Fortescue executives were directing investigator privacy violations

Fortescue executives were directly involved in overseeing private investigators that followed former employees and their families, court documents show.

Fortescue founder Andrew Forrest.

Andrew Forrest’s Fortescue directly instructed private investigators that followed the families of former employees to schools and child care centres and rummaged through their mail, despite the Fortescue founder’s attempts to distance himself from the scandal.

Documents released by the Federal Court late on Friday show that Fortescue employees oversaw the surveillance of three former employees the company has accused of stealing the iron ore giant’s intellectual property, not the external lawyers hired to handle the case, Davies Collison Cave.

The surveillance was conducted to help Fortescue win search orders over the offices of green energy competitor Element Zero, amid allegations three former Fortescue executives – including long-term Forrest lieutenant Michael Masterman – took proprietary information with them when they left the company.

As part of the original authorisation, the homes of two other former employees – Bart Kolodziejczyk and Bjorn Winther-Jensen – were searched by lawyers acting for Fortescue.

When evidence came to light about the behaviour of the investigation firm – which included spying on family shopping trips to Kmart, rummaging through mail and watching the wives and children of former executives for 19 days – Dr Forrest distanced himself from the actions of the private investigators, and threatened to review the contract of Davies Collison Cave.

“I was surprised to learn of the investigations and have been advised by Fortescue’s legal team that they were necessary in order to be granted search orders from the Federal Court,” Dr Forrest said at the time.

“Fortescue’s external legal team have been reminded that they also have an obligation to comply with the company’s values and their engagement is now under review,” he said.

But an affidavit of DCC senior lawyer Paul Dewar, released on Friday, shows that Fortescue both engaged and directly instructed Lancaster Investigations in their surveillance of the three men and their families.

“Fortescue engaged a private investigator firm, Lancasters Investigations, with the aim of establishing the identity and location of each of the respondents to the search order application,” says Mr Dewars affidavit.

“Since 21 April 2024, except in relation to the days of Sunday May 5 and Monday May

6, 2024, Fortescue has received reports from Lancasters Investigations regarding each of

the Respondents to the Search Order Application, including their location.”

The Australian does not suggest Dr Forrest was aware of the actions of Lancaster Investigations, and Dr Forrest has previously denied that he or any member of the board were aware of the extent of the covert surveillance.

Dr Forrest has told other media outlets that Fortescue chief legal counsel Phil McKeiver had offered to resign over the company’s role in the surveillance excess, but that the offer had been refused by joint chief executives Dino Otranto and Mark Hutchinson.

“No board member knew about the private investigator and a very enthusiastic group general counsel and company secretary wanted to demonstrate that you cannot steal technology and then eliminate that technology that the company produced on the way out,” Dr Forrest is quoted as saying.

The new documents expose the lengths taken by the private investigation firm, including searching the rubbish bins and mail at the home of Mr Masterman – who was not the subject of search orders.

Some surveillance is generally required by the Federal Court to obtain such search orders, to work out whether children or vulnerable adults might be present when the search orders are served.

But Lancaster Investigation reports, included in the affidavit of Mr Dewar, go far beyond watching the houses and offices of the former Fortescue executives, and contain deeply personal commentary on the men and their families – all sent to senior executives at the company, including Mr Huber and Fortescue chief legal counsel Phil McKeiver, as well as a second law firm Seyfarth Shaw Australia.

Investigators followed Mr Masterman and used covert cameras to take pictures of the Element Zero director outside restaurants and ahead of his attendance at meetings.

Dr Kolodziejczyk was followed to cafes and restaurants, photographed with his wife and young child – and even followed to a childcare centre.

“The subject’s wife exited the vehicle and assisted the child from the vehicle. It was noted her hair was changed and it appeared as if she had attended a hair salon,” said one of the surveillance reports.

Originally published as Fortescue executives were directing investigator privacy violations