Schedule B is appropriate only in the case of an order without notice.
7 Schedule B is appropriate only in the case of an order without notice.
Form 37BA—Search order
Rule 37B.02(2)
Search Order
[title of proceeding]
PENAL NOTICE
TO: [name of person against whom the order is made]
IF YOU (BEING THE PERSON BOUND BY THIS ORDER):
REFUSE OR NEGLECT TO DO ANY ACT WITHIN THE TIME SPECIFIED IN THE ORDER FOR THE DOING OF THE ACT; OR
DISOBEY THE ORDER BY DOING AN ACT WHICH THE ORDER REQUIRES YOU TO ABSTAIN FROM DOING,
YOU WILL BE LIABLE TO IMPRISONMENT, OR OTHER PUNISHMENT.
ANY OTHER PERSON WHO KNOWS OF THIS ORDER AND DOES ANYTHING WHICH HELPS OR PERMITS YOU TO BREACH THE TERMS OF THIS ORDER MAY BE SIMILARLY PUNISHED.
TO: [name of person against whom the order is made]
This is a search order made against you on [insert date] by Magistrate [insert name of Magistrate] at a hearing without notice to you after the applicant has given to the Court the undertakings set out in Schedule B to this order and after the Court has read the affidavits listed in Schedule C to this order.
The applicant has given to the Court the applicant's undertakings set out in Schedule B to this order.
The applicant's Australian lawyer has given to the Court the applicant's Australian lawyer's undertakings set out in Schedule B to this order.
Each independent Australian lawyer has given to the Court the independent Australian lawyer's undertakings set out in Schedule B to this order.
Each independent computer expert has given to the Court the independent computer expert's undertakings set out in Schedule B to this order.
THE COURT ORDERS:
INTRODUCTION
1. (a) The application for this order is made returnable immediately.
The time for service of [describe documents required to be served] is abridged and service is to be effected by [insert time and date].
2. Subject to the next paragraph, this order has effect up to and including [insert date] ("the return date"). On the return date at [insert time] a.m./p.m. there will be a further hearing in respect of this order before Magistrate [insert name of Magistrate].
3. You may apply to the Court at any time to vary or discharge this order.
4. This order may be served only between [insert time] a.m./p.m. and [insert time] a.m./p.m. [on a business day]1.
5. In this order—
applicant means the person who applied for this search order, and if there is more than one applicant, includes all the applicants;
independent computer expert means the person (if any) identified as the independent computer expert in the search party referred to in Schedule A to this order;
independent Australian lawyer means the person identified as the independent Australian lawyer in the search party referred to in Schedule A to this order;
listed thing means the things referred to in Schedule A to this order;
premises means the premises and any of the premises identified in Schedule A to this order including any vehicles and vessels that are under the respondent's control on or about those premises or that are otherwise identified in Schedule A;
search party means the persons identified or described as constituting the search party in Schedule A to this order;
thing includes document;
you, where there is more than one of you, includes all of you and includes you if you are a corporation;
any requirement that something must be done in your presence means—
in the presence of you or of one of the persons described in paragraph 6 below; or
if there is more than one of you, in the presence of each of you or, in relation to each of you, in the presence of one of the persons described in paragraph 6 below.
6. This order must be complied with by you by—
yourself;
any director, officer, partner and responsible employee or agent of yourself; or
any other person having responsible control of the premises.
7. This order must be served by, and be executed under the supervision of, the independent Australian lawyer.
ENTRY AND SEARCH
8. Subject to paragraphs 10 to 19 below, upon service of this order you must permit members of the search party to enter the premises so that they can carry out the search and other activities referred to in this order.
9. Having permitted members of the search party to enter the premises, you must—
permit them to leave and re-enter the premises on the same and the following day until the search and other activities referred to in this order are complete;
permit them to search for and inspect the listed things and to make or obtain a copy, photograph, film, sample, test or other record of the listed things;
disclose to them the whereabouts of all the listed things in the respondent's possession, custody or power, whether at the premises or otherwise;
disclose to them the whereabouts of all computers, computer disks and electronic information storage devices or systems at the premises in which any documents among the listed things are or may be stored, located or recorded and cause and permit those documents to be printed out;
do all things necessary to enable them to access the listed things, including opening or providing keys to locks and enabling them to access and operate computers and providing them with all necessary passwords;
permit the independent Australian lawyer to remove from the premises into the independent Australian lawyer's custody—
the listed things or things which reasonably appear to the independent Australian lawyer to be the listed things and any things the subject of dispute as to whether they are listed things;
the copies, photographs, films, samples, tests, other records and printed out documents referred to above; and
permit the independent computer expert (if there is one) to search any computer and make a copy or digital copy of any computer hard drive and permit the independent computer expert (if any) or the independent Australian lawyer to remove any computer hard drive and computer from the premises as set out in paragraphs 20 and 21 below.
RESTRICTIONS ON ENTRY, SEARCH AND REMOVAL
10. This order must not be executed at the same time as the execution by the police or other proper authority of a search warrant.
11. You are not required to permit anyone to enter the premises until—
the independent Australian lawyer serves you with copies of this order and the documents referred to in Schedule C (confidential exhibits, if any, need not be served until further order of the Court); and
you are entitled to read this order and to have the independent Australian lawyer explain the terms of this order to you.
12. Before permitting entry to the premises by anyone other than the independent Australian lawyer, you, for a time (not to exceed 2 hours from the time of service or such longer period as the independent Australian lawyer may permit)—
may seek legal advice;
may ask the Court to vary or discharge this order;
(provided you are not a corporation) may gather together any things which you believe may tend to incriminate you or make you liable to a civil penalty and hand them to the independent Australian lawyer in (if you wish) a sealed envelope or container; and
may gather together any documents passing between you and your lawyers for the purpose of obtaining legal advice or otherwise subject to legal professional privilege or client legal privilege, and hand them to the independent Australian lawyer in (if you wish) a sealed envelope or container.
13. Subject to paragraph 22 below, the independent Australian lawyer must not inspect or permit to be inspected by anyone, including the applicant and the applicant's Australian lawyers, any thing handed to the independent Australian lawyer in accordance with paragraphs 12(c) and (d) above and the independent Australian lawyer must deliver it to the Court at or prior to the hearing on the return date.
14. During any period referred to in paragraph 12 above, you must—
inform and keep the independent Australian lawyer informed of the steps being taken;
permit the independent Australian lawyer to enter the premises but not to start the search;
not disturb or remove any listed things; and
comply with the terms of paragraphs 25 and 26 below.
15. Any thing the subject of a dispute as to whether it is a listed thing must promptly be handed by you to the independent Australian lawyer for safekeeping pending resolution of the dispute or further order of the Court.
16. Before removing any listed thing from the premises (other than the things referred to in the immediately preceding paragraph), the independent Australian lawyer must supply a list of them to you, give you a reasonable time to check the correctness of the list, and give you and the applicant's Australian lawyers a copy of the list signed by the independent Australian lawyer.
17. The premises must not be searched, and things must not be removed from the premises, except in the presence of you or of a person who appears to the independent Australian lawyer to be your director, officer, partner or employee, agent or other person acting on your behalf or on your instructions.
18. If the independent Australian lawyer is satisfied that full compliance with the immediately preceding paragraph is not reasonably practicable, the independent Australian lawyer may permit the search to proceed and the listed things to be removed without full compliance.
19. The applicant's Australian lawyers and the independent Australian lawyer must not allow the applicant in person to inspect or have copies of any thing removed from the premises nor communicate to the applicant information about their contents or about anything observed at the premises until 4.30 p.m. on the return date or other time fixed by further order of the Court.
COMPUTERS
20. (a) If it is expected that a computer will be searched, the search party must include a computer expert who is independent of the applicant and of the applicant's Australian lawyers (the independent computer expert).
Any search of a computer must be carried out only by the independent computer expert.
The independent computer expert may make a copy or digital copy of the computer hard drive and remove that copy or digital copy from the premises.
The independent computer expert may search the computer or the copy or digital copy of the computer hard drive at the premises or away from the premises or both for listed things and may copy the listed things electronically or in hard copy or both.
The independent computer expert must as soon as practicable and, in any event, prior to the hearing on the return date, deliver the copy or digital copy of the computer hard drive and all electronic and hard copies of listed things to the independent Australian lawyer, together with a report of what the independent computer expert has done including a list of such electronic and hard copies.
The independent Australian lawyer must, at or prior to the hearing on the return date, deliver to the Court all things received from the independent computer expert and serve a copy of the latter's report on the parties.
If no independent computer expert has been appointed, but the independent Australian lawyer considers it necessary to remove a computer from the premises for safekeeping or for the purpose of copying its contents electronically and printing out information in documentary form, the independent Australian lawyer may remove the computer from the premises for that purpose and cause that purpose to be achieved.
21. (a) This paragraph 21 applies if you are not a corporation and you wish to object to complying with paragraph 20 on the grounds that some or all of the information required to be disclosed may tend to prove that you—
have committed an offence against or arising under an Australian law or a law of a foreign country; or
are liable to a civil penalty.
This paragraph 21 also applies if you are a corporation and all persons who are able to comply with paragraph 20 on your behalf and with whom you have been able to communicate, wish to object to your complying with paragraph 20 on the grounds that some or all of the information required to be disclosed may tend to prove that they respectively—
have committed an offence against or arising under an Australian law or a law of a foreign country; or
are liable to a civil penalty.
You must—
disclose so much of the information required to be disclosed to which no objection is taken; and
prepare an affidavit containing so much of the information required to be disclosed to which objection is taken and deliver it to the Court in a sealed envelope; and
file and serve on each other party a separate affidavit setting out the basis of the objection.
INSPECTION
22. Prior to the return date, you or your Australian lawyer or representative shall be entitled, in the presence of the independent Australian lawyer, to inspect any thing removed from the premises and to—
make copies of the same; and
provide the independent Australian lawyer with a signed list of things which are claimed to be privileged or confidential and which you claim ought not to be inspected by the applicant.
PROVISION OF INFORMATION
23. Subject to paragraph 24 below you must—
at or before the further hearing on the return date (or within such further time as the Court may allow) to the best of your ability inform the applicant in writing as to—
the location of the listed things;
the name and address of everyone who has supplied you, or offered to supply you, with any listed thing;
the name and address of every person to whom you have supplied, or offered to supply, any listed thing; and
details of the dates and quantities of every such supply and offer; and
within [insert number of days] working days after being served with this order, swear or affirm and serve on the applicant an affidavit setting out the above information.
24. (a) This paragraph 24 applies if you are not a corporation and you wish to object to complying with paragraph 23 on the grounds that some or all of the information required to be disclosed may tend to prove that you—
have committed an offence against or arising under an Australian law or a law of a foreign country; or
are liable to a civil penalty.
This paragraph 24 also applies if you are a corporation and all persons who are able to comply with paragraph 23 on your behalf and with whom you have been able to communicate, wish to object to your complying with paragraph 23 on the grounds that some or all of the information required to be disclosed may tend to prove that they respectively—
have committed an offence against or arising under an Australian law or a law of a foreign country; or
are liable to a civil penalty.
You must—
disclose so much of the information required to be disclosed to which no objection is taken; and
prepare an affidavit containing so much of the information required to be disclosed to which objection is taken and deliver it to the Court in a sealed envelope; and
file and serve on each other party a separate affidavit setting out the basis of the objection.
PROHIBITED ACTS
25. Except for the sole purpose of obtaining legal advice, you must not, until 4.30 p.m. on the return date, directly or indirectly inform any person of this proceeding or of the contents of this order, or tell any person that a proceeding has been or may be brought against you by the applicant.
26. Until 4.30 p.m. on the return date you must not destroy, tamper with, cancel or part with possession, power, custody or control of the listed things otherwise than in accordance with the terms of this order or further order of the Court.
COSTS
27. The costs of this application are reserved.
SCHEDULE A
Premises
The premises located at [insert address or addresses] including any vehicle or vessel or vehicles or vessels under the respondent's control on or about those premises.
Listed things
1.
2.
3.
Search party
1. The independent Australian lawyer: [insert name and address]
2. The applicant's Australian lawyer or Australian lawyers:
[insert name and address] [or description e.g. a partner or employed Australian lawyer] of [name of firm];
[insert name and address] [or description e.g. a partner or employed Australian lawyer] of [name of firm];
[insert name and address] [or description e.g. a partner or employed Australian lawyer] of [name of firm].
3. Other members of the search party:
[insert name and address] in the capacity of [e.g. an independent computer expert];
[insert name and address] in the capacity of [insert capacity].
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