Warner Bros Feature Productions Pty Ltd v Kennedy Miller Mitchell Films Pty Ltd [2018] NSWCA 81

Warner Bros Feature Productions Pty Ltd v Kennedy Miller Mitchell Films Pty Ltd [2018] NSWCA 81

Clause 21, read in the context of the Letter Agreement as a whole, immediately incorporated terms which were "WB standard for 'A' list directors and producers" despite being subject to good faith negotiations. The phrase was not confined to terms standard only for WB Productions but extended to terms standard for companies in the Warner Bros group. The evidence of WB Pictures' 2009 Form Agreements, the shared form system, and use of a substantially similar arbitration clause since the early 2000s established that arbitration before JAMS in California applying California law was a WB standard term for 'A' list directors and producers. That arbitration clause was incorporated into the...

Jurisdiction
Australia
Judgment Date
24 April 2018
Procedural Posture
Application for Leave to Appeal and Appeal Concerning Stay of Proceedings by Reason of an Arbitration Agreement / Court of Appeal From Orders of the Supreme Court of New South Wales, Equity Division, Dismissing an Application for a Stay
Outcome
Leave to appeal granted; appeal allowed; primary judge's orders set aside; parties directed to make submissions on the appropriate orders; respondents ordered to pay the applicants' costs of the appeal and the costs of the motion for a stay in the Court below.
Legal Topics
['incorporation of Terms by Reference' 'good Faith Negotiations' 'arbitration Agreement' 'stay of Proceedings' 'standard Terms for a List Directors and Producers']
['contracts' 'commercial Arbitration' 'civil Procedure'] ['incorporation of Terms by Reference' 'good Faith Negotiations' 'arbitration Agreement' 'stay of Proceedings' 'standard Terms for a List Directors and Producers']

Case Brief

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Procedural Posture

Application for Leave to Appeal and Appeal Concerning Stay of Proceedings by Reason of an Arbitration Agreement / Court of Appeal From Orders of the Supreme Court of New South Wales, Equity Division, Dismissing an Application for a Stay

Legal Issues

  1. 1 ['Whether cl 21 of the Letter Agreement incorporated terms which were "WB standard for \'A\' list directors and producers" before good faith negotiations had taken place.' 'Whether an arbitration clause was incorporated into the Letter Agreement as a term which was "WB standard for \'A\' list directors and producers".' 'Whether the proceedings should be stayed under s 7(2) of the International Arbitration Act 1974 (Cth), including the related claim against WB Entertainment.']

Ratio Decidendi

Clause 21, read in the context of the Letter Agreement as a whole, immediately incorporated terms which were "WB standard for 'A' list directors and producers" despite being subject to good faith negotiations. The phrase was not confined to terms standard only for WB Productions but extended to terms standard for companies in the Warner Bros group. The evidence of WB Pictures' 2009 Form Agreements, the shared form system, and use of a substantially similar arbitration clause since the early 2000s established that arbitration before JAMS in California applying California law was a WB standard term for 'A' list directors and producers. That arbitration clause was incorporated into the...

Court Disposition

Leave to appeal granted; appeal allowed; primary judge's orders set aside; parties directed to make submissions on the appropriate orders; respondents ordered to pay the applicants' costs of the appeal and the costs of the motion for a stay in the Court below.

Orders

  • ['Grant the applicants leave to appeal.' 'Allow the appeal.' 'Set aside the orders made by the primary judge.' 'Direct the parties to make submissions within 7 days as to the appropriate orders to give effect to this judgment.' "Order the respondents to pay the applicants' costs of the appeal and the costs of the...