New aviation industry ombudsman & customer rights charter in Australia

[MEL_Traveller]

My argument here is that they have tribunals (at least in BC) and small claims courts everywhere else where they can hear matters under the Montreal Convention. This makes justice accessible for everyone since you simply need to pay a filing fee (usually $100) and make your case.

This has not been the case, at least in Canada. Cases tend to move fairly quickly (certainly quicker than our other option, filing a complaint to the Canadian Transportation Agency). And again, it won't cost thousands of dollars for the simple fact that you just need to put in a filing fee of $108 with court costs for the losing party being statutorily capped.

The other argument I would make here is that the Montreal Convention isn't new. It's been around for well over 2 decades now with good precedent having been set. For instance, quite recently the Supreme Court of Canada ruled that the Air Passenger Protection Regulations apply to flights covered under the Montreal Convention. In other words, the exclusivity clause of the convention does not preclude statutory non-damage related consumer protections (i.e. entitlements) from being applied to international trips. The fact that it is an internationally agreed to treaty has no effect on how courts rule since treaties become law in a country through enabling legislation much how any other law of the land is passed.

The problem with your example is you are comparing apples to oranges. In the case you cited, this was one which involved the airline security department causing a passenger's visa to be revoked. It's a very extreme edge case compared to the types of issues most passengers face like a flight being delayed by 14 hours or the airline making the commercial decision to cancel flights during a strike and not rebooking you on another flight. These are more straightforward examples where the airline clearly needs to take all reasonable measures including booking you on a competitor's flight if it can minimize that disruption.

-RooFlyer88

The Supreme Court of Canada ruling that Air Passenger Protection Regulations apply to flights covered under Montreal is not new. The EU and UK courts have made a similar determination, although for slightly different reasoning.

I am not comparing apples with oranges. And this is why it’s important to read cases in full and follow the context of cases and quoted cases.

The reasonableness to use automated rebooking did not come from the case of the denied visa. If you follow cases quoted in the visa case, they lead you to where the court has ruled on reasonable measures. One of which is that the use of automated rebooking programs is perfectly reasonable.

In the context of an Australian bulletin board the fact that you can bring a case under Montreal in a small claim court in Canada has no relevance in Australia where it can’t. And where it would cost you thousands of dollars.

 

[kangarooflyer88]

In the context of an Australian bulletin board the fact that you can bring a case under Montreal in a small claim court in Canada has no relevance in Australia where it can’t. And where it would cost you thousands of dollars.

I think you can take a matter related to the Montreal Convention to a magistrate's court in your state. Specifically, the Montreal Convention is implemented in Australian law under the Civil Aviation (Carriers' Liability) Act 1959 (Cth). Under section 9L of the act it expressly provides that state courts have jurisdiction to hear Montreal Convention claims to the same extent that they have Federal jurisdiction:

9L Jurisdiction of State courts preserved
For the purposes of section 38 of the Judiciary Act 1903, an action under the Convention is taken not to be a matter arising directly under a treaty.

 

[MEL_Traveller]

I think you can take a matter related to the Montreal Convention to a magistrate's court in your state. Specifically, the Montreal Convention is implemented in Australian law under the Civil Aviation (Carriers' Liability) Act 1959 (Cth). Under section 9L of the act it expressly provides that state courts have jurisdiction to hear Montreal Convention claims to the same extent that they have Federal jurisdiction:

Still going to cost you thousands with lawyer fees. And the likelihood of an appeal for something complex like reasonable measures.

 

[Mwenenzi]

I think you can take a matter related to the Montreal Convention to a magistrate's court in your state. Specifically, the Montreal Convention is implemented in Australian law under the Civil Aviation (Carriers' Liability) Act 1959 (Cth). Under section 9L of the act it expressly provides that state courts have jurisdiction to hear Montreal Convention claims to the same extent that they have Federal jurisdiction:

Have you (KF88) or anyone else taken an airline to court in AU for Montreal Convention breach's.
Or (KF88) in Canada? Or anywhere in the world?
And the judgement was? (and the invoice from the lawyer)

 

[clifford]

Have you (KF88) or anyone else taken an airline to court in AU for Montreal Convention breach's.
Or (KF88) in Canada? Or anywhere in the world?
And the judgement was? (and the invoice from the lawyer)

It's not something I would contemplate.

 

[MEL_Traveller]

Interesting… airlines say fares would rise if there was a compensation scheme, so compensation is excluded.

The two supermarkets claim the new anti-price-gouging legislation will raise prices, but that scheme proceeds: Coles and Woolworths hit back at government's price gouging ban

 

[RB001]

Interesting… airlines say fares would rise if there was a compensation scheme, so compensation is excluded.

The two supermarkets claim the new anti-price-gouging legislation will raise prices, but that scheme proceeds: Coles and Woolworths hit back at government's price gouging ban

No Chairman's Aisle at Colesworth...

 

[clifford]

Interesting… airlines say fares would rise if there was a compensation scheme, so compensation is excluded.

The two supermarkets claim the new anti-price-gouging legislation will raise prices, but that scheme proceeds: Coles and Woolworths hit back at government's price gouging ban

Of course, only rich people fly, but poor people (ie voters) shop at Coles/Woolies.

 

[kangarooflyer88]

Have you (KF88) or anyone else taken an airline to court in AU for Montreal Convention breach's.
Or (KF88) in Canada? Or anywhere in the world?
And the judgement was? (and the invoice from the lawyer)

I haven’t had a need to do that personally yet but the tools are there if required. It’s my understanding that you can represent yourself at a magistrates court and certainly at a small claims court in Canada so the legal bill would effectively be 0 although yes you’d have to spend time preparing for and arguing the case in court.

I just cannot understand why people are so hesitant about exercising these rights. I mean even if there was a passenger bill of rights there is nothing stopping the airline from denying most claims and you having to go to court to recover your rights. Now sure maybe there might be a tribunal you can contact but again that’s still time and effort required to argue your case.

-RooFlyer88

 

[MEL_Traveller]

I haven’t had a need to do that personally yet but the tools are there if required. It’s my understanding that you can represent yourself at a magistrates court and certainly at a small claims court in Canada so the legal bill would effectively be 0 although yes you’d have to spend time preparing for and arguing the case in court.

I just cannot understand why people are so hesitant about exercising these rights. I mean even if there was a passenger bill of rights there is nothing stopping the airline from denying most claims and you having to go to court to recover your rights. Now sure maybe there might be a tribunal you can contact but again that’s still time and effort required to argue your case.

-RooFlyer88

The whole reason why consumer law such as the Australian Consumer Law, EU261, and equivalents around the world exist is to provide fast and accessible access to remedies. You go through a tribunal, no lawyers, and it’s fairly straightforward in most cases. But even EU261 cases can end up in the central european court,

Yes, it would theoretically be possible to represent yourself in the Magistrate’s Court. But when the Magistrate’s court is exercising federal jurisdiction, which it would be in a case involving MC99, you have to follow Federal Court rules and procedures.

Law degrees take years for a reason. Admission to practice takes longer still. Given MC99 is an international convention, courts around the world will seek to enforce it somewhat uniformly. The average person isnt going to even know where to start researching worldwide cases on MC99. All it would take is for an airline to bring up one case, and if you’re representing yourself you could lose in that instant if you aren’t prepared with a counter argument. And have to pay substantial costs.

In your example above, you claimed that failure to book on the first available flight would be proof that not all reasonable measures had been taken. That’s a good starting point for the argument, but where is the specific case that supports that? There are also plenty of case law which would argue otherwise, and you’d need to pick your way through each of those if you’re representing yourself.

The reluctance to go down the MC99 route would be timing, costs and the uncertainty of outcome. Consumer law and tribunals are preferred because as you say, even if you lose there’s no additional monetary loss.

Canada is different to Australia.

 

[Jacques Vert]

You go through a tribunal, no lawyers,

Not in my experience. On both occasions I've been to a tribunal, the other side had a lawyer arguing their case.

 

[MEL_Traveller]

Not in my experience. On both occasions I've been to a tribunal, the other side had a lawyer arguing their case.

Sure, I guess it depends too on the particular forum and type of dispute. But for a lot of people it’s a pretty easy process, there’s no case law to prepare, and you aren’t going to be penalised for not having representation. And if you lose, there’s unlikely to be costs awarded against you.

 

[Jacques Vert]

And if you lose, there’s unlikely to be costs awarded against you.

Well in the case we took to the CTTT in NSW the commissioner advised that if we proceeded beyond a certain point the other side would be entitled to claim their legal costs. Fortunately we won and they had to pay ours.