New Zealand: Anton Piller Orders Get A Makeover

Last Updated: 3 June 2009
Article by Rick Hargreaves

Readers may recall that over the last three years there has been some controversy over whether the Employment Court and Employment Relations Authority (ERA) could issue Anton Piller orders. The resounding legal answer was – no they cannot. But after a recent revamp of the High Court Rules, the Employment Court, but not the ERA, now has jurisdiction to issue Anton Piller orders.

What Is It?

For those not familiar with the old Anton Piller order, this is the 'nuclear bomb' of civil remedies. It enables plaintiffs to enter private premises to search for confidential information or intellectual property if they can satisfy the court that this material has been wrongfully taken and may be on the premises. It is not a warrant in the sense of a 'police warrant' but it has a lot of similar qualities eg the legal searching of private premises.

These orders do not empower the employer's representatives to use force to gain entrance into an employee's premises. But if the employee does not allow the people authorised by the order entry to their premises, the employee could be held to be in contempt of court.

The Makeover

Anton Piller orders have now been formally incorporated into the High Court Rules and are known as 'Search Orders'. Basically, the former inherent power of the High Court to issue Anton Piller orders has been integrated into the High Court Rules.

The Employment Court can now also issue Search Orders because it can make any order provided for under the High Court rules. The ERA still does not have the jurisdiction to issue such orders.

When Might A Search Order Be Useful?

An employer may want to apply for a Search Order if an employee has taken the employer's confidential information or other property. 'Confidential information' could include client lists, pricing information and trade secrets.

A Search Order will help the employer not only to recover their information/property but may also provide strong evidence for claims against the employee. In one New Zealand case, the employer recovered over $2 million in damages and actual losses.

How Does It Work?

A Search Order is applied for without the person it is to be served on being notified. So an uncomfortable surprise is sprung on the errant employee.

The employer cannot participate in the execution of a Search Order themselves and neither can any director, officer, employee, partner or other person associated with the employer/applicant. Consequently, the people who execute a Search Order on behalf of an employer are likely to be either a solicitor or private investigator with the assistance of a computer forensic expert.

These factors plus the requirement that the applicant pay for an independent solicitor to attend the execution of a Search Order makes applying for, and executing, a Search Order an expensive process. So there has to be a real commercial issue at stake before an employer chooses the Search Order option over the usual court discovery processes.

What Will The Court Need To See?

Because of the invasive nature of a Search Order, an employer applying for one will have to be able to meet the strict criteria of showing:

  • A strong prima face case.
  • That they will suffer serious potential or actual damage if the Search Order is not granted.
  • Sufficient evidence that the employee/respondent has the relevant material and there is a real possibility that the employee/respondent might destroy or hide that material.

Limitations On Search Orders

The employer will still need to decide what court (High Court or Employment Court) they will use.

There is now no doubt that the Employment Court can grant a Search Order against an employee or ex employee. But it remains to be seen whether or not the Employment Court will be prepared to issue such orders against a person or entity that is or was not a party to the original employment relationship between the employer and employee.

There are also other matters that an employer may want to consider when they are 'forum shopping' to see which court they will go to. The Employment Court has a limited jurisdiction to hear tort related matters and it does not have the ability to decide matters that involve the torts of breach of confidentiality, conspiracy and deceit. Also, if there is no term in the employment agreement covering confidential information, then an employer may have to rely on common law breach. In these circumstances, where there are acts or omissions that are not breaches of the terms of employment, the High Court will be the best 'one stop shop' for both a Search Order and to hear the case.

So before an employer embarks on an application for a Search Order, it should consider what its ultimate plans are ie just to pursue the employee or to also go after the new employer or any other person who may have benefited from the employee's unscrupulous conduct.


If an employer is just pursuing an employee, then for economic and jurisdictional reasons they will need to seek a Search Order in the Employment Court. However, if the matter is more complicated and the employer is also pursuing a new employer and/or other associates of the employee, then the High Court jurisdiction is still the most appropriate forum for Search Order applications.

Phillips Fox has changed its name to DLA Phillips Fox because the firm entered into an exclusive alliance with DLA Piper, one of the largest legal services organisations in the world. We will retain our offices in every major commercial centre in Australia and New Zealand, with no operational change to your relationship with the firm. DLA Phillips Fox can now take your business one step further − by connecting you to a global network of legal experience, talent and knowledge.

This publication is intended as a first point of reference and should not be relied on as a substitute for professional advice. Specialist legal advice should always be sought in relation to any particular circumstances and no liability will be accepted for any losses incurred by those relying solely on this publication.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.