Subsonic music festival loses bushfire insurance claim

A music festival which organisers say was cancelled because of nearby bushfires, more likely didn't go ahead due to council conditions, the Federal Court found.

Organiser of electronic music festival Subsonic, Scott Commens, was suing Insurer Lloyd's for around $870,000, claiming the 2019 event was axed due to the Black Summer bushfires raging just kilometres away.

The real reason for the festival being cancelled was more likely approval conditions imposed by council, which could have been dealt with had Mr Commens acted earlier, a court decision found on Monday.

Justice Ian Jackman dismissed the claim and ordered that Mr Commens pay the legal costs of the insurer finding it was not necessary for the festival to be cancelled, as was a requirement under the insurance agreement.

Subsonic had taken place from 2010 until 2019 at the Riverwood Downs camping grounds on the banks of the Karuah River, near the town of Monkerai in NSW's Hunter region.

Justice Jackman found the campground's owner, Christopher Hall, had retracted the use of the land shortly before the festival and Mr Commens was unable to find a suitable alternative venue.

In the time leading up to the festival the threat of fires was "no more than a background concern" for either Mr Hall or Mr Commens, Justice Jackman found.

"Although bushfires may have contributed to the timing of Mr Hall's decision to cancel the festival, that decision would probably have been made in any event," Justice Jackman stated in the decision.

Mr Commens should also have acquired a written contract with Mr Hall for the use of the land, which he told the court he usually did only in the weeks before the festival.

"I do not accept that such an arrangement was timely or prudent," Justice Jackman said.

"The owners of Riverwood Downs were at liberty to withdraw their support for the festival in the absence of any contract."

The court also determined, that had Mr Commens acted on Mr Hall's advice shortly after the 2018 festival to start preparing a development approval for the following year, there likely would have been an opportunity to comply.

Mr Hall stated on various occasions in November 2019 he regarded the conditions proposed by the local council as impossible to comply with or not financially viable.

However, following the successful running of the festival under almost the same DA conditions in 2023, he now accepts that with the benefit of hindsight he was proven wrong, the ruling stated.

"It follows ... that the insurers do not have any liability to reimburse Mr Commens for such net loss as he may have incurred following the cancellation of the 2019 Subsonic music festival," Justice Jackman wrote.