Taking Qantas to NCAT

[papeto]

Hi All
Has anyone taken Qantas to one of the States Administrative and Civil Tribunals? I am looking to take them to NCAT for cancelling my flight mid - way. My story is here. -
Thread 'Flight delayed, missed connection and abandoned by Qantas'
Flight delayed, missed connection and abandoned by Qantas

I filed a claim after Qantas insisted I do, but heard nothing back. So this is the next step. Any help or previous experinece would be appretiated. Looking to sue under ACCC legislation.

 

[CaptainCurtis]

May be worth connecting with @andrewh3. See this message for more info.

 

[MEL_Traveller]

i would also consider calling Consumer Affairs in your state or territory. They provide free advice and will guide you on the merits of your case and how to proceed.

 

[papeto]

May be worth connecting with @andrewh3. See this message for more info.

Thanks CaptainCuryis, I have sent him a message.

 

[Anna]

I'm not sure what 'ACCC legislation' you're intending to sue under but the first thing to check would be whether NCAT, a state body, has jurisdiction under that Commonwealth legislation. I'm not saying it doesn't, I'm saying it's something to check.

 

[papeto]

Thanks for the heads up Anna, I had a look at the Commonwealth legislation and it deals with baggage lost, delays, injuries and death caused by a carrier. It doesn’t cover cancellation, which relates to not performing the service at all.

 

[pauly7]

There was another post on this forum from another member who was talking about doing the same to Virgin, very similar circumstances….

I just can’t remember where it was…. If I recall I will come back and post the link - if they are going through the same motions as you might be helpful to trade strategies?

 

[papeto]

Yes thanks that would help. I’ll also search the community pages to see if I can find something.

 

[justinbrett]

What was the quoted time when you submitted the claim?

 

[papeto]

What was the quoted time when you submitted the claim?

No time quoted, as Qantas contacted me during my holiday and asked me to submit a claim, after QFF raised the issue with them. Submitted it and radio silence since than. I told them in the letter that if I don’t get resolution of the issue in two weeks I’ll consider further action. I like to keep to my word

 

[papeto]

I'm not sure what 'ACCC legislation' you're intending to sue under but the first thing to check would be whether NCAT, a state body, has jurisdiction under that Commonwealth legislation. I'm not saying it doesn't, I'm saying it's something to check.

Hi Anna
I have done some reading on the jurisdiction of a tribunal and found this interesting item that could help members in NSW. In terms of Section 34A of the Civil and Administrative Tribunal Act NSW, once you have applied to NCAT and they rule they don't have federal jurisdiction , you can take it to the local court and it will follow its rules and practices except for ( and this is the imporant part):
• Rules of evidence not to apply. If the rules of evidence would not have applied in NCAT then, if it the court considers in appropriate in the circumstances, the court may decide not apply the rules of evidence.
• Non-lawyers may represent a party with the leave of the court, if non-lawyers would have had that right had the proceedings be heard by NCAT.
• No adverse costs orders. Costs may only be awarded in the same circumstances that costs may be awarded by NCAT.,

Not legal advice, but it looks like you can still take an airline to NCAT and if they try and use Federal Legislation to get it thrown out, you can apply a local court while still enjoying some of the benefits/protections(?) a tribunal provides.

This link on the web discusses the issue in each state - https://www.cpdinsession.com.au/wp-...9-10-01-Burns-v-Corbett-Combined-Slides-1.pdf.

 

[Robert K]

with Eleni Petinos being the minister for trading, I wish you good luck! But keep us updated. This is such bad form by qantas.

 

[Danger]

Hi Anna
I have done some reading on the jurisdiction of a tribunal and found this interesting item that could help members in NSW. In terms of Section 34A of the Civil and Administrative Tribunal Act NSW, once you have applied to NCAT and they rule they don't have federal jurisdiction , you can take it to the local court and it will follow its rules and practices except for ( and this is the imporant part):
• Rules of evidence not to apply. If the rules of evidence would not have applied in NCAT then, if it the court considers in appropriate in the circumstances, the court may decide not apply the rules of evidence.
• Non-lawyers may represent a party with the leave of the court, if non-lawyers would have had that right had the proceedings be heard by NCAT.
• No adverse costs orders. Costs may only be awarded in the same circumstances that costs may be awarded by NCAT.,

Not legal advice, but it looks like you can still take an airline to NCAT and if they try and use Federal Legislation to get it thrown out, you can apply a local court while still enjoying some of the benefits/protections(?) a tribunal provides.

This link on the web discusses the issue in each state - https://www.cpdinsession.com.au/wp-...9-10-01-Burns-v-Corbett-Combined-Slides-1.pdf.

When you say NCAT doesn't have federal jurisdiction, are you actually saying in cases where federal jurisdiction is at issue (and therefore NCAT can't hear the matter), in which case one can then go to the local court?

 

[papeto]

When you say NCAT doesn't have federal jurisdiction, are you actually saying in cases where federal jurisdiction is at issue (and therefore NCAT can't hear the matter), in which case one can then go to the local court?

Yes, thats my laymans understanding and how I read that section of the act. You can also take it to the District Court, but than the three tribunal benefits wouldn’t apply, so I would rather take it to the Local Court.

 

[antycbr]

Yes, thats my laymans understanding and how I read that section of the act. You can also take it to the District Court, but than the three tribunal benefits wouldn’t apply, so I would rather take it to the Local Court.

I would think that Qantas legal would cost more to rock up to the Downing Centre than anything they would owe you. Qantas is likely to lose every time as any magistrate would see the efforts people have gone to with Qantas to seek a resolution - going to court is fairly much one’s final option - and the intransigence of Qantas wouldn’t look too good.

If this method you outline is valid and takes off (ozbargain would love it!) it would start becoming very expensive for QF, very quickly.

 

[papeto]

I would think that Qantas legal would cost more to rock up to the Downing Centre than anything they would owe you. Qantas is likely to lose every time as any magistrate would see the efforts people have gone to with Qantas to seek a resolution - going to court is fairly much one’s final option - and the intransigence of Qantas wouldn’t look too good.

If this method you outline is valid and takes off (ozbargain would love it!) it would start becoming very expensive for QF, very quickly.

Hahah I hope may work can inspire others, given the lack of clarity in law around this issue with airlines. Its really a pity we don't have a a EU261 regulaton thats spells out rights and obligatiosnof passengers and airlines. It would make this process a lot easier.

 

[Anna]

Jurisdiction to apply federal legislation is not the same thing as federal jurisdiction, which is bestowed by the Constitution and maybe by the Judiciary Act 1903 (Cth) (and is definitely not bestowed by the NCAT Act or by any other NSW legislation).

 

[Anna]

@papeto I have been thinking about this and my suggestion is to be very factual in your NCAT claim, and not to try to be legalistic about it. Something along the lines of 'I am seeking $x compensation from Qantas because of financial loss I incurred due to Qantas's conduct. The sum of $x is made up as follows: (insert breakdown of amounts claimed). The reason I am seeking the compensation is: (insert factual narrative of events)'. Include dates, times and flight numbers as far as possible. Attach copies of any relevant documents and receipts.

It is to a large extent the Tribunal member's job to work out if you legally have a valid claim or not, and they probably won't be assisted by amateur lawyering (no offence ). The more info you can provide in advance to the Tribunal, the better prepared the Tribunal member can be when hearing the matter (if they have to hear it - you might get a settlement proposal from QF instead).

 

[papeto]

@papeto I have been thinking about this and my suggestion is to be very factual in your NCAT claim, and not to try to be legalistic about it. Something along the lines of 'I am seeking $x compensation from Qantas because of financial loss I incurred due to Qantas's conduct. The sum of $x is made up as follows: (insert breakdown of amounts claimed). The reason I am seeking the compensation is: (insert factual narrative of events)'. Include dates, times and flight numbers as far as possible. Attach copies of any relevant documents and receipts.

It is to a large extent the Tribunal member's job to work out if you legally have a valid claim or not, and they probably won't be assisted by amateur lawyering (no offence ). The more info you can provide in advance to the Tribunal, the better prepared the Tribunal member can be when hearing the matter (if they have to hear it - you might get a settlement proposal from QF instead).

Thanks Anna thats very good suggestion.

 

[papeto]

Just something else thats crossed my mind. Qantas noted in their response to AFF’s article they stated the customer agent provided incorrect advice ( ie by not rebooking us on the next available flight). However we escalated it to the supervisor who said the same thing. There were about 30 pax on the flight who were all told the samething - phoning different agents. So this isn’t a rogue agent getting it wrong. So if it affected all pax on the flight one plausible explanation could be that call centre staff either acted directly on Qantas management instructions or wasn’t properly trained by Qantas management.

If I was able to prove this point, would one be able to claim punitive damages?