‘Green’ metal start-up Element Zero launches its appeal against Fortescue ruling
Element Zero has lodged an appeal against a judge’s decision to let mining giant Fortescue seize millions of files from the homes and offices of its staff as part of an intellectual property fight.
A so-called “green metal” start-up has lodged an appeal in a bid overturn a judge’s decision that allowed mining giant Fortescue to seize millions of files from the homes and offices of its staff as part of a battle over intellectual property.
Element Zero, founded by ex-Fortescue executives Michael Masterman, Bart Kolodziejczyk and Bjorn Winther-Jensen, is accused of stealing the Andrew Forrest’s clean energy trade secrets before they launched their own business.
Fortescue secured search orders from a Federal Court judge in May. The orders allowed it to carry out surprise raids on the houses of Dr Kolodziejczyk and Dr Winther-Jensen to seize millions of files for their case off the back of what the Element Zero personnel described as “unprecedented” surveillance.
Mr Masterman and Dr Kolodziejczyk challenged the initial decision to grant Fortescue the search orders, but Federal Court judge Brigitte Markovic dismissed their application.
A Fortescue spokesman reiterated a previous statement about the case.
“Fortescue will vigorously defend Element Zero’s attempt to have the decision of the court overturned,” he said.
“Two Federal Court judges have found a strong prima facie case that the Element Zero parties misused Fortescue’s confidential information and breached its rights.
“Fortescue remains committed to protecting its intellectual property and investment in green technologies, and looks forward to progressing the matter to a final trial.”
Technically, one judge found Fortescue had a strong prima facie case. Justice Markovic was not satisfied Element Zero proved Fortescue had a weak prima facie case.
Now, the Element Zero team has lodged an appeal against Justice Markovic’s decision to allow the search orders. She had found Fortescue failed to inform the primary judge about a series of meetings that took place involving the two companies and a subsequent nondisclosure agreement that was signed by Mr Masterman.
“The primary judge erred in failing to set aside the search orders made by the duty judge on 14 May, 2024 … after finding there was a material nondisclosure by Fortescue when making their ex parte application,” the appeal application says.
“The primary judge ought to have set aside the search orders, in whole or in part.”
Justice Markovic found that it was not “Fortescue’s intention to mislead the court” and there was no misuse of the search orders as alleged.
But Element Zero disagreed, and its application also said the judge erred because Fortescue did not disclose that Dr Kolodziejczyk had been instructed to work from home after he gave his notice to quit.
The application said that as a result, Dr Kolodziejczyk worked on his personal devices and communicated with Fortescue colleagues – including by sending them documents containing the work he was doing.
“The primary judge erred in exercising a discretion not to set aside the search orders,” the application reads.
Element Zero said it was not right to form the view that Fortescue had a strong prima facie case and the material non disclosure would not have changed the court’s decision. Justice Markovic made those observations in her judgment, when she chose to not set aside the search orders.
Justice Markovic also said in her judgment that Element Zero failed to explain why the Fortescue case was unwarranted.
Element Zero said Justice Markovic erred in her reasons not to dispel the orders when she found there was a lack of utility in doing so, and when Fortescue could apply for the search orders to be made again and independent experts had already filed their reports.
Mr Masterman and Dr Kolodziejczyk have asked the court to allow their appeal and an order that the search orders be dismissed.
An Element Zero spokesman declined to comment on Wednesday, but in a previous statement he said the company maintained that the original search orders were carried out “after unprecedented surveillance of Element Zero employees and strangers by private investigators”.
“(This) represented massive overreach by Fortescue,” he said.
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