Qantas denies ‘ghost flight’ ticket sales broke the law, despite ACCC allegations

The airline has denied it broke the law when it sold tickets on already cancelled flights for several months last year in its defence to a case brought by the consumer watchdog.

Experts have shot down claims by Qantas that it is selling customers “rights” rather than “flights” in its defence of allegations the airline sold tickets on more than 8000 ­already cancelled services.

The Australian Competition & Consumer Commission has brought the case against Qantas after collecting evidence the airline failed to immediately remove cancelled flights from its booking site.

In some cases over several months last year, tickets continued to be sold on flights for up to 47 days after they were cancelled.

Qantas filed its defence in the Federal Court on Monday, ­accusing 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 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 suggested 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.

Aviation lawyer John Dawson said Qantas’s defence appeared at best, “technical”.

He said flights often had to be cancelled or rescheduled for unavoidable reasons but that was not the issue in this case.

“The issue is that the airline apparently continued to advertise cancelled flights as being available and indeed sold tickets for the cancelled flights. They had an obligation to tell their customers,” said Mr Dawson, a partner at ­Vector Legal.

“That they didn’t do so suggests that Qantas did not want any slippage of their passengers to another airline when they learned their first choice of flight was not available.”

He said what occurred had eroded trust in the airline, due to the fact customers were misled.  By way of explanation for ­allowing customers to book flights that were no longer available, Qantas said it was trying to buy time for staff to make alternative arrangements or avoid a blowout in call-centre waiting times.

In some cases, “human error” was to blame, Qantas said.

Adam Glezer from Consumer Champion said he was sure customers would be surprised to learn Qantas was not selling flights but a bundle of contractual rights.

He said the explanations provided by the airline were unlikely to wash with customers, but rather breed more distrust.

“Qantas selling tickets to flights that were already cancelled is simply inexcusable, but rather than just apologise, they’re trying to justify it by saying ‘our terms and conditions’ allow this to happen,” Mr Glezer said.

“I find it mind-boggling they even think this is defensible. And if those terms and conditions are legal in Australia, then that’s something else that has to be seriously looked at.”

Mr Glezer said the suggestion Qantas was selling “rights” rather than “flights” was even more ridiculous. “The whole thing beggars ­belief. Is Qantas an airline or a law firm?” he said.

Qantas denied any customer was left out of pocket from the sale of tickets on cancelled flights, ­insisting no one paid a fee for no service.

The ACCC is looking to hear from consumers who were caught up in the “ghost flights” debacle in the period from May 1 to July 31, 2022.

An ACCC spokeswoman said they would encourage affected consumers to fill out the online survey on their website, before November 30.

Commission chair Gina Cass-Gottlieb previously indicated she wanted a penalty in the vicinity of $250m against Qantas, to act as a deterrent to others.

A hearing in the matter was set down for November 8 before judge Helen Rofe.

A few days after the ACCC filed the lawsuit, then Qantas chief executive Alan Joyce announced he was bringing forward his retirement by two months to help accelerate the process of renewal at the airline. The move elevated chief ­financial officer Vanessa Hudson into the top position where she has adopted a more conciliatory style than her predecessor with regards to the ACCC.