Statute Law an General Common Law Principles

Questions: 1. Bob Beech is a scallop fisherman and involved in commercial scallop fishing in the coastalwater of Jervis Bay in New South Wales. The stock of scallops in this water is limited andsubject 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 foreach person.The Act also provides for a number of offences. It provides that it is an offence to sellscallops caught in New South Wales waters to any person other than the Scallop MarketingAuthority 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 wishesto make more money from his business. His daughter Alice tells him that by incorporating acompany 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. Anumber of wholly owned subsidiaries of New Nirvana Ltd are involved in setting up andrunning the bands 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 recentN/N concert in Sydney, Nuclear Blast Sounds Pty Ltd negligently set the sound levels toohigh with the result that five audience members suffered permanent hearing loss.Unfortunately for those audience members, Nuclear Blast Sounds Pty Ltd had no negligenceinsurance and cannot pay the likely damages claims.Advise the injured audience members whether they can make New Nirvana Ltd liable forNuclear Blast Sounds Pty Ltds 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 thesolicitor for any land purchases or sales made by the company. The articles also provide thatany disputes which arise between the company and its members should be first referred toan arbitrator before there are any court proceedings.After a number of years, Simon and Michael meet another solicitor who they think is moreefficient 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 As anywhere else in the world, Australia government has a key responsibility to control the open access fisheries to address the basic economic and biological alarms(George D. Pozgar, 2015). Every government has responsibility to manage and regulate fisheries within its relevant jurisdiction. Scallop fishing and marketing act has designed quotas under that an individual should make application for in order to be allowed to catch 50 tonnes of scallop fish annually. It further provides that scallop marketing authority is the only market for the fish within those annual quotas. No fisherman should catch more that the allowed quota nor sell to any other market other than the scallop marketing authority. Any person who contravenes the Act is liable for an offence whose punishment can attract a $100 000 fine. Some individuals have the ability to harvest more than 50tonnes of scallops each year. Is it possible for a person to increase his/her productivity by incorporating a company as Bob i s advised by her daughter? Relevant Law The Fisheries Management Act 1994. Under division 4 section 17 (1) it states that, if scallops are taken by way of a dredge or related gadget or by a mixture of dredges and related gadgets from a boat, each day perimeter of scallops is whichever of the following applies: (a) Incase the scallops are packed in sacksthirty approved scallops sacks; (b) Incase the scallops are packed in cratesforty eight approved scallops crates. Main Legal Principle For commercial reasons, if a fisher is sailing a boat with a dredge or related items that have the ability to take scallops and is in possession of scallops section 18(1) of the Act states, the limit of scallops possession for that fisher is when whichever of the following applies: In case scallops ferried in boat are all packed in standard bags (whether partly full or full), thirty standard sacks, less the number of standard sacks with scallops on that boat and are not in possession of that particular fisher. In case the scallops ferried are in packages of approved crates whether in partial package or full, forty eight standard crates, less the number of standard crates with scallops on that boat and are in possession of that fisher. otherwise, the possession limit is zero Any other person, who does not do fishing for commercial purpose and is in possession of a dredge or any material that is capable of taking scallops, should not be in possession of any scallop. The law is provided for the licensed fishers only. Fishers who commit offences are punishable by law under the provisions of the act. Argument on the Facts If Bob registers a company, he will have formed an artificial person different from him. Companies are viewed as entity with different personalities from their incorporators. The main purpose of the fisheries Act is to limit amount of fish from the Jervis bay(Belding, 2015)(George D. Pozgar, 2015). The motives of fisheries control in South Australia are to control the living resources of the State so that their use and maximization are economically sustainable. Furthermore, management targets to improve long term economic and social benefits to the South Australian population. The key motive of limitation quotas is to ensure that every fisher does not exceed the standard quantity of fish per annum. Licenses and possession of the right endorsements for fisheries to operate in are key requirements for commercial operators. These endorsements indicate the kind of equipment to be used and standardize the quantity acceptable to be deployed. The scallop marketing authority cannot allow Bob to incorporate for a company and he himself remain in the business. This would be like doubling his quotas and allowing him to catch 100 tones instead of the allowed 50 tones. Alice, Bobs daughter was not right by advising his father to incorporate a company to increase his catch. Every single fisher is entitled to 50 tonnes of scallop each year. 2. Issue The legal issue in the dispute concerning Nuclear Blast Sounds Pty Ltd and five audience members who suffered permanent hearing loss is: when person causes damages to another person as a result of negligence and that person who caused damage has no negligence cover, is he/she liable for the loss caused? Can a company incur damages cost without involving the insurance company. Relevant Law Law of Negligence and Limitation of Liability Act 2008 (NI). For the case concerning Nuclear Blast Sounds Pty Ltd vs. injured audience members, Division 2 of the Act is applicable because it deals with duty of care. It states that a person is negligent by failure to take safety measures for harmful risk except; A reasonable person in the same circumstances and position would have seen it reasonable to take precautions to avoid harm. The risk could be foreseen (that is the risk was known to the person or should have been known) Risk wasnt significant. In legal sense negligence refers to the failure to legally do what a reasonable man who do in circumstances. It must be proved that the defendant owed duty of care to the plaintiff in order to establish liability. Duty of care refers to legal responsibility which requires a person to take precaution and reasonable care while dealing with others to avoid foreseeable harm. Main Legal Principle An individual ( defendant) who owes a duty of care to someone else ( plaintiff) to give a caution or other information to the plaintiff in case of a risk or other issue, satisfies that duty of care if the defendant takes reasonable care in giving that caution or other information. Argument on the Facts According to the facts, Nuclear Blast Sounds Pty Ltd is responsible for negligently setting high level sounds leading suffered permanent hearing loss by five members of the audience. It is already clear that the sound of the music was too high than usual since it is stated that they negligently set too high sound levels. It could be argued that too high sound is a necessary condition to cause harm to the ears of anyone who is subjected to the sound. A reasonable person, even without sound expertise could be sane enough to realize that exposing people to high levels of sound can cause eardrum damages(Justin Sweet, 2012). New Nirvana Ltd invited people to the concert without warning them that there could be high sound levels that can affect peoples hearing capacity. Since the Nuclear Blast Sounds Pty Ltd is a subsidiary of N/N they owe a duty of care to all visitors who attended the concert. The suffering of harm by five members of the audience shows that all the other members were exp osed to the danger of losing their hearing sense. The plaintiffs can prove that this was not an obvious risk as the sound did not come up due to technical hitches but irresponsibility of the sound experts. Neither were they aware of the high sounds before they decided to attend the concert(Pathak, 2007). Regardless of whether the sounds company has a negligence cover or not, it is its duty to act responsibly and set reasonable sound that is not harmful to their audience. Having no insurance for negligence is not enough defense for the Nuclear Blast Sounds Pty Ltd. This relieves the insurance company of the liability to this damage and rests it to the sound company. Part of the audience that suffered hearing loss was guests of New Nirvana Ltd and knew nothing about the sound company which is the subsidiary of N/N. The injured should sue New Nirvana for damages. 3. Issue Simon, Michael and Don are the starters of Millennium Pty Ltd. So they can be the directors of the company. They set up a constitution which nominates Don as the solicitor for land purchases and sales by Millennium Pty Ltd. After a few years of working together Don is removed as the solicitor of the company because Michael and Simon have met a solicitor who they efficiency they rank higher than Dons. Is it okay for a company to remove a solicitor who is also the director of a company without prior notice? What is the legal process and what legal action should the solicitor take? Relevant Law The solicitors Act 1974 (c 49) is a United Kingdom Act of parliament that regulates and stipulates the responsibilities and duties of practicing solicitors. It provides under what circumstances a person can practice as a solicitor. Also a solicitors Act 1954 governs the qualifications enrolment, duties and removal of solicitors. According to rule 42.2 of the civil procedure riles, a notice is to be served to all stakeholders when a solicitor is appointed to act on behalf of a specific party. Argument on the Facts Mostly use of solicitors is considered a necessity rather than choice(Powers, 2005). Generally an accountant and a solicitor are two main professionals that every kind of business must not lack. In most investments things are much better, less expensive and less risky, if clients take frequent advice from solicitors. Choosing a solicitor is a heavy task and having one at your disposal is such a privilege. There are always legal requirements and a process to follow while choosing solicitor. Michael and Simon were lucky to have one among them while starting up Millennium Pty Ltd. This saved time and resources for the company. A solicitor is considered to be acting for a specific party until a certain set of provisions are complied with(Powers, 2005). Millennium Pty Ltd Company should apply the following legal provisions to removing Don as its solicitor: The solicitor has a right to prior notice of removal- it is the duty of the company to notify the solicitor that he is subject to removal under certain condition. Wait for an order that the solicitor has ceased to act- the solicitor himself might make application supported with evidence, for an order declaring that he can no longer continue acting as the solicitor of a specific party. The company should first have received a notice from the solicitor unless the court has ruled otherwise. This might also happen when a court of law has ordered that a solicitor ceases to act. If a solicitor is in breach of ethical code conducts or committed any other fraudulent crime the court may order to remove that particular solicitor. Application by another party for removal of a solicitor who ceased to Act- this might happen in the case of death of an acting solicitor, bankruptcy, solicitor has gone missing or has ceased to practice. Failure to adhere to this provisions Simon and Michael cannot be justified to remove Don as the acting solicitor of the company and endorse another person. Don is protected by law and by the constitution of the company until a legal process is applied in his removal. Bearing in mind that Don is also a director of the company, he should be contacted while making such crucial decisions. Don has the right to take the matter to court and probably the court will rule in his favour since there is no evidence that he has breached or absconded any of his duties. Don remains the acting solicitor of Millennium Pty Ltd and the other solicitor proposed by Michael and Simon has no rights whatsoever to act as the companys solicitor. In fact Michael and Simon are liable of breaching provisions of the provisions of the companys constitution and the general law as while. References Belding, D. L., 2015. The Scallop Fishery of Massachusetts: Including an Account of the Natural History of the Common Scallop. Massachusett: Commonwealth of Massachusetts, Department of Conservation, Division of Fisheries and Game, Marine Fisheries Section, 1931. Burgunder, L. B., 2010. Legal Aspects of Managing Technology. Boston: Cengage Learning. Clair A. Cripe, M. G. P. D. K., 2012. Legal Aspects of Corrections Management. Burlington, : Jones Bartlett Publishers,. Commission, U. S. I. T., 2004. Conditions of Competition Affecting the Northeastern U.S. Groundfish and Scallop Industries in Selected Markets: Report to the President on Investigation No. 332-173, Under Section 332 of the Tariff Act of 1930, as Amended. Washington, DC,: U.S. International Trade Commission. George D. Pozgar, N. S., 2015. Legal Aspects of Health Care Administration. Burlington: Jones Bartlett Publishers. Justin Sweet, M. M. S., 2012. Legal Aspects of Architecture, Engineering and the Construction Process. Burlington: Cengage Learning. Marsh, J. H., 2009. The Canadian Encyclopedia. s.l.:The Canadian Encyclopedia,. Pathak, 2007. Legal Aspects Of Business. Pennsylvania: Tata McGraw-Hill Education. Powers, P., 2005. Presidential Powers. New York: NYU Press.