Employment Lawyers › Restraint of Trade
Restraint of Trade Lawyers — Non-Compete. Non-Solicit. Know Your Position.
Non-compete clauses, non-solicitation restraints, and confidentiality obligations are common in employment contracts — but they are not automatically enforceable. Courts apply a reasonableness test to determine whether a restraint goes further than necessary to protect a legitimate business interest. Get advice before you leave your employer, accept a new role, or respond to a legal threat.
⚠ If you have received a cease and desist letter or injunction threat from a former employer, do not ignore it. Interim injunctions can be granted quickly — sometimes within 24 hours — and can prevent you from starting a new role. Get advice immediately.
What We Help With
Restraint of trade — employees and employers.
Restraint of trade issues arise from both sides of the employment relationship — employees wanting to leave and start a new job, and employers wanting to protect their client base and confidential information. Both perspectives require specialist legal advice.
Non-Compete Clause Review
Assessing whether your non-compete clause is enforceable — including the geographic scope, duration, and whether it protects a legitimate business interest. Many non-competes are unenforceable as drafted.
Non-Solicitation Clause Review
Clauses preventing you from approaching former clients or colleagues. Courts apply a similar reasonableness test — the clause must go no further than necessary to protect the employer's legitimate interest in client relationships.
Confidential Information Disputes
What counts as confidential information, what you can and cannot use after leaving, and how to transition without breaching confidentiality obligations. A lawyer advises on the line between general skills and genuinely confidential information.
Restraint Enforcement (Employer)
Employers seeking to enforce a non-compete or non-solicitation restraint — including urgent injunction applications to prevent a former employee from working for a competitor or approaching clients.
Injunction Response (Employee)
Defending an urgent injunction application brought by a former employer — challenging the enforceability of the restraint, the balance of convenience, and the employer's entitlement to the relief sought.
Pre-Departure Contract Review
Reviewing your employment contract before resigning or accepting a new role — identifying which obligations survive termination, what the real risk is, and how to transition in a way that minimises exposure.
What the Law Says
Restraint of trade law — the reasonableness test and how courts assess enforceability.
Restraints of trade are presumed void at common law — they are only enforceable to the extent they are reasonable in the interests of both parties and the public. This gives courts wide discretion to limit or strike down restraints.
The reasonableness test — what courts apply
A restraint of trade is enforceable only to the extent it is reasonable — no wider than necessary to protect a legitimate business interest of the employer. Courts consider: the nature and seniority of the employee's role; the geographic scope of the restraint; the duration; the type of restriction (non-compete vs. non-solicit); the consideration paid for the restraint; and whether the employer has a real legitimate interest worth protecting. A broad non-compete for a junior employee with little client access is very likely unenforceable.
Legitimate business interests — what qualifies
Courts recognise two categories of legitimate business interest justifying a restraint: trade secrets and confidential information (including client lists, pricing, and proprietary processes); and client connection (the employer's interest in the relationships built by the employee with clients, where the employee would otherwise be able to exploit those relationships immediately on leaving). General skills and knowledge acquired in the role are not a legitimate interest — an employer cannot prevent an employee from using their general skills elsewhere.
Cascading restraints — multiple timeframes and areas
Many employment contracts include "cascading" restraint clauses — multiple restraints in decreasing duration and geographic scope, with an instruction that the court should read down to the widest enforceable restraint. In New South Wales, the Restraints of Trade Act 1976 (NSW) expressly authorises courts to read restraints down rather than striking them entirely. In other states, courts use the "blue pencil" doctrine with more restriction. A lawyer assesses which clauses survive and which fall.
Confidential information — what survives termination
Confidentiality obligations that protect genuinely confidential information (trade secrets, client databases, proprietary processes) can survive termination of employment even without a contractual confidentiality clause — equity implies an obligation not to misuse information disclosed in confidence. However, an employee is entitled to use their general skills, knowledge, and experience gained in employment. The line between confidential information and general skill is fact-specific and is frequently disputed in post-employment restraint matters.
Interim injunctions — how quickly they can be granted
A former employer who believes a restraint is being breached can apply to a Supreme Court for an urgent interim injunction — sometimes on the same day as the alleged breach. An interim injunction hearing requires the employer to show a serious question to be tried, that the balance of convenience favours an injunction, and that damages would be an inadequate remedy. Injunctions can be granted without prior notice to the employee in extreme cases. Responding to an injunction application quickly, with experienced legal representation, is critical to avoiding a hearing order that prevents you from starting your new role.
Garden leave — and its interaction with restraints
Many employment contracts include "garden leave" provisions — requiring the employee to remain at home on full pay during the notice period, without performing duties. Garden leave typically counts towards the restraint period — meaning the effective post-employment restraint is shorter than the clause states. If an employer places you on garden leave for 3 months and the restraint is 12 months, the operative restraint period is reduced to 9 months. A lawyer calculates the effective restraint period and advises on when you are genuinely free to start a new role.
How It Works
One request. Clarity on your restraint.
Tell us the clause you are concerned about, your role, and your state. An employment lawyer will assess whether the restraint is enforceable and what your real risk is.
Submit Your RequestDescribe the restraint
Tell us the clause (duration, geographic scope, what is restricted), your role and seniority, your state, and whether you have received any legal correspondence.
Matched to an employment lawyer
Your request is matched to a lawyer experienced in restraint of trade — contract review, injunction defence, and enforcement proceedings.
Free consultation arranged
An employment lawyer reviews the restraint clause and advises on enforceability, your real risk, and the safest way to proceed with your next role.
Common Questions
Restraint of trade — frequently asked questions.
Are non-compete clauses enforceable in Australia?
Some are, some aren't — it depends on the specific clause, the employee's role, and the circumstances. Courts apply a reasonableness test — the clause must protect a legitimate business interest and be no wider than necessary. Broad non-competes for junior employees with little client access or access to genuinely confidential information are frequently found unenforceable. A lawyer reads your specific clause and role against the relevant case law to give you a clear assessment of enforceability.
My former employer has sent me a cease and desist letter — what should I do?
Do not ignore it and do not respond without legal advice. A cease and desist letter may be followed by an urgent injunction application — sometimes within days. Engaging a lawyer immediately allows you to respond to the letter in a way that does not make concessions, assess whether the restraint is actually enforceable, and prepare to defend any injunction application before it is granted. Ignoring the letter increases the risk that the employer proceeds to court without opposition.
Can I take my client list with me when I leave?
Generally no — a client list compiled using the employer's resources during employment is typically confidential information belonging to the employer. Even without a written confidentiality clause, taking a client list on resignation can expose you to legal action for misuse of confidential information. However, a client relationship built through your own efforts and skill is different — a lawyer advises on the distinction between the employer's confidential client information and the general knowledge of client needs that you carry in your head.