1. The Retail Trading Act 2012(Qld) regulates the opening of retail shops in Queensland on public holidays. Section 3 of the Act provides that the occupier of a retail shop must not open on a declared public holiday before 10.30am and must use staff who have volunteered to work on the day.
In June 2013 the Commonwealth Parliament enacted the Fair Work (Retail Employees) Act 2013 to protect the working conditions of employees of retail shop keepers.Section 4 of the Act provides that a retail shop keeper may roster an employee to work on a public holiday providing the employee is paid the hourly rate fixed by the Act, or gives the employee an additional day's leave in substitution forthe public holiday.
The owner of a Brisbane supermarket is proposing to open his shop from 9.00am on the 2015 Australia Day public holiday and is unsure as to whether the restrictions under the Queensland Act will apply if he complies with the requirements of the Commonwealth Act.
Required
Advise the manager on the following issues:
(a) the relevant legislative powers of the Commonwealth to enact the FairWork (Retail Employees) Act 2013.
(b) the application and effect of section 109 of the Commonwealth Constitution on the operation of the Queensland Act, and the applicable court which would determine this issue.
2. One of K-Lark's business activities is to run a courier company in Brisbane. The manager of the courier company is Toby Byke. Over the past 2 years Toby has occasionally organised document deliveries for Roderick who runs a local real estate agency. Whenever a delivery was to be made Roderick would telephone Toby and obtain a quotation for the cost of delivery and confirm availability of K-Lark's couriers to meet the delivery deadline. If this was satisfactory he would arrange for K-Lark's to collect and deliver the documents. After they were delivered, Toby would post an account to Roderick for payment. On the last three occasions that Roderick used K-Lark's services he received an account which had printed on the back 'TERMS OF CARRIAGE CONTRACT' followed by the following three clauses.
(1) K-Lark's does not accept any responsibility for loss or damage,however caused, that arises during the delivery of the goods or while the goods are in storage awaiting collection. The company does not guaranteedelivery nor accept any responsibilityfor any damages arising from the late delivery of goods.
(2) Liability for claims from third parties is expressly limited to $20,000.
(3) In the event that the delivery is assigned to a contractor engaged by K-Lark, the contractor or subcontractor shall not be liable for any loss or damage due to the contractor's or subcontractor's default, however caused, when acting in the course of, or in connection, with their engagement.
On the 15 March Roderick telephones Toby and asks if K-Lark Couriers could deliver a parcel of documents for him to his client in Ipswich. He explained that the delivery was to reach its destination before 3.30 pm on 16 March as it was urgently required by his client to finalise a lucrative service contract. Toby replied 'It's a guaranteed delivery' and then gave Roderick a price for the job which he accepted. Robert then telephoned his client informing him that the documents would be delivered to by 3.30pm the following day.Arrangements were made by Toby to have one of K-Lark's contract couriers deliver the documents by 3.30pm the following day. On 16 March, the assigned courier was informed by Roderick's secretary that it was an urgent delivery and that receipt before 1.30pm was required. The courier replied "Yea, that can be done" He then took the parcel to the K-Lark depot where it was handed to another contract courier for delivery. Due to K-Lark's inconsistent instructions the parcel was taken home by the contract courier and was not delivered on until 5.30pm on the 17 March. The client subsequently terminatedRoderick's contract resulting in a loss of profit of$30,000. The client has also sustained a loss of $50,000 from the late delivery of the documents and now wants to sue K-Larks.
Required
(a) What is the effect of the exclusion clauses?
(b) Has there been a breach of contract between K-Lark's and Roderick?If so, what damages could Roderick and his client claim from K-Lark's?
(c) Can Roderick sue K-Lark's for misrepresentation? What remedy would Roderick be likely to obtain under the Australian Competition and Consumer Act (2010) against K-Lark's?
3 In mid-2013, under a three year express agency agreement, Henry Lawson was appointed by the BBC Limited to enter into agreements on the company's behalf as its sole agent for the Asia -Pacific Region. In May 2014, Henry obtained on his own initiative a high profit 3 year contractfor BBC to supplylow fat Queensland beef to aFrenchsupermarket chain,Ulti,for $12 million. As part of the agreement Henry was able to persuade Ulti to use Floaties Ltd to ship the beef to France. Henry is a director and major shareholder in Floaties Ltd and was paid $250,000by the company for his work in negotiating the contract with Ulti.
Six months after the contract was entered into Ultinow wants to end the contract and sue Henry for breach of warranty.
Required
(a) Advise Ulti as to whether there is a legally valid beef supply contract with BBC.
(b) What advice would you give toBBC in relation to Henry's activities?
4. The explanatory note to the Civil Liability Bill 2003 (Qld) states that the main purpose of the Civil Liability Act 2003(Qld) 'is to further facilitate the ongoing affordability of insurance through clari?cation of some basic principles within the substantive law'.
To what extent has the Civil Liability Act 2003(Qld) clarified the common law and what protections has the Act given to personswho provide professional services?In your answer provide practical examples of the application of the Act?