Taking Qantas to NCAT

[MJHoops]

Thanks @papeto for the updates
I currently have a claim on foot against Qantas in VCAT. I will do a post once it is resolved or a VCAT decision is issued
Good luck to all customers, I mean claimants!!

 

[Anna]

I’m based in SA.

Try ringing JusticeNet on 08 8410 2280 to see if you qualify for some free legal advice. If not, try ringing Community Legal Services SA on 08 8121 4473 to see if they can point you towards any free legal advice.

 

[CMA222]

Hi @papeto

I stand corrected. I was interested to read your update. Clearly QF either do not take the NCAT seriously when it is only a conciliation or they do nor see its potential to become an issue as a threat. They send a (well prepared) CSO rep along with a brief (and a script) to get rid of the annoyance by exploiting the NCAT's attempts at settlement and offering to reimburse direct costs and some token throw away points. If it goes any further the QF lawyers will be assisting (preparing) the CSO's submissions. It will be interesting to see what jurisdictional arguments they raise other than maintaining the view that anything the airline does is pursuant to Federal legislation or Federal responsibilities like those under the Warsaw Convention.

As I mentioned earlier I know of lawyers who have attended, without seeking leave to appear as a lawyer, and "assist" the applicant to make their presentation, but that does not help you now.

The criteria from Murphy v Trustees of Catholic Age Care [2018] NSWCATAP 275 for what constitutes a federal matter is your guide:

1. to identify the “matter” it is necessary to identify the justiciable controversy: Murphy at [22(2)];
2. a federal matter will arise whenever the right, duty or enforcement owes its existence to federal law: Murphy at [22(6)];
3. a federal matter will also arise where the source of defence is a federal law: Murphy at [22(8)];
4. it is not necessary for the form of relief sought to depend on federal law: Murphy at [22(7)];
5. unless a federal issue is colourable, the whole of the proceedings is a federal matter requiring the exercise of federal jurisdiction: Murphy at [22(9)].

It appears you must strictly limit yourself to arguing the action is contractual and is covered by the NSW Fair Trading Act 1987, so it is within the State jurisdiction.

Have a look at

View - NSW legislation

legislation.nsw.gov.au

particularly sections 79B to 79V.

Do not forget you can go back to QF with a counter offer and they may now be more motivated to settle, if you have a compromise position.

Remember also that QF are almost certainly monitoring this thread.

 

[papeto]

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?

The were comfortable covering the flight costs and would also reimburse the accommodation cost and travel costs lost that we couldn’t get back. As noted they baulked at compensation for loss of business class and holiday days.

 

[papeto]

Hi @papeto

I stand corrected. I was interested to read your update. Clearly QF either do not take the NCAT seriously when it is only a conciliation or they do nor see its potential to become an issue as a threat. They send a (well prepared) CSO rep along with a brief (and a script) to get rid of the annoyance by exploiting the NCAT's attempts at settlement and offering to reimburse direct costs and some token throw away points. If it goes any further the QF lawyers will be assisting (preparing) the CSO's submissions. It will be interesting to see what jurisdictional arguments they raise other than maintaining the view that anything the airline does is pursuant to Federal legislation or Federal responsibilities like those under the Warsaw Convention.

As I mentioned earlier I know of lawyers who have attended, without seeking leave to appear as a lawyer, and "assist" the applicant to make their presentation, but that does not help you now.

The criteria from Murphy v Trustees of Catholic Age Care [2018] NSWCATAP 275 for what constitutes a federal matter is your guide:

1. to identify the “matter” it is necessary to identify the justiciable controversy: Murphy at [22(2)];
2. a federal matter will arise whenever the right, duty or enforcement owes its existence to federal law: Murphy at [22(6)];
3. a federal matter will also arise where the source of defence is a federal law: Murphy at [22(8)];
4. it is not necessary for the form of relief sought to depend on federal law: Murphy at [22(7)];
5. unless a federal issue is colourable, the whole of the proceedings is a federal matter requiring the exercise of federal jurisdiction: Murphy at [22(9)].

It appears you must strictly limit yourself to arguing the action is contractual and is covered by the NSW Fair Trading Act 1987, so it is within the State jurisdiction.

Have a look at

View - NSW legislation

legislation.nsw.gov.au

particularly sections 79B to 79V.

Do not forget you can go back to QF with a counter offer and they may now be more motivated to settle, if you have a compromise position.

Remember also that QF are almost certainly monitoring this thread.

Thanks for that. I had a look at 79B to 79V, but no mention of travel as a service. I will have a more detailed look at Murphy a bit later.

 

[Danger]

That Dalton piece is an interesting read. It would seem to indicate that simple contractual matters, such as breach or enforcement, somehow automatically involve the exercise of federal jurisdiction when it involves an air carrier. That strikes me as very odd.

 

[eastwest101]

That Dalton piece is an interesting read. It would seem to indicate that simple contractual matters, such as breach or enforcement, somehow automatically involve the exercise of federal jurisdiction when it involves an air carrier. That strikes me as very odd.

Yep - that Dalton case hinges on Qantas/Jetstar having to cancel an international flight from Australia to Thailand at the start of the Pandemic in March 2020 due to the Federal Health Minister order to prevent people leaving Australia, so in that case QF/JQi were within their right to argue that Federal Government action prevented them from operating the flight.

In papeto's case QF was the agent for a BNE-SYD-DOH-Europe flight where the domestic QF SYD-BNE got delayed and eventually resulted in papeto not getting to the originally booked QR BNE-Doha flight at all. The QR flight from BNE-DOH left, and was able to fly, as did similar flights in the next few days (one of which papeto flew in Y class paid for at last minute prices and not in J class as originally booked). QF voided themselves of all responsibility of rebooking papeto onto further flights to get them to their final destination presumably relying on some sort of tricky T&Cs that they will claim to over-ride state consumer law. Papeto had commenced a domestic trip that was then going to become international and was abandoned mid-journey in BNE due to incompetence and/or commercial reasons only known to Qantas. So it is a breach of contract or a failure to provide a service and State Consumer law applies and Federal Govt international border closures play no part in this. Unless Qantas have some way of saying that anything to do with aircraft at all automatically becomes a Federal jurisdiction always in which case Qantas would be trying to argue that no state law applies to Qantas in any state or territory anywhere - which seems like a bit of a reach.

I hope Papeto or someone else with the time and legal expertise takes it all the way through the courts and even to the High Court and we can once and for all deal with this weird concept that airlines can rely on strange T&Cs where they only have to deliver the service in some unknown indeterminate time frame at some point in the future, when it suits them and vary and/or cancel the contracted service if it doesn't suit them any more. We all understand air travel is unpredictable and aircraft can break down or run late but surely some sensible standard of customer care and protection isn't too much to ask. Any other industry would get laughed out of the courtroom in a contract dispute of originally contracted to say deliver a seafood dinner tomorrow night and instead deliver a stale hot-dog next year.

I realise this would require EU style legislation with an incrementing penalty on tardy/late airlines that don't provide rectification/compensation/services paid for or as advertised but I think if Qantas ever does lose a case like Papeto's, then they will only have themselves to blame for inviting the government and regulator in to sort this out.

 

[Danger]

If it is a breach of contract and state rather than federal law applies, what's the significance of the Dalton ruling, particularly paragraph 45?

 

[mamunr]

Hello all. An update on my case, I got a call from Qantas this morning (4 working days after filing my application). They'd investigated my case, acknowledged the stuff up, and said it was "disappointing" that a simple request to rebook was not followed up on correctly.

I've been asked to send receipts. They've verbally agreed to paying the difference between what I originally paid in taxes vs what I ended up paying for my new flight so that I'm not out of pocket overall.

Looks like a good result.

Good luck to everyone else. Going the way of NCAT seems to be the way to go.

 

[summit_32]

sounds like a good development. I'm curious on the views of others but wouldn't it be better to say something like; "thanks for calling me, but can you please hang-up and send me an email so there's zero doubt regarding the offer and/or intentions". The lack of an actual written record is something that works in QF's favour. I've had the same thing happen with a bank and just asked them to put everything in writing.

 

[Pele]

sounds like a good development. I'm curious on the views of others but wouldn't it be better to say something like; "thanks for calling me, but can you please hang-up and send me an email so there's zero doubt regarding the offer and/or intentions". The lack of an actual written record is something that works in QF's favour. I've had the same thing happen with a bank and just asked them to put everything in writing.

In my experience all phone calls with banks in Australia are recorded.

BTW i really like this thread. Has a whiff of The Castle about it. Nothing like the little man sticking it to the greedy lying corporate pig that is qantas.

 

[jpp42]

If it is a breach of contract and state rather than federal law applies, what's the significance of the Dalton ruling, particularly paragraph 45?

Without reviewing the Murphy case which is a more general test for federal jurisdiction, I think para 40 from Dalton is most relevant, at least for papeto in preparing for his hearing:

40. In the Jetstar application, the respondents say they have no liability for the amount claimed because it represents delay damages. The respondents say delay was beyond their control and there were no steps they could have taken to avoid the loss. They rely on the terms of the contract the carriage which they say excludes liability in the present circumstances. They also rely on the Convention for the Unification of Certain Rules for International Carriage by Air (Montréal Convention), of which Australia is a signatory. The Montréal Convention operates in Australia by reason of s 9B of the Civil Aviation (Carriers’ Liability) Act 1959 (Cwth) (CACL Act). That section provides:

> Subject to this Part, the 1999 Montreal Convention has the force of law in Australia in relation to any carriage by air to which the 1999 Montreal Convention applies, irrespective of the nationality of the aircraft performing that carriage.

I don't see para 45 as relevant by itself, it's simply explaining part of why the NCAT Member can't exercise federal jurisdiction. It becomes moot if the member can be convinced that the matter is not under federal jurisdiction at all, which will be the first goal here.

The key point that might show Dalton isn't relevant is that papeto's matter relates to domestic flights, whereas the Montréal Convention is only about international. Also, for other posters' situations where the matter is specifically about ticketing problems, not an actual operational issue where delays/cancellations apply, I think it will be very hard for that CACL Act to be made relevant.

The problem here is that Qantas may have other tortuous readings of various conventions in those international treaties which could apply (and make the matter federal), which is difficult for non-lawyers to research and understand in full. Even if the jurisdictional issue is found in papeto's failure, Qantas will likely fall back to their provisions in the contract of carriage, which they try to disclaim all liability for delays. This is the tricky part here IMO, without EU-style legislation the airlines have all the power to write CoC's that are completely in their failure.

A bit off topic, but interesting to note that Dalton himself seems a bit of a nutter - Jetstar had to apply for an order for the Jetstar's representative's name not to be revealed to him, presumably for her safety.

 

[djkelly69]

A bit off topic, but interesting to note that Dalton himself seems a bit of a nutter

This was my favourite part:
While not articulated with any precision by Mr Dalton, the nature of the allegation was one of..

 

[mamunr]

sounds like a good development. I'm curious on the views of others but wouldn't it be better to say something like; "thanks for calling me, but can you please hang-up and send me an email so there's zero doubt regarding the offer and/or intentions". The lack of an actual written record is something that works in QF's favour. I've had the same thing happen with a bank and just asked them to put everything in writing.

I did get an email straight after the phone call asking for receipts and to confirm the amount I'm seeking. I responded back with "as discussed...$x, please see attached".

Thankfully they kept to their word, responded in writing to confirm. Gave them bank details, funds are on their way.

The lady on the phone was nice, empathetic, and the process was quick.

Sad it had to come to this to get some decent service.

 

[MEL_Traveller]

I don’t see an agent making a booking error as being covered by any of the international treaties!

Delay, yes, that’s covered in part by international law, incorporated into Aussie law. So I could see why they make that argument.

But those conventions a concern the carriage by air… the current issues haven’t even got to that stage… it’s a failure by the airline to deliver the product it said it would, which is a ticket.

 

[MJHoops]

I did get an email straight after the phone call asking for receipts and to confirm the amount I'm seeking. I responded back with "as discussed...$x, please see attached".

Thankfully they kept to their word, responded in writing to confirm. Gave them bank details, funds are on their way.

The lady on the phone was nice, empathetic, and the process was quick.

Sad it had to come to this to get some decent service.

Get to WP, or otherwise pay NCAT filing fees when you have a problem (and ask for a fee refund)

I don’t see an agent making a booking error as being covered by any of the international treaties!

Delay, yes, that’s covered in part by international law, incorporated into Aussie law. So I could see why they make that argument.

But those conventions a concern the carriage by air… the current issues haven’t even got to that stage… it’s a failure by the airline to deliver the product it said it would, which is a ticket.

In point of substance I agree. On the current law though it is enough if Qantas say “we argue we have a defence under a piece of commonwealth legislation” to take the whole matter into federal jurisdiction. Because the state tribunals are not real courts that exercise judicial power, they can’t exercise federal jurisdiction because of the constitution

If Qantas raises a federal defence then the claim gets lodged in local / magistrates court and is otherwise treated as if it is a tribunal case

The court then decides if the defence actually applies in point of substance - Ie decides the merits of the defence

The main case that clarified all this in Qantas’ favour was lustig

Passenger Claim Dismissed After 9 Year Battle – Federal Court Rejects Ability Of State Tribunals To Determine Carriage By Air Claims

This decision will be significant to aviation industry participants in assessing whether claimants in the context of international or domestic carriage by air have commenced claims in an appropriate forum in Australia.

www.mondaq.com

QANTAS Frequent Flyers Lose 9 Year Court Case...(Over the suit locker)

Well NOW I've heard everything.... Qantas Club member suing QANTAS for 60 million points because he wasn't allowed to use the business class suit locker while sitting in economy... Right. Not sure if this has been posted yet but couldn't find it anywhere. "A fight for 60 million Qantas Airways...

www.australianfrequentflyer.com.au

Edit- Dalton also sued scomo in that case - which was allowed to proceed (instead of summary judgment) but was similarly knocked out of the tribunal due to it also being within federal jurisdiction

 

[MEL_Traveller]

Get to WP, or otherwise pay NCAT filing fees when you have a problem (and ask for a fee refund)


In point of substance I agree. On the current law though it is enough if Qantas say “we argue we have a defence under a piece of commonwealth legislation” to take the whole matter into federal jurisdiction. Because the state tribunals are not real courts that exercise judicial power, they can’t exercise federal jurisdiction because of the constitution

If Qantas raises a federal defence then the claim gets lodged in local / magistrates court and is otherwise treated as if it is a tribunal case

The court then decides if the defence actually applies in point of substance - Ie decides the merits of the defence

The main case that clarified all this in Qantas’ favour was lustig

Passenger Claim Dismissed After 9 Year Battle – Federal Court Rejects Ability Of State Tribunals To Determine Carriage By Air Claims

This decision will be significant to aviation industry participants in assessing whether claimants in the context of international or domestic carriage by air have commenced claims in an appropriate forum in Australia.

www.mondaq.com

QANTAS Frequent Flyers Lose 9 Year Court Case...(Over the suit locker)

Well NOW I've heard everything.... Qantas Club member suing QANTAS for 60 million points because he wasn't allowed to use the business class suit locker while sitting in economy... Right. Not sure if this has been posted yet but couldn't find it anywhere. "A fight for 60 million Qantas Airways...

www.australianfrequentflyer.com.au

Edit- Dalton also sued scomo in that case - which was allowed to proceed (instead of summary judgment) but was similarly knocked out of the tribunal due to it also being within federal jurisdiction

So the claim was brought under the FTA, but Qantas raised a defence under the (cth) Carriers Liabilty Act.

In a case like this, does a defence arise under any Cth legislation similar to the one mentioned?

 

[Longtoo]

The main case that clarified all this in Qantas’ favour was lustig

Passenger Claim Dismissed After 9 Year Battle – Federal Court Rejects Ability Of State Tribunals To Determine Carriage By Air Claims

This decision will be significant to aviation industry participants in assessing whether claimants in the context of international or domestic carriage by air have commenced claims in an appropriate forum in Australia.

www.mondaq.com

I would argue that State CAT is an appropriate platform to resolve dispute such as flight delay, cancel, and lost of luggage. These are issues for a tribunal. Unless there is a clear reason for QF to deflect their fault, State CAT ruling is legally binding. An altercation is a very different matter, it is dealt with by Fed police because airport is of Cth jurisdiction.

In reality (and we must ignore ideology), lawyers are expensive. If you can hire the best lawyer in the world, you are most likely to win the case. This is why people present themselves at the State CAT. QF will try to settle the matter fairly if it is hurting them. Sorry to say. But most of us here just want QF to return to the good old day.

 

[MJHoops]

I think Qantas can argue that the Civil Aviation (Carriers' Liability) Act 1959 (Cth) limits or ousts their liability for international flights (s 25L) to which the Montreal convention applies and for interstate etc flights (s 27) in response to at least some consumer claims concerning “flights gone wrong”

But it seems highly unlikely they are correct in their argument. See section 36 for example which is limited to personal injury

CIVIL AVIATION (CARRIERS' LIABILITY) ACT 1959

classic.austlii.edu.au

 

[MEL_Traveller]

Further to my post above… wondering if QF actually needs to raise a valid defence under cth legislation, or whether they could just claim one irrespective of whether it was ultimately valid?

So for example you could bring a claim for call centre failure, but QF say ‘no, this is federal’, and without even deciding if it’s valid, QF gets to move it to another court?

The unions claim QF is militant towards them… us passengers don’t seem to be getting much better treatment