Qantas takes clumsy step towards settlement
The ACCC’s claim against Qantas over ghost flights is a simple case of consumer law, which is bad news for Qantas.
Competition lawyers who spoke to The Australian Financial Review on background, because of potential conflicts, explained the case was about conduct “that is misleading or likely to mislead”.
That phrase is contained in multiple sections of the Australian Consumer Law and the courts have been clear on its meaning – it’s about what the customer believes he or she is buying rather than what the airline thinks it is selling.
The ACCC is seeking a record penalty against the airline for misleading conduct. Oscar Colman
It means that being unaware the flight selected had been cancelled – if that was the case – would be irrelevant to whether Qantas intended to mislead or not.
One competition law expert said it might be a different story if the consumer accepted there was always a risk the flight time might change.
But he warned: “I don’t know if many consumers would understand that may be the position.”
Qantas has insisted the ticket buys only a “bundle of rights”, rather than a ticket to a specific flight.
It will argue it didn’t promise a flight would necessarily operate at the advertised date and time, and that consumers should have appreciated the risks. Like having to go through the inconvenience and expense of making other travel arrangements.
“But this is a misleading conduct case,” said the lawyer. “So, the real question is what the class of persons who booked the flights would have understood the Qantas representations to mean.”
Qantas is also resisting any suggestion it collected a “fee for no service” – because customers were put on other flights as close as possible to their original time, or offered a
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