Element Zero and Fortescue ‘look forward’ to green steel court fight after court update

Andrew Forrest and two former executives who left to start their own green steel company say they are looking forward to a courtroom battle in their dispute over intellectual property.

Former Fortescue (L-R) Chief Scientist Bart Kolodziejczyk and CFO Michael Masterman arriving at the Federal Court today. Picture: Jane Dempster/the Australian.

Andrew Forrest’s Fortescue appears to have secured a preliminary win in its extraordinary court fight with would-be green steel competitor, Element Zero.

Federal Court judge Brigitte Markovic dismissed an application brought by ex-Fortescue staff Bart Kolodziejczyk and Michael Masterman to have extraordinary search orders — which green-lit raids on their homes and offices, and resulted in the seizure of millions of documents including personal photos — thrown out.

But Justice Markovic withheld publishing her reasons behind the judgement so the parties could propose redactions, according to orders published on Friday.

Dr Kolodziejczyk and Mr Masterman argued the orders, granted secretly in May, were based on “misleading information”.

Former Fortescue CFO Michael Masterman leaving the Federal Court. Jane Dempster/the Australian.

A Fortescue spokesman said: “Fortescue remains committed to protecting its intellectual property and investment in green technologies, and looks forward to progressing the matter to a final trial.”

While Justice Markovic dismissed the bulk of their application, an Element Zero spokesman said the court vacated certain orders in relation to the 12 million files seized as part of the search orders, “including confidential information of Fortescue competitors”.

“The effect of the decision is that the material is quarantined and the parties can now move into the standard phases of the proceedings,” the spokesman said.

“Element Zero maintains that the original search orders, which were carried out after unprecedented surveillance of Element Zero employees and strangers by private investigators, represented massive overreach by Fortescue,” he said.

“Element Zero continues to rapidly advance its green metals technology, with its trial plant near Perth already producing high-quality green iron and the development of its Pilbara operations proceeding on schedule.”

He said the start-up will “demonstrate its technology was developed independently of Fortescue” and said that the company would review the judgement before making a decision about whether to appeal it.

Fortescue executive chairman Andrew Forrest at Beijing. Credit: Supplied

“Element Zero continues to believe Fortescue’s legal action is unnecessary and entirely without merit and looks forward to the matter going to trial,” he said.

Element Zero will have to pay Fortescue’s costs.

Fortescue sensationally claimed the men stole Fortescue’s intellectual property, including claims that Dr Kolodziejczyk and Dr Winther-Jensen deleted emails and documents relating to the green steel concept from their personal laptops just before they resigned.

Private investigators, lead by former SAS soldier Robert Lancaster, spied on the former Fortescue executives — along with Bjorn Winther-Jensen — for up to 17 hours a day in the lead up to the raids to determine the location of the men and if social workers need to attend due to minors.

But lawyers for the start-up argued Fortescue’s spies overreached, including by following the wives of Dr Kolodziejczyk and Dr Winther-Jensen to Kmart and rummaging through mail and garbage bins.

They also took pictures of their children leaving school.