Fortescue Ltd v Element Zero Pty Ltd

Case [2024] FCA 590


FEDERAL COURT OF AUSTRALIA

Fortescue Ltd v Element Zero Pty Ltd [2024] FCA 590  

File number: NSD 527 of 2024
Judgment of: LOGAN J
Date of judgment: 30 May 2024
Catchwords: PRACTICE AND PROCEDURE – where the applicants had successfully applied for, and executed, Anton Piller search orders – where hearing was first return date after the execution of the search orders – where proceedings had, necessarily, been heavily suppressed prior to the execution of the search orders – where the respondents sought to keep the proceedings suppressed until a further case management hearing due to potential commercial and reputational damage from publicity – where the parties had largely agreed directions orders to advance the proceedings – whether proceedings should remain suppressed – suppression orders limited to confidential affidavit annexures   
Legislation: Federal Court of Australia Act 1976 (Cth)
Cases cited:

Anton Piller KG v Manufacturing Processes Limited [1976] Ch 55

Brags Electrics Ltd v Gregory [2010] NSWSC 1205

Principal Financial Group Pty Ltd v Vella [2011] NSWSC 327

Russell v Russell (1976) 134 CLR 495

Division: General Division
Registry: New South Wales
National Practice Area: Intellectual Property
Sub-area: Copyright and Industrial Designs
Number of paragraphs: 42
Date of hearing: 30 May 2024 
Counsel for the Applicants: Mr J Cooke SC with Ms S Yates
Solicitor for the Applicants: Davies Collison Cave Law
Counsel for the First, Second and Fourth Respondents: Mr J Hennessy SC with Mr C McMeniman
Solicitor for the First, Second and Fourth Respondents: Gilbert + Tobin
Counsel for the Third Respondent: Ms F St John
Solicitor for the Third Respondent: Minter Ellison
Solicitor for the Other: Hall & Wilcox

ORDERS

NSD 527 of 2024
BETWEEN:

FORTESCUE LIMITED ACN 002 594 872 (HITHERTO KNOWN AS QFM1)

First Applicant

FORTESCUE FUTURE INDUSTRIES PTY LTD ACN 625 711 373 (HITHERTO KNOWN AS QFN2)

Second Applicant

FMG PERSONNEL SERVICES PTY LTD ACN 159 057 646 (HITHERTO KNOWN AS QFP3)

Third Applicant

AND:

ELEMENT ZERO PTY LIMITED ACN 664 342 081 (HITHERTO KNOWN AS RAB1)

First Respondent

BARTLOMIEJ PIOTR KOLODZIEJCZYK (HITHERTO KNOWN AS RAC2)

Second Respondent

BJORN WINTHER-JENSEN (HITHERTO KNOWN AS RAD3) (and another named in the Schedule)

Third Respondent

HALL & WILCOX

Interested Person

ORDER MADE BY:

LOGAN J

DATE OF ORDER:

30 MAY 2024

THE COURT ORDERS THAT:

1.In this order the capitalised terms have the same meaning as in the search orders made on 14 May 2024 (the Search Orders).

Interim suppression and confidentiality

2.Order 4 made on 9 May 2024 (interim suppression order) continue to have effect until the case management hearing referred to in order 14 below or further order.

3.Three days before the case management hearing referred to in order 14 below, the Applicants file and serve an affidavit in support of a final confidentiality and suppression order in respect of the text in and attachments to the affidavits referred to in Annexure B of the Orders made 9 May 2024.

Search Orders

4.Order 19 of the Search Orders be varied such that the…

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Fortescue Ltd v Element Zero Pty Ltd [2024] FCA 590
Case
[2024] FCA 590
Decision Date

CaseChat Overview and Summary

In the case of Fortescue Ltd v Element Zero Pty Ltd, Fortescue Ltd applied for and obtained Anton Piller search orders against Element Zero Pty Ltd and others. The respondents sought to have the suppression orders extended to limit the extent of the publicity regarding the proceedings due to potential commercial and reputational damage. The applicants argued that the suppression orders should be lifted to allow for the normal progression of the case. The court considered the need for suppression balanced against the public interest in the administration of justice and the need to protect the parties' commercial interests.

The legal issues before the court were whether the suppression orders should remain in place and, if so, to what extent. The respondents argued that the suppression orders should remain in place until a further case management hearing due to potential commercial and reputational damage from publicity. The applicants, on the other hand, argued that the suppression orders should be lifted to allow for the normal progression of the case. The court needed to balance the need for suppression against the public interest in the administration of justice and the need to protect the parties' commercial interests.

The court decided that the suppression orders should remain in place but with modifications. The suppression orders were limited to the confidential affidavit annexures, allowing for the public progression of the case while protecting sensitive information. The court found that the need for suppression was outweighed by the public interest in the administration of justice and the need to protect the parties' commercial interests to a certain extent. The court varied the search orders to allow for the normal progression of the case while still protecting sensitive information.

The final orders included continuing the interim suppression order until the next case management hearing or further order. The applicants were required to file and serve an affidavit in support of a final confidentiality and suppression order regarding the text in and attachments to the affidavits. The search orders were varied to allow for the normal progression of the case while still protecting sensitive information. The respondents were required to file and serve their defences by a specified date, and the applicants were required to file and serve any interlocutory application for discovery by the respondents by another specified date. The matter was listed for a case management hearing on a specified date. The costs of the search orders and the hearing were reserved, and liberty to apply was granted.

Orders

Orders of the court

1. In this order the capitalised terms have the same meaning as in the search orders made on 14 May 2024 (the Search Orders).

Interim suppression and confidentiality

2. Order 4 made on 9 May 2024 (interim suppression order) continue to have effect until the case management hearing referred to in order 14 below or further order.

3. Three days before the case management hearing referred to in order 14 below, the Applicants file and serve an affidavit in support of a final confidentiality and suppression order in respect of the text in and attachments to the affidavits referred to in Annexure B of the Orders made 9 May 2024.

Search Orders

4. Order 19 of the Search Orders be varied such that the Applicant’s lawyer and the Independent Lawyer must not allow the Applicant in person to inspect or have copies of any thing removed from the Premises nor communicate to the Applicant information about its contents or about anything observed at the Premises until 4:30pm on the case management hearing referred to in order 14 below or other time fixed by further order of the Court.

5. Order 20(e)(iv) of the Search Orders be varied such that:

(a) The Independent Computer Expert retain a digital copy of the computers, computer disks, drives or memory, electronic information storage devices or systems, and online accounts, and all electronic and hard copies of Listed Things.

(b) The Independent Computer Expert is not to provide the digital copy referred to in order 5(a) to any of the parties except by order of the Court.

(c) The Independent Computer Expert deliver a copy or digital copy of the computers, computer disks, drives or memory, electronic information storage devices or systems, and online accounts, and all electronic and hard copies of Listed Things to the Independent Lawyer by no later than 4pm on 30 May 2024.

6. Order 20(f) of the Search Orders be varied such that the Independent Lawyer deliver to any registry of the Federal Court of Australia all things received from the Independent Computer Expert by no later than 4pm on 31 May 2024.

7. Order 22(a) of the Search Orders be varied such that on or before 31 May 2024,

(a) the Independent Lawyer provide to:

(i) the solicitors for the First, Second and Fourth Respondent a copy of the Listed Things removed from the following Premises:

1. Unit 2, 30 Oxleigh Drive, Malaga, Western Australia 6090;

2. Unit 1, 19 Oxleigh Drive, Malaga, Western Australia 6090; and

3. 5A Volga Street, Hadfield, Victoria 3046.

(ii) the solicitors for the Third Respondent a copy of the Listed Things removed from Unit 4, 213 Gildercliffe Street, Scarborough, Western Australia 6019.

(b) the Independent Lawyer file and serve an affidavit attesting to such provision.

8. Order 22(b) of the Search Orders be varied such that the time for compliance be extended to a date to be determined by the Court at the case management hearing referred to in order 14 below.

9. As to the time for compliance with Orders 23(a) and 23(b) of the Search Orders:

(a) In the event that the Respondents’ Interlocutory Application (as later defined in these orders) be filed and served on or before 18 June 2024, the time for compliance be extended to 4:30pm on the date of the case management hearing according to the time prevailing at the location of the judge constituting the Court for the purposes of the case management hearing.

(b) If no such application be filed and served as aforesaid, the time for compliance be extended to 4:30pm at the like place on 18 June 2024.

10. Order 26 of the Search Orders be varied such that the prohibitions therein continue to have effect until further order.

Pleadings

11. On or before 18 June 2024, the First, Second and Fourth Respondents, and the Third Respondent, file and serve their Defences.

First, Second and Fourth Respondents’ Interlocutory Application

12. The First, Second and Fourth Respondents’ file and serve the interlocutory application foreshadowed in the First Affidavit of Michael John Williams sworn on 29 May 2024 (Respondents’ Interlocutory Application) together with any affidavit evidence in support by 18 June 2024.

Applicants’ Interlocutory Application for Discovery

13. The Applicants file and serve any interlocutory application for discovery by the Respondents (Applicants’ Interlocutory Application) together with any affidavit evidence in support by 21 June 2024.

Next case management hearing

14. The matter be listed for a case management hearing not before 24 June 2024 at 9:30am on a date to be fixed by the Court after consultation with the parties. Any and all interlocutory applications for which this order provides be returned for mention and for the making of related directions at that case management hearing.

15. Costs of the Search Orders and the costs of the hearing on 30 May 2024 are reserved.

16. Liberty to apply.

17. The undertaking given to the Court by each Applicant’s lawyer in Schedule B, paragraph B.2(7) of the Search Orders be varied and extended such that Applicant’s lawyer will not disclose to the Applicant any information that the lawyer acquires during or as a result of execution of the search order until 4:30pm on the date of the case management hearing referred to in order 14 above or other time fixed by further order of the Court.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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