Ziggy Zapata Title

DRUMMOYNE RSL CLUB

The author asserts his right to publish this information in the public interest
No responsibility is taken for consequences resulting from using any information contained herein

IMPORTANT NOTE - PLEASE READ FIRST

On 19 January 2009, I was contacted by phone by the new general manager of the now defunct Drummoyne Club (formerly Drummoyne RSL Club), who very nicely asked me to remove this article from my website, because it was easily found by various search engines such as Google. The reason stated by the manager was that although the incident happened quite a few years ago, it was still causing embarrassment to the club and could affect her job and the jobs of her staff.

I informed the manager that the article was still on my website because it was a valuable legal resource for entertainers. In fact, many performers have told me that this information was very useful to them and have praised me for making it available. I believe that this report has assisted some performers in recovering fees that they rightfully earned, but previously did not know the legal situation regarding the responsibilities of venues and agents in paying those fees. Therefore, this report has achieved the exact result that was hoped for.

There are literally millions of articles published on the Internet that are embarrassing to people, however if they are truthful, unbiased, in the public interest and serve a useful purpose, then there is no good reason to have them removed. Many Germans are embarrassed about Adolf Hitler and World War Two and this happened a long time ago, but that is no reason to remove all references to it from our history books or the Internet.

There are countless legal reports naming defendants and giving the result of judgements on many websites, including those of governments and legal organisations, but those websites would not remove that information just because defendants were embarrassed by their publication. There is a greater public interest in having such information accessible than to suppress it because it might be unpalatable to some people.

The then current manager was most gracious on the phone to me, however this was no reason for removing an item that not only is a truthful report of a court case that occurred in a public forum, but has set a very important legal precedent and contains critical information for all entertainers in NSW.

Therefore, I have decided to leave this article on this website, as it meets all the criteria of truth, public interest and it is not malicious or defamatory in the slightest. In my opinion, its importance to the entertainment industry far outweighs any embarrassment caused. Nobody has the right to try to suppress the reporting of events that occurred in the public domain. In any case, Drummoyne RSL Club has ceased to exist, so nobody needs to be embarrassed anymore.

CLUB SUED AND BEATEN BY PERFORMER

Some years ago, the now defunct Drummoyne Club, formerly the Drummoyne RSL Club, engaged the services of Michael Mullins and his entertainment agency Made It Happen Promotions and Entertainment Pty Ltd to book entertainers for the club.

CLUB VENUE CONSULTANT DEFAULTS ON PAYMENTS

As was the normal practice for most clubs, Drummoyne Club paid the fees for those entertainers to Michael Mullins for him to disburse to them, however a number of entertainers had not received their fees, some for over a year.

After a number of performers complained of non-payment, Drummoyne Club eventually changed the payment arrangements. Although Michael Mullins was removed briefly, he was reappointed as the club's venue consultant, however performer's fees were not forwarded to him for distribution, but were paid directly by the club to those performers.

CARDBOARD CUTOUTS PLAY AT VENUE

Prior to the changed payment arrangements, on 03 March 2001, Kerry Leigh's duo the 'Cardboard Cutouts' performed at Drummoyne Club after having been booked by Michael Mullins acting as the club's venue consultant. After repeated unsuccessful attempts to obtain his fee from Mullins, Kerry Leigh decided to demand his fee directly from Drummoyne Club, as this venue was the actual employer and therefore was ultimately liable to ensure that such fees were paid to performers.

Leigh then contacted the club manager Brian Allen, who rebuffed him a number of times and refused to pay the outstanding fee. Leigh then concluded that that there was no alternative but to initiate legal action against the club and its manager. I had advised him to do so and offered my assistance in drafting and submitting all relevant documents to Allen and the court.

GROUNDS FOR LEGAL ACTION

Leigh's cause of action relied on the definitions in the Entertainment Industry Act 1989, that the club was the actual employer and that although Mullins booked Leigh, he did so while acting as the club's authorised venue consultant. Therefore regardless whether the club had forwarded the fee to Mullins, if payment was not actually made to Leigh, the club was ultimately liable.

Brian Allen relied on the misguided and totally wrong notion that because the club had paid Leigh's fee to Mullins, the club had fulfilled its responsibility and had no further liability. In fact although the club had admitted that Mullins was acting as the club's authorised agent to book entertainers on its behalf, the club's defence was that it had not made any agreement with Leigh and did not contract Leigh to perform at the club.

PRE-TRIAL HEARING

The matter went to pre-trial hearing at Burwood Local Court on 24 July 2002, where the Registrar offered to have the matter mediated. I advised Kerry Leigh to consent to this, however upon instruction from Drummoyne Club, the club's solicitor Graham Chegwidden declined to engage in mediation to settle the matter there, but elected to take it to a hearing, which was set down for 04 December 2002. In the meantime, according to industry sources, the services of Michael Mullins were eventually terminated by the club and a new venue consultant was appointed.

HEARING AT BURWOOD COURT

On 04 December 2002, the matter went to a hearing at Burwood Court before magistrate Bill Pierce. Kerry Leigh represented himself and Drummoyne Club and Brian Allen were represented by solicitor Graham Chedwiggen. I personally appeared as an 'Amicus Curiae' (friend of the Court). Written witness statements were tendered by both parties.

VERDICT IN FAVOUR OF KERRY LEIGH

After hearing submissions from Chegwidden and me and reading the various witness statements and other evidence that was tendered by me, the magistrate found that Leigh was indeed owed his fee by Drummoyne Club. Magistrate Pierce ruled in favour of the Plaintiff Kerry Leigh and also made a costs order in favour of the Plaintiff. On 31 December 2002, Burwood Court received payment of Leigh's fee plus court costs.

IMPORTANT NOTES ABOUT THIS CASE

Report by Ziggy Zapata

In reporting on such events, I would normally restrict myself to making no comment. However because of the nature and vital importance of this particular matter and my intimate involvement throughout its course, I feel entitled to provide my own viewpoint in the public interest.

Most people who know me personally and have done business with me will also know that I operate to a very strict set of principles and I ran my now-closed entertainment agency according to those principles and to the strict letter of the law. I believe that when an entertainer is booked to perform at a venue, he deserves to be paid, provided that he does the job as required.

MANY PERFORMERS RIPPED OFF

This particular case was most important because I believed that it was not really about one entertainer failing to be paid for one performance. In fact I had good grounds to believe that many entertainers who were booked to perform at Drummoyne Club by the club's venue consultant Michael Mullins, were not paid for their services, even though the club had allegedly given Mullins their fees to disburse to them.

I was personally contacted by some of these entertainers regarding the same situation. I advised them that they had the right to purse the club to recover their rightfully earned fees, but they were very hesitant to embark on a course that would probably end in litigation. They were also concerned that such action would possibly get them a bad reputation in the industry, even though they were doing nothing more than pursuing their rightful claim to be paid for work that they had done.

However in this instance, Kerry Leigh decided that he would not worry about any repercussions in the music industry, but would pursue Drummoyne Club for payment, as he considered quite rightly that he was actually employed by the club after being booked by the club's very own representative. Kerry spoke to me on a number of occasions about his feelings and that it was a matter of principle that he proceed to recover what was really a trifling sum, compared to the time and effort that would have to be expended to proceed with litigation.

I admired his willingness to risk incurring the wrath of agents who would be wary of booking him in the future because of their own shady practices, even though all he was doing was standing up for his rights to be remunerated for a job that he had performed. None of those agents would dream of forgoing their commissions, but I know that many of them would literally blacklist a performer for doing nothing more than trying to recover a fee that was owed. I know for a fact that some of them blacklisted me for standing up for my rights. So I decided to assist him in this important endeavour.

CLUB REFUSED TO HONOUR ITS LEGAL OBLIGATIONS

The analogy and logic used was very simple, but Kerry and I found it baffling that Drummoyne Club and Brian Allen did not acknowledge the following example when it was presented to them. Before the introduction of the GST, it was common for a club's cashier to disburse the entertainer's fee. Had that cashier embezzled the fee and absconded, the club would still have to pay the entertainer because payment was not deemed to be made until the entertainer had actually received the fee. Therefore the principle of the transaction was the same, whether the fee was being disbursed by the club's cashier or the club's venue consultant.

ENTERTAINMENT INDUSTRY ACT WAS VERY CLEAR ON OBLIGATIONS

Although the various roles and responsibilities of entertainment industry employers such as Drummoyne Club, venue consultants such as Michael Mullins and entertainers such as Kerry Leigh that perform in those clubs were all very clearly defined in the then Entertainment Industry Act, the Kerry Leigh vs Drummoyne Club matter was probably the first time that the Act had been legally tested in such a way. In fact this case set a strong precedent for future actions taken against entertainment industry employers who might consider that their appointed venue consultants insulate them from any liability to pay entertainers their due fees.

DRUMMOYNE CLUB HAD NO HOPE OF WINNING

I knew at the time that Drummoyne Club and Brian Allen literally had no chance of winning the court action by using the defence that Michael Mullins was actually Kerry Leigh's employer, simply because the Act clearly stated that the employer was ALWAYS the end user (the club) and no agent was permitted to be an employer. Thus the party liable for Kerry Leigh's fee HAD TO BE Drummoyne Club.

I was completely astounded that the club's solicitor Graham Chedwiggen either did not advise Brian Allen of this very important provision in the Act, or he decided that Kerry Leigh would be unaware of the law, as their entire defence rested on a false premise that was easily pointed out to the court by me. It seemed to me that Chedwiggen had not read the Act or even if he did, he did not understand it, which was rather staggering, considering that Chedwiggen was a lawyer with decades of experience.

My impression throughout this whole matter was that Brian Allen and Graham Chedwiggen merely expected Kerry to run his case on his own, realising that he was very inexperienced in court and would find it difficult to present his arguments before the magistrate. I felt that both of these individual were quite shocked when I stood up at the beginning of the hearing and presented myself to the magistrate as an 'Amicus Curiae', literally a friend of the court. I presented copies of the Entertainment Industry Act to Chedwiggen and the magistrate with the relevant clauses highlighted and proceeded to quote the relevant parts of the Act and Regulations and explain the legal issues about the various roles and responsibilities of parties to this Act. Once the magistrate perused the Act and the provisions that I pointed out to him, he could see that he had no choice but to rule in Kerry's favour.

TAX INVOICE FROM MICHAEL MULLINS WAS ILLEGAL

An interesting and enlightening piece of evidence tendered by Drummoyne Club was the tax invoice from Michael Mullins, showing that Mullins charged the club a venue consultant's fee. What was of even greater interest was the discrepancy between the entertainer fees billed to the club by Mullins and the actual fees that those entertainers had negotiated with him.

Under the Act, a venue consultant was not entitled to claim any fee or remuneration from the performer. If a person acted as both an entertainment industry agent and a venue consultant, that person would only be entitled to receive a venue consultant's fee. Simply put, a venue consultant was not legally permitted to take commission from an entertainer. This was obviously to prevent double-dipping by agents who otherwise could charge the venue a fee and also take commission from the performer, thus eroding that fee substantially. However having had been an agent myself for a long time, I knew that this situation was prevalent in the NSW entertainment industry, with many agents doing exactly that - ripping off performers.

ALMOST NO AGENTS ADHERE TO THE ACT

As an aside, it is interesting to note that virtually no venue consultants or entertainment agents in NSW were fulfilling one of the most basic legal requirements of the Entertainment Industry Act, that of informing each party of the details of all transactions, including the gross amounts received from venues to agents, the nett amounts disbursed to performers and the amounts of any commissions charged by those agents. Of course if agents did disclose these details to both venues and performers, they would not be able to get away with ripping anybody off.

In fact I personally know of one performer who demanded such an accounting and was actually abused and threatened by the agent, who refused point-blank to provide the performer with such details. It was eventually discovered that this agent was charging the venue $300 and disbursing $180 to the performer, thus ripping off a whopping 40% commission instead of the maximum 10% allowable by law. This disgusting, exploitative and illegal practice has always been very prevalent in the entertainment industry in NSW.

MICHAEL MULLINS DOUBLE-DIPPED ON COMMISSIONS AND FEES

In the particular instance involving Kerry Leigh and Michael Mullins, as well as charging Drummoyne Club a venue consultancy fee of $239.80 including GST for the month of March 2001, Mullins billed the club $440.00 including GST for Kerry Leigh. However the fee agreed to between Mullins and Kerry Leigh was $412.50 including GST, a difference of $27.50 including GST. I would not have been surprised to find that other entertainers that had actually been paid were not getting the full fee that Drummoyne Club had given to Mullins to forward to them.

Throughout the running of the case, Kerry and I had speculated that the real reason that the club had not just paid what was really a trifling fee was that if Kerry won the matter, all the other entertainers that were owed money by the club on the same basis would then have unshakeable grounds to proceed against the club and recover those fees.

The thing that irritated me was the fact that Drummoyne Club had actually paid the fees of the booked entertainers to Michael Mullins, having done the right thing in all respects. Where Drummoyne Club and its manager Brian Allen did err was to insist that having paid the fees to the club's booking agent, they thought that they could wash their hands of any further responsibility. However, they always had the responsibility to ensure that the performers were being paid by the club's agent and the club and the manager always denied this. But Brian Allen certainly got the message after losing the court case.

BRIAN ALLEN DID NOT WANT THIS CASE PUBLICISED

Club manager Brian Allen knew that I had a lot to do with computers and IT and he really did not want me to let the world know of this court case and the verdict. I believe that this was confirmed, when immediately after the matter was finalised and the order was made against Drummoyne Club in favour of Kerry, the club's solicitor Graham Chedwiggen and Brian Allen approached Kerry and myself outside the courtroom. Chedwiggen asked me for this matter not to be publicised or published, especially on the Internet. As I considered that this whole affair was a matter of the highest public interest, I denied this request utterly and this is the prime reason why this article is still on this website and will remain.

What I found appalling was that Brian Allen threatened to sue me for defamation if I reported this court case on the Internet. This was a really idiotic thing to do, because all it did was to make me more determined to do exactly that - put the case on my website. So I told Allen this in no uncertain terms and also got into his face and said that any defamation action against me would be doomed to fail and then I would cross-sue him for his back teeth. He quickly scuttled off and I have never seen him since.

PERFORMERS SHOULD ALWAYS PURSUE THEIR RIGHTFUL FEES

In light of this court case, I did suggest that all entertainers that were booked to perform at Drummoyne Club or any other venues by Michael Mullins of Made It Happen Promotions and Entertainment Pty Ltd when he was acting as their appointed venue consultant, but who have not been paid, should immediately submit tax invoices to those venues and demand their fees. In fact I strongly suggested that performers shold have used this method in dealing with any venues whose consultants did not comply with the payment provisions of the Act.

UNDERSTAND THE RULES THAT AFFECT YOUR INDUSTRY

Everybody connected with the entertainment industry should make themselves familiar with the laws and requirements governing this industry. The problem with entertainment is that it has suffered with rogues who have ripped performers off unmercifully and that is so wrong. In many cases, entertainers have been too scared to confront these crooks because of the threat of loss of work and income. But it is most important to rid the entertainment industry of these rogues and one of the best ways is to proceed against them in court and expose them and their shady operations. But to do this, entertainers have to learn the laws that govern their industry and also have the guts to stand up for their legal rights.

FURTHER NEWS ABOUT DRUMMOYNE CLUB

Report by Ziggy Zapata

On 30 October 2006, I received an email from Brian Allen, CEO of Drummoyne Club, asking that I remove the article on this page about the matter of Kerry Leigh v Drummoyne RSL Club on the grounds that it was damaging both the club's and his reputation in the community. I replied, refusing to do so on the grounds that it was an accurate reporting of an event in the public domain and more importantly, it was in the vital public interest for the entertainers of NSW and even the general public to have knowledge of this.

I received a response from Allen, saying that he was disappointed and that Drummoyne Club "would be considering its alternatives". I construed that as a veiled threat of possible legal action against me, so I blocked all further emails from him and demanded that future contact be made in writing by letter. That way, I would have had hard copy of any threats that he might have made, but after that, I did not hear any more from him.

BRIAN ALLEN NO LONGER AT DRUMMOYNE CLUB

In any event, in September 2008, I was informed that Brian Allen was no longer employed by Drummoyne Club. So the whole sorry saga involving this person and the shonky dealings with entertainers is now over.

ANOTHER REQUEST TO REMOVE THIS REPORT

On 19 January 2009, I received a phone call from Kerrie Wadwell, the manager of Drummoyne Club, asking me very nicely to remove this article, as it was causing her and her staff some embarrassment. I explained that the matter was on my website as a vital matter of public interest and that I would give some thought to removing it. However after much contemplation, I decided that the report was far too important because of its legal ramifications and the fact that it set a crucial legal precedent that affects all performers in NSW.

Therefore the public interest aspect far outweighed any embarrassment that this report might cause to anybody at Drummoyne Club. However in deference to that very polite request, there is now an explanatory note at the top of this page.

THE FINAL NEWS ABOUT DRUMMOYNE CLUB

On 01 January 2011, the Drummoyne Club was put into liquidation and its doors closed for the final time on 08 January 2011. This was a sad moment for a club that was once a top-class entertainment venue in the 1970s and 1980s where I had performed many times. One can only speculate that a combination of iniquitous government-imposed taxes, competition from hotels and the casino, the economic downturn and the prevalence of other forms of entertainment contributed to the club going broke.

I personally suspected - and this is only my opinion, based on my dealings with former CEO Brian Allen - that there may also have been a degree of mismanagement that contributed to the eventual demise of the Drummoyne Club. I believed that a forensic audit of the club's operations and financial ledgers from that time would have been most appropriate.

I obviously did not have any hard evidence, as I had no access to the club's records, however I had heard a fair bit of scuttlebutt from various people who had dealings with this venue and I had no reason to disbelieve them. So this is only my personal opinion and I am entitled to express it.