Student Name:

Student Number:

Subject Code: MGT809

Subject Name: Business Law and Governance

Lecturer: Jonathan Temporal

Assessment Title: Assessment 3 – Legal Case Analysis

Word Count: 2000

Due Date:

Signed:

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 MGT809 Business Law and Governance

Assessment 3 – Legal Case Analysis

Table of Content

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 s
PART A......................................................................................................................................4

SHORT ANSWER QUESTION................................................................................................4

PART B......................................................................................................................................4

CASE STUDIES........................................................................................................................4

Case Study 1...............................................................................................................................4

Case Study 2...............................................................................................................................5

PART C......................................................................................................................................6

LONG CASE STUDY...............................................................................................................6

References................................................................................................................................10

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PART A
SHORT ANSWER QUESTION
The Plaintiff should take proactive measures to avoid litigation and look into
alternative dispute resolution (ADR) options before starting Court proceedings to recover a
debt in the Supreme Court (Law Council of Australia, 2023). A third party mediates
communication during mediation, while a third party renders a binding decision during
arbitration. Negotiation enables direct communication between parties to find a resolution
that is acceptable to both. The case's complexity and the parties' willingness to cooperate both
have an impact on effectiveness. ADR techniques encourage amicable resolutions while
saving time and money (Attorney-General’s Department, 2021). However, litigation might be
more appropriate if the debt is substantial, the debtor is unresponsive, or there is a real
dispute. Considerations like the nature of the debt, the urgency of the situation, and the
parties' willingness to negotiate should all be taken into account when deciding which
strategy is best for each case. Parties can reach quicker resolutions and save priceless court
resources by actively pursuing ADR before turning to litigation.
PART B
CASE STUDIES
Case Study 1
Otto now realizes that the information provided was exaggerated. Otto bought Gyms
'R' Us Ltd, a fitness company, in reliance on an advertisement claiming "huge prospects and
good profit margins". Gyms 'R' Us Ltd tries to defend its stance by characterizing the
advertisement as "mere sales talk" and claiming that Otto should have independently verified
the claims. Consumers are protected by the Australian Consumer Law (ACL) from
businesses that make false or deceptive claims when offering goods or services (Australian
Competition and Consumer Commission, 2023).

In this situation, Otto may sue Gyms 'R' Us Ltd. for practising misleading or
deceptive behaviour under the ACL. The 18th section of the ACL (Australian Contract Law,
2023) clearly forbids businesses from engaging in behaviour that is deceptive, deceitful, or
likely to be so. To succeed in his lawsuit, Otto must demonstrate that the advertisement
falsely or misleadingly represented the business's future prospects along with profit margins

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and that Otto utilised this information when purchasing the business. Otto would also need to
demonstrate that the incorrect representation resulted in him losing money or experiencing
other harm.

Gyms 'R' Us Ltd.’s provision of unaudited financial accounts, which suggests that the
company was not totally forthcoming with its financial data, lends more weight to Otto's
position. If someone has incurred loss or harm as a result of an ACL breach, they are entitled
to the right to seek remedies, including compensation for their losses, under Section 236 of
the Competition and Consumer Regulations Act 2010 governing the ACL (Consumer Law,
2023). According to the court's ruling in ACCC v. In Allergy Pathway Pty Ltd [2011] FCA
74, a business breached the ACL by making false or misleading claims regarding the benefits
of its goods (Lexology, 2023). The decision introduced the rule that businesses are unable to
defend themselves by utilising "mere sales talk" when their claims are proven to be
inaccurate or misleading.

Otto appears to be in a strong position to pursue a claim against Gyms 'R' Us Ltd.
given this legal framework and precedents. Otto experienced financial loss as a result of
relying on the deceptive advertisement and unaudited financial statements, and as a result, he
may be entitled to compensation for the damages brought on by the deceptive behaviour.
Businesses must give customers truthful and accurate information, especially when trying to
convince them to make large purchases (Gov.au, 2021). To address the false statements made
and losses incurred during the purchase of Gyms 'R' Us Ltd., Otto may be able to pursue
remedies under the ACL.
Case Study 2

Under Australian labour law, employers are generally required to inform or pay
employees in lieu of notice when they terminate employment (Fair Work Ombudsman,
2023). However, there are certain circumstances where summary termination without notice
may be justified. Summary termination is the immediate termination of employment without
notice. In Gaia's case, Johnny seems to have stopped working on-site for no particular reason.
The Fair Work Act 2009 (Cth) is the relevant law governing employment relationships in
Australia (Legislation.gov.au, 2023). Section 386 of the Act defines "dismissal" as the
termination by an employer of an employee's contract of employment without notice due to

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serious misconduct by the employee (classic.austlii.edu.au, 2023). Serious crimes can include
acts such as theft, fraud, violence or serious breaches of occupational health and safety
regulations. Based on the information provided, there is no indication that Gaya has
committed misconduct of a serious nature to warrant summary dismissal. His dissatisfaction
with the manager's behaviour does not constitute serious misconduct on his part. Therefore, it
appears that Johnny has no legal right to terminate Gaia's employment without notice or good
cause.

Gaia is a full-time, part-time worker at Organicola, so if the dismissal is harsh, unfair

or unfair, they can file a wrongful termination claim against the company. To meet these
requirements, Gaia must complete at least six months (or one year for small businesses with
fewer than 15 employees). Section 385 of the Fair Work Act contains criteria for unfair
dismissal claims (Fair Work Commission, 2023). Gaia's dismissal is not a true dismissal and
will be considered unfair if there is no good reason, including unsatisfactory performance or
misconduct. Since there was no indication that Gaia's dismissal was due to downsizing, a
wrongful termination claim can be brought against Organicola if it meets the eligibility
criteria.

If Gaya's unfair dismissal claim is upheld, the Fair Work Commission could order
compensation from Organola. Remedies may include payment in lieu of notice if notice is not
given within a specified period before Gaia's reinstatement, loss of wages or resignation. In
conclusion, Johnny cannot legally terminate Gaia's employment without good cause and may
file a wrongful termination claim against Gaia Organicola. If his appeal is upheld, he can
return to work or receive compensation or notice for lost wages.

PART C
LONG CASE STUDY
Based on what happened during the cycling club's winter road race celebration,
Tianna might have a strong case against Alfred for negligence. Alfred had a responsibility to
ensure a secure environment for all club members, including Tianna, as the club's owner and
operator to avoid any potential harm. Duty of care should be taken into account first. Alfred
was responsible for keeping the club's amenities in good condition and making sure they

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were used securely. This entails responding quickly to any reported problems and performing
frequent safety inspections. A potential gas leak is raised by Tianna's earlier observation of a
gas smell in the kitchen. Even though she didn't report it, Alfred still had a responsibility to
the other club members. The breach of duty constitutes the second component. A breach of
Alfred's duty of care occurred as per the Law of Tort when he neglected to address the gas
smell in the kitchen (ALRC, 2023). There is a case to be made that a sane club owner would
have investigated and fixed the problem right away if they had known there was a possible
gas leak to stop any potential harm. The explosion and Tianna's injuries were the result of
Alfred's failure to act, which created a dangerous situation. Causation is the third component.
Tianna opened the kitchen door to remove the lasagne serving trays, and the explosion
happened instantly. It is likely that the explosion and Tianna's injuries would not have
occurred if Alfred had properly handled the gas leak. As a result, Tianna was harmed as a
direct result of Alfred's negligence (Australian Encyclopedia of Law, 2023). The last
component is damaged. Tianna sustained severe burns to her upper arms and chest, which
limited her arm movement and caused an infection. The explosion that resulted from Alfred's
neglecting to fix the kitchen gas leak was the direct cause of these damages. Tianna as a
result has dealt with physical pain, emotional suffering, and possibly lost wages if her injuries
make it difficult for her to work. It could affect the scope of Alfred's liability and the amount
of damages Tianna receives under the Civil Liability Act 2002 (NSW legislation, 2023). The
amount of money she might be awarded will depend largely on how serious her injuries were
and how they affected her life. Furthermore, if Tianna's failure to report the gas smell is
deemed relevant, the Act might also have an impact on the question of contributory
negligence. Thus, Tianna has a convincing case for negligence against Alfred.
Based on what transpired after the cycling club explosion, Tianna might have a
negligence claim against Khadija. When she provided medical care to Tianna at the scene of
the accident, Khadija had a duty of care to her. The duty of care is the first factor to take into
account. Khadija had a duty under the law to provide Tianna with medical care that met a
reasonable standard of care as a paramedic. Tianna's injuries needed to be evaluated, the
proper care had to be given, and her well-being had to be guaranteed. Duty breach makes up
the second component. A potential breach of Khadija's duty of care could be inferred from
her decision to clean and treat Tianna's wounds at the club before releasing her without

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hospitalization. A sensible paramedic would have suggested Tianna seek immediate medical
care at a hospital given the severity of her burns and the possibility of infection. It could be
argued that Khadija violated her obligation to give Tianna appropriate medical care by failing
to do so. Causation makes up the third component as this case is of tort negligence (Treasury,
2023). The subsequent infection and deteriorated scarring on Tianna's arms could have been
caused by Khadija's failure to properly treat Tianna's burns and offer pertinent medical
advice. The fact that Khadija had initially advised Tianna not to go to the hospital may have
also contributed to her decision to wait until the pain was intolerable before seeking further
medical attention. Damages are the last component. Tianna's burns grew worse as a result of
the infection, which limited her arm movement. Tianna's injuries might have gotten worse
and caused more pain and suffering if Khadija hadn't given her the proper medical attention.
It's critical to take into account the pertinent standard of care expected of a paramedic in
similar circumstances when determining the viability of Tianna's negligence claim against
Khadija. It is necessary to contrast Khadija's actions with what a prudent and capable
paramedic would have done in the same circumstance. As a result of Khadija's negligence in
failing to offer Tianna the proper medical attention and guidance following the explosion,
Tianna may have a case against her. If Tianna decides to pursue this claim, she should get
legal counsel to learn more about her rights and any possible compensation for the
deterioration of her injuries and the effects on her life. The evidence, applicable laws, and
standard of care will all be taken into account by the court when deciding whether Khadija
breached her duty of care to Tianna and the proper sanctions, which may include monetary
damages if the claim is successful.
Tianna's negligence claim against Alfred may be justified. He might contend that he
followed all prudent precautions to maintain the cycling club's facilities and did not violate
his duty of care. Alfred might assert that he performed routine safety inspections and was
unaware of any gas leak in the kitchen. Tianna's willingness to take on risk serves as yet
another line of defence. Alfred might argue that despite being aware of the risks, Tianna
decided to go into the kitchen despite the gas smell and thus accepted the dangers. Another
possible defence is contributory negligence, which would contend that Tianna's failure to
report the gas smell played a role in the mishap. If Tianna is found to be partially at fault, the
court may lower the amount of damages that are given to her. Successful use of these

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defences could affect the number of damages Tianna receives under the Civil Liability Act
2002 (NSW legislation, 2023). Contributory negligence may be taken into account by the
court under Section 5D when estimating damages (WALW, 2023). Any of these defences
could result in a reduction in Tianna's awarded damages.

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 References

Attorney-General’s Department. (2021, January 20). Alternative dispute resolution.

https://www.ag.gov.au/legal-system/alternative-dispute-resolution

Australian Competition and Consumer Commission. (2023, June 19). Consumer rights and

guarantees. Australian Competition and Consumer Commission.

https://www.accc.gov.au/consumers/buying-products-and-services/consumer-rights-

and-guarantees

Australian Contract Law. (2023). ACL section 18.

https://www.australiancontractlaw.info/legislation/acl/s18

Australian Encyclopedia of Law, (2023). Australian legal terminology.

https://australialaw.org/duty-of-care/

Consumer Law. (2023). Legislation.

https://consumer.gov.au/australian-consumer-law/legislation

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Fair work act 2009 - sect 386 meaning of dismissed.

http://classic.austlii.edu.au/au/legis/cth/consol_act/fwa2009114/s386.html

Fair Work Commission. (2023). What is unfair dismissal?. What is unfair dismissal? | Fair

Work Commission.

https://www.fwc.gov.au/job-loss-or-dismissal/unfair-dismissal/about-unfair-

dismissal/what-unfair-dismissal

Fair Work Ombudsman, (2023). Dismissal & notice. Dismissal & notice - Fair Work

Ombudsman. https://www.fairwork.gov.au/ending-employment/notice-and-final-

pay/dismissal-and-notice

Gov.au, (2021, December 1). Australian consumer law. Support for businesses in Australia.

https://business.gov.au/legal/fair-trading/australian-consumer-law

Law Council of Australia. (2023). Alternative dispute resolution.

https://lawcouncil.au/policy-agenda/access-to-justice/alternative-dispute-resolution

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Legislation.gov.au, (2023). Fair work act 2009.

https://www.legislation.gov.au/Details/C2017C00323

Lexology, (2023). ACCC v allergy pathway pty ltd and Anor (no 2) [2011] FCA 74.

Lexology. https://www.lexology.com/library/detail.aspx?g=ba588d64-006e-42bf-

8930-7d9a5f54be15

NSW legislation. (2023). Civil liability act 2002 no 22 - NSW

legislation.https://legislation.nsw.gov.au/view/pdf/asmade/act-2002-22

Treasury. (2023). Foreseeability, standard of care, causation and ... - treasury.

https://treasury.gov.au/sites/default/files/2019-03/R2002-001_Foreseeability.pdf

WALW, (2023). Civil liability act 2002 - walw.

https://www.legislation.wa.gov.au/legislation/prod/filestore.nsf/FileURL/

mrdoc_45282.pdf/$FILE/Civil%20Liability%20Act%202002%20-%20%5B04-j0-

00%5D.pdf?OpenElement

What is a tort?. ALRC. (n.d.). https://www.alrc.gov.au/publication/traditional-rights-and-

freedoms-encroachments-by-commonwealth-laws-alrc-interim-report-127/17-

immunity-from-civil-liability/what-is-a-tort/

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