Ross v IceTV Pty Ltd

The appeal concerned a dispute between IceTV Pty Ltd and two former senior executives, Mr Ross and Mr Vogel. Mr Ross and Mr Vogel had been employed by IceTV, which distributed an electronic program guide known as the Ice Guide. Their employment contracts contained non-solicitation and confidentiality clauses. Following their departure from IceTV, IceTV alleged that they had breached these clauses by engaging in business with a competitor, Mobilesoft. The matter came before the Supreme Court of New South Wales, and subsequently the Court of Appeal.

The legal issues before the Court of Appeal included whether the appeal could be heard as of right, given the monetary threshold, and whether the non-solicitation and confidentiality clauses in the appellants' employment contracts were void for uncertainty or were unreasonable restraints of trade under the *Restraints of Trade Act 1976* (NSW). The court was also required to determine whether the appellants had breached these clauses and, if so, whether the restraints were severable. Furthermore, the court considered the significance of an undertaking as to damages given by IceTV in relation to an interlocutory injunction that had been granted and later discharged.

The Court of Appeal dismissed the appeal. It found that the appeal could proceed as of right. Regarding the restraints of trade, the court noted that the primary judge's findings on the appellants' motives were unsafe due to an error in assessing the evidence concerning Mr O'Brien's knowledge of Mobilesoft's dealings. However, the court ultimately found that the restraints, when properly construed and applied, were not unreasonable and were valid to the extent they were not against public policy. The court also determined that the appellants had breached the non-solicitation clauses.

The appeal was dismissed, and the appellants were ordered to pay IceTV's costs of the appeal.