Globaliser

Why not?

"Non-refundable" and "non-changeable" mean "non-refundable at the instance of the passenger" and "non-changeable at the instance of the passenger".

Neither has the necessary consequence that the ticket is "non-refundable at the instance of the airline" or "non-changeable at the instance of the airline", and so there is no reason why the overbooking rules need be displaced.

Of course, the overbooking rules might be displaced or modified by legislation, as they have (for example) been in the EU.Perhaps because they're expressly incorporated as the terms of the contract with the airline.

But then, given the number of people today who think that compliance with contractual terms is optional if it's inconvenient to them ...

LHR/MEL/Europe FF

Appreciate the situation may be different in the UK (most of the UK ticket cases I can find tend to deal with exclusion clauses rather than contract formation)... however the law in Australia is that as stated by the High Court in MacRobertson Miller Airline Services v Commissioner of State taxation (WA) (1975) 133 CLR 125 which states that for ticket cases, the ticket only represents an offer made to the passenger, which the passenger accepts by presenting themselves for travel. no contract is formed by the purchase of the ticket.

The UK cases are important because they deal with purported exclusion clauses, and notice that needs to be brought if an exclusion is onerous.

Conditions stated in matters such as airline tickets should never be assumed to be binding because they may in fact contravene the law. It may well be that if someone finds a clause inconvenient that the law agrees with them (of course it may not too).

Globaliser

It can be a bit dangerous to cite an old authority for a sweeping proposition that does not seem to accord with the conclusion one would reach on first principles.

I think it might be interesting to have a look at some more recent cases:

• Gulf Air Company GSC v Fattouh [2008] NSWCA 225 (24 September 2008)
• Air Tahiti Nui Pty Limited v McKenzie [2009] NSWCA 429 (21 December 2009)
• Qantas Airways Limited v Commissioner of Taxation [2011] FCAFC 113 (1 September 2011)

I haven't read them in detail, but a quick skim of them suggests that the courts are now generally regarding MacRobertson Miller as bonkers. Well, maybe that's being unkind; MacRobertson Miller looks like it was an ingenious way for the High Court to cut airline tickets out of the then stamp duty regime, but it is not an appropriate approach to the analysis of airline tickets today, even in Australia. And so the courts today are doing everything that they can to marginalise and confine the operation of MacRobertson Miller, which they are (IMHO rightly) regarding as a rather odd case.

In particular, I refer again to the disadvantage to today's passenger if the passenger's rights under the conditions of carriage were not contractually enforceable by the passenger at any time before he turns up to check in for the flight - including the rights in relation to refunds, rebooking etc.

LHR/MEL/Europe FF

thanks ^ i will go and read those. I'm obviously a bit rusty (although to my defense those are recent and as lower courts still not a change by the High Court on MacRobertson...).

But i now have some reading!

LHR/MEL/Europe FF

I too have just skimmed those, but interesting to note the following:

On appeal, Qantas argued that the Tribunal had erred in finding that an enforceable undertaking existed at the time of making a reservation and booking.

If you don't have an enforceable undertaking what do you have?

as reported at: http://www.charteredaccountants.com....-011-FCAFC-113

rbwpi

If you knew what the responses would be, then why post? I agree that posters on this board are predictable, the vast majority are logical and rational in their comments.

Globaliser

Quite!

But that Qantas case has to be read quite carefully, because the issue was whether there had been any taxable supply in the posited situation. I'm not sure that the court accepted that Qantas argument in reaching its conclusion in Qantas' favour. The interest in the reasoning, so far as the present discussion is concerned, was the apparent ready acceptance that there was a contract between the airline and the passenger before the passenger checked in (in fact, the posited situation was specifically one where the passenger did not check in), and the relative ease with which MacRobertson Miller was sidelined even though - as you rightly say - it technically remains binding High Court authority.

I'm reminded of the old lawyers' joke about how bad cases become "very distinguished" over time ...

ButFli

You might want to start reading cases in detail, then. Air Tahiti and Qantas both say that Macrobertson Miller is not relevant to the questions of law to be decided in those cases. Gulf Air says Macrobertson Miller doesn't usurp provisions of the Warsaw Convention. In Gulf Air, Allsop P specifically says his decision is not intended to cast doubt on Macrobertson Miller.

I think you're drawing a very long bow if you're claiming those cases in any way overturn Macrobertson Miller. Just sayin.

Globaliser

They don't. They can't.

Rather, MacRobertson Miller is being sidelined as part of the process of turning it into a bit of ancient legal history that has no relevance to the modern world, using very common lower court judicial techniques to do so.

If, as you suggest, MacRobertson Miller remains of wide general application today, none of those courts could have proceeded on the basis (as they did) that a contract exists before the passenger arrives to check in for their flight. But these courts clearly all think that the existence of a contract before the passenger arrives to check-in is the correct current analysis of airline transport, and that this conclusion can be reached without having to disturb MacRobertson Miller, which they all (rightly) think is an odd decision.

willyroo

[mod hat]

All done bar the High Court case.

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