1. Bob Beech is a scallop fisherman and involved in commercial scallop fishing in the coastal ater of Jervis Bay in New South Wales. The stock of scallops in this water is limited and subject to protective legislation to ensure regeneration. Hence, the Scallop Fishing and Marketing Act provides for a quota system. Under the quota system, a person must apply for a quota which will permit him or her to catch 50 tonnes of scallops in a calendar year.
Further, the Scallop Marketing Authority will purchase any scallops up to the quota limit for each person.
The Act also provides for a number of offences. It provides that it is an offence to se scallops caught in New South Wales waters to any person other than the Scallop Marketing Authority and it further provides that it is an offence to catch more than the quota limit.
Each offence carries a fine of up to $100,000.
Bob has the physical capacity to catch more than 50 tonnes of scallops in a year and wishes to make more money from his business. His daughter Alice tells him that by incorporating a company he could double his catch.
Is she correct?
2. New Nirvana Ltd is a company controlled by the members of the hard rock band, N/N. A number of wholly owned subsidiaries of New Nirvana Ltd are involved in setting up and unning the band’s concerts. One of the subsidiary companies, Nuclear Blast Sounds Pty Ltd, is responsible for setting up the sound equipment at N/N concerts in Australia. At a recent /N concert in Sydney, Nuclear Blast Sounds Pty Ltd negligently set the sound levels too2 high with the result that five audience members suffered permanent hearing loss.
Unfortunately for those audience members, Nuclear Blast Sounds Pty Ltd had no negligence insurance and cannot pay the likely damages claims.
Advise the injured audience members whether they can make New Nirvana Ltd liable for Nuclear Blast Sounds Pty Ltd’s negligence.
3. Simon, Michael and Don set up a project management company called Millennium Pty Ltd. Don is a solicitor and the constitution of Millennium Pty Ltd nominates that Don will be the solicitor for any land purchases or sales made by the company. The articles also provide that any disputes which arise between the company and its members should be first referred to an arbitrator before there are any court proceedings.
After a number of years, Simon and Michael meet another solicitor who they think is more fficient than Don and they appoint him as solicitor for Millennium Pty Ltd.
Don brings legal action against Millennium Pty Ltd over the matter.
Advise the company as to their legal position.
Answers
1. Issue
According the case study, weather Bob can able to catch scallop fishes more than fifty tones through incorporating a company or not.
Rule
According the case study, this case’s probations are applied as per the Fisheries Management Act 1994, Fisheries Management (Supporting plan) Regulation 2006 and Fisheries Management (General) Regulation 2010. The Fisheries Act stated the facts the protections and developments of the fishery sources. The law also provides the limits of fishing in all waters within the limits of the state, which will not exceed the limits quota of catching fish.
Therefore, the Sec- 17 of Fisheries Management Act 1994 stated the provisions of the maximum bag limits to catch fishes. As per this sec, if any person violet the terms then he may fine with certain penalties or imprisonment for catching fish. The act establishes such legal guidelines of fishing rights and restrictions according the different locations. The sec 26 of this act also form a management committee to determine the numbers of catching fishes from the water bodies and sec 31 give the provisions for calling a public submission by the committee for the final decision about the alteration of catching fishes and fishing equipments. The sec-17(1) of Fisheries Management (General) Regulation 1995 give the prohibition of the bag limit of scallops fishes according the per day basis.
Application
As per the case study, Bob Beech who catch scallop fishes in the coastal water of Jervis Bay in New South Wales. In the Coastal water, there are following some guidelines on catching scallop fishes that are limited in the number. The Scallop Fishing and Marketing Act provide a quota system of catching fish of 50 tones in year where a person can apply for the permission under this act and the Scallop Marketing Authority also purchase scallop fishes according to the quota limit for each person.
However it also provides the offences if any person sell scallops which are caught from New South Wales to other person without the permit from the Scallop Marketing Authority and should not cross the quota limits. The person who will find as an offender may carries fines up to $100,000. Here, Bob the Scallop fisherman have the capacity to fishing about more than 50 tones in a year which will help the person to make a good money in the business. Now his daughter wishes to incorporate a company to make it double his catch.
Fisheries Management Act 1994 and Fisheries Management (General) Regulation 1995 help to maintain the ecosystem in Australia by amending by day to day. All the water bodies of this state come under the provision of Fisheries Management Act, 1994. When Bob want to establish his own company of fishing he must have knowledge about the provisions of this act and the statues are also applicable for the companies also. Before starting his own business, he must obtain the permission of commonwealth fishing.
Therefore, before starting a company, they must follow the instruction of fishing where it is provided that a company have the limit of catching scallops per day 30 based on sack and 48 based on crates. Fisheries Management (General) Regulation 1995 also defines in sec- 18(1) that the commercial fisherman can use this regulation and apply a dredge or a similar equipment to catch scallop fishes as per the statutory rights of this act of using the proper equipment to catch fish.
Conclusion
According to the case study, it can be conclude that the advice given by Bob’s daughter is right but he must follow the appropriate legislation Fisheries Management (General) Regulation 1995 along with Fisheries Management Act 1994 for starting his own business of catching scallops fishes more than the limits as per the acts, which can be profitable for him.
2. Issue
According the case study, the issue can be stated that whether the audience from the live band concert gives the liability of negligence to the Nuclear Blast Sounds Pty Ltd for the permanent hearing loss of them.
Rule
According the case study, the rock band chooses the Nuclear Blast Sounds Pty Ltd for managing their sound system for the Nirvana’s concert. Now, the sound managing company high the sound level, which cause the permanent hearing loss to five audiences. Here, it can be stated that the audience have knowledge that a rock band perform always use the high sound so the audience join the program knowing all the consequences. However, the sound managing company also breaches their duty and use high-level sound, which cause the permanent hearing loss.
In Donogue vs. Stevenson case, the plaintiff sued the manufacturer for breaching his duty and gave her a beer bottle where she found a composed snail. Tankship (UK) v Morts Dock and Engineering Co (The Wagon Mound) (1961) is a case which also stated the breaching of duty of care and the plaintiff sued the service provider. In Stokes v House With No Steps [2016] case, the plaintiff claim remedies for the damages from the defendant who was failed to provide the proper duty and breach the duty of care.
Application
According the case study, Nirvana Ltd is a hard rock band company who organize live rock band program in many places. The Nuclear Blast Sounds Pty Ltd manages the sound equipment of the company in the Australia. When the rock band performing in Sydney the sound company set the sound level too high and cause the permanent hearing loss of five audiences. Therefore, the audiences make liable the Nuclear Blast Sounds Pty Ltd for their negligence in setting up the sound level too high.
Negligence is one of the important parts of tort law where one party failed to provide the actual and proper reasonable care for avoid causing injuries or loss other party. Therefore, when the plaintiff sue defendant he must satisfy all the important facts that establish the reason of negligence. Those are:
- The circumstances of duty of care must relate with the situation from the defendant.
- When plaintiff makes allegations against the defendant, he must satisfy all the negligence behavior of the defendant, which causes the damage to the plaintiff.
- If the negligence establish by the defendant then there must be a damage or injury take the place.
- When the damage cause for breaching the duty of care then the plaintiff must prove the facts
As per the case of Donogue vs. Stevenson case, the plaintiff suffered mentally sock for the negligence by the defendant. The defendant provide a bottle of ginger beer where the plaintiff found a dead snail and she fall sick. Therefore, for the negligence toward the duty of care cause the harm to the plaintiff.
Therefore, as per the given case study, when the sound company manages the sound level they must aware of the sound because it may cause harm to the audience. It is their duty that they do their duty of care when they provide the service to the audience. However, for the negligence of managing the sound level by the Nuclear Blast Sounds Pty Ltd cause harm and the audience suffered the permanent hair loss.
In Stokes v House With No Steps [2016] case, the defendant admitted the negligence of duty of care toward the plaintiff’s employer. The defendant also breach the duty of care and the plaintiff cause the damages. Therefore, in the live band program the audience can make liable the Nuclear Blast Sounds Pty Ltd for their permanent hearing loss because they beach their duty of care. The Civil Liability Act provides determine individual people for the negligence and they must face the result of any negligence acts of their parts.
Conclusion
It can be concluded that the five audiences who attend the live band concerts and suffered the permanent hearing loss for the high sound level can sue and make liable the Nuclear Blast Sounds Pty Ltd for the negligence.
3. Issue
As per the case study, the issue is as a solicitor of the company, Don ca bring any legal actions against the other two solicitors of the company for appoint a new solicitor without informing him.
Rule
As per the case study, the article between the three solicitors of the company mentioned that if any disputes arise, they first take the references from the arbitrator for solving the disputes. Therefore, as Don who faced the confliction with other solicitors must take help from the arbitrator for the dispute resolution. As per the constitution of the company, the directors and shareholder may use the replaceable rules if they do not want to follow the constitution of the company.
Application
As per the case study, Simon, Michael and Don all three of them set up the project management company named Millennium Pty Ltd where Don is a solicitor and work on land purchase or sales as a solicitor. However, other two organizers thought to recruit a new solicitor for the company. As per the article between the organizers, it is already mentioned that they must refer to an arbitrator first for any disputes, which arise between the company and its members. Now Don takes legal actions against the company.
However, the constitution of company is not always mandatory for the proprietary company where it only used as per the rules governing of a company’s directors and shareholders. as per the Corporation Act 2001 of Australia provides the replaceable rules to the companies where they do not want to follow the constitution of the company which deals with the appointment and powers of the directors, regulations for the meeting of both directors and members, rights of shares and transfer of shares. The replaceable rule has only applicable for the members of the company. If someone breach the rues that will not applies as per the corporation act.
As per the constitution of the company, the members have the rights to deny to follow the rules where they deny the rules there must be a replaceable rules apply. According the case study, Don is nominates as a solicitor for any land purchases or sales made by the company. However, the other two members again appoint a solicitor. A dispute arises between the company and the members. As per the constitution of the company, member can deny the rules of the constitution only when they use the replaceable rules on the replacement of the constitution with the special resolution. As per the written article between the members, they first refer to an arbitrator if any conflict arises. Therefore, two members deny the constitutions and appoint another solicitor but they must apply the replaceable rule as a replacement of the constitution of the company. Don also denied the constitution’s rules and directly took legal actions against the company. Though he needs to go to the arbitrator for the disputes, he can take legal actions.
Conclusion
It is concluded that, Simon, Michael has denied the constitution of the company and appoints another solicitor without the applications of replaceable rules. Don who was not only forms the company and appoint as a solicitor of the company. Therefore, he also denies the written article and takes legal actions against the company.
Reference
Arlinghaus, Robert, et al. "Management of freshwater fisheries: addressing habitat, people and fishes." Freshwater fisheries ecology. Wiley, Chichester (2016): 557-579.
Birt, Jacqueline, et al. "Accounting: Business Reporting for Decision Making 5e." (2014).
Brush, Dan, and Brent Van Staden. "Shareholders' agreements for new companies and start-ups." Governance Directions 68.4 (2016): 231.
Carey, Paul. "Should We Keep Running up the Hill: LM v Commissioner of An Garda Siochana." King's Inns Student L. Rev. 6 (2016): 30.
Club, Alexandra Ski. "Constitution of Alexandra Ski Club." Constitution 510 (2014): 24032014.
Cole, Steven. "Good governance and the curious case of the alternate director." Governance Directions 68.10 (2016): 603.
DeMott, Deborah. "Culpable Participation in Fiduciary Breach." (2016).
Donoghue v Stevenson 1932 AC 562
Dutra, Leo XC, et al. "Organizational drivers that strengthen adaptive capacity in the coastal zone of Australia." Ocean & Coastal Management 109 (2015): 64-76.
Fletcher, W. J., et al. "Refinements to harvest strategies to enable effective implementation of Ecosystem Based Fisheries Management for the multi-sector, multi-species fisheries of Western Australia." Fisheries Research 183 (2016): 594-608.
Fulton, Elizabeth A., et al. "An integrated approach is needed for ecosystem based fisheries management: insights from ecosystem-level management strategy evaluation." PLoS One 9.1 (2014): e84242.
Gifford, Donald G., and Christopher J. Robinette. "Apportioning liability in Maryland tort cases: Time to end contributory negligence and joint and several liability." (2014).
Henderson Jr, James A. "Learned Hand's Paradox: An Essay on Custom in Negligence Law." Cal. L. Rev. 105 (2017): 165.
Stokes v House With No Steps [2016] QSC 79 (Supreme Court of Queensland, Jackson J, 11 April 2016)
Tankship (UK) v Morts Dock and Engineering Co (The Wagon Mound) (1961)
