Lawyers for Mineral Resources’ beleaguered chief Chris Ellison have argued the Federal Court should maintain sweeping gag orders over documents filed in his now-settled row with a former contracts boss, despite staunch opposition from the media.
The documents are central to the two-year court row MinRes, its billionaire owner and ex-contracts boss Steven Pigozzo had been fighting on several fronts until July, when a peace deal brought it to an abrupt end.
Mineral Resources founder Chris Ellison.Credit: Trevor Collens
While a string of allegations had been republished by the media, much of the case had been covered by suppression orders at the request of Ellison’s legal team – which were broadened when both parties asked that more than 16 legal documents be permanently removed from the file post-settlement.
But the move was halted in August after Nine Publishing, the owner of this masthead, applied to intervene.
During a seven-hour hearing on Tuesday, executive counsel for this masthead Larina Alick told the court the orders sought were futile given the volume of information already in the public domain.
Alick also argued the onus should be on Ellison’s lawyers to persuade the court that the ongoing veil of secrecy trumped the principles of open justice, particularly amid the publicity surrounding the ASX-listed company and its billionaire boss’ offshore tax affairs.
“In my submission, this is a clear attempt to whitewash the court file,” Alick told the court.
“There’s no need to perfect the court file, to remove documents that one party asserts should never have been filed.
“There are judgments published about allegations that were pleaded but found to be scandalous … telling the world what those allegations were and why they were wrongly made – there’s no reason this case and these respondents should be treated differently.”
Alick pointed out the difficulty faced by media organisations without access to the restricted documents, who could find themselves unknowingly in breach of the orders if the substance of the claims was sourced by other means.
Ellison’s lawyer Steven Penglis maintained the parties were seeking to remedy “scandalous” and “vexatious” allegations that should never have been placed on the court file.
He warned parties against attempting to “connect the dots”, referencing speculation about the possible overlap between the substance of Pigozzo’s claim and the revelations of misconduct that have cost Ellison the top job at the mining company he founded.
“The non-publication orders are sought to fortify matters raised previously about allegations that were not just irrelevant but scandalous,” he said.
“We’re seeking to fix something that did not find form and, frankly, should never see the light of day.
“It’s not just us trying to keep [the case] out of the public arena, the pleadings have never received the scrutiny of the court.”
The submissions came after lawyers for MinRes and Ellison were forced to concede several of the documents and allegations they were seeking to suppress were already in the public domain.
Pigozzo’s lawyer backed Penglis’ submissions, arguing it was not necessary to “slice and dice” the documents sentence by sentence to sort their contents, which he said went well beyond what had been reported publicly.
However, Justice Michael Feutrill said the mere fact the parties had agreed the allegations should have been struck out did not mean they should not be published.
He also accepted the submissions of Alick and The West Australian given the carve out of the orders formalised less than a fortnight ago, which allows board members and government agencies access to the top-secret files and could open the door to further dissemination of information.
Feutrill reserved his decision, with a judgment to be handed down at a later date.
The stoush began with contested claims that Pigozzo had engaged in insider trading, pocketed bonuses and misused company secrets before his sacking.
But it escalated when Pigozzo returned fire with a scathing 155-paragraph Fair Work claim against the miner, Ellison and Perth law firm Bennett, which contained explosive allegations that were leaked to the media.
The allegations levelled by the self-proclaimed whistleblower included that Ellison had directed Pigozzo to conceal evidence in a $6 million lawsuit and unlawfully imported COVID-19 testing equipment.
The corporate regulator is in the initial stages of a probe into allegations Ellison and four other executives profited to the tune of millions of dollars in a decade-long offshore tax scheme, revelations thrust into the public arena in a series of articles penned by the Australian Financial Review in October.
The tax scandal has cost Ellison the top job at the diversified miner, which has been dealing with a plummeting share price and debt-laden balance sheet.
The billionaire, who remains the largest shareholder in the $7 billion company, has vowed to pay $18.4 million in penalties over the scheme before he vacates the role of managing director in the next 16 months.
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