Kennedy Miller Mitchell Films Pty Limited v Warner Bros. Feature Productions Pty Limited [2017] NSWSC 1526

Kennedy Miller Mitchell Films Pty Limited v Warner Bros. Feature Productions Pty Limited [2017] NSWSC 1526

WB did not establish that KMM and WB agreed to arbitrate under the Letter Agreement because, although cl 21 would have incorporated standard terms if such terms existed, WB failed to prove standard terms of WB for "A" list directors and producers including an arbitration clause. The evidence concerned WB Pictures rather than the defined contracting entity WB, and in any event did not establish the universe of relevant "A" list agreements, the meaning of "A" list, or sufficient regularity of use of the asserted standard terms. The arbitration clauses in the Certificates of Employment did not cover the pleaded dispute, which arose out of and related to the Letter Agreement and its...

Jurisdiction
Australia
Judgment Date
09 November 2017
Procedural Posture
Commercial Arbitration Application Under International Arbitration Act 1974 (cth) S 7(2) for Stay and Referral to Arbitration; Stay Application on Forum Non Conveniens Grounds / Interlocutory Application in the Equity Division Commercial List
Outcome
The application is dismissed.
Legal Topics
['international Arbitration Agreement' 'incorporation of Standard Terms' 'construction of Arbitration Clauses' 'stay of Proceedings' 'forum Non Conveniens']
['commercial Arbitration' 'contract Law' 'conflict of Laws'] ['international Arbitration Agreement' 'incorporation of Standard Terms' 'construction of Arbitration Clauses' 'stay of Proceedings' 'forum Non Conveniens']

Case Brief

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Procedural Posture

Commercial Arbitration Application Under International Arbitration Act 1974 (cth) S 7(2) for Stay and Referral to Arbitration; Stay Application on Forum Non Conveniens Grounds / Interlocutory Application in the Equity Division Commercial List

Legal Issues

  1. 1 ['Whether cl 21 of the Letter Agreement incorporated WB standard terms for "A" list directors and producers including an arbitration clause.' 'Whether WB proved the existence and identity of WB standard terms for "A" list directors and producers including an arbitration clause.' 'Whether the arbitration clause in the Certificates of Employment covered the dispute pleaded by KMM.' 'Whether California law should be applied to determine the scope of the arbitration clause in the Certificates of Employment.' 'Whether the proceedings against Warner Bros. should be stayed on forum non conveniens grounds if the claim against WB was referred to arbitration.']

Ratio Decidendi

WB did not establish that KMM and WB agreed to arbitrate under the Letter Agreement because, although cl 21 would have incorporated standard terms if such terms existed, WB failed to prove standard terms of WB for "A" list directors and producers including an arbitration clause. The evidence concerned WB Pictures rather than the defined contracting entity WB, and in any event did not establish the universe of relevant "A" list agreements, the meaning of "A" list, or sufficient regularity of use of the asserted standard terms. The arbitration clauses in the Certificates of Employment did not cover the pleaded dispute, which arose out of and related to the Letter Agreement and its...

Court Disposition

The application is dismissed.

Orders

  • ['The application is dismissed.']