It is necessary to prescribe only the "minimum effective
dose" – the amount necessary to produce the desired
outcome with minimum side effects. Draft a post-employment
restraint too narrowly, and it provides no remedy. Draft a
restraint too broadly, and toxicity sets in – it won't be
enforceable.
This is particularly important in jurisdictions other than New
South Wales where the courts do not have the ability to read down a
restraint that would otherwise be unenforceable under specific
legislation. The decision of the Supreme Court of Victoria in
Just Group Limited v Nicole Peck [2016] VSC 614, published
this week, is a salient reminder of the importance of a targeted
restraint. The Court decided that while Just Group had a legitimate
interest to protect by restraining its former CFO, the wide ranging
restraint went further than reasonably necessary and could not be
salvaged. The restraint attempted to prevent the CFO from engaging
in specified restricted activities
