In brief

The case of Adani Mining Pty Ltd & Anor v Pennings [2020] QCA 169 concerned an appeal to the Queensland Court of Appeal against the refusal of an application seeking a search order under rule 261A of the Uniform Civil Procedure Rules 1999 (UCPR). 

The Court of Appeal dismissed the appeal on the basis that a search order was an extraordinary exercise of the Court's jurisdiction and held that the evidence before it was "wholly inadequate to justify the order sought" (at [22]). 

Brief background

Adani Mining Pty Ltd is the developer of a coal mine in the Galilee Basin in Queensland, and Carmichael Rail Network Pty Ltd is the developer of an associated railway line (the Appellants). The Respondent is the principal of a group of political activists whose object is to prevent the development of the mine and associated railway line. 

At first instance, the Appellants filed an application for a search order to be made under rule 261A of the UCPR (also known as an "Anton Piller" order), which relevantly states that:

"The court may make an order (a search order), in any proceeding or in anticipation of any proceeding in the court, for the purpose of securing or preserving evidence and requiring a respondent to permit persons to enter premises for the purpose of securing the preservation of evidence which is, or may be, relevant to an issue in the proceeding or anticipated proceeding."

Rule 261B of the UCPR relevantly states that:

"The court may make a search order if the court is satisfied that -

(a) the applicant has a strong prima facie case on an accrued cause of action; and

(b) the potential or actual loss or damage to the applicant will be serious if the search order is not made; and

(c) there is sufficient evidence in relation to a respondent that -

(i) the respondent possesses important evidentiary material; and

(ii) there is a real possibility that the respondent might destroy the material or cause it to be unavailable for use in evidence in a proceeding or anticipated proceeding before the court."

The search order was sought ex parte and in aid of potential proceedings against the Respondent for breach of confidence, including breaches of contract, intimidation and conspiracy to injure. The Appellants asserted that the Respondent held confidential information which allowed him to identify the Appellants' existing and potential contractors and tenderers, and permitted him to undertake a coordinated effort to prevent the development of the mine and associated railway line. 

The application was refused and the Appellants filed an appeal against the decision. That appeal was also heard ex parte and was brought under rule 763 of the UCPR as a renewed application to be heard de novo. 

Legal principles

The Court of Appeal referred to the following legal principles that arise with respect to the consideration of an Anton Piller order:

  • "The harm likely to be caused to the respondent by the execution of the order must not be excessive or out of proportion to the legitimate objects of the order" (at [19]).

  • "Every unauthorized entry upon private property is a trespass, the right of a person in possession, or entitled to possession of premises, to exclude others from those premises being a fundamental common law right" (at [19]).

  • "The court must be careful to avoid this extraordinary jurisdiction being subverted to a mere investigatory tool and must be astute to prevent its use for any purpose other than the preservation of vital evidence. There must, therefore, be convincing evidence that the defendant has possession of incriminating documents or things" (at [20]). 

  • "…the making of a search order, a highly intrusive order made ex parte, is contrary to the normal principles of justice and can only be justified when there is a paramount need to prevent a denial of justice to the plaintiff" (at [20]). 

Conclusion

The Court of Appeal dismissed the appeal and held that the evidence was "wholly inadequate to justify the order sought". This conclusion was based on the following findings:

  • The Appellants failed to establish the likelihood that the Respondent had any confidential information or that such confidential information was stored at his home. 

  • The Appellants' evidence of loss was "expressed in the broadest and most impenetrable terms and nothing is known about projected profits". The Court of Appeal concluded that "mere assertions fall short of what is required on an application seeking the extraordinary relief claimed". 

  • The Appellants threatened (through their solicitors) to seek an injunction restraining the misuse of the Appellants' confidential information in February 2017. However, no such injunction was sought or any other relief was ever sought until the application for a search order. 

  • The premises to be searched was not a business premises, and was also the home of the Respondent's partner and children. The evidence was inconclusive as to whether the Respondent was the sole registered owner of the premises. The Appellants did not say anything about their right to require the Respondent's partner to give them permission to enter and search the premises, the right of the children to be protected, or that confiscated electronic devices may belong to the Respondent's partner or children. 

The Court of Appeal held, having regard to the above matters, that the application for a search order ought to be refused. 

This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2021.

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