Fortescue Limited v Element Zero Pty Limited (No 2) [2024] FCA 1157

Fortescue Limited v Element Zero Pty Limited (No 2) [2024] FCA 1157

Despite a material non-disclosure regarding non-disclosure of ongoing commercial relationship and meetings/NDA with Element Zero, this did not warrant setting aside the search orders as the threshold for a strong prima facie case and real risk of destruction remained supported by substantial evidence; there was no deliberate intention to mislead and no substantial injustice in maintaining the orders considering their monitored execution and pending supervision of seized material.

Parties
First Applicant: Fortescue Limited; Second Applicant: Fortescue Future Industries Pty Ltd; Third Applicant: FMG Personnel Services Pty Ltd; First Respondent: Element Zero Pty Limited; Second Respondent: Bartlomiej Piotr Kolodziejczyk; Third Respondent: Bjorn Winther-Jensen; Fourth Respondent: Michael George Masterman
Jurisdiction
Australia
Judgment Date
04 October 2024
Procedural Posture
Application to Set Aside Search (anton Piller) Orders / Interlocutory Application—determination of Discharge Application
Outcome
Application dismissed
Legal Topics
Anton Piller Orders, Search Orders, Duty of Candour, Material Non Disclosure, Confidential Information, Breach of Confidence, Corporations Act, Discretion to Discharge Orders
Practice and Procedure Commercial Law Anton Piller Orders Search Orders Duty of Candour Material Non Disclosure Confidential Information Breach of Confidence +2 more

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Parties

Fortescue Limited

First Applicant

Fortescue Future Industries Pty Ltd

Second Applicant

FMG Personnel Services Pty Ltd

Third Applicant

Element Zero Pty Limited

First Respondent

Bartlomiej Piotr Kolodziejczyk

Second Respondent

Bjorn Winther-Jensen

Third Respondent

Michael George Masterman

Fourth Respondent

Procedural Posture

Application to Set Aside Search (anton Piller) Orders / Interlocutory Application—determination of Discharge Application

Legal Issues

  1. 1 Whether search orders (Anton Piller) should be set aside for lack of a strong prima facie case, absence of real risk of destruction of documents, material non-disclosure, excessive pre-order surveillance or overly broad scope

Ratio Decidendi

Despite a material non-disclosure regarding non-disclosure of ongoing commercial relationship and meetings/NDA with Element Zero, this did not warrant setting aside the search orders as the threshold for a strong prima facie case and real risk of destruction remained supported by substantial evidence; there was no deliberate intention to mislead and no substantial injustice in maintaining the orders considering their monitored execution and pending supervision of seized material.

Court Disposition

Application dismissed

Orders

  • The interlocutory application filed by the first, second and fourth respondents on 21 June 2024 is dismissed.
  • The first, second and fourth respondents are to pay the applicants' costs of the interlocutory application.