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

Supreme Court New South Wales

Medium Neutral Citation: Kennedy Miller Mitchell Films Pty Limited v Warner Bros. Feature Productions Pty Limited [2017] NSWSC 1526 Hearing dates: 11 October 2017 Decision date: 09 November 2017 Jurisdiction: Equity - Commercial List Before: Hammerschlag J Decision: The application is dismissed. Catchwords: COMMERCIAL ARBITRATION – International Arbitration Act 1974 (Cth) s 7(2) – CONTRACT – construction – application by first defendant for an order that it and the plaintiffs be referred to arbitration in California – whether the plaintiffs and the first defendant are parties to an arbitration agreement under which they have undertaken to submit to arbitration the dispute to be quelled by the proceedings – whether a provision of their Letter Agreement for the production of the motion picture Mad Max-Fury Road includes an arbitration provision as a consequence of the incorporation of standard terms for "A" list directors and producers – whether the arbitration clause in Certificates of Employment executed by the first plaintiff, the first defendant and two directors of the first plaintiff covers the present dispute – whether the law of California is to be applied – application by the second plaintiff for a stay of the proceedings on forum non conveniens grounds – HELD: not established that the plaintiffs and the first defendant agreed to arbitration by the Letter Agreement – HELD: the arbitration clause in the Certificates of Employment does not cover the dispute – questions of stay on other grounds do not arise. Legislation Cited: International Arbitration Act 1974 (Cth) Cases Cited: Cione v Foresters Equity Services Inc. 58 Cal. App. 4th 625 (1997) Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337 Comandate Marine Corporation v Pan Australia Shipping Pty Ltd (2006)157 FCR 45 Commercial Union Assurance Company of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389 Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640 Fiona Trust & Holding Corporation v Privalov [2008] 1 Lloyd's Rep 254 Francis Travel Marketing Pty Ltd v Virgin Atlantic Airways Ltd (1996) 39 NSWLR 160 Hampton Court v Crooks (1957) 97 CLR 367 IBM Australia Ltd v National Distribution Services Pty Ltd (1999) 22 NSWLR 466 International Air Transport Association v Ansett Australia Holdings Ltd (2008) 234 CLR 151 Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104 Oceanic Sun Line Shipping Co Inc v Fay (1988) 165 CLR 197 Wilkie v Gordian Runoff Ltd (2005) 221 CLR 522 Category: Principal judgment Parties: Kennedy Miller Mitchell Films Pty Limited – First Plaintiff Kennedy Miller Mitchell Services Pty Limited – Second Plaintiff Warner Bros. Feature Productions Pty Limited – First Defendant Warner Bros. Entertainment, Inc. – Second Defendant Representation: Counsel: R.A. Dick SC with A.M. Hochroth - Plaintiffs A.S. Bell SC with S.J. Free - Defendants