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Spying, privacy invasions plague Fortescue hearing, lawyers claim
The lawyers on both sides of Fortescue’s intellectual property fight made a number of disclosures in newly released affidavits, including the spying on former employees and their children and concerns about a search order’s “extraordinary invasion of privacy”.
Naomi Neilson
Surveillance footage captured Bjorn Winther-Jensen watering plants. Source: Federal Court.
Global metal mining company Fortescue, founded by billionaire Andrew Forrest, alleged former employees Bart Kolodziejczyk, and Bjorn Winther-Jensen copied intellectual property to use at its rival green iron project, Element Zero.
Following a suppression order fight, the Federal Court released a number of documents late last Friday (2 August), including two affidavits written by Paul Dewar, the principal lawyer at Fortescue’s representatives, Davies Collison Cave Law.
In it, Dewar disclosed Fortescue’s senior legal officer Adrian Huber and lawyer Phil McKeiver instructed Lancasters Investigations to spy on the three men “with the intention of establishing the identity and location of each of the respondents” and advise Fortescue.
Among dozens of photographs were extensive notes about the surveillance undertaken by Lancasters, including watching as Winther-Jensen watered his garden, following a woman into a shopping centre, and observing a “small child”.
Although a search order permitted by Justice Melissa Perry allowed for the raids on Kolodziejczyk’s home, Dewar’s affidavit revealed the investigators also spied on Michael Masterman’s properties, who was not a target of the search orders.
When Forrest discovered the surveillance efforts last month, he told media he was “surprised” and issued a warning to the legal team.
In an affidavit written by Michael Williams, the solicitor on the record for Element Zero, Kolodziejczyk and Masterman, the applicants said they were concerned about the form of the search orders because the surveillance “greatly extended their reach”.
Williams added there was an “apparent extraordinary invasion of the privacy of the respondents of the kind which exceeds what is usually contemplated in proceedings such as these, both prior to the application for the search orders and in the execution of the orders”.
Following the search order execution, Williams said around three terabytes, or 3,000 gigabytes of data, were captured, “which is, in my experience, an extremely large volume of material”.
Masterman told his lawyer that the way in which the search orders were drafted meant a large amount of information that is “confidential, privileged and not likely to be relevant” was captured.
There was also a concern that staff emails should be protected under legal professional privilege.
The matter is ongoing.
Naomi Neilson
Naomi Neilson is a senior journalist with a focus on court reporting for Lawyers Weekly.
You can email Naomi at:
