Fortescue Ltd v Element Zero Pty Ltd

This proceeding arose out of a dispute about confidential technology in the green iron space. Fortescue and related applicants sued Element Zero Pty Ltd and several individuals. Logan J’s reasons summarised Fortescue’s pleaded case as alleging "industrial-scale misuse" of confidential information concerning Fortescue’s green, carbon dioxide free iron technology.

The summary in the judgment says the second and third respondents had undertaken and led research and development work for Fortescue. That work included what Fortescue said was a confidential electrochemical process for reducing iron oxide using ionic liquid electrolytes to create metallic iron. Fortescue alleged that, when those respondents resigned in late 2021, information about that process was copied and taken without Fortescue’s knowledge. It further alleged that the information was then used by Element Zero in designing, engineering, constructing and operating an industrial pilot plant for an electrochemical reduction process.

Before the respondents were heard, Fortescue had already obtained Anton Piller search orders on 14 May 2024. These are extraordinary orders aimed at preserving evidence where there is concern it may be destroyed, concealed or removed. Because of that risk, they are usually sought without notice. The court noted that such orders are made only where the judge is satisfied about matters including the prima facie strength of the applicant’s case.

By the time of the first return hearing on 30 May 2024, the matter had shifted from emergency ex parte procedure to contested case management. The respondents appeared, separate counsel represented different respondents, and an independent lawyer involved in the search process also appeared. The parties had reached agreement on some directions, but not on everything. The main live issue was whether the broad secrecy that had accompanied the search orders should continue after execution.

Case names can make it look as though the court has already decided who was right. That had not happened here. Logan J was explicit that there was "no determination whatsoever of the merits" of Fortescue’s claims or of the respondents’ response. The court was not deciding, on 30 May 2024, whether confidential information had in fact been taken or misused.

Instead, the court had to decide a set of practical and procedural questions that commonly arise after Anton Piller orders are executed. Those questions included whether the proceeding should remain suppressed, what confidentiality should continue for particular documents, who could inspect or receive copies of seized material, when respondents had to comply with certain obligations under the search orders, and what timetable should apply for defences and interlocutory applications.

The judgment also records that the respondents had foreshadowed an application to set aside the search orders. That mattered to the timetable. Logan J accepted that the court should not simply force immediate compliance with every post-search obligation if the respondents were about to challenge the validity of the orders themselves. The court considered that doing so might confer a benefit on the applicants to which they would have no entitlement if the search orders were later set aside.

So, although the underlying dispute concerned confidential technology, the legal issue before the court on this occasion was really about the management of an exceptional evidence-preservation process. That distinction is important for businesses reading the case. It tells you what the judgment does and does not establish.

One of the clearest parts of the judgment is the court’s treatment of open justice. Logan J accepted that it is usual, when a search order is first granted, to preserve the anonymity of the application and the parties until the return date. The reason is obvious. Publicity before execution could defeat the purpose of the order by allowing evidence to be destroyed, concealed or moved.

But the judge said that different considerations apply once the matter returns to court after execution. In the ordinary course, court proceedings are conducted in public. Logan J referred to the public administration of justice as integral to confidence in the judicial system and said that confidentiality is not the default position under the Federal Court of Australia Act 1976 (Cth).

The respondents argued that publicity could damage the first respondent’s business and the respondents’ reputations. The court did not say those concerns were fanciful. However, it held that they were not enough to justify ongoing general suppression of the existence of the proceeding or the identity of the parties. Logan J also made a practical point that the respondents’ argument looked only at possible adverse effects on them, without recognising that publicity might also assist them if the search-order process later proved to have gone badly wrong.

The result was a targeted approach. General secrecy ended, but some confidentiality remained in place for particular affidavit annexures and related material until a later case management hearing or further order. The court also required the applicants to file and serve an affidavit in support of any final confidentiality and suppression order for that material three days before the later case management hearing.

The judgment is especially useful for understanding how tightly the court may control material obtained under Anton Piller orders. Search orders are invasive. They permit entry to premises and the preservation of documents or electronic material under court supervision. Because of that, the court imposed and varied safeguards around access to the material.

One key variation was that the applicants’ lawyer and the independent lawyer were not to allow the applicant in person to inspect or have copies of anything removed from the premises, or communicate information about its contents, until 4:30 pm on the later case management hearing date or another time fixed by the court. The undertaking given by each applicant’s lawyer was also varied and extended so that the lawyer would not disclose to the applicant any information acquired during or as a result of execution of the search order until that time.

The court also directed the independent computer expert to retain a digital copy of the relevant computers, storage devices, online accounts and listed things, and not to provide that digital copy to any party except by court order. The expert had to deliver a copy to the independent lawyer by 4 pm on 30 May 2024, and the independent lawyer then had to deliver all things received from the expert to any registry of the Federal Court by 4 pm on 31 May 2024.

Further, the independent lawyer had to provide copies of listed things removed from specified premises to the relevant respondents’ solicitors by 31 May 2024 and file and serve an affidavit attesting to that provision. The court preferred delivery to any registry rather than only the Sydney registry, taking into account where searches occurred, where solicitors were located and the national operation of the Federal Court.

These details matter because they show the court trying to preserve evidence without giving one side an uncontrolled tactical advantage. Logan J also extended the time for compliance with some obligations under orders 23(a) and 23(b) of the search orders. If the respondents filed and served their foreshadowed interlocutory application by 18 June 2024, compliance would be deferred until the case management hearing. If they did not, compliance would be due by 4:30 pm on 18 June 2024. The judge said it would be premature to require written notification and affidavits about the location and disclosure of listed things without accounting for the possibility that the search orders might be challenged and set aside.

For businesses, that is a practical fairness lesson. Search orders are not a free pass to immediate inspection and use of everything seized. The court may quarantine material, control who sees it, and adjust obligations to avoid unfairness while challenges are still possible.

The reasons contain strong language, but it needs to be read carefully. Fortescue’s pleaded case was summarised as alleging "industrial-scale misuse" of confidential information. At the same time, Logan J said affidavits filed by the solicitor for the first, second and fourth respondents gave pause for thought about whether the matter might instead involve what he described as an "industrial-scale forensic debacle" in the obtaining and execution of the search orders.

That observation was not a finding that Fortescue had acted improperly, and it was not a finding that the respondents were right. The judge immediately said that where the truth lay was not for determination that day. The point was that the case was sharply contested and that neither side should present the procedural events as though the merits had already been resolved.

The judgment ends with a caution to all parties to be scrupulous in not misrepresenting, through publicity, the subject matter of the litigation and the controversial position that presently prevailed. That is a practical warning for business owners, founders and executives. In a live dispute, especially one involving confidential technology, public statements can create legal and commercial risk if they overstate what the court has done.

This is not just a media issue. It affects investor updates, customer communications, staff briefings, board papers and fundraising discussions. If your business is involved in litigation, communications should be checked carefully so they do not imply that allegations have been proved when they have not, or that the other side has been cleared when the court has not said that either.

Although this decision is procedural, it has a strong operational message for businesses that build value through know-how rather than patents alone. The dispute arose in a setting where technical personnel were alleged to have worked on a confidential process, later left employment, and then allegedly used related information in another venture. Whether that happened here remains unresolved, but the scenario is familiar across technology, manufacturing, energy and research-heavy businesses.

The first lesson is prevention. If your business depends on confidential methods, process documents, lab records, prototypes, pilot-plant know-how or internal technical data, you need clear contractual and practical controls. Employment agreements, contractor terms, confidentiality obligations, invention assignment clauses, access permissions, device management and structured exit procedures all matter. Courts can preserve evidence after a dispute starts, but they are not a substitute for disciplined information governance.

The second lesson is response. If you suspect confidential information has been taken, speed matters, but so does precision. Exceptional relief such as search orders may be available in the right case, but the court will later scrutinise how the application was made and how the orders were executed. This judgment shows that the process itself can become a major issue. On the other side, if your business is served with or affected by a search order, urgent legal advice is critical. There may be immediate steps available to preserve your position, seek variations, and consider whether the order should be challenged.

The third lesson is publicity planning. Even where early steps are confidential, the existence of the dispute may become public quickly. Businesses should plan for that from day one. That means preserving privilege where appropriate, preparing accurate internal and external messaging, and avoiding statements that outrun the court record.

The published decision is dated 30 May 2024 and records orders made on the first return date after search orders issued on 14 May 2024. The reasons also record a statement of claim filed on 30 April 2024. The orders set a timetable for the next steps in the proceeding, including filing of defences by 18 June 2024, any foreshadowed respondents’ interlocutory application by 18 June 2024, and any applicants’ discovery application by 21 June 2024. The matter was to be listed for a case management hearing not before 24 June 2024 at 9:30 am on a date to be fixed after consultation with the parties.

Because this page is based on the 30 May 2024 reasons, it should be read as a snapshot of the proceeding at that stage. It does not tell you whether the search orders were later set aside, whether the parties settled, or how the underlying confidential information claims were ultimately resolved.

This page is based on the published Federal Court reasons and orders in Fortescue Ltd v Element Zero Pty Ltd [2024] FCA 590, delivered by Logan J on 30 May 2024. The judgment is an interlocutory procedural ruling in the General Division of the Federal Court of Australia.

The published reasons support the account given here of the pleaded allegations as summarised by the court, the purpose and execution of the Anton Piller search orders, the refusal to continue general suppression, the preservation of confidentiality for particular affidavit annexures, the restrictions on inspection of seized material, and the timetable for further interlocutory steps. The reasons do not finally determine the underlying IP dispute and do not disclose the confidential affidavit material referred to in the orders.