Where a defendant is likely to destroy the evidence that would prove the case against them, an ordinary order for discovery comes too late. A search order — known elsewhere as an Anton Piller order — is the answer.
Two rules and a constitutional backstop
The Court may, for the purpose of enabling the proper determination of any matter in question, make orders, on terms, for the inspection of any property, the taking of samples, the making of any observation, the trying of any experiment, or the observation of any process.
(2) An order may authorize any person to enter any land or to do any other thing for the purpose of getting access to the property.
(4) “Property” includes any land and any document or other chattel, whether in the ownership, possession, custody or power of a party or not.
Order 14 Rule 10(1) — in proceedings concerning any property, or in which a question may arise as to property, the Court may make orders for the detention, custody or preservation of the property; and (2) such an order may authorize any person to enter any land or to do any other thing for the purpose of giving effect to the order.
Constitution section 155(4) supplies the residual power to make such other orders as are necessary to do justice.
That is what makes a search order available in Papua New Guinea without a specially named remedy. Order 9 Rule 44(4) is particularly wide: it covers documents and chattels, and it reaches property held by someone who is not a party.
The counterweight is Rule 44(3): an applicant shall, so far as practicable, serve notice of the motion on each person who would be affected by the order, if made. On a genuine search application that requirement is met by seeking dispensation — see below.
A demanding standard
- A strong prima facie case — higher than the serious question sufficient for an ordinary injunction.
- Serious potential or actual damage to the applicant.
- Clear evidence that the respondent has the incriminating material, identified as specifically as possible.
- A real possibility that it will be destroyed, concealed or removed if notice is given.
A search order authorises entry into premises on the strength of one side’s untested affidavits. It sits uncomfortably close to a search warrant, which in criminal matters requires statutory authority and judicial scrutiny.
Constitution section 44 protects against arbitrary search and entry, and section 49 guarantees the right to privacy. Those provisions frame the Court’s approach: an order of this kind will be made only where nothing less will preserve the evidence, and only with safeguards.
What the order should contain
| Safeguard | Reason |
|---|---|
| An independent supervising lawyer who is not acting for the applicant | To oversee execution and report to the Court |
| Execution only in business hours, on a working day | Reduces the oppression of the exercise |
| A named, limited group permitted to enter | Not an open licence to bring anyone |
| The respondent given opportunity to obtain legal advice before entry | Basic fairness; reflects Constitution s 59 |
| Specified categories of material only | The order is not a general search |
| Copy rather than remove where possible | The respondent should keep its business records |
| Material held by the supervising lawyer or the Court, not the applicant | Prevents misuse of what is seized |
| Provision for privileged material to be set aside unread | Privilege survives the order |
| A return date and liberty to apply | Required for an ex parte order |
| A fortified undertaking as to damages | The exposure is substantial |
Making the application
The application is made without notice. Under the Motions Rules the applicant must contact the Registrar in writing explaining the urgency and why service should be dispensed with, and must file the originating process, notice of motion, supporting affidavits, an undertaking as to damages where appropriate, and a draft order.
The notice of motion must first seek an order dispensing with the requirement for service — which also answers Order 9 Rule 44(3).
It must contain a concise reference to the Court’s jurisdiction: here, Order 9 Rule 44, Order 14 Rule 10, and Constitution section 155(4).
The duty of full and frank disclosure is at its highest on an application of this kind. In Golobadana No 35 Ltd v Bank of South Pacific Ltd [2002] PGNC 36; N2309 the National Court treated a failure to disclose all relevant facts as a matter that may result in lifting an injunction or refusing to continue orders obtained ex parte.
An order executed and later discharged exposes the applicant to the undertaking, to costs, and to the collateral consequences of having searched premises without justification.
What a search order is not
It is not a search warrant. It does not authorise force. It operates as an order against the respondent, who must permit entry — refusal being a contempt, not an occasion for the applicant to break in.
It is not a substitute for discovery. Where documents can be obtained by notice for discovery or an order under Order 9 Rules 5 or 7, that is the proper route — and Rule 14 requires the Court to be satisfied that any order under the Division is necessary at the time it is made.
It cannot give you the case. Motions Rule 9 confines motions to interlocutory matters only and not the substantive relief claimed.
Where property is at risk of destruction but no search is needed, Order 14 Rule 10 alone may be enough.
Sources
- National Court Rules 1983 — O 9 rr 5, 7, 14, 44; O 14 rr 9–16, Div 6; Motions Rules rr 5, 8, 9
- Constitution — ss 44, 49, 59, 155(4)
- Golobadana No 35 Ltd v Bank of South Pacific Ltd [2002] PGNC 36; N2309
Before relying on anything here, read the current text of the National Court Rules 1983 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.