Bluesfest stallholder fee stoush: NCAT delivers appeal decision

A tribunal has handed down an appeal judgment following a lengthy dispute between festival organisers and stallholders who planned to work at the cancelled 2020 event.

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

Bluesfest Byron Bay organisers have been ordered to repay stallholders a large portion of fees paid prior to the cancelled 2020 festival.

A group of 11 stallholders – who sell food and other goods – took Bluesfest Services to the NSW Civil and Administrative Tribunal last year to pursue the refund of about $90,000 in stallholder fees.

The tribunal’s senior member Graham Ellis made a finding in the stallholders’ favour in January this year but Bluesfest later appealed that decision.

In a further judgment handed down on Thursday, two deputy presidents of the tribunal upheld part of the appeal and ordered Bluesfest Services to repay a total of $67,787.84.

That’s 75 per cent of what the stallholders were seeking.

Lawyer for the stallholders, Mark Swivel of Byron Shire based Barefoot Law, said his clients had “proved their point” that the Bluesfest contract – particularly its force majeure clause – was “unfair”.

“Bluesfest had no right to retain all the stallholders’ money,” Mr Swivel said.

“NCAT found Bluesfest’s no-refund clause was an unfair contract term.”

Mark Swivel from Barefoot Law represented 11 stallholders in an NCAT dispute with Bluesfest Services.

Graham Ellis’ earlier judgment included a finding that the force majeure contract term was unfair under Australian Consumer Law and this finding was upheld at the appeal.

Mr Ellis rejected the argument by Bluesfest’s barrister Mark Southwick that his clients should retain a portion of the fee as compensation under the Frustrated Contracts Act.

It was on this point that Bluesfest’s appeal was partially successful.

Bluesfest argued the tribunal erred in its original judgment, including by not properly assessing the obligation imposed upon the festival by credit card companies to refund tickets and its obligation to Bluesfest Touring Pty Ltd for artist contracts, travel and accommodation costs.

Mr Southwick also argued the tribunal’s initial decision “was not fair and equitable or was against the weight of evidence”.

He further argued the tribunal erred in finding the stallholder contracts were unfair because they were agreements “between two small businesses” and there was “no evidence” the stallholders were unable to understand the relevant clause.

Bluesfest director Peter Noble in his office at Tyagarah. Picture: Natalie Grono

Bluesfest was due to run from April 9 to 13, 2020 but did not proceed because of a public health order issued on March 15 prohibiting the event.

The pin was similarly but more abruptly pulled on the 2021 festival due to a Covid-19 outbreak linked to a group of Queenslanders who visited Byron Bay for a hen’s party.

“As the festival did not proceed, none of the intended benefits, namely a stall on a site from which food or merchandise could be sold during the festival, were received by any of the stallholders who had otherwise paid the full amount due to Bluesfest,” tribunal deputy presidents Mark Harrowell and Stuart Westgarth said in their judgment.

They found it would be “unfair for an individual stallholder … to be placed in a position to carry the whole of its financial risk in the event of the festival not proceeding”.

Bluesfest punters in 2018.

“The simple fact is that the festival was cancelled prior to its commencement and neither party got the benefits ultimately intended by the arrangement, other than the appellant receiving payment of the stallholder fees upfront,” they said.

But they found it “would not be proper” to order Bluesfest to repay the full fee to each stallholder.

“To do so would not make any allowance for the detriment suffered by the appellant,” they said.

Conversely, they found not ordering a “substantial” refund would pose an “injustice on each stallholder”.

Bluesfest will have an opportunity to appeal the decision and the parties have a chance to apply for costs.

Bluesfest’s lawyer was approached for comment.