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Uniform Civil Procedure Rules 2005
Current version for 9 April 2020 to date (accessed 5 August 2020 at 15:38)
Division 3 Search orders
Note.The provisions of this Division comprise uniform rules developed under the auspices of the Australian Council of Chief Justices.
(cf Federal Court Rules Order 25B, rule 1)
In this Division—applicant means an applicant for a search order.described includes described generally whether by reference to a class or otherwise.premises includes a vehicle or vessel of any kind.respondent means a person against whom a search order is sought or made.search order has the meaning given by rule 25.19.Note.In any notice of motion for a search order, a party should be referred to by the appropriate expression prescribed by rule 18.3.
25.19 Search order
(cf Federal Court Rules Order 25B, rule 2)
The court may make an order (a search order), in any proceeding or in anticipation of any proceeding in the court, with or without notice to the respondent, for the purpose of securing or preserving evidence and requiring a respondent to permit persons to enter premises for the purpose of securing the preservation of evidence which is or may be relevant to an issue in the proceeding or anticipated proceeding.
25.20 Requirements for grant of search order
(cf Federal Court Rules Order 25B, rule 3)
The court may make a search order if the court is satisfied that—(a) an applicant seeking the order has a strong prima facie case on an accrued cause of action, and(b) the potential or actual loss or damage to the applicant will be serious if the search order is not made, and(c) there is sufficient evidence in relation to a respondent that—(i) the respondent possesses important evidentiary material, and(ii) there is a real possibility that the respondent might destroy such material or cause it to be unavailable for use in evidence in a proceeding or anticipated proceeding before the court.
(cf Federal Court Rules Order 25B, rule 4)
Nothing in this Division diminishes the inherent, implied or statutory jurisdiction of the court to make a search order.
25.22 Terms of search order
(cf Federal Court Rules Order 25B, rule 5)
(1) A search order may direct each person who is named or described in the order—(a) to permit, or arrange to permit, such other persons as are named or described in the order—(i) to enter premises specified in the order, and(ii) to take any steps that are in accordance with the terms of the order, and(b) to provide, or arrange to provide, such other persons named or described in the order with any information, thing or service described in the order, and(c) to allow such other persons named or described in the order to take and retain in their custody any thing described in the order, and(d) not to disclose any information about the order, for up to 3 days after the date on which the order was served, except for the purposes of obtaining legal advice or legal representation, and(e) to do or refrain from doing any act as the court considers appropriate.(2) Without limiting the generality of subrule (1)(a)(ii), the steps that may be taken in relation to a thing specified in a search order include—(a) searching for, inspecting or removing the thing, and(b) making or obtaining a record of the thing or any information it may contain.(3) A search order may contain such other provisions as the court considers appropriate.(4) In subrule (2)—record includes a copy, photograph, film or sample.
25.23 Independent solicitors
(cf Federal Court Rules Order 25B, rule 6)
(1) If the court makes a search order, the court must appoint one or more solicitors, each of whom is independent of the applicant’s solicitors (the independent solicitors), to supervise the execution of the order, and to do such other things in relation to the order as the court considers appropriate.(2) The court may appoint an independent solicitor to supervise execution of the order at any one or more premises, and a different independent solicitor or solicitors to supervise execution of the order at other premises, with each independent solicitor having power to do such other things in relation to the order as the court considers appropriate.
(cf Federal Court Rules Order 25B, rule 7)
(1) The court may make any order as to costs that it considers appropriate in relation to an order made under this Division.(2) Without limiting the generality of subrule (1), an order as to costs includes an order as to the costs of any person affected by a search order.