Back in May, Element Zero’s offices and the homes of Kolodziejczyk and Winther-Jensen were raided and devices were seized under a search order granted by Federal Court’s Justice Melissa Perry.

Appearing in court on Monday (19 August) for a two-day hearing, Element Zero alleged the information put before Justice Perry to secure the search order application either did not include context or was “inaccurate and misleading”.

Some of the key contentions in Fortescue’s prima facie case were that Kolodziejczyk made “material misrepresentations” on his résumé, deleted material from his work device after his resignation, and had the same deleted files on a connected USB.

David Studdy SC, appearing for Element Zero, said Kolodziejczyk deleted material because he was told to do so after he resigned from Fortescue, while Winther-Jensen – who had opted to work from home – emailed files to himself in order to complete tasks.

“Understandably, Her Honour is thinking there must be something highly suspicious or fishy here,” counsel David Studdy SC said.

“Her Honour was not told there was in fact no misrepresentation … as is demonstrated in Kolodziejczyk’s affidavit [and] there was no disclosure that Winther-Jensen was working from home.”

In court documents, Fortescue claimed that material was missing because the directors had taken it with them.

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In court, Studdy dismissed this suggestion as “preposterous”.

Studdy added that as a result of the submissions made by Element Zero, its directors had been painted as “dishonest people”.

“The material non-disclosure and inaccurate and misleading information put before the court caused Her Honour to find there was a strong prima facie case contrary to the true position,” he said.

Element Zero took offence to some of the other language used before Justice Perry, including the phrase “industrial scale misuse”.

Studdy said this phrase was purposefully used to suggest Element Zero’s directors were “dishonest”, and it cannot be argued that the phrase was “a throwaway line or a barrister’s flourish”.

Further, it was alleged Fortescue used the potential risk of destruction to make the case that the search order was necessary, but Studdy said Justice Perry was never advised there had been forewarning and a non-disclosure application.

“That would have raised very serious issues as to how there would be the risk of destruction. We say that’s the most extraordinary conduct not to have presented to the duty judge,” Studdy said.

Partway through the day’s hearing, Justice Brigitte Markovic said she was concerned the current application – put before the court on an “urgent” basis – was an attempt to rehash Justice Perry’s orders.

“What I am concerned about is we are sitting here trying to reinvent the past and the way the material could have been read on the application but wasn’t, because Cooke, when he came to Justice Perry, was putting forward a particular type of case – no doubt as fairly and as even-handedly as he could,” Justice Markovic said.

“It’s always easy after the fact to go over the corpse and find a different way of reading things or putting it together … [but] I’m not sure where we’re going with it. I can’t remake the orders.”

Studdy dismissed the suggestion he was “going over a corpse”.

The hearing continues.