Industrial Relations Commission New South Wales Medium Neutral Citation: David William Hopkins v June Reilly trading as June Reilly Management [2017] NSWIRComm 1064 Hearing dates: 5 October 2017 Date of orders: 05 October 2017 Decision date: 05 October 2017 Jurisdiction: Industrial Relations Commission Before: Stanton C Decision: The Commission makes orders in respect to the non-payment of performer's fees as claimed, interest and the reimbursement of filing fees Catchwords: Dispute pursuant to s 20 of the Entertainment Industry Act 2013 – conciliation failed – directions for arbitration made – agreement on quantum owed - initial hearing vacated on grounds that the respondent was not fit to appear – medical certificate filed – further advice respondent unwell, but not supported by medical evidence – offer to appear by telephone link rejected – hearing proceeded in the interests of justice – orders made in applicant's favour Legislation Cited: Industrial Relations Act 1996 Entertainment Industry Act 2013 Civil Procedure Act 2005 Category: Principal judgment Parties: David William Hopkins (applicant) June Reilly trading as June Reilly Management (respondent) Representation: David William Hopkins (self-represented) File Number(s): 2017/00119920 Judgment 1. This matter concerns an application pursuant to s 20 of the Entertainment Industry Act 2013 (the Act). 2. The application was subject to conciliation before Commissioner Seymour on 20 June 2017. In the absence of agreement, directions for arbitration were subsequently made. 3. Shortly stated, the applicant, Mr David Hopkins, is seeking payment of performance fees (plus interest and the reimbursement of filing fees) withheld by the respondent, June Reilly trading as June Reilly Management, for the period 18 November 2015 to 28 February 2017, being an amount of $9,555.21 plus interest. That calculation was contained in an email (Exhibit 2) sent by the respondent to the applicant dated 3 October 2017 as part of the parties' pre-hearing negotiations. 4. Details supporting the claim, including the terms of the management agreement between the respondent and applicant, the outstanding amounts owed and copies of various emails setting out details of the numerous attempts made by the applicant to receive payment of outstanding performance fees were set out in an affidavit filed on 13 July 2017 (Exhibit 1). 5. This matter was listed for hearing on 15 September 2017. That hearing was vacated to today on the grounds that the respondent was, on the advice of her medical practitioner, not fit to appear. That advice was supported by a medical certificate. 6. Between 15 September and early October 2017, the parties sought to resolve the dispute. However, no agreement could be reached concerning a repayment schedule prior to today's hearing. 7. On 4 October 2017, the respondent's representative advised Commissioner Support by email that the respondent was "still very unwell". However, no medical certificate was attached to that representation. In reply on 4 October 2017, Commissioner Support advised the respondent by email that she could appear today by telephone. By email again sent on 4 October 2017, the respondent's representative advised: Regrettably, no one will be available to take your call. Please express my apologies for any inconvenience this may cause. 1. In the interests of justice, the hearing proceeded today with the applicant being self-represented. The applicant's legal representative was unable to appear as the requirements of s 379(5) of the Industrial Relations Act 1996 had not been satisfied. 2. During the course of the proceedings today, the applicant gave sworn testimony supporting his claim and confirmed that the amount owed to him was now an agreed amount between the respondent and himself, that amount being $9,555.21. He relied on Exhibit 2 to support that proposition. The applicant also sought interest on outstanding monies due plus reimbursement of filing fees paid. 3. I note that s 7(1)(a) of the Entertainment Industry Act relevantly provides that an entertainment industry representative who receives money on behalf of a performer must, as soon as practicable after receiving the money, give a financial statement to the performer. On the material before the Commission, the respondent has clearly failed to comply with this requirement. It would also appear that the respondent has failed to comply with the trust account provisions set out under s 6 of the Act. 4. Having considered all the material before the Commission, I find in favour of the applicant and make the following orders. Orders 1. The respondent is ordered to pay the applicant the sum of $9,555.21 in respect to the non-payment of performer's fees as claimed. 2. In addition, the respondent shall pay interest on the above amount at the prescribed rate set from time to time for the purposes of s 100(1) of the Civil Procedure Act 2005. 3. The respondent shall reimburse the applicant's filing fees for this application. 4. The above monies shall be paid within 28 days from Friday, 6 October 2017. J D Stanton Commissioner ********** Amendments 12 October 2017 - The word "make" added to paragraph 11. 24 November 2017 - Amend Order (2) by deleting 's 95(1) of the Supreme Court Act 1970' and insert instead 's100(1) of the Civil Procedure Act 2005'. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 24 November 2017