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Lawyer’s ‘ragbag’ submissions must be tossed, Fortescue says
Counsel for Fortescue argued Element Zero’s lawyer took a “scattergun” approach to his submissions and forced the Federal Court to hear a “mini-trial” in an attempt to rid his client of a search order.
Naomi Neilson
Julian Cooke SC, barrister for Fortescue, said Element Zero counsel David Studdy SC made several “ragbag submissions” on Monday (19 August) as part of an interlocutory application to discharge or vary a search order granted by Justice Melissa Perry in May.
“Your Honour, no due disrespect to my learned friend, [but] what we saw yesterday was quintessential scattergun,” Cooke said.
“The litany of new, additional, unnotified arguments being flung across the table and thrown at Your Honour is quintessential of there being a scattergun approach and the efforts … to turn this into a mini-trial.”
During Monday’s submissions, Studdy accused Fortescue of making inaccurate and misleading submissions before Justice Perry to secure the raid on Element Zero’s offices and the homes of its former directors Bartlomiej Kolodziejczyk and Bjorn Winther-Jensen.
He said Fortescue’s prima facie case relied on evidence that material was deleted from work devices and emailed to personal addresses, but Justice Perry was allegedly not given all the information.
“Understandably, [Justice Perry] was thinking there must be something highly suspicious or fishy here,” Studdy told Justice Markovic.
Cooke said these submissions were “misconceived” and were premised on “misstatements of legal principles and a mischaracterisation of the evidence and submissions before Justice Perry”.
"The respondent's discharge application has been a monumental waste of time and a distraction from the real issues to be decided in this case [and] i appears to be a cynical attempt to delay the respondents having to file a defence and for the court and my client to obtain discovery in order to see the relevant evidence that has been preserved by the search orders," Cooke said.
He added that many of the allegations were not aired in written submissions prior to the hearing, forcing Fortescue to scramble together an aide memoire overnight so it could respond to the 27 new allegations.
Even if Justice Markovic accepted the new arguments advanced by Element Zero, Cooke said they are “not persuasive and not sufficient in all the circumstances” for the search orders to be discharged or varied.
Moreover, he said their submissions only served to “strengthen” Fortescue’s “already strong” prima facie case.
"If contrary to the applicant's position the court finds there was material non-disclosure, we respectfully submit it is in the interests of justice for the court to exercise its discretion not to set aside the search orders," Cooke said.
Naomi Neilson
Naomi Neilson is a senior journalist with a focus on court reporting for Lawyers Weekly.
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