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Qantas tells court it does not guarantee flight times, rejects ACCC claims

Claims that Qantas sold tickets to cancelled flights have been aired in the Federal Court for the first time.

user iconNaomi Neilson 09 November 2023 Big Law
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The Australian Competition and Consumer Commission (ACCC) is pursuing allegations the major airline engaged in “false, misleading or deceptive conduct” by selling tickets to cancelled flights and failing to inform ticketholders if a flight was no longer available.

The alleged misconduct “likely affected the travel plans of tens of thousands of people”, ACCC chair Gina Cass-Gottlieb said.

Christopher Caleo KC, counsel for ACCC, told the court the regulator and Qantas had reached an agreement on proposed orders and are now “hopeful of significant agreement on key aspects of the facts”.


However, Mr Caleo added there was some concern Qantas failed to “respond to key allegations of misconduct” and suggested the order for further and better particulars could address this concern.

Although he did not have a submission concerning proposed orders, Robert Yezerski SC, counsel for Qantas, said the airline “rejects this idea” and the matters of concern to the ACCC are “relatively clear from the concise response” filed with the court.

In Qantas’ concise statement, the airline argues flight cancellations are “an accepted and unavoidable aspect” and “ordinary and reasonable consumers can be taken to understand this, and particularly so during and after the COVID-19 pandemic”.

Further, the airline argued Qantas has not expressly guaranteed flight times or schedules and, at the time of the allegations, had made this clear to all its booking customers.

“Having regard to Qantas’ express disclosures, ordinary and reasonable consumers understood that Qantas did not guarantee flight times or its published schedule, and made no representation, at any time, that any ‘particular flight’ had not been cancelled,” the concise statement, prepared in part by Mr Yezerski, set out.

In the concise statement prepared by Mr Caleo, it was alleged customers may have made a decision to purchase flights from Qantas “based on false and misleading information”.

“As a result of such decisions, some Qantas customers may have suffered loss in that they have made travel or other arrangements based upon expected flight schedules.

“Some consumers may also have paid a higher fare to fly at a particular chosen time, and may not have done so, or may have sought to travel at a different time or date or with an alternative airline, if they had been aware that the flight they were paying for was already cancelled,” ACCC alleged in the statement.

Justice Mary Rofe scheduled the matter to return in late February.

Neither party were prepared to settle on a date for the hearing, indicating it would be too “premature”.

Qantas has appeared in a number of Australia’s highest courts several times over the last few months, with the ACCC proceedings the latest in a long line of misconduct allegations.

In September, the full court of the High Court of Australia dismissed Qantas’ appeal of a Federal Court finding that it breached the Fair Work Act by illegally firing 1,700 ground staff at the end of 2020.

Qantas is still awaiting a decision in alleged unfair dismissal proceedings brought by SafeWork in the NSW District Court.

Late last week, following the District Court’s decision it would need to delay the verdict, Transport Workers Union national secretary Michael Kaine said the major airline has shown itself to be the “greatest corporate bullies in Australian history”.

More to come.

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