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ACP wins injunction on defecting manager

By Karl du Fresne

Friday 16th May 2003

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Used-car guide publisher ACP Media ­ an arm of the Kerry Packer empire ­ is locked in a legal battle with a former Wellington manager who defected to a rival publication, taking some of the ACP guide's biggest advertisers with him.

In the Wellington District Court this week, ACP won a temporary injunction barring Phillip Neville Grigg from further involvement with the rival guide.

Mr Grigg sought leave to appeal that decision in the High Court but the outcome was not known when The National Business Review went to press.

The court was told Mr Grigg, after 11 years as the Wellington area manager of ACP's Motor Buyers Guide, quit last month to join the newly-launched Auto Guide.

Judge B R L Lovegrove said in his judgment that ACP's advertising revenue "quickly and dramatically declined" as advertisers migrated to the new publication.

ACP told the court that since Mr Grigg's departure it had lost eleven and a half pages of advertising.

The Motor Buyers Guide that landed in Wellington letterboxes last week ran to only 16 pages ­ down from 28.

The Auto Guide, published in a slightly different format, consisted of 20 pages.

Counsel for ACP, Pheroze Jagose, said advertising revenue for the latest edition of the Motor Buyers Guide was down by some $30,000 on the week before.

ACP claimed that in transferring his allegiance to the new publication, Mr Grigg ­ himself a former car dealer ­ breached a confidentiality agreement made in 1992 with the original owner of the Motor Buyers Guide, Liberty Press.

That agreement provided that if Mr Grigg terminated his engagement he was not to disclose commercial information relating to the Motor Buyers Guide, or engage in any business competing with it, for three years.

Liberty Press, owned by National Business Review publisher Barry Colman, sold the publication to ACP in 2001. ACP claimed the original confidentiality agreement Mr Grigg signed with Liberty still applied despite the change of ownership ­ an argument which Judge Lovegrove accepted.

The judge granted ACP's request for an interim injunction preventing Mr Grigg from engaging in "any business of a nature similar to or competing with that of ACP's Motor Guide."

The injunction also restrains him from soliciting or canvassing business clients of ACP and requires him to return to ACP any information concerning the company's clients or affairs.

Judge Lovegrove said there was evidence of misuse of commercially sensitive information.

While Mr Grigg argued that the identity of ACP's advertisers was no secret and that he was free to compete, the judge commented: "There is a degree of ingenuousness in the submission he has done nothing or is likely to do anything exceeding the bounds of fair competition."

There was evidence Mr Grigg had used ACP's computer graphics for the benefit of the rival enterprise even while still engaged with ACP.

The judge said ACP was concerned Mr Grigg's familiar relationship with its client base would seriously undermine the viability of a business that had taken 10 years to establish.

Mr Grigg told the court he had worked hard for Liberty and ACP and left because he wanted to do his own thing.

His counsel, Michael Reed QC, argued that ACP was part of a substantial concern for whom any potential loss of the kind envisaged would be regarded as trivial, Judge Lovegrove said.

"This, however, seems to overlook the effect of any loss on a hard-nosed business concern in respect of the viability of continuing a marginal or unprofitable operation and the loss of jobs which would result in any closure."

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