Barefoot Law principal Mark Swivel represented stallholders in NCAT proceedings against Bluesfest Services Pty Ltd. Picture: Marc Stapelberg
Barefoot Law principal Mark Swivel represented stallholders in NCAT proceedings against Bluesfest Services Pty Ltd. Picture: Marc Stapelberg

Stallholder ‘elated’ by tribunal’s ruling against Bluesfest

A stallholder among a group of 11 who took Bluesfest before a tribunal has welcomed the decision their fees must be refunded.

Melbourne-based Paul Briggs, of Cajun Kitchen, would have marked his 11th year operating at Bluesfest Byron Bay in 2020.

But it wasn't to be; a public health order issued ahead of the event meant a gathering of Bluesfest's scale was prohibited.

Senior NSW Civil and Administrative Tribunal member Graham Ellis this week handed down his finding in that a clause in the stallholder contracts involved a "significant imbalance" which allowed the festival to retain stallholder fees without providing any service.

Mr Ellis ordered Bluesfest Services Pty Ltd to pay back a total of $90,250.45 to the stallholders.

Mr Briggs said he was "absolutely elated" by the decision.

"We thought it was a pretty open-and-shut case right from the beginning," Mr Briggs said.

"We paid the fee, the event didn't go ahead.

"It just felt completely wrong on the part of Bluesfest to be withholding fees like that."

 

The food tent at a previous Bluesfest Byron Bay. Photo Marc Stapelberg / The Northern Star
The food tent at a previous Bluesfest Byron Bay. Photo Marc Stapelberg / The Northern Star

Bluesfest's solicitor, Brad Heydon, was approached for comment but previously said the stallholders were offered the option to roll over their fees to 2021, an "equitable solution for all parties", he said.

Mr Briggs said he had fees sitting with about eight festivals when the full force of the pandemic struck.

"Every single one of them was sympathetic and (had a) 'we're all in this together' sort of approach except Bluesfest," Mr Briggs said.

Lawyer Mark Swivel, of Barefoot Law, represented the stallholders before the tribunal.

"Bluesfest were ordered to pay all stallholders a full refund immediately," Mr Swivel said.

"NCAT said the contract was unfair, the stallholders got nothing for the fee they paid, so Bluesfest had no right to keep their money.

"There was no legal basis for holding on to the stallholders' money."

Mr Swivel said the force majeure clause in stallholders' contracts was at odds with the agreement between Bluesfest Touring and artists.

 

Michael Franti performs out in the general area with crowds at Bluesfest 2018 in Tyagarah.
Michael Franti performs out in the general area with crowds at Bluesfest 2018 in Tyagarah.

If a natural disaster or pandemic meant the event could not occur, artists were expected to pay deposits back to the festival.

But Bluesfest would hold onto stallholder fees under the same circumstances, under the "unfair" clause.

"The terms in the artists' contracts were, broadly speaking, fair and conventional," Mr Swivel said.

"This particular term in the contract which Bluesfest had created for the stallholders was very different and not fair."

He said evidence from some stallholders that other festivals offered fee refunds reinforced the applicants' case and showed Bluesfest was "out of step with the rest of the industry".

In the end, he said the proceedings were largely a matter of principle.

"As much as they did want their money back, they feel that there was just a lack of respect in all of this," Mr Swivel said.

Bluesfest's legal representative has been approached for comment.

The festival may yet appeal the tribunal's decision; it has 28 days to lodge an appeal.



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