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Commercial Law

The following makes the distinction between courts and tribunal clear:

  • Tribunals take a more low key attitude than courts to the laws of evidence.
  • Tribunals enable people to converse on their behest and often require them to respond; advocates are allowed only under specific conditions;
  • Tribunals also specialize in settling conflicts in a specific field; courts typically have the authority to hear a much wider variety of cases;
  • Resolving a dispute in a tribunal is always easier than challenged in court ;
  • Tribunals are commonly comprised of a group of 3 persons, out of which only one is a solicitor; the other 2 members are generally specialists in the tribunal's relevant field[1] (Legal Answers, n.d.).

A broad variety of daily legal conflicts are dealt with by VCAT. It has some departments, each specialized in specific categories of cases: administrative, civil, human rights and residential tenancies[2]. Legal conflicts and lawsuits in Victoria are handled by the Victorian Civil and Administrative Tribunal (VCAT). It's a tribunal, which suggests that it is less official than a courtroom. Under the law, it accepts and addresses cases[3].

The Australian judiciary, at the federal and state level, is comprised of various tribunals & courts[4].

In Australia, Alternative Dispute Resolution ("ADR") has traditionally been regarded primarily as a non-judicial mechanism. "In fact, without the aid of the judiciary, ADR has been characterized as" a method of settling disputes[5]. An impartial third party supports persons in an ADR process to settle a disagreement because of which it has become a common alternative to the judiciary. ADR proceedings do not necessitate judges determinations, such as rulings rendered by a tribunal or court[6].

Letter of Complaint:

Dear Sir

Re: Complaint regarding defective phone sold by Samsung in 2019.

It is disheartening to state that the Samsung Galaxy phone which I purchased in December 2019 is a defective piece due to which I am compelled to complain to you to either replace it or return my money.

The purpose of enacting Australian Consumer Law is to protect the interest of the consumers who are a vulnerable population who often gets cheated by getting trapped in the company's branding and marketing strategies. To prevent the menace of consumer exploitation and deter infringement of consumer rights Australian Consumer stipulates various provisions out of which Section 18 is relevant to my present case. The said section is as quoted below.

Section 18 Misleading or deceptive conduct (1) In commerce or trade, a person should not indulge in actions that are deceptive or misleading, or that is intended to deceive or mislead.

On the web and through other newspapers, also social networking (Instagram, Facebook, and Twitter), TV, YouTube, email ads, news releases, publications funded by you, stores of Samsung during the sale and in other retailers' outlets, you actively advertised and promoted the Galaxy smartphones. Samsung Australia also depicted the Galaxy smartphones getting used in or unveiled to different forms of water in its ads, including in the oceans and pools. You also claimed in ads that the galaxy smartphones are waterproof for up to 30 m to a depth of 1.5 meters.

By publishing such information on the phone being water-resistant and marketing your product on different platforms aggressively caused me an interest in your product and which made me believe that the phone is water-resistant. The water-resistant feature of your phone was a driving force to me in purchasing the phone. Your advertisement was depicting that the phone can be used in oceans and pools by way of various pictures and videos of people using the phone in a swimming pool and ocean. Such advertisement and marketing persuaded me to buy your phone and made me expose the phone to a swimming pool which made my phone damaged. The independent mobile phone technician has also confirmed that the phone is damaged due to water damage. I have tried to return your phone twice due to issues related to water damage but your manager is not accepting the same by stating that the phone is not faulty and the problems have occurred because I have not used the it correctly which is a baseless and frivolous statement to deny the manufacturing defect or false marketing of your company. Please note that such false representation made by you results in misleading conduct attracting the provision of Section 18 of the ACL stated above. The representation of you is false as

  1. Galaxy phones will not be, or were not, safe for use in all forms of water (such as in oceans and pools) and/or for sensitivity to all kinds of water.
  2. As used with, or subjected to, fluids (including fluids other than freshwater), the usable life of the galaxy devices could and would possibly be negatively affected.

I was carried away with such misrepresentation and deceptive marketing which resulted in I buying the phone. Therefore, I request you to act on my complaint and solve the issue within 15 days from the date of receipt of the complaint, and if I do not receive any satisfactory action from your side to resolve my issue then I shall be compelled to file a complaint with the consumer affairs in my state.

Yours Sincerely

XYZ

Advantages:

Lessened risk of business & Reduced Failure Rate: One of the benefits of franchising a corporation is that, relative to beginning a new independent small business, it generally has a lower failure rate as franchisees will directly reap the advantage of the established brand and product name built through the continuing marketing activity of the franchisor, versus beginning a new company that needs to learn from errors.

Time & energy saving on Product and Marketing Development: The second benefit to franchising the company is that it tends to save a significant amount of time and expense for potential business owners to discover, grow and run a new process.

Lower the cost of purchasing products and marketing: The third benefit of franchising the organization is that it will allow the franchisee to reduce the expense adequately. It can be done since the franchise owner may still use multiple franchisees' joint strength to secure input materials sourcing concessions.

Easily access to the Growing Budget: The fourth benefit of franchising the organization is that the growth in the budget is typically smoother. Because of the low risk, financial institutions are much more likely to lend funds to acquire a franchise company than to start a new, inexperienced corporation.

Disadvantages:

Fees for franchisees and sharing of profit 

Many franchise owners demand to pay the parent corporation back a portion of the gross revenue.

Lower Liberty

"There is low flexibility or space for innovation" and the biggest downside of owning a franchise is that it needs to need to happen in the franchisor way[7].

Initial Cost 

Expenditure of initial franchise fee that is non-refundable[8].

In the case[9]

On 24 August 2018, by making an inaccurate or deceptive assertion, a pecuniary judgment of $2.25 million was ordered against Heinz Australia for violations of Australian Consumer Legislation.

The ACCC brought a lawsuit against Heinz surrounding a snack food placed on the marketplace for babies. The court also required a customer protection enforcement scheme to be set up by the firm.

Facts: On 19 March 2018, the Federal Court's White J found that Heinz involved in an activity that was deceptive or misleading or liable to misrepresent or mislead in violation of Section 18 of the ACL, and that, in violation of s 29(1)(g) of the ACL, he, therefore, made inaccurate or misleading statements to customers.

The actions consisted of depictions on the packaging in which Heinz sold three "Little Kids fruit & veg SHREDZ" flavors of 3 items. The findings were that the items were healthy food and were advantageous to the wellbeing of kids ("toddlers") aged 1-3 years.

Order:

The amount of the fines levied were $2.25 million in total. It was far greater than that of $400,000 amount Heinz was arguing but far smaller than the $10 million penalty over which the ACCC was arguing.

The Court found that this wouldn't be acceptable for the overall value of the fines to be set at a sum which merely negated Heinz's gains resulting from the selling of the goods and which did not represent the reasons for which the fines were levied.

From the example of the above case, I have learned that when I will enter the noble profession of law I will always advise the company who is into manufacturing or marketing business, that they should only mention and represent things of the product which are genuine. If in any way they misrepresent it which is deceptive then they will incur a tremendous amount of penalty as the Courts are very strict towards the provisions of Section 18.

The astonishing discovery with which I came across is the penalty levied by the Courts in the matter of Consumer cases. The penalty levied by the courts against the wrongdoers and infringers is very high which is a great way to prevent the breach of provisions and illegality as when courts penalize with a low penalty then companies become fearless and behave autocratically resulting in defeating the provisions of the Act.

My assumption before the commencement of the course was that the adjudication of consumer matters doesn't happen efficiently but after its end, my assumption has changed as Consumer Courts are working efficiently and penalizing the wrongdoers in the right manner by creating fear in the minds of companies to not cheat the consumers.

Bibliography for Australian Competition and Consumer Commission

Legislation:

Competition and Consumer Law Act 2010 (Cth) Sch 2 ('Australian Consumer Law').

Case Law:

Australian Competition and Consumer Commission v H.J. Heinz Company Australia Limited (No 2) [2018] FCA 1286

References:

AG, Alternate dispute resolution (Web Page) < https://www.ag.gov.au/legal-system/alternative-dispute-resolution>

Law Access, Courts and tribunals (Web Page) < https://www.lawaccess.nsw.gov.au/Pages/representing/getting_ready_for_court/courts_and_tribunals.aspx>

Legal Aid, Victoria’s courts and tribunals (Web Page) < https://www.legalaid.vic.gov.au/find-legal-answers/courts-and-legal-system/victorias-courts-and-tribunals>

Legal Answers, Chapter 8 Judiciary (Web Page) < https://legalanswers.sl.nsw.gov.au/hot-topics-australian-legal-system/judiciary>

Maher Graham, Alternate dispute resolution (Web Page, 2 April 2012) < https://www.mondaq.com/australia/arbitration-dispute-resolution/170796/alternative-dispute-resolution-trends-traps-and-benefits>

Salar Menekse and Salar Orkide, ‘Determining pros and cons of franchising by using swot analysis’ (2014) 122 Procedia-Social and Behavioral Sciences 515.

Tang, Mengyao, ‘Research on franchising model in business’ (2017) 16(6) China-USA Business Review 287.

VCAT, About VCAT (Web Page) < https://www.vcat.vic.gov.au/about-vcat>

[1] Legal Answers, Chapter 8 Judiciary (Web Page) < https://legalanswers.sl.nsw.gov.au/hot-topics-australian-legal-system/judiciary>

[2] Legal Aid, Victoria’s courts and tribunals (Web Page) < https://www.legalaid.vic.gov.au/find-legal-answers/courts-and-legal-system/victorias-courts-and-tribunals>

[3] VCAT, About VCAT (Web Page) < https://www.vcat.vic.gov.au/about-vcat>

[4] Law Access, Courts and tribunals (Web Page) < https://www.lawaccess.nsw.gov.au/Pages/representing/getting_ready_for_court/courts_and_tribunals.aspx>

[5] Maher Graham, Alternate dispute resolution (Web Page, 2 April 2012) < https://www.mondaq.com/australia/arbitration-dispute-resolution/170796/alternative-dispute-resolution-trends-traps-and-benefits>

[6] AG, Alternate dispute resolution (Web Page) < https://www.ag.gov.au/legal-system/alternative-dispute-resolution>

[7] Mengyao, Tang ‘Research on franchising model in business’ (2017) 16(6) China-USA Business Review 287, 289.

[8] Menekse Salar and Orkide Salar, ‘Determining the pros and cons of franchising by using swot analysis' (2014) 122 Procedia-Social and Behavioral Sciences 515, 518.

[9] Australian Competition and Consumer Commission v H.J. Heinz Company Australia Limited (No 2) [2018] FCA 1286

Remember, at the center of any academic work, lies clarity and evidence. Should you need further assistance, do look up to our Law Assignment Help

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