ACCC action re cancelled Qantas flights

[dylarr]

I'm not an expert on law here (amongst a number of things) but I do wonder for this type of case would the ACCC be entitled to legal discovery? In other words could they subpoena Qantas and others for records which could help prove their case? I think the case the ACCC has laid out is compelling and so far as I can tell, that was just with information that was publicly available. I would be surprised if there wasn't a smoking gun email or internal data that indicates the magnitude of the operation.

The ACCC has information gathering powers and can issue section 155 notices to entities to require them to cough up information.

https://www.accc.gov.au/system/files/Section-155-notices-FA.pdf

 

[RooFlyer]

Yeah, I generally agree that this is the most plausible explanation. Is it possible that Qantas did this as a plan to hold onto customers money for longer? Yes. But it's more likely just the usual incompetence on their side (unfortunately).

And that is what Geoffrey Thomas was saying, and why the court won't find against Qantas - certainly not for the 250 mil.

Putting aside that Geoffrey Thomas is a bit if a in as much as his opinions regarding Qantas matters are so utterly predictable, I wonder if organisational incompetence is a defence against (ACCC media release) :

The ACCC today launched action in the Federal Court of Australia alleging Qantas Airways (QAN) engaged in false, misleading or deceptive conduct, by advertising tickets for more than 8,000 flights that it had already cancelled but not removed from sale.

Will it really be a case of Qantas defending:
Yes, we did all that your Honour, but we are so organisationally hopeless that we didn't know what we were doing, so you should let us off, please.

Here are Qantas' "key points" from their media release.

KEY POINTS

* Qantas fully accepts it let customers down during the post-COVID restart, including with high cancellation rates.
* While mistakes were made by Qantas, the ACCC’s legal case ignores the realities of the aviation industry – airlines can’t guarantee specific flight times.
* All customers on cancelled flights were offered an alternative flight or refund; there was no ‘fee for no service’.

Can anyone identify which of those 'key points' goes to the issue of continuing to sell flights that had already been cancelled? I can't.

Later Qantas writes (their bolding):

The ACCC’s case relates to cancelled flights that were left on sale for longer than 48 hours. We acknowledge there were delays and we sincerely regret that this occurred, but crucially, it does not equate to Qantas obtaining a ‘fee for no service’ because customers were reaccommodated on other flights as close as possible to their original time or offered a full refund.

So, an admission that there were "delays" in stopping sales. They talk about it not being 'fee for no service' (a la the banks) in several places. That term doesn't appear anywhere in the ACCC media release or the ACCC's Court Filing 'Concise Statement' of 31 August. Straw man?

The ACCC has information gathering powers and can issue section 155 notices to entities to require them to cough up information.

https://www.accc.gov.au/system/files/Section-155-notices-FA.pdf

And of course they exercised those powers in the weeks/months prior to the ACCC court action being taken - @kangarooflyer88 .

 

[UP4014]

Just curious - what does Tucson mean in this context? I know QF used to operate a (now defunct) call centre in Tucson, AZ many moons ago but they still have operations or back office functions there?

Just a working competent call centre gone in the name of saving a dollar.

 

[MARTINE]

And that is what Geoffrey Thomas was saying, and why the court won't find against Qantas - certainly not for the 250 mil.

I never knew that incompetence was a plausible defence as opposed to appalling business practices designed to hold onto consumer’s money

ACCC may well have known they were always going to lose the case - the case in itself achieves their aims for the reason you mention.

But they'll end up paying QF's legal bills for it.

You and I -the taxpayers - will be the ones paying the bill.

We dont sell tickets! ‘A Bundle of Rights’ would be a hilarious term if it weren’t so insulting and belongs in some Monty Python/Yes Minister parallel universe.

 

[downgraded]

New AFR Article on Qantas' filing with the federal court in response to the ACCC: Qantas says it ‘does its best’, no guarantees flights will take off


It's ridiculous, but knowing the state of Qantas IT I can totally believe it (surely they can just zero out the flights though???).

And of course there's this great defence...

Surely in the context of contractual fairness I should therefore be able to buy the cheapest flight at the most obscure time and then turn up to fly when I actually want to?

 

[RooFlyer]

The Qantas defence was likely set out, or at least signed off on by the redoubtable Qantas Group Corporate Counsel Andrew Finch, who, according to media reports, devised the 'Instrument of Delegation' where the baggage handlers were sacked, illegally.

Finch made his mark at the recent Senate Committee examinations:

https://twitter.com/x/status/1711198212772745408

https://twitter.com/x/status/1708624474776768669

 

[MARTINE]

Surely in the context of contractual fairness I should therefore be able to buy the cheapest flight at the most obscure time and then turn up to fly when I actually want to?

They would argue thats a ‘Bundle of Wrongs’
Not sure why they are using a term used in property law to explain how a ticket is not a ticket any more.

 

[CaptJCool]

i'd hazard an educated guess that government agencies tend not to be across operational logistics - what with service standards in a digital world of 14 days turnaround time - what are they doing? throwing parties for 13 days before bothering to turn on the processing factory and working for a few hours?

as for the 100% of domestic PAX re-accommodated within an hour of departure time - on the heavy routes there are 4 flights beforehand and 4 flights in the hour afterwards. that's accommodating say 50 PAX across 8 flights seeing there's like 174 seats per flight (so even if it was like full that's shifting 20 PAX onto each of 8 flights...)

I'm surprised QF haven't come out with the line
"oh, those PAX we moved had all booked cheap seats, so when we moved them, we actually did ourselves out of $x per seat per PAX. that's right we made less profit because we sold more seats on less flights for the lower price... we actually took the loss upon ourselves" Mea culpa

However, fully aware the cost of cancelling an A-380, I've seen it happen one night in Melbourne - its a pain for international travellers and fills up all the other planes heading say to LAX, (not a dry eye in the House as those spare seats vaporise overnight and now you are all going to sleep sitting up!!

 

[#flying]

And that is what Geoffrey Thomas was saying, and why the court won't find against Qantas - certainly not for the 250 mil.



ACCC may well have known they were always going to lose the case - the case in itself achieves their aims for the reason you mention.

But they'll end up paying QF's legal bills for it.

I haven't seen what Geoffrey Thomas has written on this, but to be clear, Qantas' intention (i.e. whether the conduct was done on purpose or due to incompetence/poor systems) is completely irrelevant to this case from a legal perspective. The case is (largely) about whether Qantas engaged in conduct that was misleading or deceptive, or likely to mislead or deceive. As with any misleading conduct case, the subjective intention of the person making the allegedly false or misleading representation(s) is irrelevant.

 

[justinbrett]

The Qantas defence was likely set out, or at least signed off on by the redoubtable Qantas Group Corporate Counsel Andrew Finch, who, according to media reports, devised the 'Instrument of Delegation' where the baggage handlers were sacked, illegally.

Finch made his mark at the recent Senate Committee examinations:

Nope

It was done by Michele Laidlaw.

Michele Laidlaw

Michele Laidlaw

jws.com.au

 

[kangarooflyer88]

Putting aside that Geoffrey Thomas is a bit if a in as much as his opinions regarding Qantas matters are so utterly predictable, I wonder if organisational incompetence is a defence against (ACCC media release)

I’m not a lawyer but can Qantas ask the court to render a summary judgement or get the case thrown out on its face? If so then one must rightly ask, why haven’t they exercised that option if they’re so confident of their actions?

Here are Qantas' "key points" from their media release.



Can anyone identify which of those 'key points' goes to the issue of continuing to sell flights that had already been cancelled? I can't.

It will be interesting to see them fight this one out in court where facts and sound arguments matter and red herrings only serve to frustrate the judge!

Later Qantas writes (their bolding):


So, an admission that there were "delays" in stopping sales. They talk about it not being 'fee for no service' (a la the banks) in several places. That term doesn't appear anywhere in the ACCC media release or the ACCC's Court Filing 'Concise Statement' of 31 August. Straw man?

Technically in relation to fee for no service one could argue that flight credits issued during the pandemic which expired quickly and forced customers to buy more expensive fares to even qualify to use them do represent fee for no service, especially if not redeemed. Then again, that’s an argument for another case and maybe QF would best be served focusing on this one.

And of course they exercised those powers in the weeks/months prior to the ACCC court action being taken - @kangarooflyer88 .

Yes but does that give them the same power as a court issued subpoena especially with regards to enforcing compliance?

You and I -the taxpayers - will be the ones paying the bill.

Maybe. But if the ACCC win this would be a huge pay out for the government (unsure of taxpayers since those are two distinct things)

We dont sell tickets! ‘A Bundle of Rights’ would be a hilarious term if it weren’t so insulting and belongs in some Monty Python/Yes Minister parallel universe.

A bundle of rights suggests that Qantas is moving to a JetStar style of customer service marketing. Flight cancelled? Sorry mate but you’ve got the red e-deal bundle of passenger rights meaning we’ll rebook you the next time there’s a full moon. Oh you’re actually on a flex ticket? Well it looks like we owe you some cash compensation!

 

[justinbrett]

I haven't seen what Geoffrey Thomas has written on this, but to be clear, Qantas' intention (i.e. whether the conduct was done on purpose or due to incompetence/poor systems) is completely irrelevant to this case from a legal perspective. The case is (largely) about whether Qantas engaged in conduct that was misleading or deceptive, or likely to mislead or deceive. As with any misleading conduct case, the subjective intention of the person making the allegedly false or misleading representation(s) is irrelevant.

You don't need intent but the conduct has to be misleading. Reasonable actions and extraordinary circumstances are often defences.

ACCC has form for losing cases - they lost a case against Google last year with the same charge of misleading conduct.

You and I -the taxpayers - will be the ones paying the bill.

Just like the ABC and all their defamation cases. Government is costing us a lot of money. If ACCC do lose this I expect someone in government might be having a quiet word with the Chair. Their recent court history has been horrendous.

 

[drron]

And Geoffrey Thomas has form in defending Qantas. Some over at Pprune believe he has CL membership.

 

[#flying]

Reasonable actions and extraordinary circumstances are often defences.

I’d be interested in what your source is for this claim, as such defences are certainly not available under the legislation and I’m not aware of any cases where arguments along these lines have been successfully run.

 

[MARTINE]

Interesting position. I wonder why one bundle of rights cost more than another bundle given that they're all the same thing?

Its the quality if the string that ties them bundle together..

I believe in Chairman’s Lounge BoR are held together with the finest handwoven silk and presented to the recipient in a solid gold box with a special set of cufflinks by the chairman himself.

Its weird they are using a property law term where the analogy is the rights you have using sticks tied together as a reference. Lawyers may enlighten

 

[OATEK]

Its the quality if the string that ties them bundle together..

I believe in Chairman’s Lounge BoR are held together with the finest handwoven silk and presented to the recipient in a solid gold box with a special set of cufflinks by the chairman himself.

Its weird they are using a property law term where the analogy is the rights you have using sticks tied together as a reference. Lawyers may enlighten

If you hang around the legal quarters you will see lawyers and their bundles galore, tied up in red tape.

 

[RooFlyer]

a special set of cufflinks by the chairman himself.

Handcuffs, not cufflinks.

 

[RooFlyer]

Nope

It was done by Michele Laidlaw.

Michele Laidlaw

Michele Laidlaw

jws.com.au

So you don't think Finch would have seen, and approved for action the defence (which is what I meant by 'signed off on')? I can't imagine a major corporation allowing a third party law firm to make a legal submission in its defence without reading and approving it.

 

[RooFlyer]

In the absence of a link being provided, I Googled Geoffrey Thomas' comment re Qantas and the ACCC action and found this on his web site airlineratings.net

QANTAS STATEMENT ON ACCC ALLEGATIONS

It consists of an intro para, saying Qantas has issued a statement, then 5 paragraphs of quotes from the statement, and then this:

To the 25,000 people who make up the Qantas Group, we say thank you. Every day, you are focused on carrying customers safely to their destination and your professionalism in doing so is superb.

Honestly, who thinks this guy has any credibility?

 

[kangarooflyer88]

Its weird they are using a property law term where the analogy is the rights you have using sticks tied together as a reference. Lawyers may enlighten

In fairness aren’t the politicians QF property given they were bought out many moons ago with Chairman’s Lounge membership?