Paddy Periwinkle owns a prawn trawler, and has a licence to catch prawns which he obtained through the government department NT Fisheries. He pays his licence fee yearly, and was therefore allowed to catch prawns up to a specific quota. Paddy then sells the prawns to retailers throughout the Northern Territory and some to the southern fish-markets.
In 2015 a new crew-member joined: Ashely Adams. Ashley was an experienced fisherman and deckhand, as he has been working in the industry for 30 years. He was always looking to make a quick buck.
Ashley told Paddy that, as part of their by-catch (the marine-life caught in the nets by accident), if they caught any dugongs he had a friend he could sell them to. Ashley said he could sell one for $1,000, and he would give Paddy $400. Paddy knew dugongs were a protected species, but given that they would be dead by the time they were pulled up in the nets, he decided to make the deal. 5 dugongs were pulled up in a 3-week period.
While at sea, the main freezer on the trawler started malfunctioning, compromising all the frozen prawns. Paddy took the trawler back to the coastal town of Nhulunbuy, and sold the prawns he had. Ashley took the 5 dugongs away, and then Paddy had a mechanic look at the freezer. Billy Bob (the mechanic) said it was the compressor, and the trawler needed a new one. Paddy bought a new compressor ($2,000) and had it installed ($1,500), and re-gassed ($1,500). He was in port for a week, losing approximately $10,000 in profit. A week later at sea, the freezer malfunctioned again, so Paddy returned.
Paddy got Arthur, a new mechanic, to look at it more closely. It was not the compressor, but a faulty valve that was letting the gas escape. The repair cost was $200. In two hours they were back at sea, and the freezer is working perfectly.
1. Can Paddy make a claim against Billy Bob for his monetary losses? Explain why or why not, referring to the cause of action and what the outcome is likely to be.
2. Ashley gave Paddy $1,000 for his share in the illegal dugong sales. Paddy’s maths tells him he was owed $2,000. Can Paddy make a claim against Ashley? Explain why or why not, referring to the cause of action and what the outcome is likely to be.
1. The consumer laws in Australian are dealt in accordance with the Australian Consumer laws that are governed by the Australian Commission and Consumer Commission (Turner and Trone, 2013). The given case is related to the repair made by the mechanic Billy Bob of the prawn trawler that belonged to Paddy Periwinkle. Before an analysis of the case it is necessary to examine in details the consumer laws in Australia relating to repairs, replacements and refunds.
In accordance to the Australian Consumer Laws, every customer has the right to ask for any repairs, or any replacement or any kinds of refunds based on the consumer law guarantees for any products or any services that is bought on or later than 1st January 2011 (Carter, 2012).
The law further states that with regard to the repairs there are two types of problems that is generally dealt with under the Australian Consumer laws (Turner and Trone, 2013). With regard to any product the problem faced by the consumer might be either a major problem or a minor problem. In case of ay minor problem with respect to any product or for that matter any services rendered, the business or the service provider shall provide the consumer with a free repair in place of any replacement or any refund. In the alternate case, where the problem is a major one regarding any product, the consumer has been given the right under the consumer laws to ask for a replacement or any refund (Carter, 2012). The consumer has the right to choose to receive any compensation for the reduction in value which is less than the price that has been paid or can opt for refund.
Further under the Australian Contract laws, section 18 of the Australian Consumer Law states that in trade or commerce, no person shall mislead or intend to mislead or deceive another person (Gooley, Radan and Vickovich, 2007). This section relating to misleading conduct is different from misrepresentation under the common law in the area that misleading conduct includes most of the commercial activities and not only contracts and also has a range of remedies available that ranges from damages, contractual avoidance or variation. Hence in any commercial practice in Australia if there is any person who misleads another person that results in the suffering of loss by such person then compensation or damages can be claimed from him (Carter, 2012).
In the given case, the facts state that Paddy Periwinkle, the owner of the prawn trawler, had some technical issues with the prawn trawler. When he took the trawler to the mechanic, Billy Bob, he stated that the compressor had to be changed. As a result of this suggestion from the mechanic, Paddy had the compressor changed, installed and re-gassed. The entire session cost him $5000. Since due to this reason he was unable to go to the port to catch prawns and he lost approximately $10,000 in profit. After the trawler was taken to the port, the freezer malfunctioned again and he had to bring in a new mechanic for repair. The new mechanic informed that the problem was not with the compressor but with a faulty valve. The repair took only two hours and the cost was approximately $200. This made the fact clear that the service advice that was given to Paddy by mechanic Billy Bob was totally irrelevant.
Applying the provision of Australian Consumer laws in the given case, firstly it needs to be stated that by giving misleading advice to Paddy Billy Bob is liable in accordance with section 18 of the Australian Consumer laws (Australian contract law.com, 2015). The prawn trawler could have been repaired by simply repairing the faulty valve which led to the escape of the gas. But instead of advising the owner of the trawler to repair the valve, the first mechanic suggested the owner to change the compressor (Carter, 2006). As a result of this advice the owner was forced to purchase another compressor, install it and re-gas it. This led to the owner losing a huge amount of money and also did not actually repair the trawler. This is a case of misleading conduct and the mechanic Billy Bob is liable to compensate the owner due to the loss suffered by him.
Further even according to the consumer laws, for any faulty repair the service provider is liable under the law to compensate for the loss suffered by the consumer. In accordance to the rules the consumer has the right to get refund from the service provider. Applying the rules to the given case the mechanic Billy Bob is liable even under the consumer laws to pay compensation (Australian Competition and Consumer Commission, 2015).
As concluding remarks, it can be stated that Paddy is entitled to receive monetary compensation from mechanic, Billy Bob, for the loss suffered by him as a result of the wrong or misleading advice relating to the trawler. The cause of action in this case would be firstly the right of consumers to demand refund or compensation for any faulty service provided. The compensation that is to be provided by Billy Bob will include the cost of the compressor, the installation charges, the charges for re-gas and will also include the losses suffered by him for not being able to go to the port for catching fish. This is because the loss was suffered primarily due to the fault of the mechanic. Hence Paddy can claim for a refund from Billy Bob for monetary compensation.
2. The issue in the given case is whether Paddy would be entitled to get compensation from Ashley for the sale of dugongs.
In accordance to the Environment Protection and Biodiversity Conservation Act 1999, additional protection is given to the turtles and dugongs which are considered to be a threatened migratory or marine species. There exist financial penalties for the offense of killing or harming any turtle or dugong and other various offenses and also welcomes civil penalty provisions. Another legislation that protects dugongs is the Great Barrier Reef Marine Park Act 1975 provides that there is additional protection for the protected species under the GBRMP Act (Parsons and Bauer, 2012).
Recent amendments were made to the Act and the GBRMP Act according to which additional protection should be provided to the dugong and turtle populations from the existing threats of illegal trade, poaching or illegal transformation (Parsons and Bauer, 2012). The financial penalties for various offenses and civil penalty has been given under the amendment provisions dealing with the dugongs and turtles. As a result of these amendments people will deter from committing offenses such as illegal trade or civil penalty breach that results from illegal killings, taking or injuring or trading or keeping or moving of turtles or dugongs (Parsons and Bauer, 2012).
In the given case, the owner of the prawn trawler Paddy Periwinkle had agreed with Ashley Adams, another fisherman to enter into an oral contract for the sale of dugongs. Paddy Periwinkle was aware of the fact that dugongs were a protected species and sale of dugongs were illegal in the country. As has been given above the trade of dugongs is illegal under the Great Barrier Reef Marine Park Act 1975 and Environment Protection and Biodiversity Conservation Act 1999. Paddy still went ahead with the trade of dugongs.
According to the contract laws in Australia any contract in relation to any criminal conduct or such conduct that is prohibited by the statute or any conduct that is contrary to the public policies shall be considered as unenforceable (Turner and Trone, 2013). In most cases it is easy to determine whether a contract is an illegal contract r not and whether it will be rendered void or not.
Under the common law there is a huge range of laws that encompasses contracts that are illegal or contrary to public policy. This includes a wide range of conducts such as contracts that are harmful to the administration of justice, contracts which encourage corruption in public places, contracts that are restraining marriage status or sexual immorality or contracts that restrain trade.
Hence the Australian contract does not enforce any such contract which is illegal or is contrary to public policy. Sometimes contracts can be made enforceable by removing the offending term from the contract.
With regard to the given case, since the trade of dugongs were prohibited by the statutory laws of the country. As a result the contract between Paddy and Ashley cannot be enforced in a court of law. The said contract is void ab initio (Australian contract law.com, 2015). Hence, Paddy cannot claim for any compensation from Ashley as a result of the breach of the contract since it is unenforceable.
Australian Competition and Consumer Commission, (2015). Repair, replace, refund. [online] Available at: https://www.accc.gov.au/consumers/consumer-rights-guarantees/repair-replace-refund [Accessed 9 Feb. 2015].
Australiancontractlaw.com, (2015). Australian Contract Law | Julie Clarke. [online] Available at: https://www.australiancontractlaw.com/law/avoidance-misleading.html [Accessed 9 Feb. 2015].
Carter, J. (2006). Carter’s guide to Australian contract law. Chatswood, NSW: LexisNexis.
Carter, J. (2012). Contract Law in Australia. Chatswood, A: Lexisnexis Orders/service.
Gooley, J., Radan, P. and Vickovich, I. (2007). Principles of Australian contract law. Chatswood, NSW: LexisNexis Butterworths.
Parsons, E. and Bauer, A. (2012). An introduction to marine mammal biology and conservation. Burlington, Mass.: Jones & Bartlett Learning.
Turner, C. and Trone, J. (2013). Australian commercial law. Sydney: Lawbook Co.
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