice are relevant to the exercise of the judicial discretion and in considering the interests of justice the judge must consider whether the applicant is left without an effective remedy, if the order sought is not made” ( Re Pyne [1007] 1 Qd R 326, 331). Upon the successful grant of a Norwich Pharmacal order, which will occur following satisfaction of the three threshold conditions (see A Nelson & Co Limited v Martin & Pleasance Pty Ltd [2021] FCA 228, [76] cit - ing Popplewell J in Orb ARL v Fiddler [2016] EWHC 361 at [82]–[88]), the third party who is involved in a transaction must provide information to the claimant that would be relevant to a claim. This includes the identity of the wrongdoer. For example, by requiring the disclosure of relevant information, this order can be used to trace the disposition of money that has been obtained fraudulently. Where an order permits that material evidence can be obtained from a third party, the material is only to be used with regard to the particular proceedings for which the order was made, and should not be used for other purposes without the permission of the court. Subsequently, where a proceeding has already begun, a party to the proceedings can issue a subpoena to relevant third parties in order to produce documents to the court and/or attend court to give evidence. For the subpoena to be valid it must be issued for a legiti - mate forensic purpose and documents that are to be sought must be identified with a reasonable level of particularity. Where an order is made for a person to appear or disclose documents, a restriction on such material may arise by way of the privilege against self-incrimination (refer to 6.1 Invoking the Privilege Against Self-Incrimination ).
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