Fortescue Limited v Element Zero Pty Limited (No 3)

Fortescue Limited v Element Zero Pty Limited (No 3) [2025] FCA 1295 is a Federal Court interlocutory decision about whether Fortescue should be allowed to inspect material seized under earlier search orders. The Court dismissed that application.

The decision matters because it shows the Court will not lightly allow a party to inspect seized material once substantial discovery has already taken place. The key point from the catchwords is that the Court was not satisfied there were reasonable grounds for being fairly certain that other relevant documents had not been discovered.

The judgment also dealt with a separate evidence issue. Fortescue wanted to rely on a late affidavit from Dr Grant Jacobsen. The Court refused leave because of the lateness, the prejudice that would be caused, and the limited assistance the evidence would provide on this application.

The parties were Fortescue Limited, Fortescue Future Industries Pty Ltd and FMG Personnel Services Pty Ltd on one side, and Element Zero Pty Limited together with Dr Kolodziejczyk, Dr Winther-Jensen and Mr Masterman on the other. Earlier in the proceeding, the Court had made search orders on 14 May 2024. Those orders were executed and material described as the "Listed Things" was seized.

This judgment did not decide the final rights and wrongs of the broader dispute. Instead, it dealt with a later procedural fight about documents. The reasons say the history leading up to the search orders and a summary of Fortescue's claim were set out in an earlier decision, Fortescue Ltd v Element Zero Pty Ltd (No 2) [2024] FCA 1157. The present judgment then records what happened after that point.

After the earlier decision, Fortescue filed a further amended statement of claim on 23 October 2024. Discovery applications followed from both sides. Fortescue sought discovery from the respondents, Dr Winther-Jensen sought discovery from Fortescue, and the EZ respondents also sought discovery from Fortescue. Those applications were heard in February 2025, and on 26 February 2025 the Court made discovery orders requiring the respondents to provide discovery to Fortescue in 12 categories, with some modifications.

The respondents then served verified lists of documents and produced documents for inspection. The EZ respondents served three verified lists on 29 April 2025 and produced non-confidential documents that day, then confidential documents on 1 May 2025 after confidentiality undertakings were signed. Dr Winther-Jensen served his verified list on 19 May 2025 and produced non-confidential and confidential documents on 20 and 30 May 2025.

Fortescue later complained that the respondents' discovery was deficient. The judgment records that Fortescue itemised 486 alleged deficiencies in the EZ respondents' discovery and 50 alleged deficiencies in Dr Winther-Jensen's discovery. That set up the immediate dispute: Fortescue wanted leave to inspect the seized material itself, while the respondents said they had already carried out extensive discovery, including searches of that seized material.

A major feature of the judgment is the level of detail the respondents gave about their discovery process. That detail mattered because the Court was being asked to decide whether further access to seized material was justified after discovery had already been undertaken.

For the EZ respondents, Ms Dunn gave unchallenged evidence that documents were searched from several sources, including directly from the EZ respondents and from the seized material. Once processed, there were approximately 3 million records in the seized material on which searches were run. The reasons describe a range of search methods. For some categories, searches were run for specific file names, folder names and MD5 checksums. For other categories, keyword searches were used. In some instances, searches were also directed to artefacts of access such as Jump Lists or Link Files. Lawyers at Gilbert + Tobin reviewed documents using Relativity, and Ms Dunn personally reviewed the documents to be produced by way of discovery.

The reasons also explain how particular discovery categories were approached. For example, searches were run for terms such as "ionic liquid", "molten salts", "eutectics", "electrowinning", "electrolyte" and related expressions for one category concerning research involving Ionic Liquid. For categories dealing with specific documents said to have been taken or copied, searches were tailored to the identified documents or to spreadsheets and reports already in evidence. For categories involving USB devices, searches were undertaken of the seized material and devices for documents listed in an independent computer expert's report. For categories involving technical documents, plant and process documents, laboratory books, due diligence material provided to Playground Global, expenditure on pilot or trial plants, and patents and patent applications, the reasons describe targeted searches and manual review steps.

Ms Dunn also gave evidence that searches were undertaken of documents in Mr Masterman's possession, including his personal devices, because he had not been a recipient of the search orders. She said the discovery exercise was large scale and required approximately 400 to 500 hours by Gilbert + Tobin in assisting the EZ respondents to comply with discovery obligations and respond to Fortescue's queries.

For Dr Winther-Jensen, Mr Hales gave evidence that 532,915 documents were searched using technology, 7,557 documents were then reviewed personally, Dr Winther-Jensen reviewed the proposed discovery, and 2,525 documents were produced for inspection. MinterEllison had spent approximately 360 hours on the discovery exercise up to inspection, plus about 90 additional hours responding to issues raised by Fortescue.

This level of procedural detail is the commercial heart of the decision. The Court was not dealing with a bare assertion that discovery had been done. It had evidence of a structured, resource-intensive search and review process across large volumes of material.

The main issue was whether Fortescue should be granted leave to inspect the seized material, described in the reasons as the "Listed Things" seized when the search orders were executed. The catchwords show the Court approached that question in a setting where the parties had already undertaken comprehensive discovery processes, including searches of the seized material itself.

That context was critical. The application was not being decided at the start of the case, before any discovery had occurred. It was being decided after verified lists had been served, documents had been produced, supplementary lists had been provided, and the respondents had put on detailed evidence explaining how discovery had been carried out. The Court therefore had to decide whether Fortescue had shown enough to justify a further and intrusive step.

The catchwords state the Court was not satisfied that there were reasonable grounds for being fairly certain that there were other relevant documents that had not been discovered. On the material available, that is the key threshold point business readers should focus on. The decision indicates that a general concern that discovery may be incomplete is not enough, especially where the other side can show a substantial and documented search process.

A separate issue was whether Fortescue should have leave to rely on the affidavit of Dr Grant Jacobsen. The reasons say there was no dispute that the affidavit had been served late and that leave was required. The respondents opposed leave. The Court heard and determined that issue before the main application because of the nature of the evidence.

Markovic J dismissed prayer 1 of Fortescue's amended interlocutory application. That was the prayer seeking leave to inspect the seized material. The Court also ordered the applicants to pay the respondents' costs of prayer 1 and of prayers 3 and 3A, which Fortescue had abandoned.

The catchwords summarise the core reasoning. Even though search orders had earlier been made and material had been seized, the Court was not satisfied that there were reasonable grounds for being fairly certain that there were other relevant documents that had not been discovered. The fact that the parties had already undertaken comprehensive discovery processes, including searches of the seized material, was central to that conclusion.

The Court also refused leave for Fortescue to rely on Dr Jacobsen's affidavit. The catchwords say the affidavit evidence had been served late, granting leave would cause significant prejudice, and the Court was satisfied the evidence would be of little, if any, assistance in determining the issues in dispute on the application. The reasons identify Dr Jacobsen as an inorganic chemist and Australian patent attorney and summarise the broad scope of his proposed evidence, including opinions about chemical R&D record keeping and whether additional records might be expected to exist. But that evidence was not admitted for the purposes of this application.

Procedurally, the orders also provided for the reasons to be published and disclosed only to the parties and their legal advisers initially, with publication to follow after the parties conferred about any proposed redactions under existing suppression or non-publication orders.

For business owners, this case is a reminder that litigation often turns on systems and process, not just on the underlying accusation. If your business is involved in a dispute about confidential information, technical know-how, employee departures, R&D work, patents or internal documents, the Court may eventually want to know not only what documents exist but how they were searched for, reviewed and produced.

The first practical point is that search orders do not guarantee later broad inspection rights. If the case has already moved into ordinary discovery and the other side can show a serious search effort, the Court may require a strong factual basis before allowing access to seized material. A business seeking that access should be ready to point to concrete reasons why further relevant documents are likely to exist and remain undiscovered.

The second practical point is that evidence about your discovery process matters. In this case, the respondents did not simply say they had complied. They described repositories searched, search terms used, the number of records processed, the use of review platforms, manual review steps, and the treatment of personal devices and technical categories of documents. That kind of evidence gives the Court something practical to assess.

The third point is operational. Businesses should know where important records live. That includes email systems, cloud storage, local drives, messaging platforms, data rooms, laboratory notebooks, patent files, and personal devices used for work. If records are scattered across personal accounts, unmanaged devices or ad hoc folders, discovery becomes harder, more expensive and more vulnerable to challenge.

The fourth point is timing. Once a dispute is on foot, late evidence can be difficult to introduce, especially if it would prejudice the other side or disrupt the timetable. If your business may need expert or specialist evidence, it is safer to identify that early.

Businesses often assume that if search orders were made earlier in a case, the seized material will later become freely available for inspection. This decision shows that is not the right assumption. The Court will look at the procedural setting, including what discovery has already been done and whether there is a solid basis for thinking relevant documents remain undiscovered.

It also shows that discovery disputes can become highly technical. The reasons refer to file-name searches, checksum searches, keyword searches, artefacts of access, review platforms, personal device searches, and category-by-category decisions about how to search. That is a useful reminder that businesses should not wait until litigation starts to think about document governance.

If your business handles technical development, confidential information or patent-related work, orderly record keeping is especially important. The judgment refers to categories involving laboratory books, process documents, pilot plant expenditure, due diligence material and patent applications. Even without deciding the merits of the broader dispute, the case shows how closely those records can be examined once litigation begins.

The judgment was delivered on 23 October 2025 by Markovic J in the Federal Court of Australia. The hearing took place on 24 September 2025. The orders provided that the reasons published that day were initially to be disclosed only to the parties and their legal advisers, with publication to occur on 29 October 2025 subject to any redactions proposed under existing orders in the proceeding.

The decision is interlocutory. It resolves the application for leave to inspect seized material and the issue of leave to rely on late affidavit evidence, but it does not determine the final outcome of the broader proceeding.