34. What happens if a party does not comply with the Franchising Code of Conduct or the Competition and Consumer Act?
A party that breaches the Franchising Code or the Competition and Consumer Act can be sued by a private party that has suffered loss as a result of the breach. In addition, parties that breach the Act can be prosecuted by the ACCC.
The Franchising Code is given the force of law by the Act. A breach of the code is a breach of s. 51AD of the Act. It can also be taken into account in determining whether a party has engaged in unconscionable conduct under Schedule 2, Part 2-2, s. 21 of the Act.
Remedies available to private parties
The Act provides the following remedies for parties taking private action for a breach of the code or the Act:
injunctions (to prevent the continuation/repetition of prohibited conduct or to require a person to do a specific act or thing)
damages
other orders, including:
declaring the whole or part of a contract void
varying contracts or arrangements
directing the person who engaged in the contravening conduct to refund money or return property
payment for loss or damage suffered
undertaking repairs or supplying parts
providing specified services
terminating or varying instruments creating or transferring an interest in land (e.g. leases and mortgages).
Remedies available to the ACCC
For breaches of the Act, the ACCC can take action, including:
compelling the disclosure of relevant documents
accepting a court enforceable undertaking
bringing civil proceedings for a breach of the restrictive trade practices provisions of Part IV or the consumer protection provisions, or
bringing criminal proceedings for a breach of the ACL.
In relation to court actions, the ACCC can seek the following orders:
monetary penalties
injunctions
community service orders
probation orders
orders for disclosure of certain information
orders for corrective advertising
adverse publicity orders
declarations regarding a breach of the Act
for breaches of Part IV—an order disqualifying a person from managing a corporation for a period.
The ACCC can also take representative action on behalf of people who have suffered (or who are likely to suffer) loss and damage as a result of certain breaches of the Act under certain circumstances.
