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Fortescue, Element Zero lawyers hurl accusations in tense hearing
Counsel for Fortescue and Element Zero slung accusations about the other’s case in court, including claims of a “fishing” exercise into search orders, an attempt to hold a “mini-trial”, and the supposedly “silly” description of one of their in-house lawyer’s affidavits.
Naomi Neilson
Chris McMeniman, the barrister for Element Zero’s directors Bartlomiej Kolodziejczyk and Bjorn Winther-Jensen, told the Federal Court a search order set up to monitor his clients’ locations and take material from their devices was “highly invasive” and went “well beyond what is necessary”.
Ahead of next week’s hearing into the search orders, McMeniman said they were intended “not solely for the purpose of advancing an application for the potential preservation of evidence”.
McMeniman, who applied for document production and to cross-examine Fortescue’s in-house lawyers, said it “goes to the issue of bad faith”.
Fortescue’s counsel, Julian Cooke SC, tore apart Element Zero’s submissions and accused its lawyers of launching a “fishing” exercise.
“The respondents are just fishing. Fishing for a defence, fishing for a case, and fishing for bad faith that hasn’t been identified. For these reasons, these notices … should be set aside for costs,” Cooke said.
Cooke also accused the respondents of attempting to distract the court from the “strong prima facie case” the Element Zero directors “developed a confidential … process while working at Fortescue that the respondents later used at the Element Zero project without Fortescue’s permission”.
On the application to allow a cross-examination of Fortescue’s lawyers, Cooke said it would force the court to hold a “mini-trial” and would likely traverse matters subject to legal professional privilege.
He went on to say there has been no dispute the directors used the documents, and Fortescue unearthed “contemporaneous conversations” to suggest Element Zero allegedly used the confidential information.
Cooke said if the court granted the applications, Fortescue would have to make further submissions and this would likely “put off the hearing”.
Responding to McMeniman’s submission that the in-house lawyer’s affidavit could be taken as a pleading, Cooke said it was a “significant problem” and “sufficient reason to object” the cross-examination.
David Studdy SC, who also appeared for Element Zero, said Cooke’s submission that the affidavit should not be treated as a pleading was “self-evidently a silly proposition with respect”.
He went on to say there would be no need to push off the hearing because Fortescue had its affidavits for six weeks and all the evidence has already been put before the court.
On concerns a cross-examination could go into confidential matters, Studdy said he would be under the watchful eye of the court and may be “curtailed immediately” if he comes close to asking the wrong questions.
In reply, Cooke said there were no boundaries in the application for cross-examination and “it’s not helpful” to say the court would intervene.
More to come.
Naomi Neilson
Naomi Neilson is a senior journalist with a focus on court reporting for Lawyers Weekly.
You can email Naomi at:
