Jeray v Blue Mountains City Council - [2010] NSWLEC 139

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.

PARTIES:
APPLICANT:
Ivan Jeray
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

CASES CITED: Anton Piller K G v Manufacturing Processes Ltd [1976] Ch 55
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

LEGAL REPRESENTATIVES: APPLICANT:
Mr Ivan Jeray (in person)
SOLICITORS:
n/a

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2010] NSWLEC 139
Decision Date: 30 June 2010

CaseChat Overview and Summary

Ivan Jeray, the applicant, filed an application against the Blue Mountains City Council, the respondent, seeking an ex parte search order, among other things, in the Land and Environment Court of New South Wales. Mr Jeray, who is self-represented, sought the search order on the basis that the council had allegedly removed or denied him access to certain documents. He argued that the matter was urgent and that the council would tamper with or not make available the documents that he relied upon as evidence. The central legal issue before the Court was whether an ex parte search order was justified in the circumstances.

The Court noted that an ex parte search order is a powerful interlocutory remedy and is only suitable in limited cases. It highlighted the importance of balancing the plaintiff's right to recover property or preserve evidence against the violation of the privacy of a defendant. The Court also emphasised the need for the applicant to make full and frank disclosure of all relevant facts to the court and to follow the requirements and safeguards for the respondent set out in the Uniform Civil Procedure Rules and the Supreme Court Practice Note.

In this case, the Court found that an ex parte search order was not justified. The respondent was a governmental body that could be expected to deliver up or preserve documents if ordered to do so or if served with a subpoena. Furthermore, the evidence did not show that the applicant had a strong prima facie case on an accrued cause of action or that the potential or actual loss or damage to the applicant would be serious if no ex parte search order was made. The form of the proposed order was also completely unacceptable as it contained none of the safeguards for respondents required by the relevant rules and practice note.

The Court stood over the proceedings and the applicant's notice of motion to the List Judge's list. The applicant was required to serve the statement of claim, notice of motion, his affidavit, and any other evidence on which he intended to rely on the respondent by a specified date. The Court also ordered that the applicant notify the respondent of these orders.

Orders