MLC101 Law for Commerce

Assessment Two Case Study

Overview of this assessment

Description

This assessment provides you with another opportunity to formalise a written answer to legal problems (hypothetical fact scenarios - HFS), albeit at a more advanced level, with an expectation of legal research. This assessment is the second step in acquiring the skill of legal argumentation, which is set as a discipline-specific skill with which to enhance your writing abilities, as well as to provide a deeper understanding of the workings of law for commerce. It is important that your discussion focuses on analysing the facts of the HFS and applying the law to those facts. Marks will be awarded for:

• your identification of the issues and the material facts that are relevant to those issues;
• your identification of the law (cases) that applies to those facts and issues; and
• most importantly, the application and analysis of the law as it applies to those facts and issues. Generalised statements of legal principles that is, those that are not sufficiently relevant to the facts will attract limited marks only;
• a conclusion, which is either certain, or dependent on the facts of the scenario, uncertain. In other words, if you are unable to conclude with certainty, please explain why.

It is also expected that you observe tertiary level academic writing standards organise your writing in proper paragraphs, with correct grammar, punctuation and spelling.

There is a research component to this assessment (scenarios two and three require research beyond the course materials to excel). You are expected to conduct your own research. There is no minimum or maximum number of resources that you must include, but all material must be correctly referenced according to the Deakin Harvard style of referencing. It is NOT about how many references you use, but rather the relevance and quality of those references that you select.

Specific Requirements

Your task is to provide analysis and evaluation of the legal issues posed in the case study (with HFS), drawing on the legal principles covered in Topics 3 and 4. These scenarios (except for Scenario 3) are based broadly on your course materials from these topics; however, further research (beyond the textbook) for scenarios two and three will most definitely enhance the quality of your submission and help you to score a high grade for this assessment. You must correctly reference for this assessment.

However, please do not reference Power point slides. Cite cases in full (you may abbreviate using only the first name after the first full citation), but you need not cite the source of the case. In other words, if you research the facts from our textbook or the library database such as Westlaw AU, you only need to cite the cases, not the textbook or the website.

The overall word count for this assessment is 1500 words (including in-text citations, headings, sub-headings but not including the references in the reference list). There is NO leeway for this assessment. In other words, please ensure the maximum word count is 1500. Submissions beyond the word count may be penalised.

Referencing

For Assessment Two, you are required to provide a reference list (using Deakin Harvard style of referencing) indicating the sources used. In other words, all in-text citations must have a corresponding entry in the reference list. The reference list does not contribute to the 1500 word limit.

Format

• You do not need to provide a cover sheet.
• Use IRAC (taught in the seminars).
• Use font size 12 point and line spacing of 1.5.
• Use Calibri font.
• Use margin of at least 2 cm on all sides.
• You must provide a word count at the beginning of your assessment. All pages of the assessment must be numbered and your student ID number included in the header or footer of each page.
• You must ensure that your writing, punctuation, spelling and grammar are of a satisfactory standard.

Learning Outcome Details for this Assessment

This task allows you to demonstrate achievement towards the unit learning outcomes. The ULOs are aligned with specific graduate learning outcomes that is, the skills and knowledge that graduates are expected to have upon completion of their studies and this assessment task is an important tool in determining achievement of those outcomes.

If you do not demonstrate achievement of the unit learning outcomes, you will not be successful in this unit.

It is good practice to familiarise yourself with the ULOs and GLOs, as they provide guidance on the knowledge, understanding and skills you are expected to demonstrate upon completion of the unit. In this way they can be used to guide your study.

Submission Instructions

The due date and time for this assessment is 8:00pm (Melbourne time) on Friday 13th January, 2023. Reminder: TheLegal Research for Commerce Units Modulemust be completed before you submit your assessment.

When uploading your assignment, name your document using the following syntax:

Your assessment should be submitted in Microsoft Word (or rich text) format - .doc, .docx or

.rtf. Please do not submit your assessment in PDF format, Apple Pages format, or in any other format. It is your responsibility to ensure that the file you submit can be downloaded by the marker. Files that cannot be opened will be treated as non-submissions and the usual late penalties will apply. Additionally, please take care to ensure that you have submitted the right version of the file (i.e., your final version, and not a draft version) and that you have submitted the assessment for this unit (and have not mistakenly submitted an assessment that was written for another unit).

Submitting a hard copy of this assignment is not required.

You must keep a backup copy of every assignment you submit until the marked assignment has been returned to you. In the unlikely event that one of your assignments is misplaced, you will need to submit your backup copy.

Any work you submit may be checked by electronic or other means for the purposes of detecting collusion and/or plagiarism. If you are caught plagiarising or colluding, you will receive 0% for your assignment and may be referred to the Facultys disciplinary committee.

When you submit an assignment through your CloudDeakin unit site, you will receive an email to your Deakin email address confirming that it has been submitted. You should check that you can see your assignment in the Submissions view of the Assignment Dropbox folder after upload, and check for, and keep, the email receipt for the submission.

If you are encountering last minute technical problems and are unable to submit your assignment on CloudDeakin, please email your assignment to the Unit Chair, Sven Gallasch (s.gallasch@deakin.edu.au) to demonstrate that the assignment has been submitted on time; however, you are still required to submit the assignment on CloudDeakin once it becomes available. Please seek the assistance of IT support if you are having trouble submitting online.

If you have already submitted your assignment on CloudDeakin but wish to submit an updated submission, that is acceptable so long as the most recent copy is submitted before the submission deadline. The latest submission will replace any earlier submissions.

Marking and Feedback

Marking Criteria

Assessment Two is worth 30% of your final grade for this unit. Each scenario is worth a certain number of marks but the final grade will be converted to 30%. Your submissions will be assessed according to a marking rubric which can be found in the Assessments folder.

You will be assessed against the following criteria:

• Identification of the issues and the applicable legal rules (principles of law derived from cases and other sources of law)
• Analysis of the facts and application of the law to the facts
• Conclusion
• Organisation, communication, and style
• Research and Referencing (note: research is not required for scenario one.)

These criteria will be applied by way of a marking rubric, which can be found in the Assessment Resources Assessment Two folder.

It is always a useful exercise to familiarise yourself with the criteria before completing any assessment task. Criteria act as a boundary around the task and help identify what assessors are specifically looking for in your submission. The criteria are drawn from the units learning outcomes, ensuring they align with appropriate graduate attributes.

Identifying the standard you aim to achieve is also a useful strategy for success and to that end, familiarising yourself with the descriptor for that standard is highly recommended.

Feedback

Your marked assessment will be returned to you within 15 working days of submission, unless otherwise advised with feedback provided in Turnitin or in the feedback box. Please take the opportunity to consider the feedback you have received and to think about how you might use that feedback to improve on future assessments (or, hopefully, to keep doing the things that you have been doing well).

Your marked assessment may contain a range of positive and negative feedback. The purpose of this feedback is to help you learn from your submission. Sometimes, feedback will be given for this educational purpose even though it is not related to a matter taken into account in marking on this occasion. It is not necessarily the case that every item of positive feedback is something that you gained marks for, or that every item of negative feedback is something that you lost marks for. Sometimes, we are merely helping you learn for the future.

Extensions

Students who require a time extension can apply in the unit site under the Assessments tab. Please read the faculty guidelines on extensions carefully before submitting a request for an extension.

Late Submission

The following marking penalties will apply if you submit an assessment task after the due date without an approved extension: 5% will be deducted from available marks for each day up to five days, and work that is submitted more than five days after the due date will not be marked and will receive 0% for the task.

Day means working day for paper submissions and calendar day for electronic submissions. The Unit Chair may refuse to accept a late submission where it is unreasonable or impracticable to assess the task after the due date.

Calculation of the late penalty is as follows:

• 1 day late: submitted after 11:59pm on due date (Friday) but before 11.59pm the next day (Saturday) 5% penalty.
• 2 days late: submitted after 11.59pm Saturday but before Sunday 11.59pm 10% penalty.
• 3 days late: submitted after 11.59pm Sunday but before Monday 11.59pm 15% penalty.
• 4 days late: submitted after 11.59pm Monday but before 11 Tuesday 11.59pm 20% penalty.
• 5 days late: submitted after 11.59pm Tuesday but before Wednesday 11.59pm 25% penalty.

Dropbox closes on the Friday at 8pm Melbourne time.

Support

The Division of Student Life (see link below) provides all students with editing assistance. Students who wish to take advantage of this service must be organised and plan ahead and contact the Division of Student Life in order to schedule a booking, well in advance of the due date of this assignment. https://www.deakin.edu.au/about-deakin/faculties-and- divisions/administrative-divisions/division-of-student-life

Referencing

Any material used in this assignment that is not your original work must be acknowledged as such and appropriately referenced. You can find information about plagiarism and other study support resources at the following website: http://www.deakin.edu.au/students/study-support

Academic Misconduct

For information about academic misconduct, special consideration, extensions, and assessment feedback, please refer to the document Your rights and responsibilities as a student in this Unit in the first folder next to the Unit Guide in the Resources area of the CloudDeakin unit site.

ASSESSMENT QUESTIONS

Scenario 1

Lee dreams of opening an Asian inspired fusion caf in Croydon. He is looking to take over an existing caf that does not need any refurbishments from his side. He is lucky to find a recently closed caf that had a similar business concept. He contacts Virat and Rohit, the joint owners of the property, to engage in lease negotiations. Lee discusses all necessary details with the owners. The lease is slightly above Lees budget. However, Virat highlights the great location of the caf. It is very close to Croydon station. During the meeting, Virat states: Dont worry about the lease being slightly over your budget. It is a great spot. The previous caf owner easily sold 1000 coffees per day, if not 1500. Rohit adds: I think so too. Lee feels very positive about his venture after the meeting. He signs a standard lease agreement with Virat and Rohit the following week, agreeing to a 5-year lease starting 1 August 2022.

Unfortunately, business for Lee is not as expected. In the first few weeks he sells around 150 coffees per day. His sales increase over the months but never reach more than 500 coffees per day. Lee feels cheated and calls Virat and Rohit to complain. During the phone call Lee says: You knew that the lease was above my budget. You guaranteed me daily sales of at least 1000 coffees. Virat responds: I have not guaranteed you anything like that. Read the contract that you have signed. Why would I guarantee you a certain number of sales? I dont even know whether you are a good barista.

Lee has lost his confidence and wants to terminate the contract and/or seek damages.

Advise Lee.

Please use case law to support your answer.

Please only consider contract principles from the prescribed Topics.

Suggested word count: 400-500 words (8 marks)

Note:No research is required for this scenario. Please rely on the course materials (textbook) to answer this question.

Scenario 2

Brian is the sales director for a medium sized local marketing agency SPACE in Paramatta, NSW, leading a team of 15 sales representatives. Through his role he became privy to most of his companys highly confidential information. He also had direct contact with the companys most important clients. After 10 years in this position, he decides to resign from his position and look for new opportunities. He gives his company 4 weeks notice. The HR director responds with a three months written notice of termination of his employment, which is the required notice period as per his employment contract. At the same time, Brian is directed not to attend the office and not to undertake any work other than as directed by SPACE, but to remain available during business hours to respond to queries or problems and perform duties as requested until his resignation becomes effective.

Brian is also reminded of the post-employment restraints that he had agreed to as part of his employment contract.

5. PRINCIPAL DUTIES

5.1The Employee must

1. devote the whole of their time, attention and skill during normal business hours, and at other times as reasonably necessary, to their duties for the Company.
2. faithfully and diligently perform the duties and exercise the powers entrusted to them from time to time.
3. promote the interests and prosperity and enhance the reputation of the Company.

20. POST-EMPLOYMENT RESTRAINTS

20.1The Employee agrees not to carry on or be engaged, concerned or interested, directly or indirectly, in any capacity specified in paragraph (a) below, in any business or activity specified in paragraphs (b) to (d) below, within any area specified in paragraph (c) below for any period specified in paragraph (f) below:

1. As Employee or consultant
2. In any business or prospective business in competition with the Company or Related Body Corporate at the time of termination of employment
3. In any areas specified in Item 7 of the Schedule
4. During the period specified in Item 8 of the Schedule.
5. 20.2The Employee separately enters into each of the covenants resulting from combining separately each of the capacities in paragraph (a) above with each business or activity in paragraphs (b) to (d) above and combining each such combination with each geographical area in paragraph (e) above and combining each such combination with each period in paragraph (f) above with the Company and Related Bodies Corporate.

20.3Each of these covenants constitutes an independent and separate restraint imposed on the Employee.

20.4If any of those covenants is or will become unenforceable, that does not affect the validity and enforceability of the other covenants imposed under this clause, which remain binding on the Employee.

Item 7Area(i)Australia

(ii)New South Wales; or

(iii)Sydney

Item 8Period(i)12 months;

(ii)9 months; or

(iii)6 months;

Within weeks of his resignation, Brian is approached by a marketing agency from Newcastle, NSW, that is looking to expand its business to Sydney. Brian is offered the position as Sales Director at NewCastle Marketing. He accepts the offer with the official employment commencing the day after his resignation becomes effective. However, he is also asked by his new employer to suggest capable colleagues at SPACE that might also be looking for new employment opportunities. Over the weekend, Brian calls his best sales representative, Lauchlan, to tell him about the exciting job opportunities at NewCastle Marketing. Lauchlan started to laugh during the conversation. Coincidentally, Lauchlan had seen the job advert and had just finished drafting his application for the vacant position as sales representative at NewCastle Marketing.

Jim, the CEO of SPACE, is outraged when he finds out that Brian not only moved to a competitor but also poached one of the best sales representatives. Jim believes that the intimate knowledge of their marketing strategies, pricing strategies and close relationship with their customers, amounted to confidential information that could be misused by Brian. Jim wants to enforce the restraint of trade in accordance with cl.20.1. He also believes that Brian has breached his fiduciary duties (cl. 5) and was not acting in good faith when he induced Lauchlan to apply for the position at NewCastle Marketing, while Brian was still on SPACEs payroll. Jim wants to seek an interlocutory injunction that restrains Brian from joining before his non-compete obligation has lapsed and to find Brian in breach of his fiduciary duties. He also remembers a news report about a similar case being decided by a court in NSW.

Advise Jim.

Please cite case law in your advice.

Suggested word count: 600-700 words (12 marks)

Note:Research is required for this scenario. The unit materials WILL NOT be sufficient to score a high grade in response to this scenario.

Scenario 3

James, is a manager of SafeMask Ltd. (SM), a wholesale company in Melbourne that manufactures and sells reusable facemasks, since COVID demand has drastically increased. SMs supplier for the facemasks is located in Bangladesh. James is instructed to contact the supplier and increase SMs facemask orders from 500,000 to 1 million facemasks. He is also told to do whatever is necessary to get it done. The supplier advises James that theyre already working at capacity as they also have to fulfill facemask production orders for the domestic market, and that the only way would be to overwork the current employees and hire child labour. James tells the supplier that he would be willing to pay for any contractual penalties plus 50% extra for each mask, if the supplier would do whatever it takes to increase the production for SM. James believes that this is the correct cause of action, as he has been told to do whatever is necessary.

James is also aware that the supplier is dumping all its production waste in the local river. In fact, James sees it as a competitive advantage for the supplier in Bangladesh. He believes that production in Bangladesh is a lot cheaper because companies there do not have to abide by these stupidly strict Australian environmental standards.

Drawing on your experience and understanding of the Ten Principles of the UN Global Compact, how would you advise about Jamess situation.

Please cite specific principles and related international conventions in your advice.

Suggested word count: 200-300 words (5 marks)

Note: Research is required for this scenario. The course materials WILL NOT be sufficient to complete an answer for this scenario because of the International Law component, which is not taught formally. This particular question focuses specifically on ULO4 which requires students to recognise that international legal standards have a bearing on commercial practises in Australia.