Victorian Numbered Regulations Victorian Numbered RegulationsSCHEDULE B 7
AFFIDAVITS RELIED ON
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Name of Deponent of Affidavit |
Date Affidavit Made |
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NAME AND ADDRESS OF APPLICANT'S LEGAL REPRESENTATIVES
The applicant's legal representatives are—
[ Name, address, reference, fax and telephone numbers both in and out of office hours and e-mail ]
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1 The words " without notice to you " and " after the Court has read the affidavits listed in Schedule B to this order " are appropriate only in the case of an order without notice.
2 Paragraph 1 is appropriate only in the case of an order without notice.
3 Paragraph 2 is appropriate only in the case of an order without notice.
4 See Practice Note paragraphs 13 and 14.
5 For example, if the respondent pays money into Court or provides security, as provided for in paragraph 12 of the Order.
6 See Practice Note paragraph 17.
7 Schedule B is appropriate only in the case of an order without notice.
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Rule 37B.02
[ title of proceeding ]
PENAL NOTICE
TO: [ name of person against whom the order is made ]
IF YOU (BEING THE PERSON BOUND BY THIS ORDER):
(A) REFUSE OR NEGLECT TO DO ANY ACT WITHIN THE TIME SPECIFIED IN THE ORDER FOR THE DOING OF THE ACT; OR
(B) DISOBEY THE ORDER BY DOING AN ACT WHICH THE ORDER REQUIRES YOU TO ABSTAIN FROM DOING,
YOU WILL BE LIABLE TO IMPRISONMENT, SEQUESTRATION OF PROPERTY 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 Justice [ insert name of Judge ] 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 solicitor has given to the Court the applicant's solicitor's undertakings set out in Schedule B to this order.
Each independent solicitor has given to the Court the independent solicitor'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.
(b) 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 Justice [ insert name of Judge ].
3. You may apply to the Court at any time to vary or discharge
this order including, if necessary, by telephone to the Judge referred to in
the
immediately preceding paragraph (telephone no. )
or to the
Judge in the Practice Court
(telephone no. ).
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—
(a) "applicant" means the person who applied for this search order, and if there is more than one applicant, includes all the applicants;
(b) "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;
(c) "independent solicitor" means the person identified as the independent solicitor in the search party referred to in Schedule A to this order;
(d) "listed thing" means the things referred to in Schedule A to this order;
(e) "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;
(f) "search party" means the persons identified or described as constituting the search party in Schedule A to this order;
(g) "thing" includes document;
(h) "you" , where there is more than one of you, includes all of you and includes you if you are a corporation;
(i) any requirement that something shall be done in your presence means—
(i) in the presence of you or of one of the persons described in paragraph 6 below; or
(ii) 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—
(a) yourself;
(b) any director, officer, partner and responsible employee or agent of yourself; or
(c) 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 solicitor.
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—
(a) 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;
(b) 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;
(c) disclose to them the whereabouts of all the listed things in the respondent's possession, custody or power, whether at the premises or otherwise;
(d) 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;
(e) 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;
(f) permit the independent solicitor to remove from the premises into the independent solicitor's custody—
(i) the listed things or things which reasonably appear to the independent solicitor to be the listed things and any things the subject of dispute as to whether they are listed things;
(ii) the copies, photographs, films, samples, tests, other records and printed out documents referred to above; and
(g) 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 solicitor 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—
(a) the independent solicitor 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
(b) you are entitled to read this order and to have the independent solicitor explain the terms of this order to you.
12. Before permitting entry to the premises by anyone other than the independent solicitor, you, for a time (not to exceed two hours from the time of service or such longer period as the independent solicitor may permit)—
(a) may seek legal advice;
(b) may ask the Court to vary or discharge this order;
(c) (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 solicitor in (if you wish) a sealed envelope or container; and
(d) 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 solicitor in (if you wish) a sealed envelope or container.
13. Subject to paragraph 22 below, the independent solicitor must not inspect or permit to be inspected by anyone, including the applicant and the applicant's solicitors, any thing handed to the independent solicitor in accordance with paragraphs 12(c) and (d) above and the independent solicitor 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—
(a) inform and keep the independent solicitor informed of the steps being taken;
(b) permit the independent solicitor to enter the premises but not to start the search;
(c) not disturb or remove any listed things; and
(d) 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 solicitor 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 solicitor 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 solicitors a copy of the list signed by the independent solicitor.
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 solicitor to be your director, officer, partner or employee, agent or other person acting on your behalf or on your instructions.
18. If the independent solicitor is satisfied that full compliance with the immediately preceding paragraph is not reasonably practicable, the independent solicitor may permit the search to proceed and the listed things to be removed without full compliance.
19. The applicant's solicitors and the independent solicitor 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 solicitors ( "the independent computer expert" ).
(b) Any search of a computer must be carried out only by the independent computer expert.
(c) 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.
(d) 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.
(e) 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 solicitor, together with a report of what the independent computer expert has done including a list of such electronic and hard copies.
(f) The independent solicitor 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.
(g) If no independent computer expert has been appointed, but the independent solicitor 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 solicitor may remove the computer from the premises for that purpose and cause that purpose to be achieved.
21. (a) Unless you are a corporation, you are entitled to object to paragraphs 20(b) to (f) on the ground that they might tend to incriminate you or make you liable to a civil penalty.
(b) You are entitled to object to paragraphs 20(b) to (f) on the ground that the computer contains material that is otherwise privileged.
(c) Upon communicating any objection under sub-paragraph (a) or (b) to the independent solicitor, paragraphs 20(b) to (f) become inoperative to the extent that you have objected to them. In that event, if the applicant's solicitor communicates to the independent solicitor that the applicant proposes to contest the objection—
(i) the independent computer expert shall remove the computer hard drive (or, if that is not practicable, the computer) from the premises and deliver it into the custody of the independent solicitor who shall deliver it to the Court at or prior to the return date;
(ii) on the return date or on another date, the applicant may apply to the Court for orders to similar effect as paragraphs 20(b) to (f) and if you object, the Court may adjudicate upon your objection.
INSPECTION
22. Prior to the return date, you or your solicitor or representative shall be entitled, in the presence of the independent solicitor, to inspect any thing removed from the premises and to—
(a) make copies of the same; and
(b) provide the independent solicitor 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—
(a) 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—
(i) the location of the listed things;
(ii) the name and address of everyone who has supplied you, or offered to supply you, with any listed thing;
(iii) the name and address of every person to whom you have supplied, or offered to supply, any listed thing; and
(iv) details of the dates and quantities of every such supply and offer; and
(b) within [ ] working days after being served with this order, swear 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 that compliance with paragraph 23 may tend to incriminate you or make you liable to a civil penalty.
(b) This paragraph 24 also applies if you are a corporation and all of the persons who are able to comply with paragraph 23 on your behalf and with whom you have been able to communicate, wish to object that compliance with paragraph 23 may tend to incriminate them or make them liable to a civil penalty.
(c) You must, at or before the further hearing on the return date (or within such further time as the Court may allow) notify the applicant in writing that you or all the persons referred to in sub-paragraph (b) wish to take such objection and identify the extent of the objection.
(d) If you give such notice, you need comply with paragraph 23 only to the extent, if any, that is possible without disclosure of the material in respect of which the objection is taken.
(e) If you give such notice, the Court may give directions as to the filing and service of affidavits setting out such matters as you or the persons referred to in sub-paragraph (b) wish to place before the Court in support 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.
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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 solicitor: [ insert name and address ]
2. The applicant's solicitor or solicitors:
(a) [ insert name and address ] [or description e.g. a partner or employed solicitor] of [ name of firm ];
(b) [ insert name and address ] [or description e.g. a partner or employed solicitor] of [ name of firm ];
(c) [ insert name and address ] [or description e.g. a partner or employed solicitor] of [ name of firm ].
3. Other members of the search party:
(a) [ insert name and address ] in the capacity of [ e.g. an independent computer expert ];
(b) [ insert name and address ] in the capacity of [ insert capacity ].
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SCHEDULE B
UNDERTAKINGS GIVEN TO THE COURT
Undertakings given to the Court by the applicant:
(1) The applicant undertakes to submit to such order (if any) as the Court may consider to be just for the payment of compensation (to be assessed by the Court or as it may direct) to any person (whether or not a party) affected by the operation of the order.
(2) The applicant will not, without leave of the Court, use any information, document or thing obtained as a result of the execution of this order for the purpose of any civil or criminal proceeding, either within or outside Australia, other than this proceeding.
(3) The applicant will not inform any other person of the existence of this proceeding except for the purposes of this proceeding until after 4.30 p.m. on the return date.
(4) If the applicant has not already done so, as soon as practicable the applicant will file a copy of this order and [ describe documents required to be filed ].
[(5) The applicant will insure the things removed from the premises against loss or damage for an amount that reasonably appears to the applicant to be their full value.] 2
[(6) The applicant will 3 —
(a) on or before [ insert date ] cause a written irrevocable undertaking to pay in the sum of $ [ insert amount ] to be issued from a bank with a place of business within Australia, in respect of any order the Court may make referred to in the undertaking as to damages referred to in undertaking (1) above; and
(b) immediately upon issue of the irrevocable undertaking to pay, cause a copy of it to be served on the respondent.]
Undertakings given to the Court by the applicant's solicitor:
(1) The applicant's solicitor will pay the reasonable costs and disbursements of the independent solicitor and of any independent computer expert.
(2) The applicant's solicitor will provide to the independent solicitor for service on the respondent copies of this order and the documents which are listed in Schedule C.
(3) The applicant's solicitor will answer at once to the best of his or her ability any question as to whether a particular thing is a listed thing.
(4) The applicant's solicitor will use his or her best endeavours to act in conformity with the order and to ensure that the order is executed in a courteous and orderly manner and in a manner that minimises disruption to the respondent.
(5) The applicant's solicitor will not, without leave of the Court, use any information, document or thing obtained as a result of the execution of this order for the purpose of any civil or criminal proceeding, either within or outside Australia, other than this proceeding.
(6) The applicant's solicitor will not inform any other person of the existence of this proceeding except for the purposes of this proceeding until after 4.30 p.m. on the return date.
(7) The applicant's solicitor will not disclose to the applicant any information that the solicitor acquires during or as a result of execution of the search order, without leave of the Court.
(8) The applicant's solicitor will use his or her best endeavours to follow all directions of the independent solicitor.
Undertakings given to the Court by the independent solicitor:
(1) The independent solicitor will use his or her best endeavours to serve the respondent with this order and the other documents referred to in undertaking (2) of the above undertakings by the applicant's solicitor or solicitors.
(2) Before entering the premises, the independent solicitor will—
(a) offer to explain the terms of the search order to the person served with the order and, if the offer is accepted, do so;
(b) inform the respondent of his or her right to take legal advice.
(3) Subject to undertaking (4) below, the independent solicitor will retain custody of all things removed from the premises by the independent solicitor pursuant to this order until delivery to the Court or further order of the Court.
(4) At or before the hearing on the return date, the independent solicitor will provide a written report on the carrying out of the order to the Court and provide a copy to the applicant's solicitors and to the respondent or the respondent's solicitors. The report will attach a copy of any list made pursuant to the order and a copy of any report received from an independent computer expert.
(5) The independent solicitor will use his or her best endeavours—
(a) to ensure that members of the search party act in conformity with the order; and
(b) to ensure that the order is executed in a courteous and orderly manner and in a manner that minimises disruption to the respondent; and
(c) to give such reasonable directions to other members of the search party as are necessary or convenient for the execution of the order.
(6) The independent solicitor will not, without leave of the Court, use any information, document or thing obtained as a result of the execution of this order for the purpose of any civil or criminal proceeding, either within or outside Australia, other than this proceeding.
(7) The independent solicitor will not inform any other person of the existence of this proceeding except for the purposes of this proceeding until after 4.30 p.m. on the return date.
Undertakings given to the Court by the independent computer expert:
(1) The independent computer expert will use his or her best endeavours to act in conformity with the order and to ensure that the order, so far as it concerns the independent computer expert, is executed in a courteous and orderly manner and in a manner that minimises disruption to the respondent.
(2) The independent computer expert will not, without leave of the Court, use any information, document or thing obtained as a result of the execution of this order for the purpose of any civil or criminal proceeding, either within or outside Australia, other than this proceeding.
(3) The independent computer expert will not inform any other person of the existence of this proceeding except for the purposes of this proceeding until after 4.30 p.m. on the return date.
(4) The independent computer expert will use his or her best endeavours to follow all directions of the independent solicitor.
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