Thanks for the update and pls thank your BIL for being happy to share progress with us.
After this sinks in, I’d be interest to know whether he’d pursue another case in the future or this causes someone to loose faith in the process.
No, he probably won't take a behemoth to task for walking all over him again - because Emirates is coming after him for costs.
The
rules of the Magistrates Court make no mention of costs being awardable in the minor case procedure jurisdiction he brought it in and
this Legal Aid article says costs must be paid by each side respectively. But the
Act apparently does allow for it:
31. Costs
(1) In this section — allowable costs means —
(a) the court fees and service fees paid by a successful party; and
(b) the costs of enforcing a judgment.
(2) A successful party to a minor case is entitled to an order under section 25(1) in relation to the party’s allowable costs but not in relation to the party’s other costs in the case.
(3) Despite subsection (2), the Court may make an order under section 25(1) as to the payment of the party’s other costs by another party if it is satisfied that —
(a) because of the existence of exceptional circumstances an injustice would be done to the successful party if that party’s other costs were not ordered to be paid; or
(b) the unsuccessful party’s claim or defence was wholly without merit ...
Emirates has a week to make a submission as to why its costs should be paid and what those costs are and then my BIL can make his own submission.
This has really floored him. The whole point in bringing the matter in this jurisdiction was because, as he understood it, costs couldn't be awarded. He read the rules. He read the Legal Aid fact sheet. But he didn't read the Act.
In my view, even entertaining a costs order sends a huge message to the Davids looking to take on the Goliaths. What hope does the little guy have? It was a 32-minute decision that referenced two high court cases, for the love of God.
This has been an interesting thread, was your BIL aware that EK have previously made F class fare errors and not honoured them. I think it was in 2019 not long after CX made a similar F error. If I remember correctly CX honoured their mistake however EK were quick to cancel the F trips made by those who came across them.
No, I don't think he was aware of that one.
Thanks for the update!
I thought this part might be going to be a hurdle... there didn't appear to be any actual loss.
Still lots of the case that seems unexplained... if EK unilaterally cancelled the ticket on 11 February, that is potentially a breach right there!
I accept that it was probably a long bow to draw to argue that the loss was the cost of a replacement ticket, less what had been refunded. However, that is exactly what my BIL sought and was awarded in his BA case five years ago. Unfortunately, this particular court isn't bound by decisions made by its colleagues. In the decision, the magistrate referred to his other case but only to say that because my BIL wasn't able to provide a transcript, the magistrate didn't consider it. Apparently it was too much to expect the magistrate to request a transcript from her colleagues down the hall or to even listen to the audio recording. No, it was necessary for my BIL to fork a couple of dollars a page for a transcript of a hearing that lasted something like five hours.
On loss, though,
if my BIL (or I) was to take this approach again, I think the very easy loss to quantify is the loss of frequent flyer points which give rise to a monetary value. By his calculation, my BIL would have earned 50,907 AS miles. To get a monetary value for this, he looked at revenue flights with CX and QF, using those AS miles, using prices from the same dates in 2021 and came up with the following (the 50 in the calculations is the round figure of the number of miles he lost):
CX, PER-HKG-PER
$4527 or 60K points.
50/60 is 0.83.
0.83 of 4527 is 3772.
QF, PER-xADL-xSYD-LAX
$5995 or 55K points.
50/55 is 0.91
0.91 of 5995 is 5450.
That equates to a monetary loss between $3772 and $5450.
Some other things I now understand from my BIL.
First, the magistrate apparently found that their was no breach of contract. I noted above that she found there
was a contract, something Emirates had argued all along there wasn't (including in a last minute filing referencing the 1975 court case where it added "This court is bound by the decision of the High Court", conveniently ignoring the 2012 Qantas case that overturned that). That was, until the dying stages of the hearing, apparently, when the EK rep acknowledged a contract did exist. In her finding that there wasn't a breach she referred to a couple of things. One was the email from Expedia dated 4 March where it referred to the tickets being "erroneously routed by Dubai" which ending with "... should you need to rebook your trip, please visit Expedia." The magistrate, not experienced in the world of frequent flying, viewed this as invitation from Expedia to my BIL to exercise his rights under
s. 9.2 to choose one of the three remedies. Obviously, we all know that 'visit Expedia to rebook' means 'visit Expedia to rebook at the new price', but that's now what the magistrate viewed it as. As she did not raise that during trial, my BIL had not opportunity to educate her. That said, I can't imagine it would have done much good.
Second, as an extension of s. 9.2 being applicable (again, contrary to EK's vehement argument that s. 9.1 was the applicable section), she found that because my BIL didn't contact EK to exercise his rights under s. 9.2 (rights, we all know, he had no chance of ever enforcing), he hadn't met his responsibilities. That is, she found it wasn't EK's responsibility to reach out and offer the s. 9.2 remedies, it was my BIL's. However, my BIL more or less did (although not by specific reference to s. 9.2). He had several email exchanges with Expedia over about a three week period asking that the ticket be reinstated. Unfortunately, he didn't include any of that corro in his court paperwork (of which he already had several hundred pages and was instructed by the magistrate to reduce).
To bring all that together and to jump into a time machine, if my BIL had contacted Expedia and specifically referenced s. 9.2 (probably subsection (b) more specifically) and requested rerouting, was refused by EK, filed with the court for breach of contract and included all that paperwork, he may well have been successful. I don't believe I'm clutching at straws (which is fruitless at this point anyway) to come to this conclusion. Of course, it's all elementary now and you can be assured that if the same situation was to happen today and you or I did follow these steps, EK would still say bugger off.
Now to see how I can help my BIL defend the costs application and protect EK against the "injustice" it has suffered in a claim that was obviously "wholly without merit".
