Taking Qantas to NCAT

[Danger]

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

If the tribunal is to accept a defendant saying simply, 'Sorry, it's federal jurisdiction' without any evidence or argument, then the tribunal must equally accept a defendant saying, 'It wasn't me.' If that's how the tribunal worked, I would think hearings would be done by morning tea every day.

Surely the tribunal's response to such an assertion would be, 'Tell me how or why'.

 

[MJHoops]

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.

Yep
QF is just doing what they do best - being obstructionist in the process (trying to force claimants to court instead of the tribunal) instead of engaging with the points of substance!

 

[MJHoops]

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

The test is whether the defence raised is “colourable” in the sense it is raised either (1) not bona fide or (2) is so bad it is doomed to fail
So your call centre example would be (2) in my opinion

As I’ve said though, deciding whether the tribunal has jurisdiction does not depend on whether the defence actually succeeds - if the tribunal does not have jurisdiction then it has no jurisdiction to decide whether the defence is right or wrong

Ps this kind of jurisdictional issue is very complex even for most lawyers

 

[MEL_Traveller]

The test is whether the defence raised is “colourable” in the sense it is raised either (1) not bona fide or (2) is so bad it is doomed to fail
So your call centre example would be (2) in my opinion

As I’ve said though, deciding whether the tribunal has jurisdiction does not depend on whether the defence actually succeeds - if the tribunal does not have jurisdiction then it has no jurisdiction to decide whether the defence is right or wrong

Ps this kind of jurisdictional issue is very complex even for most lawyers

Can VCAT decide if it is colourable? Or does it have to go to a relevant court to have that decided? If the former that would make it easier for the public.

 

[Longtoo]

If the tribunal is to accept a defendant saying simply, 'Sorry, it's federal jurisdiction' without any evidence or argument, then the tribunal must equally accept a defendant saying, 'It wasn't me.' If that's how the tribunal worked, I would think hearings would be done by morning tea every day.

Surely the tribunal's response to such an assertion would be, 'Tell me how or why'.

I have represented myself at NCAT 2 times, none of them was against an airline though. In a way, the hearing is over in a few minutes! They would list about 10 cases together in a 90 min time slot. The magistrate call the case, check that both sides are present, give the pair a reconciliation form and ask them to discuss, then come back after a little while. Most cases would be resolved at this very first reconciliation step. I am pretty sure that they publish the annual statistics. I have never gone to the next step.

Before summon the other party, state CAT will consider the claim to check if they have power to hear the case. Not everything will go to state CAT, for example, if you have a dispute with your insurance company, you would go to AFCA (Australian Financial Complaints Authority).

If you don't turn up, you automatically lose the case.

It is very time consuming, but it would force the other side to seriously negotiate for a compromised outcome.

 

[MJHoops]

Can VCAT decide if it is colourable? Or does it have to go to a relevant court to have that decided? If the former that would make it easier for the public.

Vcat can decide whether it is colourable because it is allowed to decide whether or not it has jurisdiction

 

[jrfsp]

Melbourne man vows to fight for Malaysia Airlines refund after flights cancelled during pandemic - ABC News

amp.abc.net.au

 

[Longtoo]

Melbourne man vows to fight for Malaysia Airlines refund after flights cancelled during pandemic - ABC News

amp.abc.net.au

I am pretty sure VCAT will order MH to refund this man.

 

[papeto]

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?

In the Dalton case, Mr Dalton claimed damages for delay to returning to coughet (where he lived for ten years).The reason was that Covid19 broke out and the government imposed a flight ban. Jetstar said that delay is covered by the Montreal Convention under Article 19 - Delay.
Article 19 states - The carrier is liable for damage occasioned by delay in the carriage by air of passengers, baggage or cargo. Nevertheless, the carrier shall not be liable for damage occasioned by delay if it proves that it and its servants and agents took all measures that could reasonably be required to avoid the damage or that it was impossible for it or them to take such measures
So in summary Jetstar’s defence was they couldn’t fly Mr Dalton as it was impossible to fly due to the government ban on flights. This remedy sits in Clause 19 of the Montreal Convention. The Montreal convention is Federal Law through the recognition of the convention in the Civil Aviation (Carriers’ Liability) Act 1959. It took a few reads to piece it all together as Mr Dalton was also suing the prime minister and both cases were heard at the same meeting.

 

[Austman]

... or make a case for the tribunal. We decided on the latter. If we fail we can always take it to a court.

AFAIK, for those considering VCAT, you can't usually do that. You basically, if there is a choice, have to decide on VCAT or a Court.

VCAT decisions are final unless a party claims that VCAT made a mistake in the way it applied the law. So, if a matter was within VCAT's jurisdiction and if VCAT made a decision that it was legally allowed to make, that's the end of the matter. In most cases the Supreme Court gets to decide if a VCAT appeal is permissible.

It would mean that if there is a choice to initially take a matter to VCAT or to a Court, a Court might be consideration as Courts also allow representation and award costs, although if you lose, costs can be awarded against you.

 

[papeto]

AFAIK, for those considering VCAT, you can't usually do that. You basically, if there is a choice, have to decide on VCAT or a Court.

VCAT decisions are final unless a party claims that VCAT made a mistake in the way it applied the law. So, if a matter was within VCAT's jurisdiction and if VCAT made a decision that it was legally allowed to make, that's the end of the matter. In most cases the Supreme Court gets to decide if a VCAT appeal is permissible.

It would mean that if there is a choice to initially take a matter to VCAT or to a Court, a Court might be consideration as Courts also allow representation and award costs, although if you lose, costs can be awarded against you.

I think VCAT has a different view to NCAT, so that cancellations can be heard in VCAT but not delays. See this case - Eigner v Jetstar Airways Pty Limited (Civil Claims) [2019] VCAT 172 - BarNet Jade

 

[kangarooflyer88]

Related question to ask: I flew Air Canada from Sydney to Saint, John, New Brunswick. I ended up arriving at my final destination more than 9 hours after scheduled arrival and am entitled to $1000 CAD in cash compensation per Air Canada's contract of carriage. When I chased them for the compensation I was given a $300 CAD eCoupon to use on a future flight and was told the cancellation was due to crew scheduling which is outside of their control. I'm wondering what is the best way to pursue Air Canada for breach of contract? Would filing a claim at a small claims court make any sense or should I engage with NCAT or some other consumer body (I'm a NSW resident)?

-RooFlyer88

 

[MJHoops]

Related question to ask: I flew Air Canada from Sydney to Saint, John, New Brunswick. I ended up arriving at my final destination more than 9 hours after scheduled arrival and am entitled to $1000 CAD in cash compensation per Air Canada's contract of carriage. When I chased them for the compensation I was given a $300 CAD eCoupon to use on a future flight and was told the cancellation was due to crew scheduling which is outside of their control. I'm wondering what is the best way to pursue Air Canada for breach of contract? Would filing a claim at a small claims court make any sense or should I engage with NCAT or some other consumer body (I'm a NSW resident)?

-RooFlyer88

Go NCAT

Post automatically merged: Sep 8, 2022

I am pretty sure VCAT will order MH to refund this man.

Gosh you hope so

Couldn’t believe this line in the article “Qantas holds $1.4 billion in flight credits”

 

[papeto]

Related question to ask: I flew Air Canada from Sydney to Saint, John, New Brunswick. I ended up arriving at my final destination more than 9 hours after scheduled arrival and am entitled to $1000 CAD in cash compensation per Air Canada's contract of carriage. When I chased them for the compensation I was given a $300 CAD eCoupon to use on a future flight and was told the cancellation was due to crew scheduling which is outside of their control. I'm wondering what is the best way to pursue Air Canada for breach of contract? Would filing a claim at a small claims court make any sense or should I engage with NCAT or some other consumer body (I'm a NSW resident)?

-RooFlyer88

Canada has rules similiar to EU 261. Check out this link - Flight Delays and Cancellations: A Guide | Canadian Transportation Agency If they don’t react to your demand you can take it to the Canadian Transport Agency.

 

[Austman]

I think VCAT has a different view to NCAT, so that cancellations can be heard in VCAT but not delays.

Maybe. But that's a jurisdiction matter. And I note that Qantas, in published VCAT cases, has challenged VCAT's jurisdiction. VCAT has, in some published cases, disagreed.

But what I was commenting on is that, in most circumstances, if you go to VCAT you get one shot at it. If you choose VCAT and don't like their ruling, you can't then usually just go to a court afterwards.

 

[papeto]

Maybe. But that's a jurisdiction matter. And I note that Qantas, in published VCAT cases, has challenged VCAT's jurisdiction. VCAT has, in some published cases, disagreed.

But what I was commenting on is that, in most circumstances, if you go to VCAT you get one shot at it. If you choose VCAT and don't like their ruling, you can't then usually just go to a court afterwards.

Yes you can appeal a tribunal decision and ultimately to the States court of appeal, so there is usually a level of appeal. Here isscreenshot from VCATwebsite.

 

[kangarooflyer88]

Canada has rules similiar to EU 261. Check out this link - Flight Delays and Cancellations: A Guide | Canadian Transportation Agency If they don’t react to your demand you can take it to the Canadian Transport Agency.

I want to avoid the CTA if possible since they tend to be cozy to airlines. I was thinking of filing a small claims action in Ontario court (since I'm a dual resident of Ontario, Canada and NSW, Australia, a story for another day) but the thought of having to adjudicate the matter over Zoom several thousand knots away ain't tempting.

-RooFlyer88

 

[papeto]

I want to avoid the CTA if possible since they tend to be cozy to airlines. I was thinking of filing a small claims action in Ontario court (since I'm a dual resident of Ontario, Canada and NSW, Australia, a story for another day) but the thought of having to adjudicate the matter over Zoom several thousand knots away ain't tempting.

-RooFlyer88

It looks like your claim is based on compensation as set put in Canadian law or regulations. I don´t think an Australian court can enforce it, you’ll have to gotto a Canadian court. If you suffered damage due to delay and thats what you claiming, the Montreal Convention Article 19 - Delay would apply. You would have to bring it in a Local or State court ( not a tribunal) and any claim is limited to about $10,000 in terms of article 22- Limits of Liability in Relation to Delay, Baggage and Cargo. Note you would have to prove the value of the damages.

 

[MJHoops]

Maybe. But that's a jurisdiction matter. And I note that Qantas, in published VCAT cases, has challenged VCAT's jurisdiction. VCAT has, in some published cases, disagreed.

But what I was commenting on is that, in most circumstances, if you go to VCAT you get one shot at it. If you choose VCAT and don't like their ruling, you can't then usually just go to a court afterwards.

If it was a decision on the merits you are quite right

If it’s a decision by VCAT that it lacks jurisdiction to hear the case that does not bar you from lodging a claim in a court that does have jurisdiction. Section 57B of the VCAT Act recognises that to be so because of this federal jurisdiction point and let’s you sue in the Magistrates court. This would always be subject to missing any relevant time limit (limitation period). The VCAT Act also contains some relief provisions re: time limits where someone sued in VCAT but the case was dismissed for want of jurisdiction

 

[djkelly69]

These Canada flight regs are actually very interesting. It appears updated regs have just come in to effect today which now make carriers to/from Canada liable for cancellations out of their control in certain circumstances, and it is the passenger's choice if they require a refund or rebooking.

I am thinking it might be an idea to fly via Canada in future where possible.