Fortescue Limited v Element Zero Pty Limited (No 2)

In the matter of Fortescue Limited v Element Zero Pty Limited (No 2), the applicants sought an order to set aside ex parte search orders previously granted by the Court. The respondents argued that the search orders should be set aside due to various perceived irregularities in the application process. The primary legal issues before the Court were whether the applicants had overstated the strength of their prima facie case, whether there was a material non-disclosure, and whether the surveillance conducted by the applicants was excessive. Additionally, the Court considered whether the scope of the search orders was appropriately broad and if it had led to an excessive capture of the respondents’ information.

The Court found that Fortescue had not overstated the strength of its prima facie case, and there was no real risk of document destruction. The Court further determined that there was no material non-disclosure by Fortescue, and the surveillance was not excessive. However, the Court recognised that the form and scope of the search orders were broad, which resulted in the capture of a significant amount of information. Despite this, the Court decided to dismiss the application to set aside the search orders. The Court reasoned that it would supervise the next steps in the proceedings to ensure that the volume of material reviewed was managed effectively. The Court also agreed to discharge certain orders as they were no longer necessary and would not make any order as to costs against or in favour of Dr Winther-Jensen due to his limited involvement in the matter.

In summary, the Court dismissed the application to set aside the search orders and determined that the respondents should pay Fortescue’s costs of the interlocutory application. The Court also discharged certain orders and scheduled a case management hearing for October 2024. The reasons for judgment were to be published with any necessary redactions in accordance with existing orders.