mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Long v Specifier Publications Pty Ltd (1998) 44 NSWLR 545
Outcome: followed
The extraordinary nature of such relief was not put in issue by any of the parties or Citic Pacific. Nor could it be. In Microsoft Corp v Goodview Electronics Pty Ltd [1999] FCA 754 at [9] , [1999] FCA 754 ; 46 IPR 159 at 161 Branson J cited with approval the following observations of Powell JA (with whom Meagher and Handley JJA agreed) in Long v Specifier Publications Pty Ltd (1998) 44 NSWLR 545 at 547: Reduced to its essentials, an Anton Piller order is an order that the defendant to whom, or to which, it is directed, should permit the persons specified in the order to enter upon his, or its, premises, and to inspect, take copies of, and to remove, specified material, or classes of material, indicating, where appropriate, documents, articles or other forms of property. It is an extraordinary remedy, designed to obtain, and to preserve, vital evidence pending the final determination of the plaintiff's claim in the proceedings, in a case in which it can be shown that there is a high risk that, if forewarned, the defendant, would destroy, or hide, the evidence, or cause it to be removed from the jurisdiction of the court. For this reason, such orders are invariably made ex parte. Her Honour went on to observe: [26] ... The court must, in my view, be careful to avoid the extraordinary jurisdiction of the court to make an Anton Piller order from being subverted to a mere investigatory tool for applicants or indeed, from being used for any purpose other than the preservation of vital evidence pending the hearing and determination of a proceeding. See also: Universal Music Australia Pty Ltd v Sharman License Holdings Ltd [2004] FCA 183 at [53] [58], [2004] FCA 183 ; 205 ALR 319 at 330 1 per Wilcox J. Leave to appeal from that decision was refused: Brilliant Digital Entertainment Pty Ltd v Universal Music Australia Pty Ltd [2004] FCAFC 270 , 63 IPR 373. In agreeing with the decision that leave to appeal should be refused, Emmett J there also observed that orders " in the nature of Anton Piller orders are a severe interference with the rights of citizens ": [2004] FCAFC 270 at [67] . The procedure is " obviously draconian in its results ": Thermax Ltd v Schott Industrial Glass Ltd [1981] FSR 289 at 291 per Browne-Wilkinson J. See also: Addison Wesley Longman Australia Pty Ltd v Kopystop Pty Ltd [2004] FCA 1518 at [12] . " Anton Piller orders " , it has been said, " are offensive weapons ": Dockray M and Laddie H, ' Piller Problems ' (1990) 106 LQR 601 at 603.
Case: Metso Minerals (Australia) Ltd v Kalra (No 2) [2007] FCA 2108
Outcome: cited
Once the materials and documents had been seized, the order was thereafter first varied, with the consent of those from whom the materials had been seized, on 14 December 2007 ( Metso Minerals (Australia) Ltd v Kalra (No 2) [2007] FCA 2108). By consent, the parties' legal representatives were granted photocopy access to the hard copies of documents seized. Various other orders were thereafter made by consent in February and March 2008, including orders extending the time for reporting by the independent solicitor. 6 On 1 April 2008 the Applicants sought to further vary the orders made. A contested hearing followed. On 3 April 2008 orders were made that, relevantly, permitted the Applicants' solicitors to disclose documents to named officers of the Applicants. It was that variation which prompted the intervention in the proceeding of Citic Pacific on 4 April 2008. That company claimed that amongst the materials seized were documents which they believed may have contained their own documents, being documents which they believed may well have been commercially confidential and possibly privileged. The access regime, as varied, was consequently suspended. 7 Given the description of the " documents and materials " to be seized, such a contention was perhaps unexpected. Certainly when initially making the order, there then was no reason to believe that such documents as would be seized would potentially include the documents of Citic Pacific (or related entities). The very description of the documents and materials that were the subject of the order was an attempt to confine the seizure of materials to those belonging to the Applicants, being materials that improperly remained in the possession of their former employees and contractor, the then Respondents. The seizure of any documents and materials falling outside of the terms of the order obviously would not have been authorised. 26 As occurred in the present proceeding, where there is no longer a basis for believing that documents may be destroyed, O 25B cannot then be invoked as the source of a power to vary orders previously made. Thereafter, if those orders are to be varied, recourse must be had to O 25 r 2 of the Federal Court Rules or s 23 of the Federal Court of Australia Act 1976 (Cth): Metso Minerals (Australia) Ltd v Kalra (No 2) [2007] FCA 2108. 27 It was not disputed by any of the parties, or Citic Pacific, that leave may be granted to the Applicants to inspect the seized documents. But, other than the Applicants' submission that leave should be granted because it is necessary (or desirable) in the " interests of the administration of justice " -- and other than the competing submission that the Applicants should not be given leave to pursue inspection for the purposes relied upon -- none of the parties (or Citic Pacific) attempted to identify less controversial considerations relevant to the exercise of the discretion. The identification of such considerations may throw some light upon the outer limits of the discretion and how it is to be exercised.
Case: Mulley &amp; Marney v Manifold [1959] HCA 23 ; (1959) 103 CLR 341
Outcome: followed
The traditional test for discovery, it will be recalled, was expressed in part in terms of whether a document would lead to a " train of enquiry " which could advance a party's case or damage that of his opponent: Mulley &amp; Marney v Manifold [1959] HCA 23 ; (1959) 103 CLR 341. Menzies J there observed at 345: I now turn to the pleadings to determine what are the matters at issue between the parties, because discovery is a procedure directed towards obtaining a proper examination and determination of these issues--not towards assisting a party upon a fishing expedition. Only a document which relates in some way to a matter in issue is discoverable, but it is sufficient if it would, or would lead to a train of enquiry which would, either advance a party's own case or damage that of his adversary. See also: Compagnie Financiere et Commerciale du Pacifique v Peruvian Guano Co (1882) 11 QBD 55.
Case: New South Wales v Corbett [2007] HCA 32 , 230 CLR 606
Outcome: followed
In some circumstances there may be a " tension " between common law privileges and " the efficient exercise of statutory powers ": Halliday v Nevill [1984] HCA 80 ; (1984) 155 CLR 1 at 20 per Brennan J; New South Wales v Corbett [2007] HCA 32 at [16] [22], [2007] HCA 32 ; 230 CLR 606 at 610 12 per Kirby J. Not in the context of the exercise of statutory powers facilitating the investigation of criminal offences, but rather in the context of construing that which is permitted by O 25B of the Federal Court Rules , there is not considered to be any such " tension ". The convenience of the position being advocated by the Applicants may well be understandable, but it is not a sufficient reason to depart from the importance accorded by the common law to an individual's right to preserve the privacy and confidentiality of his own documents. The interests in the administration of justice should not be understated or minimised; but those interests are adequately served by the preservation of the documents and materials properly seized.
Case: Remath Investments No 6 Pty Ltd v Savi World Transport Pty Ltd &amp; Fraser (Unreported, VSC, Byrne J, 12 November 1997)
Outcome: cited
But that, it is respectfully considered, is all that His Honour decided. The decision does not stand as authority for the proposition that seized documents (in the absence of consent) may be inspected as an adjunct to the discovery process or to facilitate the provision of particulars. It is simply a decision as to what may be seized and, once seized, what may be looked for when inspecting those documents. Neither of the other decisions cited by the Respondents in this proceeding -- Remath Investments No 6 Pty Ltd v Savi World Transport Pty Ltd &amp; Fraser (Unreported, VSC, Byrne J, 12 November 1997) and Liberty Financial Pty Ltd v Scott [2004] VSC 414 -- provide further assistance. No decision other than that of Jacobson J was able to be identified by any of the parties, or Citic Pacific, which provided any further guidance on the issues now to be decided.
Case: Salim v Loh (No 2) [2005] FCA 1417
Outcome: followed
The Federal Court Rules , however, were amended in 1999 with the intent of confining the ambit of documents to be discovered: Salim v Loh (No 2) [2005] FCA 1417. French J there summarised the position as follows: [3] The 1999 amendments to the Rules, which introduced the new O 15 r 2, manifested '... a quite new and restrictive policy in relation to the discovery to be allowed' in the Federal Court -- South Sydney District Rugby League Football Club Ltd v News Ltd [2000] FCA 519 per Finn J. The rule that the discovery obligation covered documents that did no more than relate in some way to a matter in issue or that might lead to a train of inquiry has been abolished. The categories required to be discovered under O 15 r 2(3) include documents that support or adversely affect another party's case or that adversely affect a party's own case. They do not extend to documents that might support or adversely affect a party's case. The search obligation is limited to 'reasonable search'. Similarly, in Aveling v UBS Capital Markets Australia Holdings Ltd [2005] FCA 415 Lindgren J observed: [10] The question arises: what are the principles which should guide the parties in identifying categories? They are the principles which guide the Court when ordering discovery. In ACCC v Advanced Medical Institute [[2005] FCA 366] , I attempted to explain (at [19] -- [21]) that rule amendments and Practice Note 14 (Discovery) of 1999 were intended to establish a r&eacute;gime under which discovery is more confined than it was under the former Peruvian Guano test (cf The Compagnie Financi&egrave;re et Commerciale du Pacifique v The Peruvian Guano Co (1882) 11 QBD 55). Practice Note 14 para 3 states: To prevent orders for discovery requiring production of more documents than are necessary for the fair conduct of the case, orders for discovery will ordinarily be limited to the documents required to be disclosed by Order 15 rule 2(3). Consistent with the more confined extent of discovery which is required, the Federal Court Rules now confer an express power to limit discovery and to make orders " necessary to prevent unnecessary discovery ": O 15 r 3(2).
Case: Thermax Ltd v Schott Industrial Glass Ltd [1981] FSR 289
Outcome: followed
The extraordinary nature of such relief was not put in issue by any of the parties or Citic Pacific. Nor could it be. In Microsoft Corp v Goodview Electronics Pty Ltd [1999] FCA 754 at [9] , [1999] FCA 754 ; 46 IPR 159 at 161 Branson J cited with approval the following observations of Powell JA (with whom Meagher and Handley JJA agreed) in Long v Specifier Publications Pty Ltd (1998) 44 NSWLR 545 at 547: Reduced to its essentials, an Anton Piller order is an order that the defendant to whom, or to which, it is directed, should permit the persons specified in the order to enter upon his, or its, premises, and to inspect, take copies of, and to remove, specified material, or classes of material, indicating, where appropriate, documents, articles or other forms of property. It is an extraordinary remedy, designed to obtain, and to preserve, vital evidence pending the final determination of the plaintiff's claim in the proceedings, in a case in which it can be shown that there is a high risk that, if forewarned, the defendant, would destroy, or hide, the evidence, or cause it to be removed from the jurisdiction of the court. For this reason, such orders are invariably made ex parte. Her Honour went on to observe: [26] ... The court must, in my view, be careful to avoid the extraordinary jurisdiction of the court to make an Anton Piller order from being subverted to a mere investigatory tool for applicants or indeed, from being used for any purpose other than the preservation of vital evidence pending the hearing and determination of a proceeding. See also: Universal Music Australia Pty Ltd v Sharman License Holdings Ltd [2004] FCA 183 at [53] [58], [2004] FCA 183 ; 205 ALR 319 at 330 1 per Wilcox J. Leave to appeal from that decision was refused: Brilliant Digital Entertainment Pty Ltd v Universal Music Australia Pty Ltd [2004] FCAFC 270 , 63 IPR 373. In agreeing with the decision that leave to appeal should be refused, Emmett J there also observed that orders " in the nature of Anton Piller orders are a severe interference with the rights of citizens ": [2004] FCAFC 270 at [67] . The procedure is " obviously draconian in its results ": Thermax Ltd v Schott Industrial Glass Ltd [1981] FSR 289 at 291 per Browne-Wilkinson J. See also: Addison Wesley Longman Australia Pty Ltd v Kopystop Pty Ltd [2004] FCA 1518 at [12] . " Anton Piller orders " , it has been said, " are offensive weapons ": Dockray M and Laddie H, ' Piller Problems ' (1990) 106 LQR 601 at 603.
Case: Universal Music Australia Pty Ltd v Sharman License Holdings Ltd [2004] FCA 183 , 205 ALR 319
Outcome: followed
The extraordinary nature of such relief was not put in issue by any of the parties or Citic Pacific. Nor could it be. In Microsoft Corp v Goodview Electronics Pty Ltd [1999] FCA 754 at [9] , [1999] FCA 754 ; 46 IPR 159 at 161 Branson J cited with approval the following observations of Powell JA (with whom Meagher and Handley JJA agreed) in Long v Specifier Publications Pty Ltd (1998) 44 NSWLR 545 at 547: Reduced to its essentials, an Anton Piller order is an order that the defendant to whom, or to which, it is directed, should permit the persons specified in the order to enter upon his, or its, premises, and to inspect, take copies of, and to remove, specified material, or classes of material, indicating, where appropriate, documents, articles or other forms of property. It is an extraordinary remedy, designed to obtain, and to preserve, vital evidence pending the final determination of the plaintiff's claim in the proceedings, in a case in which it can be shown that there is a high risk that, if forewarned, the defendant, would destroy, or hide, the evidence, or cause it to be removed from the jurisdiction of the court. For this reason, such orders are invariably made ex parte. Her Honour went on to observe: [26] ... The court must, in my view, be careful to avoid the extraordinary jurisdiction of the court to make an Anton Piller order from being subverted to a mere investigatory tool for applicants or indeed, from being used for any purpose other than the preservation of vital evidence pending the hearing and determination of a proceeding. See also: Universal Music Australia Pty Ltd v Sharman License Holdings Ltd [2004] FCA 183 at [53] [58], [2004] FCA 183 ; 205 ALR 319 at 330 1 per Wilcox J. Leave to appeal from that decision was refused: Brilliant Digital Entertainment Pty Ltd v Universal Music Australia Pty Ltd [2004] FCAFC 270 , 63 IPR 373. In agreeing with the decision that leave to appeal should be refused, Emmett J there also observed that orders " in the nature of Anton Piller orders are a severe interference with the rights of citizens ": [2004] FCAFC 270 at [67] . The procedure is " obviously draconian in its results ": Thermax Ltd v Schott Industrial Glass Ltd [1981] FSR 289 at 291 per Browne-Wilkinson J. See also: Addison Wesley Longman Australia Pty Ltd v Kopystop Pty Ltd [2004] FCA 1518 at [12] . " Anton Piller orders " , it has been said, " are offensive weapons ": Dockray M and Laddie H, ' Piller Problems ' (1990) 106 LQR 601 at 603. 67 Such documents as have presently been identified as having no continuing relevance to the proceeding, together with any documents that have been seized which fall outside the terms of the order as made and as varied, should be returned to the persons from whom they were seized. "[I] ntrusions into personal privacy and commercial confidentiality " should be minimised: cf Universal Music Australia Pty Ltd v Sharman License Holdings Ltd [2004] FCA 183 at [82] , [2004] FCA 183 ; 205 ALR 319 at 336 per Wilcox J.
Case: Universal Thermosensors Ltd v Hibben [1992] 1 WLR 840
Outcome: cited
Practice Note 24 stresses the importance of the role played by the " independent solicitor " and the qualified right of access of an applicant to the documents seized. It thus provides in part as follows: 11. The independent solicitor is an important safeguard against abuse of the order. The independent solicitor must not be a member or employee of the applicant's firm of solicitors. The independent solicitor should be a solicitor experienced in commercial litigation... 12. Ordinarily, the applicant is not permitted, without the leave of the Court, to inspect things removed from the premises or copies of them, or to be given any information about them by members of the search party. The importance of the role potentially to be played by an " independent solicitor " with appropriate experience has long been recognised, eg Universal Thermosensors Ltd v Hibben [1992] 1 WLR 840 at 861 per Nicholls VC. And, as Practice Note 24 makes clear, the applicant is not to inspect the seized documents " without the leave of the Court ". 16 What is not set forth in Practice Note 24 , and perhaps not surprisingly, is the basis upon which leave may be given. The bases upon which leave may be given should perhaps not be confined. Much may depend upon the circumstances of an individual case and much may also depend upon the precision with which the documents and materials that are authorised to be seized can be identified at the outset. Certainly, Practice Note 24 does not seek to confine the bases upon which leave may be granted or the purpose to be achieved in granting an applicant access to seized documents. 17 When the order was first made pursuant to O 25B, there had previously been filed an Application on 10 December 2007. A Statement of Claim was first filed on 22 April 2008. Again, in retrospect, directions should have been made for the filing of a Statement of Claim at a far earlier date. A specification by Senior Counsel for the Applicants of the proposed causes of action (albeit a fairly detailed exposition), should not have been endorsed by the Court as an appropriate way to proceed.
Case: Silbermann v CGU Insurance Ltd (2003) 47 ACSR 21
Outcome: cited
On 27 August 2003, CGU sought orders in the Supreme Court that the proceedings brought by Messrs Greaves, Rich and Silbermann be heard concurrently with the proceedings instituted by ASIC against those individuals. That application was dismissed by Bergin J on 3 September 2003: Silbermann v CGU Insurance Ltd (2003) 47 ACSR 21. 8 On 24 September 2004, Bergin J granted leave to Mr Greaves to discontinue the proceedings brought by him against CGU. As a condition of the discontinuance, Mr Greaves was ordered to pay CGU's costs. 9 The proceedings in this Court were commenced by the Trustee on 18 October 2006. CGU's motion has been brought promptly, as is contemplated by Federal Court Rules , O 10A r 5(1). 10 CGU submits that it is in the interests of justice that the proceedings in this Court should be transferred to the Supreme Court. Mr Street SC, who appeared with Mr Romaniuk for CGU, argues that the proceedings in this Court are related to the proceedings brought by Mr Rich and Mr Silbermann against CGU in the Supreme Court. Mr Street points out that the Rich and Silbermann proceedings (as I shall describe them) have progressed to a high level of readiness for hearing, including the filing of evidence and the discovery of documents. Mr Street acknowledges that an order has been made staying the Rich and Silbermann proceedings until the conclusion of the hearing of the civil penalty proceedings brought by ASIC against Mr Rich and Mr Silbermann. However, he draws my attention to the fact that CGU opposed the grant of the stay and that, in any event, the stay is likely to come to an end in April 2007, when the hearing of the ASIC proceedings in the Supreme Court is scheduled to be completed.
Case: Australian Securities and Investments Commission v Rich (2004) 50 ACSR 500
Outcome: cited
On 9 September 2004, White J, by consent, made the compensation orders in the Supreme Court proceedings brought by ASIC against Mr Greaves to which I have referred: Australian Securities and Investments Commission v Rich (2004) 50 ACSR 500.
Case: Greaves v CGU Insurance Ltd [2004] NSWSC 912
Outcome: cited
CGU submits that it is in the interests of justice to transfer the proceedings in this Court to the Supreme Court since there is a substantial overlap of factual and legal issues between these proceedings and the Rich and Silbermann proceedings. Mr Street acknowledges that, as yet, no order has been made in the Supreme Court that the Rich and Silbermann proceedings be heard concurrently. However, he points out that Bergin J has indicated that such an order may well be made in the future: see Greaves v CGU Insurance Ltd [2004] NSWSC 912 , at [10]. In any event, Mr Street says that the Supreme Court is plainly the Court that ought to determine whether it is appropriate for all three claims against CGU to be heard together and to make appropriate directions for the purpose of bringing them to hearing. 12 Ms Adamson SC, who appeared with Mr Scruby for the Trustee, disputes that the proceedings in this Court and the Rich and Silbermann proceedings are in truth related. She argues that the terms of the policy specifically provide that each insured is deemed to hold a separate policy with CGU, albeit on the same terms and conditions. This means, so Ms Adamson argues, that the principle that a joint or composite policy can be avoided for fraudulent non-disclosure by one co-insured, even if the other co-insured is not aware of the fraud, has no application. 13 Ms Adamson further submits that the Trustee should not be forced to await the outcome of proceedings or applications in the Supreme Court. Rather, he should be free to pursue the indemnity claim in this Court without the delay that a transfer might occasion.