Applying for a search order (formerly Anton Piller order) in Australian courts
A search order permits the applicant's solicitor to enter the respondent's premises to search for, copy, and secure evidence. It is one of the most intrusive civil remedies and requires a strong prima facie case, serious potential or actual loss, and clear evidence that the respondent possesses relevant material that may be destroyed.
This is an 8-step workflow for obtaining a search order to preserve evidence at risk of destruction or concealment, governed by Federal Court Rules 2011 r 7.43 or equivalent state Supreme Court rules.
Before you start
- A strong prima facie case on the underlying claim
- Evidence that the respondent possesses relevant documents or things
- Evidence of a real risk of destruction or concealment
- An independent solicitor identified and briefed to supervise execution
The workflow
Assess the threshold requirements
Confirm the three requirements: (1) a strong prima facie case, (2) the respondent's activities cause or will cause serious potential or actual loss, and (3) there is clear evidence the respondent possesses incriminating material that may be destroyed or hidden.
Engage an independent solicitor
The court requires an independent solicitor (not connected to the applicant or its lawyers) to supervise execution of the search order. Identify and brief a suitable practitioner experienced in search order execution.
Prepare the ex parte application
Draft the originating application and supporting affidavits. Address the duty of full and frank disclosure — every material fact, including facts unfavourable to the applicant, must be disclosed. Detail the premises to be searched and the categories of material sought.
Draft the proposed search order
Prepare the proposed order using the court's model form (e.g. Federal Court Practice Note IP-1). Include safeguards: time limits, categories of material, prohibition on force, and the role of the independent solicitor. Include the undertaking as to damages.
Appear before the duty judge
Present the application ex parte before the duty judge. Be prepared to address the proportionality of the order, the safeguards in place, and the applicant's capacity to meet the undertaking as to damages.
Execute the search order
The independent solicitor attends the respondent's premises, explains the order, and supervises the search. The respondent must be given the opportunity to obtain legal advice before the search begins (usually two hours). All material seized must be catalogued.
Report to the court
The independent solicitor prepares a report to the court detailing what was found, what was seized, and any issues during execution. File the report within the timeframe specified in the order.
Attend the return date and manage seized material
Attend the return date for the respondent to be heard. Address any challenges to the order or its execution. Arrange for the seized material to be held by the independent solicitor or in agreed custody pending trial.
What you will have at the end
Evidence preserved under court supervision, with a report filed and material held in secure custody pending resolution of the underlying proceedings.
Common issues
- Failing to satisfy the duty of full and frank disclosure, risking discharge and costs consequences
- Not engaging a suitably experienced independent solicitor before the application
- Seeking an order that is disproportionately broad relative to the evidence
- Execution conducted in a manner that breaches the order's safeguards
- The respondent claiming privilege over seized material, requiring a separate determination
Run this workflow on a real matter
Quillio identifies the relevant court model form, checks disclosure obligations, and helps structure the supporting affidavit evidence. See /practice-areas/litigation-lawyers or start a free trial.
This workflow is a general guide. Search orders are extraordinary remedies with serious consequences for both parties — always comply strictly with the court's model form and practice notes.
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