Element Zero, Michael Masterman legal team blasts Fortescue case, points to Andrew Forrest ‘stretch target’

Iron ore miner Fortescue has been accused of giving a judge inaccurate and misleading information before raiding the homes of former employees now behind a rival green processing hopeful.

Malaga-based Element Zero claims the process developed by its founding scientists Bart Kolodziejczyk and Bjorn Winther-Jensen was “entirely different” to what they worked on at Fortescue in 2021 after executive chairman Andrew Forrest set a June 30 deadline for developing green technology.

In a warm-up bout ahead a legal showdown starting on August 18, Element Zero’s legal team also attacked what they claimed was excessive surveillance carried out ahead of raids on two homes and the target company’s office and factory units.

Element Zero is challenging the factual and legal basis of contentious private search orders that Fortescue gained from a Federal Court duty judge in May after claiming Element Zero had a suspiciously rapid development of its technology after being set up in late 2022.

Dr Kolodziejczyk and Dr Winther-Jensen set the company up with $3.8 million of funding from former senior Fortescue executive Michael Masterman, who was close a supporter of Mr Forrest before he became an iron ore billionaire.

Mr Masterman, the chief executive of Element Zero, is a defendant in the hotly-contested Federal Court action secretly launched by Fortescue in late May. But his homes in affluent Sydney and Perth suburbs were not subject to the raids.

Nevertheless, the surveillance documents released in recent days reveal Mr Masterman was followed by private investigators around Perth.

They also kept watch on his two homes and tried to track Mr Masterman and Mr Kolodziejczyk on a visit to Port Hedland, where Element Zero is believed to be planning a pilot operation

Element Zero is asking the Federal Court for permission to cross-examine Sydney intellectual property lawyer Paul Dewar, who put together contentious evidence filed in early May — including more than 600 pages of private investigator reports.

When seeking the search and seizure order, Element Zero claims the Fortescue did not to tell the duty judge about meetings between Mr Masterman and Fortescue that continued into January this year.

Element Zero’s push to cross-examine Mr Dewar on August 19 or August 20 is being heard in detail on Thursday afternoon.

Justice Brigitte Markovic earlier rejected Element Zero’s application to be provided details of briefing notes and emails sent to a Deloitte computer expert behind a report filed in early May.

Justice Markovic said the instructions were likely covered by legal professional privilege.

The Deloitte report had suggested a lack of files about Fortescue’s minerals processing technology on Dr Kolodziejczyk’s former Fortescue computer.

The report was used by Fortescue lawyers to underpin allegations that there was a suspicious lack of information about its metals processing technology.

Gaining the search orders, Fortescue claimed material was deleted or ripped off by its former scientists before leaving the company in late 2021 and later setting up Element Zero.

In his unsuccessful fight to get hold of the lawyers’ correspondence with Deloitte, Zero barrister Chris McMenahim said the Deloitte computer probe appeared to have not gone back before the start of 2021.

Mr McMenahim pointed to email correspondence involving senior Fortescue players including Dr Kolodziejczyk, FFI chief Julie Shuttleworth and Mr Forrest from September 2020 to January 2021.

The barrister said FFI was set a June 30, 2021 “stretch target” for creating an iron ore processing technology and the scientists focused on developing what he described as “solid state liquid” to break down iron ore.

Element Zero’s technology used an ionic liquid to break down metals, he said. “It’s an entirely different process,” Mr McMenahim said.