Mining company Adani and its Carmichael Rail Network (CRN) have failed in a bid to search the residence of the ‘principal’ of a political activist protest group because they believed he was in illegal possession of “confidential information”.
The Court of Appeal in Brisbane, in a recently published decision, refused the mine and rail network’s application to search the home of Galilee Blockade activist Benjamin Pennings, which he shares with his partner and children, on the grounds they “failed to establish the likelihood” that he had any “confidential information” at all.
The court was told the extraordinary application for the order – commonly referred to as an Anton Piller order – sought to permit members of a “search party” to enter, as well as to “leave and re-enter” Mr Pennings’s residence in an attempt to locate commercially sensitive and confidential material referred to as the ‘Mine Plan.’
Anton Piller orders are searches carried out without notice to the premises of an identified party to ensure that evidence cannot be destroyed and is preserved to be used in judicial proceedings.
Supreme Court judge Jean Dalton dismissed Adani and CRM’s original search application under the Uniform Civil Procedures Rules 1999 (Qld) on June 22, saying they had failed to provide any sworn material to support a claim of “loss or disruption” in their operations as a result of a so-called breach in the release of confidential information.
They also failed when they appealed Justice Dalton’s decision on August 17, with the three Court of Appeal members unanimously ruling the evidence presented to the court as “wholly inadequate to justify the order sought”.
Court of Appeal President Walter Sofronoff QC, in his judgment, was scathing of the search order application.
“They have failed to establish the likelihood that the use of any confidential information has resulted in any loss,” Justice Sofronoff said.
“There is a single instance proven in which protesters appeared at a work site that is said to be in an ‘extremely remote’ location which could not have been known except by reference to the confidential information. It is not said that Mr Pennings was one of them.
“Put at its highest, it may be inferred that at least these activists who appeared at the site found out this confidential information about work being done at this location.
“It says nothing about Mr Pennings’s involvement in accessing the Mine Plan. It is still further from proving, to any standard of proof, that Mr Pennings holds confidential information on a computer at his home.”
The court was told Mr Pennings was the “principal” of a group of political activists, called the Galilee Blockade, whose objective was to prevent the development of the mine and the railway on the ground that their development and operation would be harmful to the environment.
Adani and CMR claimed Mr Pennings was in possession of information to which only company executives and other select staff and contractors had access, and that it was being held at his private residence or on his “home computer”.
The Court of Appeal also noted its concerns surrounding the impact the search could have had on Mr Pennings and his family – particularly his partner and children who also lived at the identified premises.
“When search orders are granted, the relevant premises are usually business premises,” Justice Sofronoff said. “Surely, to permit a search of a defendant’s house, with the humiliation and family distress which that might involve, lies at the outer boundary of the discretion.
“This is because, for reasons that anyone can understand, the ‘shock, anger, confusion’ and the ‘sense of violation and powerlessness’ will be much greater in such a case and may be suffered not only by someone who is proved in due course to be a wrongdoer, but by entirely innocent parties as well.”
Justices Anthe Philippides QC and Peter Davis QC agreed with Justice Sofronoff’s decision to refuse the application.
Read the full Court of Appeal decision.
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