Land and Environment Court of New South Wales CITATION : Jeray v Blue Mountains City Council [2010] NSWLEC 139 This decision has been amended. Please see the end of the judgment for a list of the amendments. APPLICANT: Ivan Jeray PARTIES : RESPONDENT: Blue Mountains City Council FILE NUMBER(S) : 40517 of 2010 CORAM: Biscoe J KEY ISSUES: PRACTICE AND PROCEDURE :- application for ex parte search order refused. LEGISLATION CITED: Local Government Act 1993, s 12 Uniform Civil Procedure Rules 2005, rr 25.18 - 25.24 Anton Piller K G v Manufacturing Processes Ltd [1976] Ch 55 CASES CITED: Jeray v Blue Mountains City Council [2008] NSWLEC 290 Lock International plc v Beswick [1989] 1 WLR 1268 DATES OF HEARING: 30 June 2010 EX TEMPORE JUDGMENT DATE : 30 June 2010 APPLICANT: Mr Ivan Jeray (in person) SOLICITORS: n/a LEGAL REPRESENTATIVES: RESPONDENT: n/a SOLICITORS: n/a JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES BISCOE J 30 June 2010 40517 of 2010 IVAN JERAY v BLUE MOUNTAINS CITY COUNCIL EX TEMPORE JUDGMENT 1 HIS HONOUR: This appears to be the first time that this Court has been asked to make an ex parte search order. Legal principles 2 Created in Anton Piller K G v Manufacturing Processes Ltd [1976] Ch 55, a search order, also known as an Anton Piller order, is an ex parte order for an extreme form of discovery at the limits of the courts' civil jurisdiction. A search order requires the respondent to permit the applicant's representatives to enter, search for and remove from the respondent's premises important evidence that is in danger of being destroyed or spirited away unless the order is made without notice to the respondent and executed. The heartland of the search order is infringement of copyright. For example, search orders are quite commonly made against fly by night video pirates. 3 An ex parte order for immediate entry into premises to carry out search and seizure, on an application of which the respondent knows nothing and at which it cannot be heard, an order which may later be shown to have been wrongly made and which may cause severe disruption or harm to a respondent's activities and reputation, is the most powerful weapon in the courts' armoury of interlocutory remedies, rivalled only by the freezing order. A search order is suitable only in limited cases. As was said in Lock International plc v Beswick [1989] 1 WLR 1268 at 1281 per Hoffmann J: "The more intrusive orders allowing searches of premises or vehicles require a careful balancing of, on the one hand, the plaintiff's right to recover his property or to preserve important evidence against, on the other hand, violation of the privacy of a defendant who has had no opportunity to put his side of the case. It is not merely that the defendant may be innocent. The making of an intrusive order ex parte even against a guilty defendant is contrary to normal principles of justice and can only be done when there is a paramount need to prevent a denial of justice to the plaintiff." 4 Even where there is overwhelming evidence that a respondent has behaved wrongfully, that does not necessarily justify an ex parte search order. Such a person would not necessarily disobey a subpoena or an order of the Court requiring them to deliver up or preserve documents. In many cases therefore it will be sufficient to issue a subpoena or make an order that the respondent deliver up or preserve documents pending further order. 5 Over the years, painful experience of the dangers and potential abuses in the obtaining, form and execution of such orders has shown that it is essential to build safeguards for the respondent into the form of the order. 6 In all proceedings taken ex parte, but particularly in search order cases, there is a heavy obligation on the applicant to make full and frank disclosure of all relevant facts to the court. 7 After three decades of development of the search order by equity judges who became well aware of its dangers and potential for abuse, harmonised rules of court and practice notes governing search orders (and freezing orders), including a usual form of order, were created under the auspices of the Council of Chief Justices of Australia and New Zealand. Since 2005 they have been adopted in all states as well as in the Federal Court. In New South Wales the harmonised rules of court relating to search orders are in Division 3 (rr 25.18 – 25.24) of Part 25 of the Uniform Civil Procedure Rules 2005 and include the following: " 25.19 Search order The court may make an order (a search order), in any proceeding or in anticipation of any proceeding in the court, with or without notice to the respondent, 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. 25.20 Requirements for grant of search order The court may make a search order if the court is satisfied that: (a) an applicant seeking the order 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 such material or cause it to be unavailable for use in evidence in a proceeding or anticipated proceeding before the court. 25.22 Terms of search order (1) A search order may direct each person who is named or described in the order: (a) to permit, or arrange to permit, such other persons as are named or described in the order: (i) to enter premises specified in the order, and (ii) to take any steps that are in accordance with the terms of the order, and (b) to provide, or arrange to provide, such other persons named or described in the order with any information, thing or service described in the order, and (c) to allow such other persons named or described in the order to take and retain in their custody any thing described in the order, and (d) not to disclose any information about the order, for up to 3 days after the date on which the order was served, except for the purposes of obtaining legal advice or legal representation, and (e) to do or refrain from doing any act as the court considers appropriate. (2) Without limiting the generality of subrule (1) (a) (ii), the steps that may be taken in relation to a thing specified in a search order include: (a) searching for, inspecting or removing the thing, and (b) making or obtaining a record of the thing or any information it may contain. (3) A search order may contain such other provisions as the court considers appropriate. (4) In subrule (2): record includes a copy, photograph, film or sample. 25.23 Independent solicitors (1) If the court makes a search order, the court must appoint one or more solicitors, each of whom is independent of the applicant's solicitors (the independent solicitors), to supervise the execution of the order, and to do such other things in relation to the order as the court considers appropriate. (2) The court may appoint an independent solicitor to supervise execution of the order at any one or more premises, and a different independent solicitor or solicitors to supervise execution of the order at other premises, with each independent solicitor having power to do such other things in relation to the order as the court considers appropriate." 8 The harmonised Supreme Court of New South Wales Practice Note entitled "Gen 13 Search Orders" includes a lengthy and complex usual form of ex parte search order containing strong safeguards for the respondent including a requirement that the independent supervising solicitor report to the court and that the applicant give a number of undertakings to the court not limited to an undertaking as to damages. The present case 9 In the present case the applicant, Mr Ivan Jeray, is a self-represented litigant who seeks an ex parte search order in a novel context and in a wholly irregular form requiring confiscation of the council's records by the sheriff, no safeguards for the respondent and no undertakings by the applicant. 10 Mr Jeray filed a statement of claim approximately an hour ago together with a notice of motion seeking a search order and ancillary orders. He has not served any of these documents. According to Mr Jeray's supporting affidavit he wishes his motion to be heard immediately and ex parte because, he says, the matter is urgent and he has an apprehension that the respondent, Blue Mountains City Council, will cause documents that he seeks to disappear if he serves them with the process before a search order is made. 11 His notice of motion seeks a search order in the following terms: "Search order to confiscate both the development application files, as currently being viewed by Mr Ivan Jeray, and those documents, plans, photographs etc that have been removed from the files by Blue Mountains City Council prior to Mr Jeray's viewing of the files relating to 108-120 Narrow Neck Road, Katoomba and 85-99 Burrawang Street, Katoomba from the head office of Blue Mountains City Council, which is located in Katoomba. The order is to be undertaken by the sheriff and his/her assistants of Katoomba Court House, under the observation of Mr Jeray. All officers from Blue Mountains City Council must co-operate at all times with the instructions and requests of the sheriff and his/her assistants in carrying out this order and must not hinder in any way the confiscation of the records..." The notice of motion contains further particulars of the proposed search order. 12 As appears from Mr Jeray's rather cryptic statement of claim, the novel context in which he claims a search order concerns alleged breaches by the council of provisions of the Local Government Act 1993 by allegedly removing or denying him access to documents. 13 Mr Jeray's supporting affidavit refers to earlier proceedings which he commenced in 2008 in this Court against the council and others challenging development consents and raising other issues. He says that in 2008 he filed a notice of motion to seize documents held by the council as he was extremely concerned that the documents ultimately to be relied upon as evidence would be tampered with by the council prior to the hearing; and that no seizure order was granted but the council undertook to comply with the requirements of certain legislation and rules of court. He refers to the decision of the Court on that occasion as Jeray v Blue Mountains City Council [2008] NSWLEC 290. He has informed me that he has appealed that decision and that the appeal is pending. He says that he discovered late in the 2008 proceedings that the council had not produced all relevant documents to the Court and that this led him to file further points of claim in those proceedings which affected his ability to properly prepare for the hearing. He complains about blanking out of certain documents produced by the council in the 2008 proceedings and about documents which he says the council omitted from the bundle of documents prepared for evidence in the 2008 proceedings. 14 Turning to the present proceedings, Mr Jeray says in his affidavit that in March this year he submitted application forms to the council under s 12 of the Local Government Act to view the council's development application files for properties at 85-99 Burrawang Street, Katoomba and 108-120 Narrow Neck Road, Katoomba; that he subsequently viewed those files and there were documents missing; and that notwithstanding his request to the council's records officer to ensure that all documents were included for his next viewing, there were still missing documents at that next viewing on 2 June 2010. He says that he was informed by the council officer that legal documents had been removed prior to his viewing the files. He had a further view of files on 9, 11 and 18 June 2010 but says that the missing documents had not been returned. He says he asked the council to return the missing documents but that has not happened and that he has made a complaint about the matter. He expresses extreme concern that the council would tamper with or not make available for evidence the records that he relies upon. He has tendered copies of emails from him to a Mr Greenwood at the council concerning the matter. Conclusion 15 I am bound to say that an ex parte search order is not justified in this case. Search orders are a valuable weapon in the Court's armoury but only in suitable and strictly limited cases of which this is not one. The respondent is no fly by night video pirate. It is a governmental body that can be expected to deliver up or preserve documents if ordered to do so or if served with a subpoena, without any need for an ex parte search order. The contrary has not been shown. As for the evidence, for present purposes it is sufficient to say that the evidence does not show to my satisfaction that the applicant has a strong prima facie case on an accrued cause of action; or that the potential or actual loss or damage to the applicant will be serious if no ex parte search order is made; or that there is a real possibility that the respondent might destroy or spirit away important evidentiary material. Furthermore, the form of the proposed order is completely unacceptable because, among other things, it contains none of the elaborate safeguards for respondents required by the Uniform Civil Procedure Rules and the Supreme Court Practice Note, including the mandatory requirement for an independent supervising solicitor and undertakings to the Court by the applicant. 16 Since the notice of motion is not in its terms limited only to an ex parte order, I will stand it over with the proceedings to the List Judge's list. 17 The orders of the Court are as follows: 1. The proceedings and the applicant's notice of motion filed on 30 June 2010 will be listed before the List Judge on Friday 9 July 2010; 2. The applicant is to serve the statement of claim, notice of motion, his affidavit and any other evidence on which he intends to rely in support of the notice of motion on the respondent by 4pm on 1 July 2010; and 3. By the same time the applicant is to notify the respondent of these orders. 04/08/2010 - typographical error - Paragraph(s) 2 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.