FRANCHISING IN AUSTRALIA

Table of Contents 1

An Overview Of Franchising In Australia 2

Coca Cola Franchise:- Australian Franchises 2

Benefits to Franchisor 3

Benefits to Franchisee 3

Operation Of a Franchise:- Procedural Requirements 3

Legal Issues in Domestic and International Franchising 4

Restrictive Trade Practices 4

The Legal Relationship 5

(i)Employment
(2)Agency
(3)Public Liability
(4)Misrepresentation of Relationship

Legislation Relevant to Franchise Operations 8

Conclusion 8

Visualizations:- Need for reforms in law for Development

of Franchise in future 8

End Notes 9

A term paper by
Divyang K. Chhaya, Advocate Supreme Court (Submitted at the Law School,
University of Georgia, Athens, GA, USA, 1988 – 1989 during full time on
campus LLM degree course)

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 An Overview of Franchising Process in Australia

Franchising is gaining popularity in international business transactions. Most

franchises begin its operation nationally and than expand gradually to foreign
countries. Fast food operations are the best example of such an expansion. Fast
food franchises have gained acceptance world over i.e. "hotbread kitchens",
"pizzas" etc., other franchises would include motor parts and tuning services,
tires, bookstores, car rentals, motels, debt collecting agencies, hairdressing
saloons, real estate agencies, printing and publishing, income-tax services, home
decorations, ice-cream and soft drinks, tuning and packaging services, transport &
travel agencies etc.

In 1980 the number of franchises in operation in Australia was about 30,000.These

were being run by about 200 local and foreign companies resulting in 15% of the
annual national gross product turnover.

In earlier days the Crown granted exclusive rights and privileges i.e. right of
trade to selected individuals. The very same concept gradually took shape of
franchisor granting exclusive rights in his business to the franchisee. "At Common
law, a franchise is a royal privilege, a grant of the Crown's prerogative,
subsisting in the hands of a subject either by grant or presumption"[1].

The present day franchising transactions involve the grant of rights by a

franchisor to franchisee to adopt and use in the course of his business the name
and style and general method of business operations of the franchisor in return for
continuing back up training, supervision and in many cases, supply of products by
the franchisor. The franchisor can be an existing nationally known business (i.e.
an Oil Company) that wishes to extend the distribution of products manufactured by
it. An established manufacturer or distributor may also seek to transfer his
expensive and wide spread distribution centres by transferring them to
independently owned and operated franchises. He may also be the originator or
importer of a new product (e.g. fast food services) who grants rights to
franchisees to share in the development and promotion of that product or service.

Usually in such a case the franchisor is a pure "service" organization. It does not
supply products but only an established form of business operation or right to
obtain supplies from approved suppliers and to manufacture according to an
approved and "unique" system.

COCA COLA FRANCHISE:- Australian Franchisees

The coca Cola franchised bottling system of distribution is widely spread

throughout Australia. The product is produced in Australia by local companies who
have obtained bottling franchises from its American parents i.e. COCA COLA EXPORT
CORPORATION & THE COCA COLA COMPANY. The parent Coca Cola Company, incorporated in
the United States of America, is registered in each state of Australia as the
Proprietor of the Trade Mark and its secret formula for concentrates for each of
the beverage products in range. Its Australian counterpart is registered as a
wholly owned subsidy, and has been granted the exclusive right to manufacture and
sell in Australia the COCA COLA range of beverages under its registered trade
marks. The parent company always grants exclusive rights to independent

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bottlers throughout Australia to manufacture and distribute the beverages in
territories allocated to them. The parent company supplies, at a price the main
product i.e. concentrate or beverage base for bottling.

BENEFITS TO FRANCHISOR

The franchisor extends his business goodwill and distributes his own products
through the capital investment of the franchisee. The franchisor earns substantial
returns in terms of fees by way of capital ingoing and the percentage payment
on the turnover of the franchisee, and continuing royalty fees for about 5% of
gross turnover for use of names, trade marks,& secret formulae [2].

Franchisor derives returns from profits on the sale of his products to franchisee
and also from returns on leases or sub-leases to franchisees of real estate owned
or leased by the franchisor. Franchisor also derives returns on equipment
fittings, commission on goods sold to franchisee by persons who have been approved
by the franchisor as an approved supplier, and the supply of credit by the
franchisor to franchisee in respect of the necessary facilities, fittings, products
or money lent to set up and maintain the business operation.

The ultimate benefit to a franchisor of a new product/ system can be to acquire

ownership of some or all of his franchised outlets. Huge inflow of finances can
enable the franchisor to buy out the franchise or if provided in the franchise
agreement, take the business from franchisee upon termination or default [3].

Franchisor acquisition can be confined to gaining ownership of the real estate on

which franchisees operate. Real estate having been initially financed through
mortgages can be paid off from franchisee's leasehold fees, leaving the franchisor
the ultimate owner of the real estate.

Franchising has proved to be a business for less scrupulous business operators,

with heavy returns flowing in for the franchisor [4].

BENEFITS TO FRANCHISEE

The value of a franchise is simply in the right to become associated with a

successful large scale operation, to be able to represent as a part of and to trade
off the public's acceptance of the belief that their dealings are in fact with
the franchisor. To that extent franchising is a legal form of passing off which can
create some problems for franchisor if franchisee goes bad affecting the general
image of the franchisor.

However, the franchisee of a reputed business receives an already established

goodwill, access to bulk purchasing facilities, ready availability of export
management and product training and frequently, assistance with finance.

Rapid spread of franchising mainly in the United states, Great Britain and Holland
is in fact a social response to shortage of working capital or finding out an exit
by creating small units and linking them together in larger systems with
varying degrees of centralization or decentralization[5].

OPERATION OF A FRANCHISE:- Procedural Requirements

The franchisor limits the franchisee's operations to a defined area. The right to
exercise franchise may be exclusive in that area or non-exclusive.

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The business has to be conducted by the franchisee in terms of franchise agreement
which usually lays down extensive details regarding obligations of parties thereto,
leases and finance arrangements.
Franchise Agreement is usually accompanied by a Manual of Operations which sets out
the methods of operation which franchisee is obliged to follow, i.e. mode of
displaying products, employment, presentation and direction of staff, the
keeping of business records {audit & accounts procedures} etc.

This Manual of Operations is revised from time to time considering developments in

franchise operations. Usually this manual is treated as a confidential property of
the franchisor with the franchisee. The franchisor procures all the necessary
licences and patents. He may enter into contracts with approved suppliers who are
prepared to confirm his standards in return for supplying products to individual
franchisee.

LEGAL ISSUES IN DOMESTIC & INTERNATIONAL FRANCHISING

There exists no general law specifically enacted to cover franchising operations

exclusively, at least not the way it is for technology transfer transactions[6].

Statutory provisions dealing with franchising have been recommended by two Federal
Government Committees i.e. Swanson Committee Report of 1976 and Blunt Committee
Report on Small Business of 1979. Although specific legislation exists in
petroleum franchising which is regulated by the Federal Petroleum Retail Marketing
Franchise Act 1980.

In Victoria, franchising in the real estate industry is dealt with in brief terms
by the Estate Agents Act 1980, Section 43 and the Estate Agents (Franchised Name,
Title and Description) Rules, 1981[7].

Franchising is therefore regulated by the existing laws in general and has not yet
been given a specific legislative recognition in Australia.

Where issues peculiar to franchising are not covered by specific legislation the
parties to a franchise agreement are left to the forethought of themselves and
their legal advisers whereat they largely depend upon their ability to negotiate
satisfactory terms in their contractual dealings. To the extent such specific
practices affect public at large, there may be no judicial recourse in absence of
the extension of the existing legal remedies or even the development of new
remedies.

RESTRICTIVE TRADE PRACTICES

The Trade Practices Act deals with restrictive clauses in a franchise agreement.
Its provisions also extend to restrictive conditions in franchise relationship to
cover written oral, express or implied stipulations.

These include restrictions on granting further franchises or trading in the

franchised area by the franchisor, restrictions on the persons with whom a
franchisee can deal, restrictions in leases on the use of the leased premises only
as a franchised outlet, and, generally the controls imposed on day to day franchise
operations.

Controls on prices charged by a franchisee in respect of products supplied by a

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franchisor is prohibited per se by the Resale Price Maintenance provisions of the
Act[8].

Controls of prices of products manufactured by the franchisee himself will not be

subject to the general restraint of trade provisions of the Act.

Any attempt by the franchisor to require a franchisee to obtain goods or services

from a third person could be subject to the per se prohibitions of Section 47(6),
and monopolization by section 46 of the act. The Act extends to restrictive
agreements between franchisor and franchisee[9].

Infringement of above provisions entail penal and civil consequences [10] i.e.,
penalties and right of prejudiced persons to damages and injunction including
rendering of restriction unenforceable.

The Act exempts from its terms restrictions upon employees {Section 52(a)}, Sub-
Contractors Agents {Section 52(b)}, Partners {Section 51(2) (d)}, or Subsidiaries
{Section 48(8) & 47(12)}, Purchaser {Section 51(2)(e)} and by licensor in respect
of the standards of goods subject to a Patent or trade Mark license {Section
51(3)(a) & (c)}[11].

However, these exempting provisions are too narrowly worded and do not take into
account all business interests deserving of protection[12].

It could be said that the provisions of the exemptions in Section 51(3)(c) could be
extended in respect of the quality of services supplied pursuant to a registered
user agreement under Part IX of the Trade Marks Act, in respect of a service mark
registered in accordance with Trade Marks Act as amended in 1978. However, failure
to amend section 51(3)(c) to cover contracts on services after that amending Act
was possibly a legislative oversight. The U.S. Anti Trust law is more flexible than
Australian[13].

THE LEGAL RELATIONSHIP

Employment

The employer, under the provisions of Trade Practices Act, section 84, is liable
for contractual and tortuous and even certain criminal acts of an employee. The
employer is liable to comply with labour law and industrial determinations
dealing with wages, holidays, pay, sickness leave, annual leave, workers
compensation, insurance and comply with income tax and payroll tax legislation.
However, an employee in Australia is exempted from the provisions of the Act [14].
It came to be accepted in franchise relationship that requisite control over an
employee included not necessarily the actual control but the right to control [15].

The courts will look to the substance of conduct and not its form [16].

Mere expression of intent in a franchise agreement will not preclude the court from
scrutinizing the actual deed [17].

Therefore, the franchise agreement is not liable to be classified as one of

employment agreements. Mainly because franchise controls relate to maintenance of
quality and standards of performance of franchise operation rather than the
manner of carrying out each particular facet of its business.

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Under the Australian law, if the franchisee chooses to pursue his rights to
manufacture, distribute or sell a franchised product or service, then he may be
subject to extensive legal controls as to how he does it.
Some agreements impose a condition of minimum quantum of sales on franchisee [18].

At least one court has accorded judicial approval under American law also to such a
clause[19]. In United states, a leading drafting text on franchise documents has
cautioned that where a franchise involves a mere license to sell a single product
there is also the legal danger that the franchise agreement will be considered a
contract of employment[20].

Agency

Matters pertaining to Agency deal with authority rather than control. Ordinarily an
employee is an agent. But agency extends beyond employment which includes an
independent contracting situation where the contractor is empowered to act on
behalf of the principal. At times the principal's authority is implied where he
controls an independent contractor as to treat him as his own, or where a
contractor may be held out to the public to represent the principal. Ordinarily
contractual terms and manner of its performance are relevant considerations for
determining the relation of agent and principal.

However, no amount of contractual terms between the franchisor and the franchisee
will be able to qualify any holding out to the public of a franchisee as an agent.
The general principle of looking at substance rather than form of the relationship
will be applicable to determinations of agency[21].

In absence of contractual provisions to the contrary, the principal will be liable

to reimburse the agent for expenses incurred in the course of his authority and to
indemnify him against liability arising out of the reasonable performance of the
agency. Agent has a right to take an account and a lien against goods of the
principal for the moneys due. The principal will be liable for contractual and
tortuous acts and even some criminal acts of the agent in the course of the agency.

The agency relationship will prevent the application of Trade Practices Act to
certain controls on Agent.

However, there is little scope for agency relationship in a franchise agreement by

way of express or implied authority.

Most franchise agreements deny any express or implied agency. The controls on
franchisee are generally on quality and standards. These controls alone are not
enough to attract agency provisions. Clauses denying agency relation in a franchise
agreement are more pertinent than similar clauses seeking to deny employment.
Employment is generally a question of actual or potential control, agency is a
matter of intention to authorize. An express qualification in a formal agreement
would generally prevent any holding of an express agency and would also make it
difficult to imply a general agency as compared with an agency for particular
circumstances.

Ostensible Agency is also difficult to infer because of the close appearance of

franchisee as a part of the franchisor's organization. Therefore, on account of
consequences of an agency by holding out, situation will usually be limited to
questions of liability of the franchisor/principal for contractual and tortuous
acts of the franchisee/agent in course of carrying on of the franchise[22].

Other relationships include partnership, subsidiary and tenancy. A partnership in

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the usual sense will generally not be able to be considered merely because it might
be said that profits are shared unless the evidence indicates that losses are also
shared, and capital has been contributed[23].

A tenancy relationship will be relevant where a franchise is granted with undefined

rights of occupancy over property of the franchisor.

Public Liability

The existing laws relating to public liability are inadequate to impose liability
on a franchisor who neither manufactures nor supplies the franchised product or
service or any part of it; does not own or lease the franchised premises and is
unable in law to be treated as the master or principal of the franchise. The
question therefore is that should he be responsible for damages to members of
public with respect to a grieveance arising out of the use of franchised product or
services. Factually, franchisor is a little more than a service organization,
having nothing to do with the supply of products distributed by franchisees or
components of products manufactured by franchisees apart from imposing standards to
be applied by approved suppliers to franchisees.

However, in the U.S. the liability has been extended to such a franchisor on the
basis of warranty and guarantee principles[24]. In Australia, the Trade Marks Act
1955 section 74(2)(a) and the accepted requirement of Part IX of the Act exercise
control over the use of trade marks by a registered trade mark user. Franchisee's
liability is dealt with in Part IX of the Trade Practices act, a franchisor might
be sought to be brought into the proceedings pursuant to the provisions of
sections 141, 84(2) and 75 B[25].

Misrepresentation Relationship

In many respects it will be in the interests of the franchisee to represent himself

as closely associated with the Franchisor or even as the franchisor. Such
representations may also be in the interests of the franchisor.

Misrepresentation may occur in advertising by the franchisor as franchisee. It may

occur in the mere presentation of products or system of outlets.

Damage may be caused to the consumer who approaches the franchisee under the
impression that he is in fact dealing with franchisor rather than a separate
business enterprise. Loss may be on account of quality, performance or defective
product/work which the franchisee is not able to ratify[26].

Section 52 of Trade Practices Act deals with misleading and deceptive conduct,
Sections 53 & 141, 84(2) and 75B {false representation and catch-all
provisions}[27]. Heavy penalties for violations of the Act should be a sufficient
warning to not to infringe the local law[28].

Franchisees therefore take special care in advertising signs or letterheads to not

to represent that they are the organization[29].

A franchisee may register a business name which is identical with the recognized
name of a franchisor so long as it refers to the particular locality of the
franchise outlet {with franchisor's consent}. There is no statutory requirement
that a registered user of a trade mark must identify goods or services, the subject
of his use of the trade mark as deriving from him as distinct from the trade mark

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of the proprietor. On the contrary, the legal position is quite opposite[30].

However, the proprietor must maintain control over the use of the trade mark
{Section 74(2)(a)}. Such control will provide direct link between the goods and the
registered pro prietor of the mark which may well provide a sufficient link to
sheet home liability to the registered proprietor {Section 84(2)}[31].

LEGISLATION RELEVANT TO FRANCHISE OPERATIONS

Ordinarily general legislation relating to usual forms of controls should be

applicable to land holding by franchisee and commercial law relating to business
operations. These include local and municipal laws relating to grant of licences
and permits to operate premises and carry on particular business. The provisions of
Part V of the Trade practices Act will always be relevant, especially where a
franchisor is engaged in the supply and promotion of goods and services. However,
international franchises or overseas dealings will be subject to the usual
application of the Banking (Foreign Exchange)Regulations. One form of abuse of
franchise is controlled by state laws on pyramid selling[32].

There are certain areas in which law is settled, namely, statutory controls dealing
with industrial property rights i.e. Patents Act, Section 112,disputes between
franchisor and franchisee, the monopolization provisions of the Trade Practices
Act, Section 46, the possible application of the merger provisions of the Act
{Section 50} in so far they deal with the acquisitions of "assets", franchisee
associations,[33]and harsh and unconscionable contract terms and "economic duress"
in the law of contract[34].

In this area, the Industrial Arbitration Act, 1940 (N.S.W.) and the recent N. S. W.
Contracts Review Act 1980,provide an extension for remedy in that state, as
evidenced by the decision of the Industrial Commission of the N.S.W. involving the
BIG Al's franchise operation[35].

CONCLUSION

VISUALIZATIONS:- Need for reforms in law for development of Franchise in future.

Despite wide and varied franchises in operation in Australia, there is no specific

legislation that covers franchise activity under one roof. The position of
franchisees in particular calls for reform. To ensure the protection of
franchisee's interests is different from merely describing how they can be
protected.

Most franchise operations are offered on a take it or leave it basis. There exists
no room for negotiations or disclosure of matters relevant to what is being offered
to the franchisee by foreign franchisor.

All provisions of the Estate Agents Act do not apply to the promotion of
franchises. No security of franchise tenure is regulated by law nor is relief
against forfeiture provided.

Trade Practice Act does not deal with problems typical to franchising and is also
not applicable in all the attendant circumstances. All franchising issues also
cannot be brought under the domain of common law. General principles of contract
law will more likely favor enforcement of restrictive written terms of a franchise
agreement.

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The consumer protection provisions in Trade Practices Act are available only to
provide some compensation in respect of an already terminated or irrecoverable
franchise. Benefits in industrial/labor laws are not available to franchisee
because he is not an employee of a franchisor. For the reasons hereinabove stated,
a legislation catering to the very typical needs and problems of franchising needs
to be enacted because franchising is a "new and separate legal phenomenon"[36]
calling for immediate legal response specifically tailored for franchising
operations. Wide and rapid spread of business of franchising also calls for various
legislative controls for greater general public interests.

It would be more appropriate to consider a franchisee as an independent business

entity in law rather than treating him as an employee. Such recognition would also
not preclude the franchisor from laying down terms and conditions germane to
Franchise operations. Franchisee should, in fact be entitled to full disclosure
protection, to termination by the franchisor only for just cause, to renewal on
reasonable terms, to sell the franchise to a reasonable purchaser, a right to early
termination upon just terms, and generally a right to compensation for the "good
will" value of business purchased by him.

The provisions of the Petroleum Retail Marketing Franchise Act 1980 should be
treated as a guide for generalizing the law on franchise so that all franchises can
benefit thereby [37].

The law should also specifically spell out the legal rights of public to have
judicial recourse against a franchisor for acts of his franchisees.

This will avoid the problems of solving "employment" or "agency" or "manufacture"

by the franchisor, who can always have his business risks insured. The law ought to
spell out rights, duties, and liabilities of franchisor's and franchisee's action
in business operation and dealings with public.

This could be dealt with by accepting that franchising is indeed a half-way house
situation calling for separate consideration altogether from the usual arm's length
type of business transactions. The franchising operations being very specific in
nature, should be totally exempted from the scope and ambit of Trade Practices Act
provided, however, that there is first of all a comprehensive and adequate
regulation of franchise industry encapsulating matters affecting the rights and
interests of franchisees, public interests and regulation of international
expansion of business in future.

ENDNOTES
1. 2 B1. Comm., 37.

2. Boas & Chain, Big Mac : The Unauthorized Story of McDonald's, p.44.

3. Kroc, Grinding it out - The Making of McDonald's, 1977.

4. The Federal Court of Australia imposed severe financial penalties upon

the operators of franchise systems. Ducret V. Colourshot Pty. Ltd.&
Another, (1981) A.T.P.R. 40-96, and O'Dea V. Casnot Pty. Ltd.(1981)
A.T.P.R. 40-198 See Trade Practices Commission Media Release, Warning;
Franchise Schemes and Other Business Opportunities. 16 March 1979.

5. Toffler, The Third Wave (1980), p. 278-9.

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6. Efforts on development of harmonious law on international transfer of
technology have been made both under the auspices of UNCTAD and the
OECD. They resulted in preparation of the draft code of conduct on the
transfer of technology; and Multialterally Agreed Equitable Principles
and rules for the Control of Restrictive Business Practices of 1980,
there are also OECD Declarations and Recommendations in existence -
[5th June 1985, U.N.Doc. TD/CODE TOT/47].

7. S.R.No. 245 of 1981.

8. Compare Ron Hodgson (Holdings) Pty. Ltd. V. Western Motors

(Distributors) Pty.Ltd.& West Co. Australia Pty. Ltd. (1980) A.T.P.R.
42,084.

9. Compare J.Ah Toy Pty. Ltd. V. Thiess Toyota Pty. Ltd. (1980) A.T.P.R.
42,216.

10. Information Circular No: 20 of 30.6.77 para 2.1; see decisions of the
Trade practices Commission in franchising of Coca Cola (1978) A.T.P.R.
17, 329 and Letz Rent-a- Car(c 7278-9); and Kennedy-Thompson Pty. Ltd.
A.T.P.R.17,011.6 and Ford Motor decision at (1974-7)A.T.P.R. 17,486;
and High Court's decision in Transfield Pty. Ltd. V. A.V.W.
International Ltd.(1980) 54 A.L.J.R. 323, at 330 (Mason J).

11. See Lahore, "Trade Practices Lectures", Monash University 1977),p.6.

12. The Swanson Committee noted the failure of S. 51 to exempt restrictions

in respect know-how [para 10.70].

13. Susser V. Carvel (1962) 206 F. Supp. 636.

14. Per McCardie J.in Performing Right Society Ltd.V. Mitchell & Booker
Palais de Danse Ltd., [1924] 1 KB 762, 767- 8.

15. Per Dixon J. in Humberstone V. Northern Timber Mills (1949) 79 C.L.R.

389,396.

16. Cam & Sons Pty. Ltd. V. Sargent (1940) 14 A.L.J. 162.

17. A.M.P. Society V. Allan (Privy Council) (1978) 52 A.L.J.R. 407, 409; &
Sykes & Yerbury, Labour Law in Australi, 2nd ed. (1980) para 109.

18. See endnote 17 at p. 411.

19. Murphy V. Holiday Inn's Inc. (1975) 219 S. E. 2d 874, 878; Drexel V.
Union Prescription Centers (1978) 582 F.2d 781.

20. Warrens Forms and Agreements- Business Forms, Vol. 3. p, 1491.

21. Id. Endnote 16.

22. In Billops V. Magness Constructions (1978) 391 A 2d 196 it was held

that there was sufficient evidence of control and of holding out by the
Hilton Corporation for the purposes of submitting factual issues of
both actual and apparent agency to a jury. It was held " It is our
opinion that there are sufficient facts of record which, along with the
reasonable inferences therefrom, show day to day control of the

10
 business of the Brandwine Hilton Inn by the franchisors so that the
latter's motion for summary judgement should have been denied leaving
the issue of actual agency to be resolved at trial p. 198-9.

23. For definition of partnershipsee section 6(1), Income Tax Assessment

Act.

24. See Kosters V. The Seven Up Co.(1979) 599 F 2d 347, a non manufacturing
franchisor was held responsible on the grounds of a general warranty
for damages suffered as a result of a defective soft drink carton case
supplied to the plaintiff consumer by its franchisee. In City of
Hartford V. Associated Construction Co. (1978)384 A 2d 390 where
liability was held in a demurrer action to be available not by reason
of evidence of actual control or supervision or approval or of public
assumption of such, but of the mere fact of authorized use by the by
the franchisee of the franchisor's trade mark. Iowa Law Review 55,
(1970)P.693 at 706.

25. Walter V. Viney and ors (1982) A.T.P.R. 43, 716 and Division 2A
pursuant to Section 74 A (3) and 74 A (3)(b).

26. Letter to CHOICE, Nov. 1980;and "Consumer in Law- The Agreement That
wasn't", CHOICE, March 1980 27. Hornsby Building Information Centre V.
Sydney Building Information Centre (1978) A.T.P.R. 40-067.

28. Hartnell V. Sharp Corporation of Australia Ltd. (1975) 5 A.L.R. 493.

29. Pengilley, "Distributorships, Franchising......", Aust. Business Law

Review 5 (1977) p. 13.

30. Per Aickin J. in Pioneer Electronics Corp. V. Registrar of Trade Marks

(1978) 52 A.L.J.R. 79, 86. See :- Ryan, " Licensing of Trade Marks " in
transcript papers written for Monash University Seminar on Trade Marks
and Service Marks,16.4.80, pp. 37-8. There should be disclosure of the
registered user as the source of goods.

31. Kerley on Trade Marks, 8th ed., (1960) P. 240.

32. Consumer Protection Act (vic.) Pt. II, Div. 5, Trade Practices Act,
Section 61, also see Shannon, Franchising in Australia, (1982), P.98.

33. Compare Pengilley, "Collusion Bargaining Power in the law of

Contracrt", A.L.J. p. 38.

34. Clarke, "Unequal Bargaining Power in the Law of Contract", A.L.J. 49.
1975, and "Economic Duress", 54, 1980, A.L.J. P. 381.

35. Willaim Burnett & Another V. Big Al's Sandwich Joints Pty. Ltd. &
Anor., 982, A.T.P.R.43503; See Terry, "Unconscionable Contracts in New
South Wales: The Contract Review Act, 1980, p. 311.

36. Preface to The Realities of Franchising - A Guide to the Practising

Attorney, (1970).

37. Recommendations of Swanson and Blunt Committees.

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