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.

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.

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 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 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.

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 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.