Knowles v Jennings Roadfreight Ltd

[2004] NZCA 299

IN THE COURT OF APPEAL OF NEW ZEALAND

CA242/04

BETWEENGUY STUART KNOWLES, WAYNE HEASLIP AND NAMIB TRANSPORT LTD

Appellant

s

ANDJENNINGS ROADFREIGHT LTD

Respondent

Hearing:6 December 2004 (Ex Parte)

Court:Anderson P, McGrath, Glazebrook JJ

Appearances:  M D Lloyd for Appellants

Judgment:6 December 2004 

JUDGMENT OF THE COURT

The appeal is dismissed.

REASONS

(Given by Anderson P)

[1]       The appellants, who are plaintiffs in proceedings in the High Court, operate as owner/drivers of commercial trucks.  Much, if not all, of their work is arranged by, and much, if not all, of their administration is carried out by, Jennings Roadfreight Limited, who are the defendants in the High Court.  A consideration for that work is received by  the defendant by way of deductions from monies raised against invoices covering the work performed by the owner/drivers. 

[2]       It seems there have been somewhat acrimonious negotiations from time to time about the appropriate division of the proceeds between the owner/drivers and the administering company.  On the material before us at present the owner/drivers’ share is 77%.  Their access to the base documents against which their entitlement is ascertained has been limited. 

[3]       There are suggestions that the defendant has been reserved, if not coy, about informing the owner/drivers about amounts received, rates charges and other aspects of the remuneration regime.  This has led to considerable scepticism and anxiety on the part of the owner/drivers who often work against very fine margins. 

[4]       Lately the appellants have had their suspicions exacerbated by the receipt of documents purportedly derived from the defendant’s records.  Included in the documents, which were given anonymously to the appellants, is a document entitled “Inventory Control – Stock Sales and Valuation Report”, which indicates an entitlement of almost $48,000 for the particular period covered in relation to what is specified as “264 Admin Truck”.  Another document provided covertly to the appellants is headed “Owner/Driver Cartage Report”.  Immediately under the title are the words “Truck: Admin Owner/Driver: Skim.  The document appears to show an entitlement in relation to Admin Truck and Mr Skim, of a total of $43,671.92. 

[5]       Other information supplied to the Court reflects concerns about a small account which is in the nature of a general repository of unattributed entitlements, which on one approach one might think should be shared pro rata amongst the drivers but which it is believed is taken by the defendant. 

[6]       In light of their exacerbated concerns, the appellants applied ex parte to the High Court for relief generally termed an Anton Piller order, which is in the nature of a civil search warrant.  Typically such orders authorise a more or less independent third party to enter the premises of a defendant and take copies of documents (which term is now extended to computer records; R v Misic [2001] 3 NZLR 1).

[7]       On the premises of the defendant are a number of computers.  The appellants sought an Anton Piller order which would permit an independent third party to open the computers and, by use of physical attachments and software, replicate the hard drive of the computers to produce what is known as a “clone”.  But the order sought extends beyond electronic documents to all manner of documents.  The order sought in the High Court is broad in its scope and necessarily intrusive in its intended execution. 

[8]       The application was determined in the High Court by France J who delivered a ruling in the following terms:

[1]  I have considered the application by the plaintiffs dated 11 November 2004 and the affidavits of Guy Stuart Knowles and Jasper Jacobus Maass and, as well, the memorandum of counsel

[2]  I am not satisfied this is an appropriate case to make Anton Piller orders on an ex parte basis.

[3]  In order to hold the position (given the records involved are normal business records which the defendant will need to retain anyway), I am willing to issue an injunction preventing the defendant all of its principals, employees and agents, from removing or disposing of any of the records (hard copy and/or stored on computer) listed in the Second Schedule to the draft Anton Piller order pending further order of the Court.  I order accordingly.

[4]  I want to make it clear that while I am making an injunction, this is solely to preserve the status quo and is not to be taken as any finding against the probity of the defendant.

[5]  The plaintiffs are directed to serve the Anton Piller proceedings and this ruling on the defendant as soon as possible.

[6]  The Registrar is directed to list this matter for call in the Duty Judge list on Wednesday 17 November 2004 at 10.00 a.m.

[9]       As we have noted, the Judge was prepared to make an ex parte injunction preventing the defendant and its principals, employees and agents from removing or disposing of any record as listed in the Second Schedule of the draft Anton Piller order.  It goes without saying that any breach of that interim injunction, involving as it would the hiding or destruction of records, would be considered by the Court as a matter of the utmost seriousness and significantly criminal in its potential.  One need not spell out the criminal sanctions that might attend breaches of such an order, let alone the Court’s own disciplinary powers under the law of contempt.

[10]     Following the High Court’s declining the order the appellants came to this Court.  The information is no more than was available to the High Court.  The point we make at the outset, which we mentioned to counsel in the course of submissions but which was not specifically addressed by the High Court Judge, is that this Court is subject to the New Zealand Bill of Rights Act, including s 21 which provides a right against unreasonable search and seizure in the following terms:

21     Unreasonable search and seizure

Everyone has the right to be secure against unreasonable search or seizure, whether of the person, property, or correspondence or otherwise.

[11]     It is axiomatic that on an appeal such as the present an obligation is on the appellant to demonstrate that the judgment under appeal is plainly wrong.  We have perused on more than one occasion the documentation that has been provided by the appellant and we have had the benefit of very helpful submissions from counsel.  But the information which the appellants have been able to place before us is not enough to justify the intrusive search which the appellants seek. 

[12]     In the result we are not satisfied that the judgment under appeal was plainly wrong.  On the contrary, we think it was correct given that the concerns of the appellants have been protected to the extent noted under that judgment and remarked upon by the terms of this judgment. 

[13]     In all the circumstances the appeal must be dismissed.

Solicitors:

Margot J Nicholson, Auckland for Appellants