Search Orders in Victoria: Recovering Evidence Before It Disappears

What a search order is

A search order is made for the purpose of securing or preserving evidence. Under rule 37B.02(1), it requires a respondent to permit persons to enter premises to secure the preservation of evidence that is, or may be, relevant to an issue in a proceeding. It is not an order that simply authorises the applicant's representatives to go in: it directs the respondent to permit the persons named or described in the order (the search party) to enter the specified premises and take the steps the order sets out. Those steps can include searching for, inspecting, removing, copying or photographing described things (rule 37B.05).

Several features follow from that structure:

• It is not a police warrant. It is a civil order, and it must not be executed at the same time as a search warrant executed by police or another proper authority (rule 37B.05(3)(b)).
• It does not authorise forced entry. The search party cannot break in. The order works through the respondent's obligation to permit entry, backed by the Court's contempt powers.
• It cannot authorise a search of a person (rule 37B.05(3)(a)).
• The search party must act strictly within the order. The actual order controls the premises, the people in the search party, the categories of things, the devices and accounts, the timing and the handling protocol.
• Its purpose is preservation. It is not a discovery tool, a fishing expedition or a punishment, and it does not decide the merits.

A search order can be made in a proceeding already brought or in anticipation of a proceeding, but the applicant's cause of action must already have accrued. The name "Anton Piller order" comes from Anton Piller KG v Manufacturing Processes Ltd [1976] Ch 55, a decision of the English Court of Appeal, and is still widely used.

The governing rules

In the Supreme Court of Victoria, search orders are governed by Order 37B of the Supreme Court (General Civil Procedure) Rules 2025 (Vic), which came into operation on 8 September 2025 and revoked the 2015 Rules. A search order may be in Form 37BA ("Search order"), which the Court may adapt to the case.

Rule 37B.02(3) requires the Court to have regard to the practice note concerning search orders. The Court's published practice note is Practice Note SC Gen 16 — Search Orders, issued on 30 January 2017. It has not been reissued since the 2025 Rules commenced, so its text still refers to the 2015 Rules, but it continues to describe the Court's usual practice and the usual terms of a search order. It expressly does not limit the Court's discretion to make whatever order suits the case.

The Victorian rules form part of a harmonised national approach. Long v Specifier Publications Pty Ltd (1998) 44 NSWLR 545, a decision of the New South Wales Court of Appeal, is often cited on the stringent pre-conditions for these orders. In Victoria, however, the governing test is now the one stated in rule 37B.03.

Lawyers and parties are also bound by the overarching obligations in the Civil Procedure Act 2010 (Vic), including the paramount duty to the Court (s 16), the requirement that claims and applications have a proper basis (s 18) and the obligation not to mislead or deceive (s 21). Those obligations matter particularly on an application made without notice.

Supreme Court or County Court

The County Court Civil Procedure Rules 2018 (Vic) also contain an Order 37B search-order regime in materially the same terms, including the same rule 37B.03 test, and the County Court must likewise have regard to its practice note concerning search orders.

Which court is appropriate depends on the court's jurisdiction over the underlying claim and where any proceeding has been, or will be, brought. The Supreme Court is the usual forum for larger or more complex commercial disputes and is the focus of this article. In either court, the application is heard by a judge.

The rule 37B.03 test

Rule 37B.03(1) provides that the Court may make a search order if it is satisfied that:

1. the applicant has a strong prima facie case on an accrued cause of action;
2. the potential or actual loss or damage to the applicant will be serious if the search order is not made; and
3. there is sufficient evidence in relation to the respondent that:
   • the respondent possesses important evidentiary material; and
   • there is a real possibility that the respondent might destroy that material or cause it to be unavailable for use in evidence in a proceeding or anticipated proceeding before the Court.

The rule sets out three requirements, the third of which has two parts, so it is sometimes explained as four practical matters. The requirements are conjunctive: the Court must be satisfied of each of them. Even then, the power is discretionary ("may"), and the Court weighs the intrusion involved against the risk to the evidence.

A "strong prima facie case" is a more demanding standard than the "serious question to be tried" that applies to an ordinary interlocutory injunction. General injunction principles are covered in our guide to urgent injunctions in Victoria.

Evidence of the risk

A generalised concern that a respondent "might" destroy material is not enough. The affidavits must explain why there is a real possibility the things sought will be destroyed or otherwise made unavailable unless the order is made (rule 37B.03(2)(c)). Evidence that can bear on that question includes:

• prior dishonesty, particularly involving concealment or destruction of records;
• observed deletions or device wiping, for example on a returned work laptop;
• bulk transfers of files to personal storage or accounts shortly before a departure;
• arrangements apparently designed to obscure where material is kept; and
• the nature of the material, where it is portable and easily concealed and the respondent has a strong motive to get rid of it.

The evidence must also show that the respondent possesses the material and that it is important to the issues in the proceeding.

Where search orders arise

Search orders are uncommon, but recurring contexts include:

• Confidential information taken by a former employee, contractor or director, such as client lists, pricing models or source code, where forensic material such as access logs or USB connection records suggests copying;
• Intellectual property disputes involving counterfeit goods or infringing copies and associated supplier and customer records; and
• Fraud or breach of fiduciary duty, where records of misappropriation or secret dealings are kept outside ordinary systems.

Where a person's home or personal devices are involved, the Court will expect the order to be carefully confined to avoid sweeping in unrelated personal material. A search order is a litigation remedy, not a tool for an internal disciplinary process; see our guides to workplace investigations in Victoria and serious misconduct and termination. Whether a post-employment restraint is enforceable is covered in our guide to enforcing post-employment restraints of trade.

Applicant obligations

Because the order is usually sought without notice, the applicant carries heavy obligations:

• Full and frank disclosure of all material facts, including adverse material, possible defences known to the applicant and any financial information casting doubt on its ability to meet the undertaking as to damages from assets within Australia (SC Gen 16, para 4.17).
• Precise affidavits that, unless the Court otherwise orders, describe the things or categories of things sought; the address of the premises and whether they are private or business premises; why the order is sought, including the risk to the evidence; the likely prejudice to the applicant; the name, address, firm and commercial litigation experience of the proposed independent solicitor, who must consent; and, for residential premises, whether the only occupant is likely to be a female, a child under 18 or a vulnerable person (rule 37B.03(2)).
• The usual undertaking as to damages (rule 37B.03(3)).
• An undertaking to pay the independent solicitor's reasonable costs and disbursements (rule 37B.03(3)). Under SC Gen 16 and the Form 37BA undertakings, the applicant's solicitor also undertakes to pay the reasonable costs and disbursements of the independent solicitor and any independent computer expert.
• Undertakings by the applicant's solicitor and the independent solicitor as the Court considers appropriate (rule 37B.03(4)). The applicant's solicitor ordinarily undertakes not to disclose to the applicant, without the Court's leave, information acquired during or as a result of execution.
• Security, only if required. If the applicant has or may have insufficient assets within the jurisdiction to support the undertaking as to damages, the Court may require security, for example a bank's irrevocable undertaking or a payment into Court (SC Gen 16, para 4.16). A payment into Court is not ordinarily required.

The independent solicitor

The independent solicitor is the central safeguard against abuse of the order. The applicant ordinarily proposes a solicitor who consents to act, but the Court appoints them (rule 37B.06). They must be independent of the applicant's solicitors and must not be a member or employee of the applicant's firm. SC Gen 16 says they should be experienced in commercial litigation, preferably in the execution of search orders.

Their usual responsibilities include:

• serving the order with the summons, supporting material and other documents required by rule 37B.08(1)(b);
• offering to explain the order and, if the offer is accepted, explaining it;
• explaining the respondent's right to obtain legal advice;
• supervising the carrying out of the order;
• before anything is removed, listing it, allowing the respondent a reasonable opportunity to check the list, signing it and giving the parties a copy;
• taking custody of removed things until further order;
• providing a written report to the Court on execution; and
• attending the return date with the removed things available, and raising any issue about execution with the Court.

Where there is a dispute about whether something falls within the order, it is handed to the independent solicitor for safekeeping pending resolution or further order. The independent solicitor can quarantine disputed or claimed material and bring the issue to the Court, but does not finally determine privilege, scope or confidentiality disputes; that is for the Court. Ordinarily the applicant may not inspect removed things or copies, or be told about them, without the Court's leave.

Execution safeguards

SC Gen 16 and Form 37BA build in a series of protections, subject always to the terms of the particular order:

• the search party should be as small as reasonably practicable, with its maximum size stated and its members named or described; it ordinarily should not include the applicant or people associated with it, other than its solicitor;
• service is ordinarily between 9.00 am and 2.00 pm on a business day, so the respondent can more readily obtain legal advice, unless the Court orders otherwise;
• before anyone other than the independent solicitor enters, the respondent has a limited period (in the Form 37BA example, up to two hours from service unless the independent solicitor permits longer) to seek legal advice and to ask the Court to vary or discharge the order, while not disturbing listed things;
• for residential premises where the only occupant is likely to be a female, a child or a vulnerable person, the Court considers whether the independent solicitor or search party should include a woman, or a person able to address the vulnerability;
• the order must not be executed at the same time as a police or other official search warrant;
• the order is endorsed with a penal notice meeting the requirements of rule 66.10; and
• any restraint on the respondent telling others about the order (other than to obtain legal advice) should be as short as possible. Rule 37B.05(1)(d) limits it to no more than three days after service, and SC Gen 16 says it should not extend beyond 4.30 pm on the return date.

Electronic evidence and accounts

Electronic material can be covered where it falls within the order and is in the respondent's possession or control. That does not give automatic authority to access every device, password or cloud account. The order itself defines which devices and accounts, what information or passwords the respondent must provide, and how the data is handled.

SC Gen 16 contemplates the appointment of an independent computer expert, who gives undertakings to the Court, where specialised computer expertise may be needed or where devices are to be imaged. Form 37BA provides that where a computer is expected to be searched, the search party includes an independent computer expert and only that expert searches it. Whether and how that applies is a matter for the order made.

Imaging copies a drive wholesale, capturing in-scope and out-of-scope material alike. For that reason, special provision is needed. The following all depend on the order and later directions of the Court:

• custody of images and copies;
• search terms and filtering;
• privilege and confidentiality review;
• who may access what, and when; and
• the eventual return or destruction of copies.

None of this happens automatically when proceedings end; it depends on the orders and undertakings in place.

Privilege, self-incrimination and confidentiality

These are different categories with different legal bases. They should not be treated as interchangeable rights to withhold material.

• Legal professional privilege (client legal privilege) protects confidential lawyer–client communications and certain litigation documents. Form 37BA allows the respondent to gather such documents and hand them to the independent solicitor, in a sealed envelope if wished, and the independent solicitor must not inspect them or allow them to be inspected, but delivers them to the Court.
• Self-incrimination. Section 128A of the Evidence Act 2008 (Vic) sets the procedure where a person objects to complying with a disclosure order made in connection with a search or freezing order under the Supreme Court Rules, on the ground that the information may tend to prove an offence or liability to a civil penalty. The person discloses what is not objected to, puts the rest in a sealed affidavit for the Court, and files a separate affidavit setting out the basis of the objection. The Court then decides whether there are reasonable grounds and whether the interests of justice require disclosure, with a certificate protecting the person where disclosure is required. SC Gen 16 (para 4.19) confirms that s 128A governs this procedure.
• Bodies corporate. Section 187 of the Evidence Act provides that a body corporate is not entitled to refuse or fail to comply with a requirement on the ground that it might incriminate the body or expose it to a penalty. Form 37BA reflects this: the self-incrimination hand-over applies only if the respondent is not a corporation, although individuals who would comply on a corporation's behalf may object on their own account.
• Commercially confidential material is not privileged merely because it is confidential. Confidentiality alone does not justify withholding material within the order. It is usually protected through segregation, restricted access (for example, lawyers-only) and directions on the return date, when the Court considers how the respondent's commercial confidentiality is to be maintained.
• Irrelevant or private material, and material outside the order's defined scope, is not covered by the order. It can be identified to the independent solicitor so that it is not taken, or is quarantined, pending resolution by agreement or by the Court.

Before the return date, the respondent or its lawyers may inspect removed things in the presence of the independent solicitor and provide a signed list of material claimed to be privileged or confidential that should not be inspected by the applicant.

If you are served

A respondent served with a search order should:

1. read the sealed order carefully and accept the independent solicitor's offer to explain it;
2. obtain urgent, independent legal advice within the period the order allows before entry;
3. cooperate within the order's terms, while preserving the right to challenge its scope and validity;
4. communicate objections through the independent solicitor;
5. identify documents claimed to be legally privileged, raise any section 128A self-incrimination objection to a disclosure requirement, and identify commercially confidential, private and out-of-scope material, each on its appropriate basis;
6. preserve all potentially relevant material, and avoid deleting, altering, remotely wiping or otherwise interfering with anything;
7. observe any non-disclosure term, other than for obtaining legal advice;
8. consider an urgent application to vary or discharge the order, which the order ordinarily allows at any time; and
9. prepare for the return date.

Refusing or obstructing execution is not automatically contempt, but non-compliance without lawful excuse may lead to contempt proceedings, which the Court determines on the evidence and which can result in imprisonment, sequestration of property or other punishment.

Return date, costs and compensation

On the return date, the Court receives the independent solicitor's report and considers what is to happen to removed things and copies, how commercial confidentiality is to be maintained, any privilege claims, any application by a party and any issue raised by the independent solicitor (SC Gen 16, para 4.20). It may continue, vary or discharge the order, make directions about custody and access, and release the applicant's solicitor from the non-disclosure undertaking in whole or in part.

Compensation is not automatic. If an order is discharged or later found unjustified, a respondent seeking compensation under the undertaking as to damages ordinarily must apply to the Court and prove compensable loss caused by the order. The Court decides whether the undertaking should be enforced and in what amount.

Costs. Rule 37B.07 allows the Court to make any costs order it considers appropriate, including for the costs of anyone affected by the order. Indemnity costs are not automatic; non-disclosure, lack of proper basis or oppressive execution may be relevant to the Court's discretion. General principles are covered in our guide to costs consequences in Victorian litigation.

Proportionate alternatives

Search orders are exceptional, intrusive and resource-intensive. Depending on the risk, a more proportionate step may be enough:

• written undertakings to preserve and deliver up material, or an agreed forensic imaging protocol;
• a preservation demand or notice, often as part of a letter of demand, where giving notice does not itself create the risk;
• an urgent injunction restraining use or destruction of information;
• subpoenas or notices to produce, discovery, or preliminary discovery where available; and
• a freezing order where the concern is dissipation of assets rather than destruction of evidence.

Where the dispute may still be resolved by negotiation, see our guide to resolving a business dispute before court.

Frequently asked questions

Official sources

• Supreme Court (General Civil Procedure) Rules 2025 (Vic) — Order 37B and Form 37BA
• Supreme Court Practice Note SC Gen 16 — Search Orders
• County Court Civil Procedure Rules 2018 (Vic) — Order 37B
• Evidence Act 2008 (Vic) — ss 128A and 187
• Civil Procedure Act 2010 (Vic) — Part 2.3 overarching obligations

Cases

• Anton Piller KG v Manufacturing Processes Ltd [1976] Ch 55 — unofficial public reproduction (UniSet)
• Long v Specifier Publications Pty Ltd (1998) 44 NSWLR 545 — authorised New South Wales Law Reports

How we can help

Parke Lawyers advises on urgent evidence-preservation litigation, and coordinates counsel, independent solicitors and forensic experts where required. For applicants, that means assessing whether the rule 37B.03 test can realistically be met, whether a less intrusive step would do, and what disclosure and undertakings an application would involve. For respondents who have just been served, it means prompt advice on the order's terms, the handling of privileged and confidential material, and any application to vary or discharge.

Our litigation and dispute resolution practice works with our commercial and business law team on these matters. Whether an order is made, and on what terms, is always a matter for the Court.