Search Orders: What They Are, How They May Be Useful to You, and What to Do if You Are Served with One

Introduction

In most Court cases, after filing a Claim and Defence, the parties exchange relevant documents and evidence to understand each other’s case and prove their own.

However, some parties might hide or destroy evidence before a dispute reaches Court.

In this article, we discuss how a “Search Order” can help in such circumstances and how PGC Legal can assist you if you are considering applying for a Search Order, unexpectedly receive one, or need our services as Independent Lawyers to monitor the execution of a Search Order.

Our team, including Partner Brenton Priestley and Special Counsel Ashlee Provis, has experience with Search Orders and can be appointed to monitor their execution.

What is a Search Order and How is it Made?

A Search Order allows a person to search another’s premises for evidence relevant to a legal case that may be at risk of being destroyed or concealed.

Unlike a criminal search warrant, a Search Order is used in civil legal matters, commonly in contract, employment, and intellectual property disputes.

A Search Order is sought through a formal Application to the Court, usually accompanied by an affidavit from the Applicant. The affidavit should state:

  1. A description of the relevant item or items.
  2. The location of the premises where the items are believed to be held.
  3. Why the Applicant believes there is a possibility that the evidence will be destroyed or removed unless a Search Order is made.

Where a Search Order May Be Useful

Search Orders are typically made ex parte (without the other party’s knowledge), allowing the Applicant to ensure that any sought items are not concealed or destroyed by the Respondent. For example, a Search Order may be useful if one party suspects the other of releasing trade secrets to a competitor.

Who is Involved in a Search Order?

Applicant

The Applicant applies for the Search Order to seize requested items. The Applicant’s involvement is limited as the Applicant cannot search the property themselves. They must have their lawyer conduct the search, with an Independent Lawyer present. The Applicant provides their lawyer with information about the Respondent, the premises, and why they believe the Respondent has potential evidentiary material that may be destroyed.

Applicant’s Lawyer

The Applicant’s lawyer prepares the application and supporting affidavit and attends Court to seek the Search Order. They also propose an Independent Lawyer for the Search Order as part of the application. If granted, the Applicant’s lawyer must commence the search with the Independent Lawyer present, looking everywhere for potential evidentiary material, possibly with an IT specialist to check computers or hard drives.

Respondent

The Respondent is the party served with the Search Order. Since most Search Orders are made ex parte, the Respondent is usually caught off-guard when unknown people arrive to conduct the search. The Respondent is typically given a two-hour grace period to seek legal advice or urgently apply to the Court to vary or discharge the Search Order before the search begins.

During this time, the Respondent should stay on the premises and contact a lawyer immediately.

Respondent’s Lawyer

If contacted during the grace period, the Respondent’s lawyer will attend the property to represent the Respondent’s rights and interests. The lawyer may invoke privilege over certain documents or argue that the Search Order should be set aside.

The relevant privileges include self-incrimination and legal professional privilege.

The lawyer can also apply to have the Search Order argued before a judge and set aside or varied. If this is not possible before the search, the lawyer can apply after the search for appropriate orders.

Independent Lawyer

The Independent Lawyer ensures the search is conducted according to Court rules. Their duties include ensuring the Respondent is aware of their rights, monitoring the execution of the search, and confirming that seized items match the Search Order description. The Independent Lawyer will create a written report of the search details and provide it to the Court.

Overall Comments

If you need advice or assistance with any aspect of Search Orders, including applying for one, unexpectedly receiving one, or requiring the services of PGC Legal as an Independent Lawyer, contact our Search Order specialists, Brenton Priestley or Ashlee Provis.

The above is general in nature and is not intended to, and does not, constitute professional advice.