Australian Commercial and Corporations Law
Question 1 (20 marks)
Marcus is a senior investment banker at the prominent Australian bank, Eastpac. He drives a very expensive car to work and parks it in ‘Park Safe’, a secured parking bay in Sydney’s CBD. Upon entering the car park an attendant hands Marcus a ticket. The ticket indicates which parking space he has for the day, along with the date and time the ticket expires. As Marcus occasionally works until the early hours of the morning, he always purchases the full-day ticket, knowing that Park Safe has an attendant on duty 24 hours a day.
However, Marcus does not check the back of the ticket which lists, in substantially smaller print, a number of items, including the following:
Park Safe takes no responsibility for any damage caused to any vehicle, parked or otherwise on Park Safe premises, however such damage may be caused. Occupants use Park Safe at their own risk.
Marcus parks his car in the designated spot, locks it and walks to his office. Upon his return from work later that day, Marcus goes to retrieve his vehicle and notices both back lights have been smashed. He then approaches the driver’s door and notices scratch marks along the paintwork and a smashed window. When Marcus opens his car he finds that the glovebox has been forced open and that several items are missing.
Outraged and upset, Marcus leaves his keys inside the car and goes to the attendant’s desk to inquire about the damage. He is there for 20 minutes and in that time his car is stolen. Marcus wishes to claim full compensation for the value of his vehicle from Park Safe. His car insurance had expired a few days prior to this incident and he had not had time to reinsure the vehicle.
Question 2 (20 marks)
Andrea, a primary school teacher, has just discovered a popular online retailer by the name of ‘QuickBuyListen.com’. The website requires her to create an account where she can download music for $1 per track and upload the song to her mp3 player or smart phone. Eager to get started, Andrea types in her details and fills in the form relatively quickly. There is a lot of small text on the screen. She is required to scroll to the bottom of the page and click “next” several times before her account is created and linked to her email address.
Andrea has used the service regularly over the past few months. However, she has recently received an email stating that she has been undercharged for each track and that an additional fee of $200 will be withdrawn from her account at the end of the month.
Andrea replies by email to QuickBuyListen.com, stating that she had done nothing wrong and that she paid the price on the screen for each track. She does not receive a reply. Andrea withdraws all of the funds in the bank account linked to her QuickBuyListen.com account and has been informed by the bank that she will have to pay a $35 dishonour fee for not being able to meet the payment instruction from QuickBuyListen.com.
Andrea is furious. She is in your office saying she never signed anything and that this entire system is a complete scam. She wants to have the $200 fee waived and the $35 compensated by QuickBuyListen.com. She also wants $1,000 for the emotional stress this has caused her.
Question 3 (20 marks)
Matthew, an experienced driver for an express postal service, has been doing the Sydney CBD route for many years. His job is highly stressful as his employer’s business model focuses on being the fastest delivery network in all of Sydney. Matthew has grown accustomed to taking calls whilst driving his van and is paid handsomely for his services.
One day Matthew is called onto one of the busy inner-city routes. He picks up the goods from the supplier and begins driving to the delivery point. On his way he receives a call from his employer and as he reaches down to take the call he realises there is a car coming towards him in his lane. Matthew swerves to miss the oncoming car but, in the process of doing so, mounts the kerb and collides with a telegraph pole. Matthew is rendered paraplegic as a consequence of the car accident.
Although no one else was injured, the force of the collision also causes the telegraph pole to fall over and hit a shopfront, resulting in damage worth many hundreds of thousands of dollars. The electricity supply is cut to the street because of the downed telegraph pole. It takes several days for the electricity to be restored, causing problems for all of the businesses in the street.
Each of the affected businesses are pursuing both Matthew and Matthew’s employer for damages for loss of business. The owner of the business whose shopfront was damaged is also suing both Matthew and Matthew’s employer for the damage caused to the shop. Although Matthew has been able to obtain workers compensation he also wants to bring an action against his employer for unsafe working conditions and sue the driver of the other car for negligence. Matthew claims that a combination of these two factors caused the accident.
Advise all parties of their likelihood of success.
Issues/ Problem of the case
As the given information, Marcus is an employee in Australian Bank, Eastpac. Marcus has a very expensive car and he drives it regularly to for reach office. He parks its car in Park Safe that is a secured parking bay in Sydney’s CBD. Typically, it works in the morning shift and takes a full ticket of parking that includes some details regarding the parking such as parking space has for the day, along with the date and time the ticket expires. Marcus does not concern on the information that is written small latter in the parking ticket.
In the parking ticket, it is written clearly that “Park Safe takes no responsibility for any damage caused to any vehicle, parked or otherwise on Park Safe premises, however, such damage may be caused. Occupants use Park Safe at their own risk.”. One day, when Marcus comeback from office in Park Safe to bring it can, it notices that both back lights have been smashed. Along with this, there is scratch marks on the door and a smashed window. Marcus also finds that glove box has been forced open and that several items are missing.
Marcus becomes worried from this and goes to attendant’s desk to inquire about the damage but it forgets the key of the car in insides. Further, when it comes back after 20 minutes it found that its car has stolen. In this case, it is found that there is legal issue as the negligence of duty. Marcus parked its car in the Park Safe and purchased token of this. Due to this, it is responsibility of the Park safe to care the car of Marcus. It shows the negligence of the Park Safe to take responsibility of car. In this case, it can be said that Park Safe breach of duty.
As concerning of the case, it is found that park safe should be legal responsible for to take care of car under negligence act (duty of care). In the car parking, it is essential for the staff to take care of car because it is their duty to keep safe the vehicles of the customers.
From the above case study, it is found that legal issue is presented in this case because there are lots of think that against the law. In this, first, it is identified that Marcus is wrong at its situation. It is because the provided information depicts that Marcuse has not insurance of the car that essential. Its car insurance has been expired but it had to insurance.
At the same time, it is also found that Marcuse does not aware of the term and condition of the Park Safe that it mentioned in the ticket with small later (Svantesson and Clarke, 2010). The terms and condition in the parking ticket depict that Park Safe is not responsible for any damage that occurred due to another vehicle in the Park Safe.
It also states that it is the car owner own risk to part the vehicle in the Park Safe. Hence, it is the responsibility of Marcus to read the terms and condition carefully. In this car, the responsibility of the Park safe is clear that is not liable for any damage that is not occurred by them.
A person feels safe and secured when it parks its car in the car parking and special parking zone. It is also reasonable thing that car owner will ensure that its car is parked at the safe zone. At the same time, it is also responsibility of the parking lot owner to care the car of the people. People can be able to claim compensation for damage and stolen of the car in the situation when they pay for the parking place (Kuner, 2010).
In the same concern of this, the legal action against the Park Safe is possible if it the charge of parking. On the basis of parking fee and term and condition, Marcus can claim for stolen of its care into the parking. But, it is essential for Marcus that it should know about the agreement policy by the Park Safe whether park safe accepts responsibility for theft or damage or not.
However, to park a car in the private driveway, garage and car park are better than to park in the street because it is assumed that the possibility of damage is very rare in the driveway, garage and car park. Typically, damage of car is covered by the insurance company which company’s policy is taken by the car owner. In this, it is not important that where the car parked and driving.
But, in the case of Marcus, it is found that the insurance of the case has already expired that Marcuse did not update their car insurance before the incident (Gainsbury, et al. 2013). Hence, in this case insurance company is not liable for pay the claim for damage and stolen of the car.
At the same time, it is also legal issue that who is the cause of car damage or stolen car. However, Marcus has not idea on the terms and condition of the park safe regarding the protection and liabilities of parking operator. It is because the term and condition were written in the small words in the back side of ticket. At the same time, parking owner does not liable for any loss that happed regarding the inside of the car (Akinbami, 2011).
The principle of bailment or lease also shows that parking operator is not also responsible for damage of care of Marcus. It is because a bailment or lease refers to a situation where car owner pays a fee for parking and takes the keys with themselves. In this case, the principle is that parking operator does not have any liability. But, in the same cases, it is possible that court says that parking operator is liable for the loss. In regard of this case, before the steal of care, Marcus leaves its car keys inside the car but it does not share this information with any person of park safe (Ardic, et al. 2011). Due to this, park safe is not responsible for its loss.
In this situation, it is advised to Marcus that it should fire a report of stolen car in the police station and tell whole store clearly (Ligertwood and Edmond, 2010). At the same time, it is also found that Marcus has not right to claim by the insurance company because its car insurance has already expired. Additionally, it cannot also demand for loss by Park safe because it is not liable for any loss inside the parking.
Therefore, it is advised to Marcus that first it should check its car in parking, it may be possible that it forget the exact place of its car. After this, Marcus does not get it care then it should use security camera system of Park safe to find its stolen car (Chaffee, 2010). It is sure that security camera system of parking will help Marcus to find its car and it will also able to get how did damage happen in its car.
According to the given information, Andrea is a primary school teacher. A few months ago, she login on the online retailer by the name of ‘QuickBuyListen.com’. The website requires charges $1 per track and upload the song. At the time of registration on the website, a lot of small text can be seen. Andrea is required to scroll to the bottom of the page and click next. Andrea also attached bank detail and mail id with the account.
During the using of this service, andread gets mail where it is informed to andrea that she has been undercharged for each track and that an additional fee of $200 will be withdrawn from her account at the end of the month. In against of this, Andrea replied that it did not do any mistake and wrong activity so that it will not pay. But, Andrea does not get the reply of this and it withdraws all money from its bank account.
Andrea again gets a mail where it is noticed that it will have to pay $365 due to unable to meet the payment instruction from QuickBuyListen.com. Andrea wants to waive its $200 and $35 by the QuickBuyListen.com. At the same time, it also wants $1,000 for the emotional stress that happened due to this. In this case, the legal issue is found as the cyber crime and unethical behavior of the company with the customers.
The misshaping did by Andrea is a part of cyber crime because in this, there is involvement of the internet and internet accessing device. However, it is possible that Andrea did not read terms and condition carefully duet to this, it is facing this kind of issue.
In this case, the principle of the cyber ethics is applied. The principle of the cyber states that the business units should follow the ethical guideline during the business activities. The organization should clearly describe the terms and condition at the time of making new customer at online portal.
On the basis of this, it is advised to Andrea that it should take any decision with the depth evaluation and analysis. If Andrea thinks that QuickBuyListen.com is doing fraud that it can claim against the company. But, before this, it should check the description carefully and should know all the term and condition of the website. Otherwise, Andrea can face an issue in return in the court. At the same time, it is also advised to the Andrea that it should ensure about all the terms and condition of QuickBuyListen.com website with including dispute resolution policy (Duncan, 2012).
In the current business environment, online auctions and marketplace are increasing continuously with increase the trend of the online business activities. Online trading and transition are becoming popular among the people. In order to protect the customers and provide justice them, in Australia, there is a government agency that is known as the Australian federal policies. It investigates on the online fraud and scams in the country (Freudenberg, et al. 2012).
For this, Andrea has to tell all the things in details and provide prove that it is right at its situation. Along with this, it also advised to Andrea that it should take the help of consumer protection agency in Australia. There is also Australian consumer law that is formed for fair trading and consumer protection.
Andrea can complain on the site of QuickBuyListen.com in order to solve the issue of charging additional fees for the each track of the song. If she does not get any reply then, she can also file a police report against the site QuickBuyListen.Com. She can also report in USA national fraud and crime centre for the scam she is suffering. Hence, she was right on her behalf as she was undercharged without doing anything wrong.
Moreover, she can also update on the social sites like Face Book about the incident happened with her (Freudenberg, et al. 2013). This can protect others from being scammed by this online site and it can be helpful for her if anybody can help to solve the issue. Additionally, she can also give the reviews online on the review option of online site of the company. If there is no reply, then again she can complain and give bad reviews about the site.
This would affect the image of the company’s online site. So, to protect their image and they can contact and give her money back. This is the best technique in order to solve the problem of additionally charged money by the company (Ayling, 2011).
However, she can also go to the national consumer complaint center if the problem is not solved. These centers help the customers by taking immediate actions. Furthermore, she can take suggestions by doing online searches on Google. Andrea can also mail to its official site so that it may be helpful for its issue to be solved. In case company asks for any proof then she must have the proof against the company for showing them that she is right (Lansdell, et al. 2012). She can also take the help by going to the court by applying the fraud law on the site.
This case presents the issues and problems that are occurred with the Matthew, employer, and shopkeeper. Likewise, Matthew is the experienced driver in the express postal services in Sydney. But at one time, he met an accident because of the negligence of another car driver. So such practices result that Matthew was hitting the pole of the telegraph that fall over the shop front so this damages the shop and that particular Street (Stychin, 2012). At the same time, in this accident, Matthew also gets injured as a consequence of car accident.
Therefore, in such situation, the legal issue/ problems are identified that whether Matthew gets the workmen compensation or not. At the same time, he also wants to sue both the employer and another car driver for providing the unsafe working environment and for rushing car driving by another car driver. Therefore, in order to solve this issue, Matthew requires to maintaining some actions and need to follow the principals and laws for reaching towards the relevant solution (Cane & Atiyah, 2013).
The principle that considers relevant to this case as per the Australian laws and regulation is the law of negligences for the other car driver who drives the car rashly. At the same time, the law of workmen compensation requires the employer or owner of this express postal services. Thus, these both are the principles are the best suited for this case.
In addition to this, the principal of negligence stated that arise of negligence by the individual becomes the cause of damage or injury to another person will consider a law of negligence (Bismark et al., 2012). Similarly, as per this case, Matthew is liable to sue to the other car driver for their negligence in driving the car. But at the same time, Matthew also made a mistake as he is receiving the call of his employers while driving the car.
So the negligence could be occurred on the both side as per this law. Moreover, this principle of the negligence law also considers the depth cause of damage so that relevant actions can be generated without any biases (Harley et al., 2011). The breaching of this law allows the individual to make penalty to the other party.
For instances, the other person, in this case, driving so harshly, so in that situation, the Matthew is liable to sue him or to ask him for the penalty of damages as per the law of negligence. Besides that, as per the principle of this law, there is also need to determine the real basis of the issue and the number of damages that was occurred at that time. Thus, such principle of this law helps both the parties to get their likelihood (Larcombe and Heath, 2012).
On the other side, the law of workmen compensation is also applied in the case of Matthew or with his employer. Matthew wants to sue the employer of express postal services for providing him the unsafe working environment like employer did not provide health insurances to Matthew. So, it results to sue the employer for his compensation of work or his inquiry (Béland, 2010).
According to workmen compensation law, the principle stated that it is the responsibility of the employer/ owner of the company to pay the expenses to the individual for his inquiry which occurs while performing job-related duties. Likewise, employees could able to recover the lost wage, medical expenses for their injuries, disability payments, etc. this system is administrated by the Australia government.
So in context to the case, Matthew is also getting the injury at the time when he is fulfilling his job duty. So it indicates that the Matthew is liable to sue to the employer/ owner of his firm to not provide the proper facilities. It did not provide any health insurances plan or any workmen compensation. Thus, as per the principle of workmen compensation, the employer is liable to pay the compensation of Matthew damages or injury (Victora et al., 2011). About the shopkeeper damage, the employer needs to address their damage and accordingly require to negotiating them.
In this part of the case, there is need to address the relevant solution for the entire situation. The appropriate solution for the Matthew and other car driver is that they both need to negotiate with each other as the mistake is done by both the side. So in that case, the best solution is the negotiation and proper formal communications between the parties (Lippel, 2012). Otherwise, as per the laws, both are equally liable to pay the damages of the shopkeeper or for the issues that arise with the cutting of electricity. Therefore, it is quite better if both of them mutually coordinate each other.
While on the other side in the situation of Matthew and his employer, the suggested solution is that employer should pay the workmen compensation to Matthew for the damages, and at the same time, he should also need to compensate the damages of the shopkeeper. It is also suggested to the employers that in future to avoid such situation; they need to provide health insurances to their employees for compensating the damages and health issues (Johnstone et al., 2011). In the case of Matthew where he provides the postal services, in that, it is needed to provide the health insurances by the company.
In the interest to the shopkeeper, the best solution is that shopkeepers should directly ask the employer/ owner of postal services to compensate its damage. Otherwise, he needs to make a claim for compensation in the court. While for the employer interest, he needs to make settlement their claims with both the parties that are Matthew or with the shopkeeper. So such practices of his also provide benefit to them in terms to increase their goodwill in the market and protect their company from a negative image. Besides that, the company should also need to follow the legal regulations like providing health insurances coverage to their employees who pursue field work like Matthew is doing (Stychin, 2012).
In addition to this, the best way for the employees like Matthew to protect his rights under the worker’s compensation system is to retain the legal counsel. It is because this legal council will help the employee to get the settlement and compensation on time. Moreover, both Matthew and shopkeeper are liable for taking any legal action against the company in case if he will not pay the claims to the parties. The parties can document the problems with evidence and this will help them to achieve success and get the case in favor of them. Thus, these are the possible solutions from this basis, Matthew and shopkeeper can able to get the claims and settlements of their legal actions.
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