Would a big company drag out a court case in the hope its smaller opponent will run out of money and fold? Surely not. But that’s the accusation levelled against Andrew Forrest’s Fortescue in its case against former executives accused of stealing its trade secrets.
Remember that Fortescue was so concerned about the alleged loss of its intellectual property at the hands of former executives Michael Masterman, Bart Kolodziejczyk and Bjorn Winther-Jensenit hired private detectives to follow them around, then took urgent and secret legal action to raid their homes and businesses to seize computers, phones and business records related to the company they set up, Element Zero.
These days, though, Fortescue seems to be in less of a hurry to prosecute their case over intellectual property theft, throwing up May 2026 as a trial date to prosecute their case.
After months of arguing between the parties over document discovery, and other minutiae of the case, it’s not a point lost on Federal Court judge Brigitte Markovic, heard suggesting this week to Fortescue’s legal team that the case might well “take me to my retirement”.
It is, to be fair, a matter involving complex scientific argument. Phrases like “direct electrochemical reduction processes which includes, but is not limited to, ionic liquid R and D information” are getting bandied around in court. And Fortescue’s raids seized an impossible number of documents to sort through.
But still, Fortescue brought the case, you’d think they’d want to get on with it.
Not according to Element Zero counsel Chris McMeniman, who complained to the court this week that Fortescue wasn’t throwing the full weight of the mining giant’s legal resources at the case and is “seeking to drag out these proceedings against two smaller respondents when they have not adequately resourced it”.
That’s a characterisation of Fortescue’s case that was contested by Fortescue’s counsel, Julian Cooke SC, who argued that it would absolutely take another year to sort through the documents available, and brief expert witnesses to bring the matter to trial – not to mention the time needed on the argy-bargy between parties along the way.
“This case will take me to my retirement, Mr Cooke,” Justice Markovic said. “My successor will be hearing it.”
And, to be fair, Her Honour would have a pretty clear idea about cases that drag on. Before ascending to the Federal Court bench she represented ASIC in its marathon pursuits of HIH Insurance and James Hardie.
In something of a legal coincidence, if you will, the same kinds of accusations have been floating around Fortescue in its defence of a case brought by Paul Tudor’s Kid Shelleen in the US courts, over a failed deal to buy American coal plants and turn them into hydrogen production centres.
Tudor won a minor victory of sorts earlier this month, when a US court ordered Forrest to sit down and be grilled by Kid Shelleen’s lawyers over his involvement in the affair. Those orders are now being challenged by Fortescue, which is arguing that the American billionaire instead needs to apply to a WA court to force Forrest to the table to answer questions.
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