MacKay v Volkanik Pty Ltd

Industrial Relations Commission New South Wales Medium Neutral Citation: MacKay v Volkanik Pty Ltd [2026] NSWIRComm 1083 Hearing dates: 26 August 2026 Date of orders: 31 August 2026 Decision date: 31 August 2026 Jurisdiction: Industrial Relations Commission Before: Senior Commissioner Constant Decision: Motion dismissed Catchwords: JURISDICTIONAL OBJECTION – Entertainment Industry Act 2013 (NSW) – s 20 – entertainment industry hirer – performer – recorded performances – recording agreement – publishing and merchandise agreement – whether respondent contracted performer for purpose of a performance – definition of performance – recorded performance for financial benefit – obligation to record and deliver Commitment Album – acquisition and exploitation of intellectual property rights – whether rights acquisition arrangement excludes hirer status – dispute concerning royalties, accounting and set-off – connection between dispute and statutory relationship – Notice of Motion dismissed. Legislation Cited: Entertainment Industry Act 2013 (NSW), ss 4, 5, 6, 10, 20, 39, and 43 Entertainment Industry Bill 2013 (NSW) Industrial Relations Act 1996 (NSW), s 163 Cases Cited: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 Hamod v State of New South Wales & Anor [2011] NSWCA 375 HNOE Limited v Angus & Julia Stone Pty Ltd [2024] NSWCA 271 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 Category: Principal judgment Parties: Steven Malcolm MacKay (applicant/respondent on the motion) Volkanik Pty Ltd (respondent/applicant on the motion) Representation: S MacKay (applicant/respondent on the motion) D MacGregor (respondent/applicant on the motion) File Number(s): 2026/220151 Publication restriction: Nil

DECISION This decision concerns whether the Commission has jurisdiction under s 20 of the Entertainment Industry Act 2013 (NSW) (EI Act) to determine an application filed by Steven Malcolm MacKay on 28 May 2026 (Application). Section 20 of the EI Act confers jurisdiction on the Commission to determine, by conciliation and, if necessary, arbitration, a question, dispute or difficulty arising between a performer and an entertainment industry representative or entertainment industry hirer. Mr MacKay contends that Volkanik Pty Ltd (Volkanik) is an entertainment industry hirer as defined in s 4 of the EI Act. In the alternative, he contends that Volkanik is a performer representative within the meaning of s 5 of the EI Act and, therefore, an entertainment industry representative within the meaning of s 4. By notice of motion filed on 8 July 2026, Volkanik challenges the Commission's jurisdiction (Notice of Motion). It contends that it is neither an entertainment industry representative nor an entertainment industry hirer within the meaning of the EI Act and that the Application should therefore be dismissed. For the reasons that follow, I have concluded that Volkanik is an entertainment industry hirer. The Notice of Motion must therefore be dismissed. In light of that conclusion, it is unnecessary to determine whether Volkanik is also a performer representative within the meaning of

the EI Act. Conduct of proceedings and materials relied upon Mr MacKay appeared on his own behalf and David MacGregor, a director of Volkanik, appeared for Volkanik. Comment has been made in recent months about the degree of assistance provided by self-represented parties to this Commission and to other courts and tribunals. This case is notable in that while the parties were firmly at odds about facts and the issues in contest, both Messrs MacKay and MacGregor sought at all stages to comply with the letter and intent of the Commission’s directions and practice notes and to give the Commission assistance in construing the relevant sections of the EI Act. They are to be commended for this. Despite Messrs MacKay and MacGregor’s best endeavours to deal with the legal and factual issues in this matter, I consider I am bound by, and I have followed the guidance given by the Court of Appeal in Hamod v State of New South Wales & Anor [2011] NSWCA 375 at [309] – [313]: “309 Courts have an overriding duty to ensure that a trial is fair... The duty reposes in the individual judicial officer hearing a case. In the context of an unrepresented litigant, the duty requires that a person does not suffer a disadvantage from exercising the recognised right of a litigant to be self-represented. … 310 However, the court's duty is not solely to the unrepresented litigant. The obligation is to

ensure a fair trial for all parties. … 311 Insofar as the duty relates specifically to an unrepresented party, it has been said that a trial judge has an obligation to take appropriate steps to ensure that the unrepresented litigant has sufficient information about the practice and procedure of the court, so far as is reasonably practicable for the purpose of ensuring a fair trial. The application of that principle will vary depending upon the circumstances of the case. … 312 Although the duty of a trial judge to assist an unrepresented litigant is cast in active terms, it does not extend to advising the accused as to how his or her rights should be exercised... Rather, the judge has to put the unrepresented litigant in the position of being able to make an effective choice, a duty which applies notwithstanding the adversarial character of a criminal trial... The duty is the same in a civil proceeding, with such modifications as are called for to take account of civil procedures. However, it is not the function of the court to give judicial advice to, or conduct the case on behalf of, the unrepresented litigant.” Volkanik relied on an affidavit affirmed by Mr MacGregor on 8 July 2026. Mr MacKay was the sole witness in his case and relied on his affidavit affirmed 20 July 2026. Volkanik filed written submissions on 8 July 2026 and reply submissions on 27 July 2026 and Mr MacKay

filed submissions in response to Volkanik’s 8 July 2026 submissions on 20 July 2026. Neither Mr MacKay not Mr MacGregor required the other for cross-examination. There were however in my mind some questions arising from the written evidence and some matters raised in oral and written submissions that were not clearly dealt with in the written evidence which I clarified by asking questions of each witness as I am entitled to do pursuant to s 163(1) of the Industrial Relations Act 1996 (NSW). In talking this approach, I am satisfied that both parties had the opportunity to put their cases in full, that I understood their respective cases, and that there was a fair hearing for both parties. The legislation The Notice of Motion requires the Commission to determine whether the statutory conditions for the exercise of jurisdiction under s 20 of the EI Act are satisfied. That question turns upon both the proper construction of the EI Act and the factual findings to be made concerning the relationship between the parties. In particular, it is necessary to consider whether Mr MacKay is a performer within the meaning of the EI Act; whether Volkanik answers the statutory definition of an entertainment industry hirer or entertainment industry representative as defined in ss 4 and 5; and whether the dispute identified in the Application arises between the parties in those capacities for the

purposes of s 20. Although the parties referred to a number of other provisions of the EI Act in support of competing constructions, the provisions reproduced below are those most directly bearing upon the jurisdictional question raised by the Notice of Motion. 3 Objects of Act The objects of this Act are— (a) to provide effective, fair and consistent regulation of the entertainment industry, and (b) to provide protections for performers. 4 Definitions (1) In this Act— … entertainment industry agreement means an agreement between a performer and a performer representative for the performer representative to provide one or more of the services referred to in section 5. entertainment industry hirer means a person who engages or contracts any performer for the purpose of a performance. entertainment industry managerial agreement—see section 10. … entertainment industry representative means a performer representative or a venue representative. … performance means— (a) a performance that is given in any place or by the use of any medium for the transmission of sound or images, or both, or (b) a performance that is recorded for the purpose of using the recording in any place or for the transmission of sound or images, or both, and one of the purposes of which is the financial benefit of an entertainment industry hirer or performer, or both. performer means any actor, singer, dancer,

acrobat, model, musician or other performer of any kind who enters an entertainment industry agreement with a performer representative. performer representative—see section 5. … 5 Performer representative In this Act, a performer representative means a person who, for financial benefit, provides or agrees to provide one or more of the following services to a performer (whether or not the agreement also provides for other services to be provided)— (a) seeking or finding work opportunities for the performer, (b) negotiating terms of an agreement for, and the conditions of, a performance, (c) finalising arrangements relating to the payment of the performer, (d) negotiating arrangements relating to the attendance of the performer at a performance, (e) administering the agreement between the performer and an entertainment industry hirer, (f) making arrangements for publicity attendances and related publicity responsibilities of the performer, but does not include a person who does so solely as an employee of any such representative. 6 Trust accounts to be established by performer representatives (1) A performer representative who receives money on behalf of a performer, from any person, must— (a) hold the money exclusively for the performer, and (b) ensure that the requirements of this Act and the regulations under this Act are complied with in relation to the money. (2) Money

received on behalf of a performer by a performer representative that is not paid to the performer immediately (or within such period as may be prescribed by the regulations) must— (a) be paid to the credit of a general trust account at an authorised deposit-taking institution in New South Wales and be held in accordance with the regulations, and (b) be disbursed as directed by the performer within 14 days after the performer representative receives the money. Note. Section 43 provides that the industrial court or Local Court may order a person to pay a pecuniary penalty not exceeding $10,000 for a contravention of paragraph (b). (3) A trust account under this section must be kept exclusively for the purpose of money received on behalf of a performer. (4) A performer representative must keep accounting records in respect of money received on behalf of a performer. (5) The accounting records must— (a) disclose at all times the true position concerning the money received, and (b) be kept at the principal place of business of the performer representative, and (c) be otherwise kept in accordance with the regulations. (6) The regulations may make provision for or with respect to the administration of trust accounts under this section, in particular— (a) the establishment of trust accounts, and (b) the keeping of documents and records by performer representatives. (7) A person who,

without reasonable excuse, contravenes a provision of this section (other than subsection (2) (b)) or the regulations under this section is guilty of an offence. Maximum penalty—75 penalty units. … 20 Disputes may be resolved by Industrial Relations Commission (1) If a question, dispute or difficulty arises between a performer and an entertainment industry representative or entertainment industry hirer, the performer, or an industrial organisation acting on behalf of a performer, may apply to the Industrial Relations Commission to have the matter determined by conciliation and, if necessary, arbitration. (2) The Industrial Relations Commission may conduct such a dispute resolution process in such manner as the Commission considers appropriate. (3) The Industrial Relations Commission may make such orders in relation to such a question, dispute or difficulty as the Commission considers fair and reasonable in the circumstances. (4) A person who fails to comply with an order of the Industrial Relations Commission under this section is guilty of an offence. Maximum penalty—50 penalty units or imprisonment for 6 months, or both. … 39 Contracting out void The provisions of this Act and the regulations have effect despite any stipulation to the contrary and no contract or agreement made or entered into before or after the commencement of this section operates to annul, vary or exclude

any of the provisions of this Act or the regulations. The Parties and the Evolution of the Relevant Relationships Mr MacKay is a musician and performer who, during the relevant period, was a member of the Australian band Twelve Foot Ninja (TFN). The evidence indicates that TFN operated through its individual members and, from 27 September 2013, through Twelve Foot Ninja Pty Ltd (TFN Pty Ltd) [1] . The band's members during the relevant period included Mr MacKay, Nichlas Barker, Shane Russell, Damon McKinnon and, from approximately July 2012, Rohan Hayes. Mr MacGregor is a director of both Volkanik and Macsta. The evidence establishes that he was the principal individual through whom those entities dealt with Mr MacKay and the other members of TFN. The relationships between Mr MacKay, Volkanik, Macsta and associated entities were governed by a series of management, recording, publishing, merchandising and related commercial arrangements. The jurisdictional issue raised by the Notice of Motion requires consideration of the nature of those arrangements and the functions performed by the entities involved. The relationship between Mr MacGregor and Mr MacKay commenced no later than 16 October 2008, when Macsta entered into an exclusive management agreement with the members of TFN. Pursuant to that agreement, and subsequent variations and extensions executed in 2013, 2017 and 2020,

Macsta undertook the management of the artists' professional affairs [2] . The existence of that management relationship is not in dispute. A separate commercial relationship was established on 18 April 2012 when Volkanik entered into a Short Form Exclusive Recording, Publishing and Merchandise Agreement with Mr MacKay and the then members of TFN, namely Steven MacKay, Nichlas Barker, Shane Russell and Damon McKinnon (Volkanik Agreement). Rohan Hayes subsequently became a party to the Volkanik Agreement by accession deed in approximately July 2012 [3] . Under the Volkanik Agreement, Volkanik obtained rights concerning recordings, publishing, merchandise, sponsorship, endorsements, royalty administration and related matters. The Agreement also required the artists to "record and deliver" a Commitment Album during each Album Period and granted Volkanik exclusive rights in relation to the artists' recording services. Those obligations formed part of the contractual framework through which recordings were to be created and commercially exploited [4] . The relationship between the parties thereafter continued to evolve through a series of amendments and commercial dealings, including the accession of Rohan Hayes to the Volkanik arrangements in approximately July 2012, the incorporation of TFN Pty Ltd in September 2013, the variation of the Volkanik arrangements in March 2018, the

exercise of further album options, the administration of royalties, and the execution of the Clarification and Amendment Deed in April 2021 [5] . The formal management relationship conducted through Macsta concluded on or about 12 October 2022. Mr MacGregor's evidence is that Macsta did not exercise its option to extend the management arrangements beyond that date. He relies on contemporaneous communications in which he informed the TFN members that the current Macsta term would end on 12 October 2022 and that Macsta would not exercise its option to extend the agreement, to which Mr MacKay responded, "Agreed, Dave. Onwards and upwards" [6] . While Mr MacKay does not dispute that the Macsta management arrangements came to an end, he contends that the expiration of those arrangements did not alter the nature of the functions subsequently performed by Volkanik. Throughout the period in which both arrangements remained in force, they served different functions. Macsta performed management functions including dealing with live performance matters, liaising with booking agents and coordinating touring activities, whereas Volkanik exercised contractual rights concerning recordings, publishing, merchandise and royalty administration. Mr MacGregor's evidence was that management services were provided through Macsta and that Volkanik's activities related to recordings, releases,

distribution, merchandise, accounting, recoupment and royalty administration under the Volkanik Agreement [7] . Following the conclusion of the Macsta arrangements, Mr MacKay continued to deal with Volkanik, principally through Mr MacGregor, pursuant to the Volkanik Agreement. Subsequent disputes arose concerning royalty accounting, contractual set-off, the continuing operation of the Volkanik Agreement and related commercial matters. Those disputes ultimately resulted in Local Court proceedings and the commencement of the present Application. The parties disagree about a number of matters relevant to the jurisdictional objection, including the extent of Volkanik's role in performance-related activities, whether Volkanik answers the statutory definitions of entertainment industry hirer or performer representative, the operation of royalty accounting and set-off arrangements, the continuing effect of the Volkanik Agreement and the significance of earlier Local Court proceedings [8] . Those matters are addressed, to the extent necessary for the determination of the Notice of Motion, in the analysis which follows. Consideration Neither party relied in any significant way upon judicial authority. Mr MacKay's written submissions cited no decided cases and his submissions were directed to the text of the EI Act, while Volkanik relied principally upon general principles of statutory

construction drawn from Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 (Project Blue Sky ) and Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27, the terms of the relevant agreements and the factual circumstances of their relationship. Neither party was able to identify any authority considering the provisions of the EI Act presently in issue. In particular, I have not been referred to any decision examining the meaning of "performer representative", "entertainment industry hirer" or the operation of the Commission's jurisdiction under s 20 of the EI Act. The parties referred to the 2022 Statutory Review Discussion Paper prepared by the Department of Customer Service and the Second Reading Speech for the Entertainment Industry Bill 2013 (NSW). Those materials provide contextual indications that the EI Act was enacted to regulate relationships between performers and those providing representative services to them and to provide protections for performers. While such extrinsic materials may assist in understanding statutory context and purpose, they cannot displace the text enacted by Parliament. Mr MacKay submitted that limited assistance could be derived from the Second Reading Speech because the dispute-resolution mechanism now contained in s 20 was not included in the Bill the subject of that speech and was

introduced later in the legislative process. Whether that circumstance limits the assistance that may be drawn from the Second Reading Speech need not be determined. In any event, neither party identified any extrinsic material that materially assists in resolving the jurisdictional issue raised by the Notice of Motion. The issue therefore falls to be determined principally by reference to the statutory definitions contained in ss 4 and 5 and the evidence concerning the agreements and conduct relied upon by the parties. Volkanik placed considerable emphasis upon the legal character of the Volkanik Agreement. Volkanik submitted that it acted as a rights owner and principal, not as an agent or intermediary, and that the Agreement was fundamentally a recording, publishing and merchandise agreement rather than a representative arrangement. Mr MacKay submitted that the statutory inquiry is functional and depends upon the services actually provided rather than the contractual labels adopted by the parties. I accept the latter submission. The jurisdictional issue is to be determined by applying the statutory definitions to the agreements and conduct relied upon by the parties. The inquiry is not concluded either by the labels adopted by the parties or by the characterisation advanced by one side or the other. Is Mr MacKay a performer? Mr MacGregor accepted that Mr MacKay was a

performer and I am satisfied that Mr MacKay answers the statutory description of a performer. Although the relevant recordings and performances were undertaken as part of TFN, nothing in the EI Act suggests that a musician is excluded from the definition of performer merely because the musician performs as part of a band. In any event, Volkanik did not submit that Mr MacKay failed to answer the statutory definition of performer by reason of his participation in TFN. The principal question is therefore whether Volkanik is an entertainment industry hirer or entertainment industry representative. Is Volkanik an entertainment industry hirer? Mr MacKay's primary submission was that Volkanik contracted him to provide recorded musical performances for commercial exploitation and financial benefit. Volkanik submitted that the concept of an entertainment industry hirer should be confined to discrete engagements for an identifiable performance and that the references in ss 18 and 19 to payment and record-keeping obligations indicate that the legislation is directed to conventional engagements for performances rather than recording and royalty arrangements. I do not accept that submission or that the statutory language permits such a limitation. The definition of "entertainment industry hirer" in s 4 is expressed in broad terms and contains no requirement that the engagement relate to a

single performance, a short-term engagement or a conventional booking arrangement. Nor do ss 18 and 19 justify reading such a limitation into the definition. Those provisions regulate aspects of a relationship that already answers the statutory description of entertainment industry hirer. They do not define the scope of that relationship and cannot be used to narrow the language adopted by Parliament. This construction is consistent with the definition of "performance", which expressly includes a performance that is recorded for the purpose of using the recording in any place or for the transmission of sound or images where one purpose is the financial benefit of the performer or hirer, or both. A construction of "entertainment industry hirer" confined to conventional live engagements would substantially deprive that aspect of the definition of meaningful operation. Consistently with the approach described in Project Blue Sky, the preferable construction is one that gives effect to both definitions according to their terms. The Volkanik Agreement did not merely confer rights in recordings after they had been created. Item 3 required the artists to "record and deliver" a Commitment Album during each Album Period. That obligation required the future creation and delivery of recorded musical performances and formed part of the consideration for which Volkanik contracted. The

Agreement also granted Volkanik exclusive rights in relation to the artists' recording services. In addition, cl 2.1 of the 2021 Clarification and Amendment Deed expressly identified among the services granted to Volkanik the Artist's musical performance services and the band's collective performance services [9] . While the statutory question must ultimately be determined by reference to the EI Act rather than the language chosen by the parties, those provisions support the conclusion that the Agreement was directed to the provision, creation and commercial exploitation of recorded musical performances. The present case is therefore not concerned solely with the passive acquisition of existing recordings or rights that had already come into existence. The contractual arrangements extended beyond the acquisition and exploitation of existing intellectual property and required the future creation and delivery of recorded performances. The subsequent acquisition and exploitation of rights depended upon those performances being created. That the recorded performances were intended to generate financial benefit is apparent from the structure of the Agreement itself. The Volkanik Agreement contemplated the commercial release and exploitation of recordings, the payment of advances, recoupment and the sharing of income generated from those recordings [10] . I am satisfied that one

purpose of the recorded performances required by the Agreement was the financial benefit of both Mr MacKay and Volkanik. Accordingly, the performances contemplated by the Volkanik Agreement fall within the statutory definition of "performance" in s 4 of the EI Act. I accept that the Volkanik Agreement cannot be characterised as a conventional engagement of a performer for a single live performance and that it also involved the acquisition and exploitation of intellectual property rights arising from recorded performances. However, those additional commercial features do not answer the statutory question. The issue is whether Volkanik contracted with Mr MacKay for the purpose of performances as defined by the EI Act. In my view it did. The recorded performances were contractually required under the Agreement and formed an essential part of the contractual bargain between the parties. Whether other commercial arrangements involving the downstream acquisition, licensing or exploitation of existing recordings, such as the example of Spotify raised by Mr MacGregor in oral submissions, would satisfy the statutory definition does not require determination. The present case concerns a contractual arrangement under which the artists were themselves obliged to create and deliver recorded performances for commercial exploitation. For those reasons, I am satisfied that Volkanik contracted

with Mr MacKay for the purpose of recorded performances within the meaning of the EI Act and therefore answered the definition of an entertainment industry hirer in s 4. Is Volkanik a performer representative? As I am satisfied that Volkanik answered the definition of an entertainment industry hirer, it is unnecessary to determine whether it also answered the definition of performer representative. The parties made substantial submissions concerning that issue. However, any conclusion regarding performer representative status would not affect the disposition of the Notice of Motion and I therefore express no concluded view on this question. The dispute set out in the Application Volkanik submitted that s 20 of the EI Act is confined to disputes arising out of the statutory relationship and does not confer jurisdiction in relation to every commercial dispute between persons who happen to satisfy the statutory definitions. I accept that proposition. The relevant inquiry is whether the question, dispute or difficulty identified in the Application arises between the parties in connection with the relationship said to attract the operation of the EI Act. The mere fact that a person satisfies the definition of performer representative or entertainment industry hirer does not mean that every dispute involving that person falls within s 20 of the EI Act. The dispute identified in the

Application concerns the collection, administration, accounting for, withholding and alleged set-off of monies said to be derived from performances, recordings and related entertainment industry activities. It also concerns the continuing administration of rights and income streams arising from those activities. Those matters arise from the contractual arrangements under which Volkanik engaged Mr MacKay to create and deliver recordings for commercial exploitation. The royalties, accounting obligations, administration of income streams and alleged set-offs relied upon by the parties are all said to flow from that relationship. The dispute is therefore not merely one between parties who happen to satisfy the statutory definitions. Rather, the matters in dispute arise from the very arrangements said to give rise to the performer and entertainment industry hirer relationship. Conclusion and Effect of These Findings The Notice of Motion fails because I am satisfied that, under the Volkanik Agreement, including the obligation to record and deliver a Commitment Album and the grant of exclusive recording services, Volkanik contracted with Mr MacKay for the purpose of recorded performances. Volkanik therefore falls within the statutory definition of an entertainment industry hirer. For the reasons given above, I am satisfied that the dispute identified in the Application arises from

those same contractual arrangements. The dispute therefore constitutes a question, dispute or difficulty arising between a performer and an entertainment industry hirer for the purposes of s 20(1) and, subject to the evidence accepted by the Commission at arbitration, may appropriately be resolved by the Commission pursuant to s 20(3) of the EI Act. This decision is concerned solely with the jurisdictional objection raised by Volkanik. The issue before the Commission was whether the dispute identified in the Application is one arising between a performer and an entertainment industry hirer or entertainment industry representative within the meaning of s 20 of the EI Act. The findings made in this decision are directed to that question alone. I have not determined the ultimate merits of the parties' competing claims. In particular, I have made no determination as to whether royalties have been wrongfully withheld, whether any set-off was authorised, whether any loan or guarantee liability is owing, whether the relevant agreements were validly terminated, whether Volkanik is entitled to continue administering royalties or income streams, or whether any of the substantive relief sought in the Application should ultimately be granted. Nor should this decision be understood as determining that each act or omission complained of by Mr MacKay was undertaken by Volkanik in the capacity

of entertainment industry hirer. Those matters remain to be determined in the substantive proceedings following consideration of the evidence and submissions. Further, nothing in this decision should be understood as determining whether the EI Act creates any independent cause of action for breach of statutory duty or other rights outside the dispute-resolution mechanism established by the EI Act: see HNOE Limited v Angus & Julia Stone Pty Ltd [2024] NSWCA 271. The present issue is confined to whether the statutory conditions for the exercise of the Commission's jurisdiction under s 20 have been satisfied.

ORDERS I make the following orders: The Notice of Motion filed by Volkanik Pty Ltd on 8 July 2026 is dismissed. The matter is listed for directions before Senior Commissioner Constant at 9.30 am on 15 September 2026. N J Constant Senior Commissioner ** Endnotes 1. TFN Pty Ltd was incorporated on 27 September 2013 and was used to conduct aspects of the band's affairs.

2. MacGregor Affidavit, 8 July 2026, par 15.

3. MacGregor Affidavit, 8 July 2026, par 4; Ex DM‑1d recital B.

4. MacGregor Affidavit, Ex DM‑1a, Item 3; Item 7.

5. MacGregor Affidavit, 8 July 2026, pars 4 and 12; Ex DM‑1c; Ex DM‑1d recitals B-D.

6. MacGregor Affidavit, 8 July 2026, pars 19-21; Ex DM-3.

7. MacGregor Affidavit, 8 July 2026, pars 15, 22, 23 and 26.

8. MacKay Affidavit, 20 July 2026, pars 5-8; MacGregor Affidavit, 8 July 2026, pars 22-35 and 43.

9. MacGregor Affidavit, 8 July 2026, par 10; Ex DM‑1d cl 2.1.

10. MacGregor Affidavit, 8 July 2026, par 5; Ex DM‑1a Items 5 and 6. 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: 31 August 2026