Case: Microsoft Corp v Goodview Electronics Pty Ltd [1999] FCA 754 , 46 IPR 159
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. 49 The power conferred by O 25B is expressed to be " for the purpose of securing or preserving evidence ". The purpose, not surprisingly, is not confined to securing only that material which may thereafter be discoverable. But, to enable a party to obtain an order pursuant to O 25B and thereafter permit that party to " rummage through " the materials seized, in order to make an assessment as to those documents which that party considers would be or should be discoverable, would defeat the perimeters within which discovery is to be made by a party, especially the more confined and restricted extent of discovery which this Court now permits. It would also endorse a course which courts have properly shunned, namely a course of improperly permitting the relief authorised by O 25B to become an " investigatory tool " ( Microsoft Corp v Goodview Electronics Pty Ltd [1999] FCA 754 at [26] , [1999] FCA 754 ; 46 IPR 159 at 164 per Branson J; Bugaj v Bates [2004] FCA 1260 at [13] per Stone J) or a preliminary step that later facilitates such an investigation.