ACCC set to battle Qantas in court, regulator boss Gina Cass-Gottlieb says

Competition boss Gina Cass-Gottlieb indicates there are no plans to settle against Qantas and will fight it out in court over the airline’s 8000 ‘ghost flight’ cancelled seats.

Australian Competition & Consumer Commission chair Gina Cass-Gottlieb has doubled down on the regulator’s ‘ghost flight’ case against Qantas, indicating that she is set on fighting it out with the group in the full view of open court rather than negotiate a closed-door settlement.

Speaking to the 2023 Economic and Social Outlook Conference, Ms Cass-Gottlieb also refuted the key claim made in Qantas’s defence filed in the Federal Court on Monday that it was selling customers “rights” rather than “flights” in relation to allegations the airline sold tickets on more than 8000 ­already cancelled services.

The scandal around the so-called ‘ghost flights’ that Qantas sold to customers but then cancelled, leaving thousands of passengers stranded and scurrying to find new connections around Australia and sometimes overseas, is now the subject of ACCC action in the Federal Court.

Speaking at the conference, she showed no signs of leaning towards doing a deal before the matter comes to court.

“We are pursuing this matter in court, we took it in a defined and strong way, and we will continue to proceed,” she said on Thursday.

“One of the aspects we are trying to achieve through this action and through other actions … is that consumers are entitled to be delivered the services in accordance with the terms that are represented to them. And we think this sets, importantly, high standards of customer service in order to enable informed consumers to make decisions in their personal interest and in their economic interest.”

ACCC chair Gina Cass-Gottlieb has downplayed the chance of reaching a deal with Qantas, instead reading for a court battle. Picture: Gary Ramage/NCA NewsWire

Outside of the conference, she told The Australian she was prepared to go to court on this matter against Qantas.

“Yes, absolutely we are, absolutely, and we are taking all the steps in accordance with court procedure. Getting the outcome that reflects the conduct is very important,” Ms Cass-Gottlieb said.

In September Ms Cass-Gottlieb said she wanted Qantas to face a fine of over $250m if the ACCC case against the airline – for allegedly selling tickets for 8000 cancelled flights – succeeded.

The regulator considered Qantas’s behaviour and actions a breach of consumer law by the after it was discovered that thousands of “ghost flights” were cancelled over a period of three months in 2022. The ACCC had began looking at these flight cancellations after receiving more than 2600 complaints about Qantas, half of which related to that issue and the scandal eventually led to the early departure of long-serving Qantas chief executive Alan Joyce who left days after the ACCC case was announced.

In its defence documents on Monday Qantas defended its position and the manner in which it sold the tickets, and accused the ACCC of the misguided belief that the service Qantas supplied was a particular flight.

“To the contrary, the service Qantas relevantly offers is a bundle of contractual rights which are consistent with Qantas’ promise to do its best to get consumers where they want to be on time,” the Qantas defence said. “That bundle of rights includes alternative options to which consumers become entitled in respect of cancelled flights but does not include any promise to provide a ‘particular flight’ or to operate to a particular schedule.”

Qantas argued the ACCC was ignoring a fundamental reality of the aviation industry – that airlines could not guarantee specific flight times – which was spelt out in their terms and conditions.

Ms Cass-Gottlieb said Thursday the ACCC case did not involve an alleged breach in relation to the actual decision about cancellation or whether Qantas had the contractual capacity to do so in the fine print that comes along with an airline ticket.

“What our allegations relate to and our case relates to is the representations that Qantas made to customers in the sale of the tickets and its conduct after it had cancelled the flights in view of those representations.

“This includes by advertising the sale tickets for more than 8000 flights that it had already decided to cancel and had not removed from sale, and by failing to notify existing ticket holders on more than 10,000 flights that their flights have been cancelled for an average of over two weeks and in some cases for up to 48 days. Which impedes consumers’ ability to obtain alternative flights at the time that they chose and needed to fly and also to pay more for obtaining the opportunity to fly.”

Also in her speech, Ms Cass-Gottlieb referred to the ACCC second interim report on its child care inquiry, saying market dynamics were encouraging more supply in socio-economically advantaged areas and major cities, but remote communities and locations with a higher proportion of lower income households had fewer childcare services and were relatively under-served.

“We have made draft recommendations to re-examine policy settings, and are now seeking and receiving very significant across the whole sector and the across community submissions and feedback from childcare providers, educators, families and interested community organisations.”