Principle of Australian Business Law

Questions: 1. Demonstrate a working knowledge and understanding of the principles of Australian business law within the context of the prescribed readings; 2. Identify and analyse relevant facts, problems and legal issues from a given scenario and develop an argument in response, discussing available options in the context of business law. Answers: Solution I I am the owner of a sea food business; I want to establish now a restaurant which is to be named "Catch of the Day. There are different areas of laws that are required compliance for the same. The Issues with respect to this case are: What are the compliances that are required under different laws in Australian for the business? The process of compliance requires identifying of the (a) regulations and law that are applicable to the business; (b) areas where the business can be at a risk of breaching it. Area of the law of that is applicable to the business is: (i) trade practice, fair trading, and consumer protection; (ii) contract law; (iii) industry code, licensing and standards; (iii) employment, anti-discriminatory, and privacy. Compliance with regulations and law imposed externally that is regulation and law which is enforced and administered by industry associations, government, regulators and any other outside bodies are termed as regulatory compliance. However apart from regulatory compliance, there is also compliance towards one's own contract which is the basis of commercial transactions. In the case of any breach in compliance the ACC (Australian Competition and Consumer Commission) and ASIC (Australian Securities and Investment Commission) are proactive in investigating and fining such breach of compliance. Thus, it necessary for opening the restaurant that all the compliances are followed through without any breach this will ensure that the risk of law breaking is minimized, and consequences for the same are not suffered. The organizations that tend to avoid or ignore compliance have to pay the heavy fine for the same. In the landmark case of ACCC v Visy (ACCC v Visy Industries Holdings Pty Limited, [2007]) the factor which the court had taken into account for deciding the penalty was that the corporate culture of the company was favorable to the compliance of the Trade Practice Act (now the Competition and Consumer Act 2010). However, the trial court judge stated that the Visy's Trade Practice Manual might have as well been written in Sanskrit for all the notice anybody ever took of it. In another case of ACCC v Singtel Optus Pty. Ltd. (ACCC v Singtel Optus Pty. Ltd, [2011]), it was opined that the advertising campaign that was launched by it "Think Big" with respect to their broad-band and internet was misleading in nature and hence they were fined. It is extremely important to comply with the provisions since Compliance it not only for keeping the regulators satisfied but also it can have essential commercial benefits. Thus, one of the compliances that the restaurant needs to ensure is that there is no conduct that could be termed as misleading. Under the Australian Consumer Law there are broad prohibitions that have been given for the acts that can be termed as misleading or deceptive and such representations have been prohibited. It is both enforcement and compliance that The Australian Competition and Consumer Commission (ACCC) is engaged in with respect to claims labeling including the origin claims country. A business establishment in the first place would require the registration of the business name with ASIC, taxation registration, and industrial agreements. Thus, in the first I would be required to first register the name of the Company with ASIC. Intellectual property right is protected by the company by registering the trade mark which is not compulsory or registering the business name of the company which is compulsory significant Australia wide protection is provided on registration of the company for the name of the company. When the name of a business or a product is trademarked there is an exclusive right that is obtained on the name for using it in Australia. The registration of the trademark is required under either one or more of the classifications of the goods which are total 45 in number services or goods provided by the trademark that are registered (Banerji, 2011), since it is a restaurant it would be registered under Class 43. Thus in order to ensure that there is no other business in the Australia with the same name only registration of the company is sufficient however trademark ensures exclusive right to the business. A very important compliance is the compliance of the Australian Consumer Law and Sale of Good Acts and ensuring that there is no misleading conduct or representation. One of the landmark cases of misleading conduct has been the case of Australian Competition and Consumer Commission v Coles Supermarkets Australia Pty Ltd [2015] FCA 330 in which post ACCC's action it was found by the Federal Court that the consumers had been misled by Coles due to their representation that the in-house bakeries of Cole were baking the bread that was being sold by them (Australian Competition and Consumer Commission v Coles Supermarkets Australia Pty Ltd, [2015]). On the packaging of the bread, it stated that the bread was Baked Today, Sold Today' and in some places it was mentioned as Freshly Baked In-Store.' These products, in fact, were par-baked i.e. they had already been baked partially and then frozen off-site by a supplier and in some of the cases, this supplier was from overseas. These were then transported and finished in the bakeries that were in the house. It was opined by the court there was deceptive or misleading conduct that the Coles had engaged in, and the representations that had been made by them was false or misleading to promote the bread that they were selling. The declarations that the court made was injunctions were ordered, and the advertisement was asked to be corrected, and also $2.5 million was attracted. Thus, to avoid any kind of penalty, it must be ensured that at any cost there is no conduct of the business that could be termed as being misleading. Further at the time of leasing or buying a property for the business, it is necessary to ascertain which, are the fixtures to the property that will become the propertys part. There is as mentioned above a difficulty that arises in ascertaining the whether the property is a chattel or a fixture and this can be seen in the case of Australian Provincial Assurance Co Ltd v Coroneo (Australian Provincial Assurance Co Ltd v Coroneo, [2016]) wherein it was held by the New South Wales Supreme Court whether or not seats which had been bolted to the floor and were attached to each other in a theatre could be considered as chattels or fixtures. The court ultimately held that these seats were chattels and not fixtures, and the test had been laid down stating that chattels shall be determined on the basis of whether they have been fixed for some permanent purpose or for only temporary purposes(Assurance Co Ltd v Coroneo, 1938). Solution II In the given situation there is a pizza business which is owned by Manny and Bella, who call the pizza joint Perfect Domino Pizza. They had wanted to buy from Tuscan a heavy duty oven. The requirement of this oven was that it could at least bake 30 pizzas an hour for 16 hours daily. The manager of Tuscan informed Bella and Manny that the Tuscan XX will fulfill their requirements. They prior to receiving the Tuscan XX advertised it as MB Oven, however, after installation, it was discovered that it was only 12 pizzas that the oven could delivery in an hour and it was not at all reliable. This oven due to its default caused the company profit. They went to Tuscan regarding this however Tuscan did not listen to them. In the given case there could be legal action that arises from Manny and Bella for (i) breach under the Sale of Goods Act, and (ii) deceptive or misleading conduct by the seller. There also lies a case against Manny and Bella for (a) infringement of trademark; (b) misleading and deceptive conduct and (c) infringement of the patent (Anderman, 2007). Solution The Sale of Goods Act states that for the purpose that the goods have been bought for they should be reasonably fit for that. There are three requirements that are required to be observed (i) the particular purpose for which the goods were bought for the buyer had informed the seller; (ii) seller's judgment and skill were relied on by the buyer; (iii) the product is of the type that the seller supplies usually. Since Manny and Bella had relied on the seller's skill and knowledge for buying the product and they had also prior informed the manager regarding the requirement. Other than that the store was supplying ovens to other buyers as well. Thus, there had been on the part of the Store a breach with respect to the reasonable fitness of the product (Jain, n.d.). Further, it has also been stated under the Sale of Goods Act that where there is the sale of goods by the seller to a buyer apropos of a particular description, then it is required that the product should be consistent with the description. Further even if the good was inspected by the buyer, he could still recover the damages as it was the sale by description (Beale v. Taylor, [1967]). Thus, Manny and Bella can recover damages under Sale of Goods as it was on the basis of a particular description that they had bought the product. In the case where goods are bought by the buyer on the basis of description then there is an implied condition that the good is of merchantable quality. There is a breach of implied terms of merchantable quality of products and fitness when it is on the recommendation of the seller that the goods are purchased (David Jones v. Willis, [1934]). Various statutory obligations have been provided under the Australian Consumer Law, which has been imposed upon the supplier and manufacturer of goods with respect to advertising and marketing (Merrilees and Cotman, 1976), liability towards product, guarantee related to the quality and safety of the product. The guarantee consumer protection has been made available to the consumer who either purchase, lease or hire service or goods the cost of which is $40 000 or less or which the consumer has acquire for purposes that are for domestic, household or personal use. Section 18 of the Australian Consumer Law prohibits any corporation to engage in a conduct which is either deceptive or misleading in nature, and this section of Australian Consumer Law is the provision that is most litigated and known. The section 18 has been designed to protect the consumers right. A deceptive or misleading conduct would be said to have occurred when an individual makes another individual make an error (Miller (2010) 241 CLR 357 at 368 [15] per French CJ and Kiefel JR Google Inc (2013) 249 CLR 435 at 465 [92] per Hayne J.). Along with section 18, there is also a breach under section 29 for misleading or false representation for which Manny and Bella can sue. There has been misrepresentation by the Company through its Manager stating that the oven could perform whereas in reality the oven was underperforming thus Manny and Bella would receive compensation for this misrepresentation as well. In another scenario Manny and Bell can also be sued for misrepresentation as they had advertised the oven bought from Tuscan as MB Oven with certain distinct qualities. They stand the chance of being sued for the same. Section 17 of the Trade Mark Act 1995 states that trade mark (Anderson and Gallini, 1998) is the sign that is intended or used to distinguish services or goods in the trade course. Intellectual property right is protected by the company by registering the trade mark which is not compulsory or registering the business name of the company which is compulsory significant Australia wide protection is provided on registration of the company for the name of the company. An action for infringement of trademark invariably and often copyright infringement are coupled along with deceptive and misleading conduct allegation, putting thereby into play the broad remedies that have been made available under Trade Practice Act (now the Competition and Consumer Act 2010) (Banerji, 2011). In Australia infringement is defined as using of a sign as a trademark which is identical substantially or there is deceptive similarity to a trade mark that is registered with respect to the services or goods which the registration of the trademark is done (i.e. goods that are identical). The name of the restaurant that Manny and Bella own is called Perfect Domino Pizza which is deceptively similar to the name of the world pizza giant Dominoes and both are selling goods that are identical. Hence action can be brought against Bella and Manny for infringement of Trade Mark. Reference ACCC v Singtel Optus Pty. Ltd [2011]FCA 87. ACCC v Visy Industries Holdings Pty Limited [2007]FCA 1617. Anderman, S. (2007). The interface between intellectual property rights and competition policy. Singapore: IP Academy. Anderson, R. and Gallini, N. (1998). Competition policy and intellectual property rights in the knowledge-based economy. Calgary: University of Calgary Press. Australian Competition and Consumer Commission v Coles Supermarkets Australia Pty Ltd [2015]FCA 330. Australian Provincial Assurance Co Ltd v Coroneo [2016]38 SR (NSW) 700 a. Banerji, M. (2011). Raising the bar: trade mark oppositions in Australia. Journal of Intellectual Property Law Practice, 6(12), pp.850-852. Beale v. Taylor [1967]1 WLR 1193 (Court of Appeal) Seller - BTC - 1110. Corones, S. (2011). The Australian consumer law. Rozelle, N.S.W.: Thomson Reuters (Professional) Australia. David Jones v. Willis [1934]HCA 47 - 52 CLR 110. Intellectual property law. (2005). Commonwealth Law Bulletin, 31(4), pp.163-167. Jain, S. (n.d.). Contracts of Sale: Terms, Conditions and Warranties with Special Reference to Sale of Goods Act, 1930. SSRN Electronic Journal. Merrilees, B. and Cotman, N. (1976). An Economic Analysis of Consumer Protection Law. The Australian Quarterly, 48(1), p.79. Miller, R. (2011). Miller's Australian Competition and Consumer Law annotated. Pyrmont, N.S.W.: Thomson Reuters (Professional) Australia. Nottage, L. (2010). The New Australian Consumer Law: What About Consumer ADR?. QUT Law Review, 9(2). Ventose, E. (2015). Patent protection for isolated genes in Australia. Journal of Intellectual Property Law Practice, 10(3), pp.148-150. YEUNG, K. (2005). Does the Australian Competition and Consumer Commission Engage in "Trial by Media"?*. Law Policy, 27(4), pp.549-577.