Network Ten Pty Limited v van Onselen

Network Ten Pty Limited, a media company, took legal action against Mr van Onselen, a former employee and journalist, for breaching a non-disparagement clause in their Deed of Release. After the termination of his employment, Mr van Onselen published an article that Network Ten claimed was disparaging. The case was heard in the Supreme Court of New South Wales.

The primary legal issues in the case were whether the non-disparagement clause in the Deed of Release was properly constructed to encompass disparaging comments only if they related to Mr van Onselen’s employment or its termination, and whether the article in question could be considered disparaging. Additionally, the court had to determine if the non-disparagement clause constituted a restraint of trade under the Restraints of Trade Act 1976 (NSW), and if so, whether it contravened public policy. The court also considered whether Network Ten had unclean hands due to alleged representations made to Mr van Onselen regarding the operation of the non-disparagement clause, and whether the equitable defences applied.

The court found that the non-disparagement clause was properly constructed to cover disparaging comments related to the employment or its termination, and that the article did indeed constitute a breach. It was determined that the non-disparagement clause did not amount to a restraint of trade, and if it did, it did not contravene public policy. The court found no evidence to support the claim that Network Ten had unclean hands, as the alleged representations were not substantiated. Consequently, the court granted a declaration of breach but did not grant an injunction.

The final orders of the court were that a declaration should be made that Mr van Onselen had breached the non-disparagement clause in the Deed of Release. However, an injunction was not granted. The court's decision provided clarity on the interpretation of non-disparagement clauses in employment termination agreements and their implications under Australian law.