Fortescue court case: Element Zero executives put under heavy surveillance

More details have been revealed in the Federal Court about the extraordinary surveillance efforts undertaken by Fortescue to spy on its former executives.

Fortescue founder Andrew Forrest. Picture: NCA NewsWire / Martin Ollman

More details about the extraordinary surveillance detail placed on ex-Fortescue executives amid a court blow-up can be revealed, as news emerges that multiple “operatives” spied on homes for up to 17 hours per day in the lead up to raids.

The Federal Court released a tranche of evidence lodged in the intellectual property war between Andrew Forrest’s Fortescue and its would-be green steel competitor, Element Zero late on Thursday.

A brawl has broken out between the mining giant and its former staff Bart Kolodziejczyk, Bjorn Winther-Jensen and long-term Forrest lieutenant Michael Masterman over allegations they stole Fortescue’s green technology secrets to launch a rival.

In one affidavit, a solicitor acting for Element Zero, Dr Kolodziejczyk and Mr Masterman said the level of surveillance conducted on the men was “highly invasive” and not necessary to confirm their location before raids were executed on their properties to preserve information.

Former Fortescue chief scientist Bart Kolodziejczyk, left, and CFO Michael Masterman outside Federal Court. Picture: Jane Dempster

“The surveillance reports indicate that surveillance was conducted on Mr Masterman’s residential premises in Sydney and Perth, as well as surveillance on Mr Masterman personally,” it read.

“I am not aware of any reason why it was necessary to conduct surveillance on Mr Masterman, given Mr Masterman was not a recipient of a search order.

“I note … the private investigator searched Mr Masterman’s garbage bin and mail box and followed an elderly lady who parked on Mr Masterman’s front lawn to Officeworks.”

As well, the solicitor said Dr Kolodziejczyk and Dr Winther-Jensen’s residences were under “heavy surveillance” between April 21 and May 12, typically for about 14 hours but up to 17 hours a day.

“Surveillance operatives followed Dr Kolodziejczyk closely including to his son’s daycare … and Dr Winther-Jensen to parks, shopping centres and to a cancer awareness charity event,” the solicitor said.

Later he said: “Based on my review of the surveillance reports, I believe additional surveillance was carried out on Mr Masterman that has not been disclosed by Fortescue.”

Other details about the surveillance missions were revealed, including that Element Zero staff were followed by private investigators to their personal residences and shops after leaving the office.

As well, Element Zero’s cleaners were followed by “Fortescue’s surveillance operatives” and title searches were obtained of individuals who visited Element Zero’s office, according to the affidavit.

The affidavit claimed the surveillance reports showed at least 685 hours of surveillance was carried out on the men and their families and staff between April 21 and May 12.

Affidavits were also released that detailed evidence from Dr Winther-Jensen, Dr Kolodziejczyk and Mr Masterman.

Dr Winther-Jensen said he resigned from Fortescue in November 2021 “because I was experiencing significant stress and anxiety” due to the volume of work and deadlines. As well, his sister overseas was battling a significant illness.

He denied purposefully deleting confidential material belonging to Fortescue in his evidence.

Dr Kolodziejczyk claimed in his affidavit “on a number of occasions during my employment at Fortescue, Andrew Forrest … and other representatives of Fortescue requested that I assign intellectual property to Fortescue which I had developed before my time at Fortescue.”

And Mr Masterman denied suggestions that he was terminated from Fortescue, and instead said he resigned on “good terms” including by keeping in regular contact with Dr Forrest.

A Federal Court judge has reserved her decision on whether or not the search orders obtained by Fortescue should be thrown out.