In a recent case concerning a business rivalry between two companies, the plaintiff company, among other things, had alleged that the respondent company and its Directors/Shareholders had used confidential information for their benefit in breach of contractual and fiduciary duties.
Following this, ex-parte search and discovery orders were made by the High Court to conduct a search at the business and residential premises of some of the defendants.
Justice John Faire of the High Court appointed Gurbrinder Aulakh, Barrister & Solicitor as the independent solicitor to supervise the carrying out of the orders.
He was also authorised to assist the Government Registered Private Investigators in the implementation of the Search Order.
Following this, Mr Aulakh, accompanied by the government registered private investigators, conducted the search of the business and residential addresses of the defendants mentioned in the order.
They also seized the material that was the subject of these orders.
A report of the search and seizure was then filed to the High Court.
Some of the electronic equipment seized during the search were not accessible.
Justice Ed Wylie made consent orders requiring the defendants to provide all the passwords, to Mr Aulakh, to access computers seized during the search.
He was also authorised to assist the investigators in copying relevant material from documents and equipment seized.
When the matter came before Duty Judge Justice Patricia Courtney, the defendants, through their lawyer claimed that the appointed independent solicitor lacked the requisite independence due to his proximity with the counsel for the plaintiff.
Later, Justice Matthew Muir made timetabling orders for the production of affidavits.
The matter then came up for hearing before Justice Christian Whata at the High Court on August 3, 2016.
He took note of the High Court rules and the relevant authority that the execution of the order should be supervised by an experienced solicitor from a firm other than the plaintiff’s solicitor.
He took note of the memorandum filed by the independent solicitor. The memorandum noted that he re-qualified in New Zealand and had now been practicing as a barrister & solicitor independently of any other firm.
The Judge considered the certificate of the President of the High Court Bar Association in India certifying that Mr Aulakh, his good friend, has been a lawyer since 1998 and remained on the executive committee of the High Court Bar Association in 2001.
Justice Whata, having considered the application and relevant documents made the observation that “………I am satisfied that Mr Aulakh, having been practicing as a solicitor in India and then in this country for 18 years is amply experienced to bring the requisite independent judgement to the execution process………….”
The High Court upheld Mr Aulakh’s appointment as the independent solicitor and dismissed the application of the defendants.
The defendants have been directed to provide further and better particulars and complete the discovery, while the plaintiffs’ counsel is to provide a detailed explanation as to his interests in the first plaintiff company.