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Tutorial 3: Problem scenario on jurisdiction and limitation periods Coastal Wines Estate is an organic winery located on the South Coast of New South Wales (NSW). It has recently entered into a distribution agreement with Dream Drink Cellars which is a speciality organic wine retailer. Dream Drink Cellars has 49 stores across NSW and Victoria. The contract is valuable, with Coastal Wines Estate hoping to realise sales to the tune of $1.72 million. It was signed in NSW. Dream Drink Cellars' head office is in Sydney and, of the 49 stores Dream Drink Cellars owns, 41 are located in NSW. Dream Drink Cellars has recently learned, however, that Coastal Wines Estate has inadvertently used a fertiliser product which threatens their organic certification. The organic certification was a primary reason for signing the contract, and Dream Drink Cellars has now purported to repudiate the contract. Given this attitude, Coastal Wines Estate has no desire to be partnered with Dream Drink Cellars and has accepted the repudiation, effectively terminating the contract. Coastal Wines Estate has come to you seeking to commence an action in the Supreme Court for $1.72 million in compensatory damages. 1. On what basis does the Supreme Court have subject matter jurisdiction to hear this dispute? Why not the District or Local Courts? Refer to the Supreme Court Act 1970 (NSW), District Court Act 1973 (NSW) and Local Court Act 2007 (NSW). 2. Generally speaking, how long would Coastal Wines Estate have to commence proceedings for breach of contract? Refer to the Limitation Act 1969 (NSW). In the meantime, Dream Drink Cellars has made an application to transfer the proceedings there. In-house legal counsel at Dream Drink Cellars perceives that the Victorian Supreme Court might render a favourable judgment. Moreover, the head of in-house legal counsel at Dream Drink Cellars owns a holiday house in Victoria and would like the opportunity to stay there for the duration of the litigation. 3. What legislation might allow the transfer of proceedings from the NSW Supreme Court to the Supreme Court of Victoria? 4. What considerations might the Court consider when deciding whether or not to transfer the proceedings? Tutorial 3: Discussion questions on Dispute Resolution (DR) Preparation for this tutorial activity (additional to the prescribed lecture readings): - Video o View the 'Orange Quarrel' video: https://www.youtube.com/watch?v=v8hR7ZFAAMA o Pause the video at 1:03 and think about a solution to the 'quarrel' where both Jenny and Joey have 100% satisfaction of what they wanted o Continue to watch the rest of the video o Consider whether: (a) your proposed solution aligns with the video's solution, and (b) what your proposed solution might reflect about your (perhaps unconscious) assumptions about dispute resolution and negotiation - Problem Scenario Rayonics Ltd is a supplier of building materials. It has a long-term contract to supply such materials to a large building firm, John Phillips & Sons. Recently, a series of strikes at Rayonics yards have disrupted the supply of its products to John Phillips work sites, some of which involve highly time-sensitive projects. John Phillips has since said that they consider Rayonics to have repudiated the contract and have purported to terminate it. Rayonics has commenced action in the Supreme Court seeking specific performance of the contract. Unlike many commercial contracts of this nature, there is no clause in the contract providing for dispute resolution (DR), such as mediation or arbitration. Both sides have thus not explored DR. In the meantime, Rayonics has signed a new agreement with its workforce, making further industrial disputation highly unlikely. It has up until this point enjoyed a good relationship with John Phillips & Sons and is disappointed that its industrial troubles have caused the builder loss. John Phillips has also just learnt that the replacement contract it was organising with another supplier is likely to fall through, and other suppliers charge a higher price than Rayonics. However, John Phillips is concerned that asking for DR might be perceived as a sign of weakness. If the matter proceeds to fully contested adjudication, the costs are estimated to run into the tens of thousands of dollars. Questions 1. What capacity does the Supreme Court have to mandate mediation or arbitration in this situation? Cite specific sections of the Civil Procedure Act 2005 (NSW). 2. What considerations might the Court take into account in deciding whether or not to refer the matter to mediation? Refer to the lecture slides and Civil Trials Bench Book. 3. What do you think would be some desirable qualities for a mediator/arbitrator to have in this case? 4. How might positional vs interest-based negotiation lead to different results in this case