IceTV v Ross and Vogel

Restraint of trade

By the time Nine v IceTV was resolved by the High Court (details here), IceTV had been effectively destroyed. By then, I had lost control of the company to other investors to whom I was forced to sell a majority shareholding, and those investors decided to terminate my employment. The other founding shareholder, Duncan Ross, was also terminated.

Duncan and I formed a company, Vogel Ross Pty Ltd, which offered consulting services to various technology ventures. One such client was Mobilesoft Pty Ltd, a company that was developing a video on demand (VOD) rental service which was intended to replace the dying video rental industry, which at that time involved picking up VHS cassettes from stores.

The owners of IceTV, Colin O’Brien and Rod Sutherland, claimed that this work for Mobilesoft was in breach of the restraint and confidentiality terms of our previous employment with IceTV, and we received warnings that unless we ceased this work, IceTV would sue us.

Our response was that we were not in breach, because we were not making use of any of IceTV’s confidential information and Mobilesoft was not a competitor of IceTV because IceTV was not in the business of providing VOD.

IceTV insisted that the restraint extended to VOD because IceTV had contemplated getting into that business one day, and sought an injunction to stop us working for Mobilesoft. We argued that the work we were doing for Mobilesoft utilised skills and knowledge which were part of our “stock-in-trade” industry knowledge, and according to the established restraint of trade doctrine, any contract that would prevent us using that knowledge would be unlawful.

Brereton J did not agree and granted the injunction, subject to IceTV making the usual undertaking as to damages: IceTV  v Duncan Ross and Ors [2007] NSWSC 635

As a shareholder in IceTV, I was well aware that IceTV did not have the financial capacity to honour an undertaking as to damages. I took the matter back before Brereton J and presented evidence that IceTV had made the undertaking in circumstances where the company had a deficiency of funds of some millions of dollars. Brereton J said that IceTV should have disclosed their financial position when making the undertaking, discharged the injunction and ordered IceTV to pay security for costs: IceTV  v Ross [2007] NSWSC 1232

The restraint matter eventually came to final hearing before Rein J, who found in favour of IceTV: IceTV Pty Ltd v Ross [2009] NSWSC 980 and an appeal to the NSW Court of Appeal was dismissed: Ross & Anor v IceTV [2010] NSWCA 272


In the course of IceTV’s restraint case against me, one of the owners of IceTV, Colin O’Brien, had a number of conversations with the CEO of Mobilesoft, Tom Simms. Mr Simms was a witness in the proceeding, and he alleged that Mr O’Brien had pressured and threatened him in various ways in relation to the evidence he was to give.

I initiated proceedings for criminal contempt, alleging that Mr O’Brien had attempted to pervert the course of justice. The NSW supreme court dismissed the claim, on the basis that the allegations did not reach the required criminal level of proof, beyond reasonable doubt, contempt being one of few criminal matters that can be brought by a person, rather than by the Crown: IceTV Pty Ltd v Stuart Duncan Ross & Ors [2009] NSWSC 731

An order was made that the applicants pay the respondent’s costs. I appealed this costs order, on the basis that the action was for criminal contempt, and the Criminal Procedure Act provides that costs orders may be made only against the prosecution in summary criminal proceedings where proceedings were brought or conducted in an improper manner.  The appeal was allowed and the costs order overturned.

After the Court of Appeal ruled against me and Duncan Ross on the restraint matter, an online industry magazine published an article which was replete with errors and made damaging imputations about my character, including that Duncan Ross and I “have also been described as not trustworthy individuals by a Judge”. 

I wrote to the publisher pointing out the errors and asking for the article to be removed or corrected. He refused. I represented myself in a defamation action in the NSW District Court.  At the first directions hearing, the judge said that it appeared that I had a strong case, and suggested that the publisher seriously consider settling. As a result, a settlement involving payment of damages was reached soon after.