IceTV has won the first round of its restraint of trade action against us (Duncan Ross, Peter Vogel and Vogel Ross Pty Ltd) and we are now preparing for a lengthy appeal.
After nearly three years of court proceedings, the Supreme Court of NSW found that we breached our employment agreements with IceTV, the company we worked for from 2005-2006.
In the process, a lot of information that IceTV’s Directors might have wished to keep to themselves became public and has started popping up in the trade press.
The court accepted our submission that the restraint provisions of the employment contracts under which we were sued were too broad to be enforceable. Although the Court “read them down” to make them narrower it still found that we had breached them by working for Mobilesoft.
We were certainly surprised by this judgment. We presented what we thought was an irrefutable case that the restraints in our employment contracts were outrageously broad and if interpreted as IceTV proposed would prevent us from earning a living in our field of expertise. We also gave evidence that we were not trying to compete with IceTV and that by no stretch of the imagination could Mobilesoft be considered a competitor. In fact, the evidence shows that we hoped that IceTV would be the EPG supplier in any deal we managed to pull off.
Sadly, this matter is unfortunately still far from finalised. We have filed a Notice of Intention to Appeal and are will ask the Court of Appeal to reverse the decision of the court below.
Until the matter is finalised we naturally cannot go into details, however the full judgment, which can be found on the Supreme Court of NSW website, makes very interesting reading, particularly for anyone interested in the development of the restraint of trade doctrine in Australian law.
We have also filed a cross-claim against IceTV and the three individuals who were directors at the time IceTV started the action. The cause of action is basically “oppression” under the Corporations Act as we were, and continue to be, shareholders in IceTV.
We believe the hearing of the appeal, and the outstanding cross-claim, will answer many of the disturbing questions raised by proceedings to date.