27. What else can a party do if there is a dispute about a franchising agreement?

Although mediation is an effective way to resolve disputes, it is not always successful and it may not be appropriate in some cases.

Apart from using the dispute resolution procedures referred to in question 23, a party can take the following actions in respect of a dispute about a franchising agreement:

• take legal action, or
• where there is an apparent breach of the Franchising Code or the Competition and Consumer Act, complain to the ACCC.

Legal action
A party’s right to take legal action over a franchising dispute is not affected by the Code’s dispute resolutions provisions. Taking legal action is a serious step and should not be done without getting legal advice: legal action can be costly, time consuming and damaging to the parties’ relationship. Also, there is no guarantee it will provide the outcome a party wants. If the party commencing the action is not successful, it may be liable to pay some or all of the other party’s costs, as well as its own.

Action by the ACCC
If the dispute involves a possible breach of the Code or the Act, a party can contact the ACCC. Where the ACCC believes there has been a breach and that there is a public interest in acting, it may take enforcement action and seek remedies on a party’s behalf.

If the ACCC believes that a dispute is of a private contractual nature or that it should have been referred for mediation, it will recommend that parties try mediation and/or seek independent legal advice. The ACCC cannot get involved in or give advice about private disputes.