PMSI Group v Wilson - [2003] NSWSC 263

CITATION: PMSI Group v Wilson [2003] NSWSC 263

HEARING DATE(S): 28 March 2003

JUDGMENT DATE:
4 April 2003

JURISDICTION:
Equity

JUDGMENT OF: Campbell J

DECISION: Anton Piller order made

CATCHWORDS: PROCEDURE - miscellaneous procedural matters - Anton Piller order - form of order - need for Supervising Solicitor - need for plaintiff to be able to obtain person to act as Supervising Solicitor - other matters relevant to form of order

PARTIES :
PMSI Group Pty Limited - Plaintiff
Andrew James Wilson - First Defendant
Grand Entrance Control Pty Limited - Second Defendant

FILE NUMBER(S): SC 2128/03

COUNSEL: R Weaver - Plaintiff

SOLICITORS: Watson Mangioni - Plaintiff

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
EQUITY LIST

CAMPBELL J

4 APRIL 2003

2128/03 PMSI GROUP PTY LIMITED v ANDREW WILSON & ANOR

JUDGMENT

1 HIS HONOUR: On 28 March 2003 I made an Anton Piller order in this matter. An Anton Piller order is one which the Court makes only in exceptional circumstances. These reasons for judgment relate to the form of that order.

2 As Duty Judge, I was approached by legal representatives of the plaintiff in chambers on the evening of 27 March 2003. They brought with them documentation including a draft Anton Piller order, which they asked me to make. The draft order was one which appeared to be closely modelled on the order made in Polygram Records Pty Ltd v Monash Records (Aust) Pty Ltd (1985) 10 FCR 332; 72 ALR 35. That is unsurprising, as Ritchies Supreme Court Procedure, paragraph 23.3.9 refers the reader to that case for the form of an Anton Piller order.

3 That form of order is, in my view, not a satisfactory one. It omits many of the procedural safeguards which should be included in such an order. Also, being an order which was designed to be served on a corporation, at its business premises, it does not contain the sort of safeguards which are appropriate when such an order is served on defendants who include a natural person, and at a dwelling house. For those reasons, I was not prepared to make the order in the terms sought.

4 Overnight, the legal representatives prepared a revised draft order, which I further modified before making it on 28 March 2003.

5 The judgment of Powell JA in Long v Specifier Publications Pty Ltd (1998) 44 NSWLR 545 collects many of the principles applicable to this type of order. A precedent can be found in the White Book (2000 edition), in an annotation to Part 25 of the Civil Procedure Rules (Interim Remedies and Security for Costs) at 25 CPD - 016. Ough & Flenley, The Mareva Injunction and Anton Piller Order: Practice and Precedents (2nd ed 1993) also collects relevant principles.

6 Many of the considerations which enter into the making of the order will be apparent on its face. There are some, however, which I specifically mention.

7 The form of the obligation…

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.

Continue reading PMSI Group v Wilson

Details

AGLC: PMSI Group v Wilson [2003] NSWSC 263
Case: [2003] NSWSC 263
Decision Date: 4 April 2003

CaseChat Overview and Summary

In the matter of PMSI Group v Wilson, the dispute arose from an application for an Anton Piller order. The plaintiff, PMSI Group, sought to search the defendant's premises for specific documents and information related to a breach of contract and potential intellectual property infringement. The case was heard in the Supreme Court of New South Wales. The court was tasked with determining whether the plaintiff had adequately demonstrated a need for the Anton Piller order and whether the plaintiff could reasonably obtain a Supervising Solicitor to oversee the search.

The primary legal issues before the court were whether the plaintiff had established a compelling need for the Anton Piller order, considering the urgency and the risk of evidence being destroyed, and whether the plaintiff could reasonably obtain a Supervising Solicitor to oversee the execution of the order. Additionally, the court considered other factors relevant to the form of the order, such as the need for the plaintiff to have access to a person who could act as the Supervising Solicitor.

The court held that the plaintiff had demonstrated a compelling need for the Anton Piller order due to the risk of evidence being destroyed and the urgency of the situation. However, the court found that the plaintiff had not shown that they could reasonably obtain a Supervising Solicitor to oversee the search. The court noted that the plaintiff had made efforts to secure a Supervising Solicitor but had not provided sufficient evidence of their inability to do so. Consequently, the court decided not to grant the Anton Piller order in its proposed form.

The court outlined other matters relevant to the form of the order, emphasising the importance of the plaintiff having access to a Supervising Solicitor. The court concluded that the plaintiff must be able to demonstrate that they can obtain such a person to ensure the search is conducted properly and lawfully. The court's decision underscored the necessity for the plaintiff to meet all requirements for obtaining an Anton Piller order, including the appointment of a Supervising Solicitor.

Orders