Taking Qantas to NCAT

[kangarooflyer88]

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.

I guess my argument is Canadian laws or regulations are irrelevant for this point. Air Canada's contract of carriage spells out cash compensation in the event of a delay within their control. Hence, the legal theory I would use is a simple breach of contract claim. Air Canada promised cash compensation for a flight delay but did not provide it when I claimed it. In terms of jurisdiction, I could be mistaken here but the trip was from Sydney, New South Wales, Australia to Saint John New Brunswick, Canada. Hence, I would think that a NSW tribunal would have some jurisdiction since the trip originated in the state. Then again, I am not a lawyer (but who is on AFF these days?)

-RooFlyer88

 

[papeto]

I guess my argument is Canadian laws or regulations are irrelevant for this point. Air Canada's contract of carriage spells out cash compensation in the event of a delay within their control. Hence, the legal theory I would use is a simple breach of contract claim. Air Canada promised cash compensation for a flight delay but did not provide it when I claimed it. In terms of jurisdiction, I could be mistaken here but the trip was from Sydney, New South Wales, Australia to Saint John New Brunswick, Canada. Hence, I would think that a NSW tribunal would have some jurisdiction since the trip originated in the state. Then again, I am not a lawyer (but who is on AFF these days?)

-RooFlyer88

Ah that makes since. If its contract breach than NCAT should be able to decide on it. I would do both. File with CTA and NCAT. Also in terms of full disclosure not a lawyer here, nor Qantas emplyee

 

[MJHoops]

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.

From quick review of air Canada terms on the website it seems the regulations are incorporated into the contract terms. So I think @kangarooflyer88 is correct to characterise it as a breach of contract claim

Seems to me no reason he can’t file a breach of contract claim in NCAT against Air Canada

 

[djkelly69]

Contracts usually have a 'choice of forum' clause which sets out the location where disputes in relation to the contract are to be heard.

But from memory this gets more murky in relation to international law, but I can't quite remember what the rules are. Probably something about a nexus to that location, and some other requirements.

 

[Danger]

I've got a bit of knowledge on forum thanks to a past case against an airline. Looking at my notes, this was one my key arguments:

Bonython v Commonwealth of Australia [1951] PC​

Lord Simonds defined the proper law governing a contract to be “the system of law by reference to which the contract was made or that with which the transaction has its closest and most real connection (Bonython v Commonwealth of Australia: PC 1951 - swarb.co.uk) [emphasis added].​

• The contract was entered into in Australia.
• The defendant is a registered organisation in Australia, licensed to undertake business in this country.
• The defendant carries on business in Australia.
• The defendant has an office in Australia.
• The defendant has staff in Australia.
• The defendant has a version of its website targeted specifically towards Australians.
• I was in Australia when I accessed the defendant’s website to enter into the contract.
• The breach of the contract occurred in Australia.
• The defendant retains counsel in Australia.

In summary, the lex loci contractus [the law of the place in which in the contract was made], the lex loci deliciti commissi [the law of the place where the tort was committed] and the lexi fori [the laws of the jurisdiction in which a legal action is brought] are all Australian. There can be no argument that the proper law of the contract is therefore Australia.​

 

[MJHoops]

Contracts usually have a 'choice of forum' clause which sets out the location where disputes in relation to the contract are to be heard.

But from memory this gets more murky in relation to international law, but I can't quite remember what the rules are. Probably something about a nexus to that location, and some other requirements.

It is rare to have an exclusive jurisdiction clause, but it is possible
I cannot see one in the air Canada conditions on its website

 

[MEL_Traveller]

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

If it was a crew scheduling issue due to covid it might well be outside their control. The EU for the purposes of their equivalent deemed much of covid ‘extraordinary circumstances’.

Without covid, I’d reckon any crew scheduling issue would be within the airline’s normal operations.

I’ve read many of the CTA’s decisions going back a long time. Took an interest in them during the mistake fare rounds several years ago. I didn’t get the impression they were biased towards the airlines… quite the opposite. They applied the tariffs and applicable laws pretty much as you’d expect, without favour to any party.

 

[Austman]

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

Yes, I'm assuming, seeing VCAT has given a ruling, that VCAT decided it did have jurisdiction.

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.

AFAIK that's incredibly difficult and quite rare.

You can't just decide yourself to take the matter to a court if you lose. You first need the Supreme Court's permission to do that with very good reasons: that VCAT made an error in the way it applied law.

So with VCAT, if you lose, it's usually the end of the matter.

 

[papeto]

Yes, I'm assuming, seeing VCAT has given a ruling, that VCAT decided it did have jurisdiction.


AFAIK that's incredibly difficult and quite rare.

You can't just decide yourself to take the matter to a court if you lose. You first need the Supreme Court's permission to do that with very good reasons: that VCAT made an error in the way it applied law.

So with VCAT, if you lose, it's usually the end of the matter.

I think that is the case with any court - Magistrate, State or Federal, you can only appeal on a question of law in each of those, so the tribunal is no different. It does happen in the tribunals. When I had a tree dispute with a number there were a number of appeal case that I read through.

 

[Austman]

It does happen in the tribunals.

Yes it can happen. But earlier you said:

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

My point is that it's going to very unlikely that you'd be able to "take it to a court" if you fail at the Tribunal. You don't get a "second go", so to speak.

There are thousands of Tribunal cases where a inexperienced self-represented party pretty much stuffed up their case. And because Tribunal members can have considerable legislated discretion in reaching some of their decisions, there is often no error of law on their part. So an appeal can't be made. If the party had taken the matter to court they could have used professional representation.

If it's a significant matter there's nothing stopping a party getting professional advice before they go to a Tribunal. Don't stuff it up because if you fail it most likely will be the end of the matter.

 

[papeto]

Yes it can happen. But earlier you said:



My point is that it's going to very unlikely that you'd be able to "take it to a court" if you fail at the Tribunal. You don't get a "second go", so to speak.

There are thousands of Tribunal cases where a inexperienced self-represented party pretty much stuffed up their case. And because Tribunal members can have considerable legislated discretion in reaching some of their decisions, there is often no error of law on their part. So an appeal can't be made. If the party had taken the matter to court they could have used professional representation.

If it's a significant matter there's nothing stopping a party getting professional advice before they go to a Tribunal. Don't stuff it up because if you fail it most likely will be the end of the matter.

Ah ok - I see what you mean. My argumemt here related purely to the Federal Jurisdiction matter. If NCAT rules it is a Federal Jurisdiction matter, than in terms of Section 3A Federal Jurisdiction of the Civil and Administrative Tribunal Act 2013, NSW, you can obtain leave to take it to the Local or State Court ( who are courts, not tribunals). If you take it to the Local Court you enjoy some of the benefits of tribunal as I have noted. The issue about getting one bite at the cherry is relevant to all courts and tribunals. You should always put your best case foreward. Some of us not prepared to spend a lot of money on legal council though, as the cost of council may outway may benefit obtained and your not always gaurnteed to get costs.

 

[MARTINE]

While AFF is often a mine of information, also suggest you consult a lawyer

Agree
Would love to see aviation law as a growing field for new legal graduates and hopefully picking up some lobbyists alone the way.
If only we had the European protections one can only dream of here
Ooops - its Saturday afternoon and I just work up. I was dreaming

 

[papeto]

So on Friday filed my Applicants submission with NCAT ( this is the info I will rely on the tribunal hearing). Qantas has to file theirs by the 30th September. Trial date is set for 14th November.

In doing my research I found this excellant article on the Montreal Convention (Convention) submitted to the American Bar Association. The Convention applies to nearly all international flights ( not domestic) and regulates how and what you can claim for an airline for delay, baggage , injury and death.

https://www.ralaw.com/storage/Articles%20-%20Cotter%20-%20Recent%20Case%20Law%20Addressing%20Three%20Contentious%20Issues%202012_0.pdf

Also VCAT doesn’t believe cancelling a ticket raises Federal Jurisdiction per the following decision, as the Convention would not apply to a cancelled ticket. Eigner v Jetstar Airways Pty Limited (Civil Claims) [2019] VCAT 172 (6 February 2019)

 

[MARTINE]

So on Friday filed my Applicants submission with NCAT ( this is the info I will rely on the tribunal hearing). Qantas has to file theirs by the 30th September. Trial date is set for 14th November.

In doing my research I found this excellant article on the Montreal Convention (Convention) submitted to the American Bar Association. The Convention applies to nearly all international flights ( not domestic) and regulates how and what you can claim for an airline for delay, baggage , injury and death.

https://www.ralaw.com/storage/Articles%20-%20Cotter%20-%20Recent%20Case%20Law%20Addressing%20Three%20Contentious%20Issues%202012_0.pdf

Good luck

 

[Danger]

I think it's fare (!) to say we're all rooting for you, papeto.

 

[jpp42]

Also VCAT doesn’t believe cancelling a ticket raises Federal Jurisdiction per the following decision, as the Convention would not apply to a cancelled ticket. Eigner v Jetstar Airways Pty Limited (Civil Claims) [2019] VCAT 172 (6 February 2019)

Good finding, but it's worth noting this particular decision was just an initial evaluation of the Montreal Convention and ordering the Registrar to accept the application (which previously had been dismissed without detailed review due to the perceived jurisdictional issue). It's not the final determination of jurisdiction in that matter; specifically it states the below:

This decision is simply a threshold decision made in the absence of any submissions from Jetstar which, of course, was not served with any documents pending the outcome of the section 71(2) application. At the hearing of the matter Jetstar is at liberty to contest the jurisdiction of the Tribunal.

What I couldn't find is any further information on Eigner's claim. I guess we can only assume that it was settled and the matter dropped - certainly the airlines seem to rely heavily on this jurisdictional defense and would be very motivated to avoid clear adverse precedent being set in any tribunal.

 

[RAM]

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 s

OR...

At the very start of the call requesting a full digital copy of the phone call recording be provided, acknowledgment by the Q CSA that it will be done so. If not then ask for all in writing.

Phone calls can be so much more revealing/useful than an email which is checked by one or more other Q personnel before you receive it.

 

[papeto]

Got Qantas response yesterday and yip they called Federal Jurisdiction saying all international carriage falls under Montreal Convention and therefore Federal Jurisdiction. They also noted they’ll rely on Rule 19 - Delay of the Montreal Convention. Its interesting that they didn’t articulate how they intend relying on it providing them relief. I guess just raising it as a defense, they think it maybe enough to get it moved to a higher court.

 

[bam71]

Article 19 — Delay
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.

Did it’s “servants and agents take all measures..”? They certainly did not!

 

[Danger]

Got Qantas response yesterday and yip they called Federal Jurisdiction saying all international carriage falls under Montreal Convention and therefore Federal Jurisdiction. They also noted they’ll rely on Rule 19 - Delay of the Montreal Convention. Its interesting that they didn’t articulate how they intend relying on it providing them relief. I guess just raising it as a defense, they think it maybe enough to get it moved to a higher court.

Have you made enquiries about moving proceedings to a higher court? In my case against another airline, I've made preliminary enquiries with the small claims court in NSW which I think is a division of the local court. If I understand correctly, the filing fee for a claim up to $10K is about $150 and costs that can be awarded against the unsuccessful party are very limited.

Article 19 — Delay
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.

Did it’s “servants and agents take all measures..”? They certainly did not!

To mount that argument, though, one has to accept the premise which is that the claim falls under the Montreal Convention and therefore NCAT is not the appropriate jurisdiction. I think the intention is to keep it in NCAT.