Taking Qantas to NCAT

[mamunr]

We are asking for :

• Cost of flights re-booked ( flew econmy, but original ticket was business )
• Cost of reservations missed ( hotel, flights etc) due to cancellation and until we could get back to our orginal iteniary and we couldn't get our money back
• Compensation for not flying business class as orginally booked ( claim is difference between economy and business)
• Compensation for holiday days lost due to the cancellation

Don't forget to ask for $54 NCAT filing fee as well. Probably too late for you, but more for anyone else still looking to apply

 

[mamunr]

Interesting that @andrewh3 got a call from Qantas shortly after filing the application whereas I presume you haven't got a call yet @papeto? Perhaps there are a lot of people going down this route now and they can't handle the volumes.

I lodged mine yesterday and my hearing is in 3 weeks. Would much rather them call me and we settle it before then, but let's see what happens.

 

[jpp42]

I lodged mine yesterday and my hearing is in 3 weeks.

How do you plan to handle explaining to the tribunal (if you progress to a full hearing) on what exactly "ticketing" means for changed award flights, and why this caused you to lose your seat? (Assuming that's the facts of your case.) See my previous comments which no one replied to - I'm concerned that NCAT would likely believe Qantas as the more knowledgeable party about ticketing systems. Qantas is likely to just say something like, "sorry it couldn't be helped it's the partner airline's fault" when in fact we know that Qantas could have re-ticketed the changed flight. I feel you might need some kind of expert witness report to make your testimony credible.

See the PDF linked at the bottom here: Evidence and witnesses . But I don't know who would be an appropriate expert - perhaps a registered travel agent, but you'd have to find one who knows about reward tickets.

 

[papeto]

They did call me - but it was a fairly short discussion - nothing untowards, they hadn't got my application and supporting docs yet, so couldn't really talk about it at great lenght. She hinted that they may look at paying actual costs, but not compensation. She also noted that they will claim its under federal jursidiction to get it out of NCAT and into court ( and to scare you with big lega bills - see my comments earlier on NCAT and federal jurisdiction) . Since then, we have exchanged some emails only on moving the concilation meeting date ( they didn't object) and she asked for an excel spreadhseet of my claim. So no major discussions yet. I assume we will get the same feedback on costs etc at the concilation meeting tomorrow.
The hard work for me was writing the NCAT brief and motivating the claim. Mines about 148 pages of which 133 is attachments and articles, so took a while to pull together. If we don't get agreement tomorrow, the next step I assume is that they would need to engage lawyers and start responding. Thats where it gets expensive and time consuming for them and they have to decide if its worthwhile. When you look at legal precedance, there is very little. I can't think its because everything goes so smoothly at Qantas that no apssenger ever sues, rather I think they tend to reach agreement with a party before judgement. That way there isn't a blue print to follow for the next upset passenger.

 

[mamunr]

How do you plan to handle explaining to the magistrate (if you progress to a full hearing) on what exactly "ticketing" means for changed award flights, and why this caused you to lose your seat? (Assuming that's the facts of your case.) See my previous comments which no one replied to - I'm concerned that NCAT would likely believe Qantas as the more knowledgeable party about ticketing systems. Qantas is likely to just say something like, "sorry it couldn't be helped it's the partner airline's fault" when in fact we know that Qantas could have re-ticketed the changed flight. I feel you might need some kind of expert witness report to make your testimony credible.

See the PDF linked at the bottom here: Evidence and witnesses . But I don't know who would be an appropriate expert - perhaps a registered travel agent, but you'd have to find one who knows about reward tickets.

I tried to explain it very simply, in such a way to keep the jargon out of it, this was part of my statement:

"The reason I am seeking compensation is that on 18 July I received an email notification that my original booking xx_xx was changed. At 11.14pm on that same day I called and spoke with a Qantas agent who advised me they would reaccommodate me on an alternate flight. I agreed with the new proposal and I was advised this new flight would be re-booked and re-ticketed for me. I attach copy of my phone records and a statutory declaration detailing the conversation.

A few weeks later I realised the booking was not yet confirmed so I called Qantas again on on 15 August 2022 at 10.55pm. I was advised by the agent that because their colleague did not confirm and issue the new ticket as advised on my call of 18 July, that there was no longer seats available for me on the flight. I was advised my booking was no longer confirmed. I was also advised that Qantas could not provide any alternative. I also attach phone records and a statutory declaration of this conversation."

I basically kept it as simple as possible, "they said they would get me a new ticket but didn't, then they were too late and there's no more seats".

They can't blame the partner airline as seats were clearly available, it was literally their incompetence that's caused this mess.

 

[papeto]

I tried to explain it very simply, in such a way to keep the jargon out of it, this was part of my statement:

"The reason I am seeking compensation is that on 18 July I received an email notification that my original booking 53T643 was changed. At 11.14pm on that same day I called and spoke with a Qantas agent who advised me they would reaccommodate me on an alternate flight. I agreed with the new proposal and I was advised this new flight would be re-booked and re-ticketed for me. I attach copy of my phone records and a statutory declaration detailing the conversation.

A few weeks later I realised the booking was not yet confirmed so I called Qantas again on on 15 August 2022 at 10.55pm. I was advised by the agent that because their colleague did not confirm and issue the new ticket as advised on my call of 18 July, that there was no longer seats available for me on the flight. I was advised my booking was no longer confirmed. I was also advised that Qantas could not provide any alternative. I also attach phone records and a statutory declaration of this conversation."

I basically kept it as simple as possible, "they said they would get me a new ticket but didn't, then they were too late and there's no more seats".

They can't blame the partner airline as seats were clearly available, it was literally their incompetence that's caused this mess.

Sounds good to me. If Qantas wants to dispute what was said, they would to pull the phone recordings and provide those. I also noted in my brief what I was told by the Qantas call centre staff. This issue is they said it was confirmed thats a verbal agreement I would have throught.

 

[CMA222]

There seems some misunderstanding that the NCAT is a court, when it is actually a Tribunal made up not of magistrates but of Tribunal Members who are either lawyers or people with specific expertise relevant to the Divisions that the NCAT operate.

The Tribunal does not recognise lawyers participation and the NCAT Act states the parties must present their own case. Having someone, not necessarily a lawyer, represent a party requires the leave (permission) of the Presiding Tribunal Member. Obviously Qantas will be represented by a lawyer from their in-house team. This is unavoidable.

The objective is to resolve disputes, not to have third parties muddy the waters. I suggest you reduce the conversations you have had with QF to writing in an "I said / he said" format so they can be submitted to the Tribunal Member. Include names, dates and times. From what you have said they are trying to intimidate you and the Tribunal is unlikely to be happy about their tactics. The Federal jurisdiction comments are a scare tactic that they will play from every viewpoint to deprive the Tribunal of the right to hear the matter. The Tribunal is clear that it will hear contractual issues between parties that can be resolved by the types of orders it is permitted to make.

The website says - NCAT is able to determine some consumer claims where the dispute concerns the specific contract between the consumer and operator (e.g. consumer purchased a certain class of seat and was provided with less without compensation).

Brush up on the QF T's and C's that are applicable.

 

[mamunr]

Sounds good to me. If Qantas wants to dispute what was said, they would to pull the phone recordings and provide those. I also noted in my brief what I was told by the Qantas call centre staff. This issue is they said it was confirmed thats a verbal agreement I would have throught.

@jpp42 At the end of the day I hope common sense prevails, the Consumer Law should protect the average consumer, regardless of whether or not they know the difference between ticketing and booking.

In many ways we are 'lucky'. I say lucky because we actually have the knowledge that our bookings haven't been ticketed properly. There's literally going to be dozens, if not hundreds of people with the exact same problem as us, who just placed their trust in the call centre, who told them they were rebooked, only to turn up to the airport on the day and be told they have no flight! Can you imagine?

If Qantas thinks customer sentiment is bad now, this is a huge storm that's brewing and this will be a huge PR nightmare. I'll have the popcorn ready for when this inevitably happens.

 

[jpp42]

Obviously Qantas will be represented by a lawyer from their in-house team. This is unavoidable.

This is not necessarily the case. The tribunal member may require the company to be represented by an appropriate business manager. They don't have to grant Qantas leave for representation just because they're a big company and have in-house counsel.

 

[jpp42]

rather I think they tend to reach agreement with a party before judgement. That way there isn't a blue print to follow for the next upset passenger.

Thanks for the update papeto. I will also note that I expect Qantas would require the settlement to be confidential, so you won't be able to tell us exactly what costs, compensation, or lack thereof you actually agreed upon. Hopefully the terms of the settlement agreement don't bar you from at least talking about the process.

 

[summit_32]

There seems some misunderstanding that the NCAT is a court, when it is actually a Tribunal made up not of magistrates but of Tribunal Members who are either lawyers or people with specific expertise relevant to the Divisions that the NCAT operate.

The Tribunal does not recognise lawyers participation and the NCAT Act states the parties must present their own case. Having someone, not necessarily a lawyer, represent a party requires the leave (permission) of the Presiding Tribunal Member. Obviously Qantas will be represented by a lawyer from their in-house team. This is unavoidable.

The objective is to resolve disputes, not to have third parties muddy the waters. I suggest you reduce the conversations you have had with QF to writing in an "I said / he said" format so they can be submitted to the Tribunal Member. Include names, dates and times. From what you have said they are trying to intimidate you and the Tribunal is unlikely to be happy about their tactics. The Federal jurisdiction comments are a scare tactic that they will play from every viewpoint to deprive the Tribunal of the right to hear the matter. The Tribunal is clear that it will hear contractual issues between parties that can be resolved by the types of orders it is permitted to make.

The website says - NCAT is able to determine some consumer claims where the dispute concerns the specific contract between the consumer and operator (e.g. consumer purchased a certain class of seat and was provided with less without compensation).

Brush up on the QF T's and C's that are applicable.

In Canberra, you can be represented by a lawyer at ACAT. Some of the people i've spoken too highly recommended that approach to ensure objectivity and to maximise their chance of success.

 

[Danger]

They did call me - but it was a fairly short discussion - nothing untowards, they hadn't got my application and supporting docs yet, so couldn't really talk about it at great lenght. She hinted that they may look at paying actual costs, but not compensation. She also noted that they will claim its under federal jursidiction to get it out of NCAT and into court ( and to scare you with big lega bills - see my comments earlier on NCAT and federal jurisdiction) . Since then, we have exchanged some emails only on moving the concilation meeting date ( they didn't object) and she asked for an excel spreadhseet of my claim. So no major discussions yet. I assume we will get the same feedback on costs etc at the concilation meeting tomorrow.
The hard work for me was writing the NCAT brief and motivating the claim. Mines about 148 pages of which 133 is attachments and articles, so took a while to pull together. If we don't get agreement tomorrow, the next step I assume is that they would need to engage lawyers and start responding. Thats where it gets expensive and time consuming for them and they have to decide if its worthwhile. When you look at legal precedance, there is very little. I can't think its because everything goes so smoothly at Qantas that no apssenger ever sues, rather I think they tend to reach agreement with a party before judgement. That way there isn't a blue print to follow for the next upset passenger.

I would push back firmly on the federal jurisdiction, as I will do in my own NCAT matter with another airline.

To my mind, the federal jurisdiction matter is quite clear:

NCAT is unable to determine matters involving:

• International and domestic carriage by air falling within the scope of the Civil Aviation (Carriers’ Liability) Act 1959 (Cth) [my emphasis]

That Act refers to conventions (Warsaw, Montreal, the Guadalajara (whatever that is)), about claims for baggage and death.

A scan of the Act reveals nothing to me in your case that would be subject to federal jurisdiction. And even in the event it does apply for some reason, the NCAT website has this somewhat contradictory statement:

What happens if there is a 'federal jurisdiction' problem?

Apply to NCAT

You still apply to NCAT and we will help you come to an agreed settlement with the other party.

However, if you do not settle your dispute or you want to have the agreed settlement registered and enforced, you will need to go to the Local or District Court, depending on the size of the claim. The court is able to make the same orders that NCAT could have made.

 

[CMA222]

This is not necessarily the case. The tribunal member may require the company to be represented by an appropriate business manager. They don't have to grant Qantas leave for representation just because they're a big company and have in-house counsel.

The legal division at QF will turn up and say they are the appointed representative of the company and they do not have to mention they are a lawyer. It is how some lawyers appear so they can assist with presentation of a case, without having to seek leave. As the appointed company representative they have standing to appear and their status as a lawyer is irrelevant. Qantas will send a lawyer. That is what the legal division is there for. The appointed company representative can make any applicable submission related to the matter and if they require an "appropriate business manager" they can call them to give evidence.

 

[CMA222]

That Act refers to conventions (Warsaw, Montreal, the Guadalajara (whatever that is)), about claims for baggage and death.

Like Warsaw and Montreal, Guadalajara is the place (in Mexico) where the Guadalajara Convention (supplementing the Warsaw Convention) was discussed, settled and agreed in 1961.

 

[MJHoops]

Does it need to be lodged with NCAT? I’m based in SA.
Are you using the failure to provide services with due care and skill?

If you live in SA file in your SA tribunal

 

[Fil-Ski]

Just getting started. I need to submit a statement of claim. Few sections to it

Part 1
Introduction by Applicant
Summary of claim - Summarise the claim in one or two sentences
Legal basis of claim - List causes of action/statutory claims

Part 2
Background/uncontroversial matters
Facts expected to be agreed in separate numbered paragraphs

Part 3
Other facts forming the basis of the claim
Other material facts that support the claim in addition to those in Part 2 in separate numbered paragraphs. Be very particular about each matter – e.g. when did it occur, where did it occur, what occurred.

Is anyone willing to share one via DM on how they completed these sections

 

[papeto]

Just getting started. I need to submit a statement of claim. Few sections to it

Part 1
Introduction by Applicant
Summary of claim - Summarise the claim in one or two sentences
Legal basis of claim - List causes of action/statutory claims

Part 2
Background/uncontroversial matters
Facts expected to be agreed in separate numbered paragraphs

Part 3
Other facts forming the basis of the claim
Other material facts that support the claim in addition to those in Part 2 in separate numbered paragraphs. Be very particular about each matter – e.g. when did it occur, where did it occur, what occurred.

Is anyone willing to share one via DM on how they completed these sections

Hi Fil-Ski, in which jurisdiction are you filing? I don’t think we have that in NSW. Legal basis of claim should be conditions of carriage and Australian Consumer Law ( ACL) . I am claiming under 9.1 c of Qantas condition of carriage they should have rebooked me at no cost and also under the Australian Consumer Law. The refrence for Australian Consumer Law is is Schedule 2—The Australian Consumer Law of the Competition and Consumer Act 2010, Part 3-2 section 60 to 63 that contains the Guarantees relating to the supply ofservices. Your case is they did not meet the Gaurantees as set out in sections 60 to 63. You have to argue it in those sections. Hope that helps.

 

[papeto]

Hi All, so we had our conciliation meeting with Qantas today at NCAT. We didn’t reach settlement so the next step is I have to file all documents we intend to rely on and also I have to do a submission as to the tribunals ability to hear the matter in light of Dalton vs Qantas Airways Limited - link here. Dalton v Qantas Airways Ltd; Dalton v Morrison - NSW Caselaw
The case raises the issue that Federal Juridiction applies, so I will have to make the case it doesn’t. Note its a NSW NCAT case so may not be applicable to other states. Going to be a busy weekend of research and arguments .
A few observations about the Conciliation meeting today:

• Qantas and the tribunal really pushed the Federal angle. My take is it is scare tactic to get people to reach settlement and not progress the matter. We were given the option to take the matter to a court ( as opposed to a tribunal) or make a case for the tribunal. We decided on the latter. If we fail we can always take it to a court.
• The tribunals aim at the conciliation meeting is to get an agreement first and foremost. They really pushed to get an agreement done while being content free. They are not your friend and I have to add not your enemy. So don’t expect any favours or help in a conciliation meeting from the Tribunal ( thats being impartial I guess)
• The qantas staff were from the customer service are and they were well versed in the NCAT process.We got the impression they do this a lot. They asked the member why we were allowed to file against a Federal Jurisdiction as they had a matter on Monday where it was decided its a Federal Juridiction. The member noted in terms of due process we can file an argument stating it isn’t and it will be assed bythe member. ( I assume the Applicants on Monday just accepted it as fact and rather face this process decided to drop it). Thats said the Qantas staff were friendly and approachable and we had a good discussion and left on good terms.
• Interesting the issue of legal respresentation did come up. The Qantas staff bemoaned the fact that they are not lawyers and have been unsuccessful in getting legal representation approved By NCAT. At NCAT you have to apply to be legally represented, so it looks to extend to corporates ( Maybe different in other jurisdictions). The member said they can make an application if they want, but I took it as a standard (impartial) response rather than they had a case.
• Qantas did make an offer to pay direct costs , but not consequential damages. They offered points in lieu, which we called the toaster offer (about enough to get one toasters through the Qantas store) As about 70% of our claim is about consequential loss we declined the offer.

Overall I thought the day went as expected. The Federal Jurisdiction was an interesting issue as I had thought that Qantas will have to raise and defend it, not the otherway around Ie - We have to prove its not a Federal Jurisdiction issue.

It was also an oppurunity to show Qantas we are serious in pursuing the matter and they know that now.

I also realised a lot of NCAT Qantas cases get either settled or dropped at concilliation, as the Qantas team really thought it will get sorted today and were not prepared for the next steps. I am not a lawyer but read up on some previous cases, and notedsome of the findings in the meeting. This made the Qantas team a bit uncomfortable as they aren’t legally versed.They definately wasn’t looking foreward to having to respond to the case. I don’t think they do that often - certainly there is not a lot of precedence under NCAT. I assume they will use some legal council to respond to our submission, even if the lawyer is not in court. Would an interesting question to raise in court

 

[J-P]

What did they claim were direct costs and what were consequential?
I assume the flight costs (which you say were 3x) were accepted as direct? However nothing else was?

 

[Longtoo]

This thread is fascinating. Please keep us posted with the outcome of your NCAT hearing.

The discussion reveals a critical gap in the legal system here with respect to Aviation. In Europe, airline has to pay compensation for late flight. Here, airline is only responsible for taking pax from A to B without any legal responsibility regarding time. QF has even made it clear on their app "We don't guarantee flight time or schedules as they aren't part of our contract with you". Put it simply, QF can take my money, wait until I die then call for boarding, no show, they keep the money.

To all the bright legal brains in this forum, can this legal loophole be fixed?

Taking QA to State CAT is time consuming, but if we can afford it and we all follow through, QF will have to change. Their in-house lawyer would be min 500$/d. it would be better for them to change the tactic.