Big Whale: Australian Business Law

This essay will discuss the issues extracted from the case and give suggestions to Rosie and Frank. The analysis will be based on Australian Business Law and divided into two main parts for different characters in this case. Firstly, issues and recommendation relevant to Rosie will be explained.

The first main issue for Rosie is the University of Cheshire’s breach of their contract. The existence of the contract between Rosie and the University of Cheshire can be proved at first. Allan had sent Rosie a letter that ensured Rosie’s appointment of a lecturer in his university and attached her acceptance with the teaching arrangement. This letter also had an exclusion clause that stated the classes would be cancelled without enough enrolment.

Under the ACL s 29, if a false or misleading representation is made by a business, this business may be sued for damage by anyone such as customers. The ACL prohibits the representation that is the false or misleading description of the “quality” of goods. “Quality” can refer to special features or the nature of goods. In this case, Big Whale advertised its seafood as “Product of Australia”, this advertisement was used to indicate that their raw materials were from Australia. However, with the result of the investigation, the frozen salmon they used were transported to Sydney. There was no evidence to prove its raw materials were originally from Australia. As a result, Big Whale made a misleading representation about the quality of its goods, this was a breach of the ACL. According to the remedies under the ACL, Rosie may ask the regulator to give Big Whale adverse publicity order to correct its advertisement and require compensation for its misleading

Based on the standard to assess the contract terms, if a party of a standard form contract is forced by another party to accept or refuse the terms of this contract, these terms can be treated as unfair contract terms. From this case, Big Whale required Rosie to pay in advance with credit card. Additionally, she also asked to pay a surcharge to ensure the delivery on time. Rosie had no choice but to adopt these requests because she had to arrange the lunch in a hurry. But these requests damaged Rosie’s right to be treated fairly in trade. Because contract terms, in this case, caused an obvious imbalance in the parties’ rights and obligations under the contract , there is evidence of the unfair contract terms. Hence, the regulator ACCC can have a declaration of these unfair contract terms from the court and the party who utilise these terms was in breach of ACL. Consequently, Rosie can sue Big Whale for her right. According to the ACL, she can have a compensation order to acquire the refund of her