Discuss About The Google V Australian Competition Commission.
However the relevant business structures that are applicable in the given scenario are Company and Partnership.
In case of a company the members are the owners of the company and the directors are the ones who run the company. Companies can be both public and proprietary companies.
In case of a company, if the directors of a company fulfill their obligations as imposed on them by the Corporations Act 2001, the directors will not be held personally liable for the liabilities incurred by the company. This means that the debts and liabilities of the company must be paid by the company. However in case of breach of duties of directors as provided in sections 180- 184 of the Corporations Act 2001 (Cth) .
Partnership is a business structure in which a number of people are involved who carry on the business structure together. A partnership is similar to a sole trader business structure however as opposed to a sole trade, the business is run jointly by 2 or more people. The maximum number of members is fixed at 20. The Partnership Act 1963 governs the actions of partners in a partnership.
Key points in relation to financial contribution and distribution in written partnerships
The important points that can be included in partnership agreements are:
Decision Making- A partnership agreement must contain the clause about how decision are to be taken in case of conflicts of interest of the partners.
Capital Contribution- A partnership agreement must contain how the capital is to be contributed by the members.
Salaries and Distributions- Every partnership agreement must contain the provisions regarding how the profits and the salaries are to be distributed among the partners.
The first issue that has been identified in the given scenario is whether Peter has the authority to order the T shirts without the permission of the other partners. The Second issue that has been identified is whether I am liable for the act of Peter
It has been provided in section 9(1) of the Partnership Act, that a partner except in case of a limited partnership is to be treated as the agent of the partnership firm and therefore is entitled to act on behalf of the other partners for the purpose of carrying on the business of the partnership firm.
According to section 9(2) of the Partnership Act 1963 the act of a partner except in case of limited partnership shall be binding upon the firm and the other partners.
Exception to the aforementioned rule has been provided in section 9(2)(a) which states that the act of a partner will not be held to be binding upon the firm if such partner acts without authority.
In subsection 9(2)(b) it is specified that if the person the partner was dealing with had knowledge that the partner was acting without authority such act of the partner will not be binding upon partnership firm or the other partners.
Section 10 (1) of the aforementioned act states that an act or instrument, which is related to the business of the firm, except in case of a limited partnership shall be binding upon the partnership and all the members of the partnership if it is done by an authorized person. The aforementioned section states that any transaction by any partner of the partnership does not have to be in the name of the partnership firm. Such transaction can also be in any other way which intends to bind the firm.
It has been provided in the case study that Peter, a partner of the partnership designed a logo for the band without consulting the other partners. Peter had shown the design to Betty. Betty has all the equipments to print the logo on the Tshirt and mass produce the merchandize to sell at the concert. Thus in this given case study it can be stated that Peter can order T shirts in accordance with section 9 of the Partnership Act 1963 as he is a partner, acting with authority and for the purpose of carrying on the business of the partnership. Further in accordance with section 9(2) it can be stated that the actions of the partners are binding upon the other partners and the partnership firm. Thus if Peter orders the T Shirts I am also liable to pay the cost
The issue that has been identified in the given case study is whether the Complaint raised by Apple is valid and whether such t-shirts designed with the Apple logo aims to deceive the consumers.
The Consumer Law in Australia is provided in the schedule 2 of the Competition and Consumer Act 2010 (Cth). The aforementioned act came into force after the former Trade Practices Act 1974(TPA) was repealed. The Australian Competition and Consumer Commission is an independent statutory authority in Australia that enforces the Competition and Consumer Act 2010. The Competition and Consumer Act covers all aspects of relationships between supplier, retailers, wholesalers and consumers.
As provided in section 18 of the Australian Consumer Law, which is present in schedule 2 of the Competition and Consumer Act 2010, it can be stated that a person who is engaged in trade and commerce must refrain from exhibiting misleading and deceptive conduct. This prohibition is not only applicable on the supply of goods and services but creates an economy wide norm of conduct.
To determine whether the conduct was misleading and deceptive in nature the courts generally assess circumstances of each case. It can be said that the plaintiff is not required to prove that conduct of the defendant actually mislead the consumer, he merely has to prove that the conduct was misleading and deceptive in nature. It would be considered that conduct is misleading and deceptive in nature if it leads a person into committing an error. As held in the recent notable case Google Inc v Australian Competition and Consumer Commission (2013) 249 CLR 435, conduct does not have to be intentional. As held in the cases Houghton v Arms [2006] HCA 59 and Alpen v Richards [2013] FCA 1387 if an employee who is acting under employment of an employer exhibits misleading and deceiving conduct such employees would also held to be liable. Section 237 of the aforementioned act empowers the court to make orders against the contravening person to compensate the person who had brought the claim. To determine whether any conduct is misleading and deceptive in nature an objective test is applied by the courts. Courts must consider the impact of such conduct on reasonable and ordinary members of the target audience. As held in the case TPC v Optus Communications Pty Ltd (1996) 64 FCR 326, 336, For the purpose of determining the whether an advertisement is misleading to the customers the courts must:
As provided through the facts of the case study, t shirts contain the Apple logo however the faces of the members of Beatles are present in such apple logo .Thus the claim misleading and deceptive conduct is not valid. It can be assessed by the court by the use of the objective test that no reasonable person would be misled by the logo of apple and identify the t-shirt to be an apple product as no connection exists between the Beatles and the company Apple.
As provided in section 21(3) of the OCCUPATIONAL HEALTH AND SAFETY ACT 2004 employers must so far as reasonably practicable provide a safe working environment which is free from any risk. A contravention of this section can e held to be an indictable offense. The liability of principals to the independent contractors and to third parties is an important issue that affects the Australian Businesses and Australian Insurers. It was held in the notable case Leighton Contractors Pty Ltd v Fox [2009] HCA 35, by the High Court of Australia that a contractor cannot be held liable for the negligent actions of the independent subcontractors. The rationale behind this legal provision is that the subcontractor had been hired as he is competent to do the job and control the relevant system of work without supervision. Another landmark case which dealt with the liability of an employer to the independent contractor is Swire Cold Storage Pty Limited v Pahi & Anor [2010] NSWCA 149. In this case t was held that:
Another case which highlighted the fact that a principal is not liable for any negligent actions of his subcontractors due to which he sustains injuries is McGlashan v QBE Insurance (Australia) Ltd (No 2) [2014] NSWSC .
As provided by the facts of the case it can be stated that Justin had been had been appointed as an independent contractor to be the soundman at the concert. However, he set the sound too loud which annoyed a patron and the patron punched him. Thus, by the application of the provision of the Leighton Contractors Pty Ltd case it can be stated that to duty of care was owed to Justin. He had the responsibility for to set up the sound as he had been appointed as the soundman. He sustained injuries which due to setting the sound too loud and arguing with a patron.
Conclusion
Thus to conclude it can be said that the group did not have an legal obligations to Justin.
References:
Corporations Act 2001 (Cth)
The Partnership Act 1963
Competition and Consumer Act 2010 (Cth)
Google Inc v Australian Competition and Consumer Commission (2013) 249 CLR 435
Houghton v Arms [2006] HCA 59
Alpen v Richards [2013] FCA 1387
TPC v Optus Communications Pty Ltd (1996) 64 FCR 326, 336
OCCUPATIONAL HEALTH AND SAFETY ACT 2004
Leighton Contractors Pty Ltd v Fox [2009] HCA 35
Swire Cold Storage Pty Limited v Pahi & Anor [2010] NSWCA 149
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