IceTV Pty Ltd v Ross & ors - [2009] NSWSC 205

CITATION: IceTV Pty Ltd v Ross & ors [2009] NSWSC 205

HEARING DATE(S): 13 March 2009

JUDGMENT DATE :
27 March 2009

JURISDICTION: Equity Division
Expedition List

JUDGMENT OF: Brereton J

DECISION: If practicable, the contempt motion should be heard before the substantive hearing, but not so as to prejudice that hearing. As such hearing dates not reasonably practicable, fixed for 26 May 2009.

CATCHWORDS: PROCEDURE - Contempt - contempt by influencing a witness – whether hearing of motion alleging contempt should precede, accompany or follow the substantive hearing - where there is no significant overlap of issues – contempt hearing should, if possible, precede the substantive hearing

CATEGORY: Procedural and other rulings

CASES CITED: Australian Consolidated Press v Morgan (1965) 112 CLR 483
Farahbakht v Midas Australia Pty Limited [2006] NSWSC 1322
Ferrier v Kelada (No 1) [2004] VSC 355

PARTIES: IceTV Pty Ltd (plaintiff)
Duncan Ross (first defendant)
Peter Vogel (second defendant)
Vogel Ross Pty Ltd (third defendant)

FILE NUMBER(S): SC 2577/07

COUNSEL: Mr J M Ireland QC (plaintiff)
Mr D Ross (first defendant) (in person)
Mr P Vogel (second defendant) (in person)

SOLICITORS: Bartier Perry (plaintiff)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
EXPEDITION LIST

BRERETON J

Friday, 27 March 2009

2577/07 IceTV Pty Limited v Duncan Ross & ors

JUDGMENT

1 HIS HONOUR: The first defendant Mr Duncan Ross and the second defendant Mr Peter Vogel are former employees of the plaintiff IceTV Pty Ltd (“IceTV”). The third defendant Vogel Ross Pty Ltd (“Vogel Ross”) is a company that Mr Ross and Mr Duncan formed on 29 September 2006, whilst still in the employ of IceTV. IceTV claims that Mr Ross and Mr Vogel breached provisions of their respective employment contracts – in particular, obligations of confidentiality and fidelity – both before and after the termination of their employment contracts on 4 October 2006, by providing consultancy services to Mobilesoft in the field of video on-demand services for content provision, and thereby being involved in a business similar to or competitive with the business of IceTV carried on during the period of 12 months prior to the termination of their employment (in contravention of sub-paragraph (a) of a non-solicitation restraint contained in their contracts) and also by soliciting Mobilesoft, who had entered into discussions or negotiations with IceTV during that 12 months prior to termination of their employment, with a view to becoming a customer of IceTV for a contract to provide consultancy services (in contravention of sub-paragraph (c) of that restraint).

2 IceTV sought an interlocutory injunction to restrain the defendants from engaging in that conduct. Following an interlocutory hearing on 28 May 2007, on 3 July 2007 I granted IceTV an interlocutory injunction. On 28 September 2007, I discharged that injunction, in circumstances where the defendants had showed that IceTV’s undertaking as to damages was worthless, when it had been a material consideration on the balance of convenience when granting that injunction. I also made an order that IceTV give security…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2009] NSWSC 205
Decision Date: 27 March 2009

CaseChat Overview and Summary

The case of IceTV Pty Ltd v Ross & ors involved a dispute between IceTV, an Australian television provider, and several individuals including Mr. Ross. The matter came before the Federal Court of Australia, which was tasked with addressing allegations of contempt by influencing a witness. The court was required to determine the appropriate sequence for the hearing of a motion alleging contempt in relation to a substantive hearing, particularly where there was no significant overlap of issues.

The legal issues that the court needed to resolve included the procedural order in which the contempt hearing should be conducted in relation to the substantive hearing. Specifically, the court had to consider whether the contempt hearing should precede, accompany, or follow the substantive hearing. The court was also required to assess the implications of any overlap of issues between the contempt and substantive hearings, and determine the most effective method for resolving these issues in a timely and just manner.

The court's reasoning was based on the principles of procedural fairness and efficiency. It was determined that if possible, the contempt hearing should precede the substantive hearing to avoid any potential interference or bias in the evidence presented during the substantive hearing. This approach ensures that the integrity of the proceedings is maintained and that any issues of witness influence are dealt with promptly. The court held that there was no significant overlap of issues between the contempt and substantive hearings in this case, which further supported the decision to hold the contempt hearing first. The court concluded that this sequence would allow for a more effective resolution of the contempt allegations and the substantive matter, ensuring that both proceedings could be conducted in a fair and unbiased manner.

Orders