Federal Court of Australia

Haverkort v Qantas Airways Limited [2025] FCA 1147

ORDERS

THE COURT ORDERS THAT:

Notice and Opt Out

1.    Pursuant to s 33X of the Federal Court of Australia Act 1976 (Cth) (the Act), notice be given to group members (as defined in paragraph 1 of the further amended statement of claim filed on 14 February 2024 (FASOC)) (Group Members), and according to and subject to the procedure set out in paragraph 8 below, of their right to opt out of the proceeding.

2.    Pursuant to ss 33J and 33ZF of the Act, the date and time by which a Group Member may opt out of the proceeding be fixed at 4.00 pm (AEST) on 24 April 2026 (Opt Out Deadline).

3.    Pursuant to ss 33X and 33Y of the Act, the form and content of the opt out notice referred to in paragraph 1 (the Notice), set out in Annexure A to these orders, be approved.

4.    Pursuant to s 33J of the Act, any Group Member who wishes to opt out of this proceeding must, before the Opt Out Deadline:

(a)    deliver a Notice in the form of Annexure B to these orders (the Opt Out Form) to the Victoria District Registry of the Court; or

(b)    be named, with their permission, in an Opt Out Form returned to the Victoria District Registry of the Court by another purchaser or passenger on the same Booking(s) (as defined in paragraph 8(a) below) as that Group Member.

5.    The Notice may be amended by the solicitors for the Applicant before it is published in order to correct any typographical error, or to correct the postal address, website, email address or telephone number relevant to opt out or enquiries, where such amendments are agreed by the Respondent.

6.    If, on or before the Opt Out Deadline, either party to the proceeding or their solicitors receive a notice purporting to be an opt out notice referable to this proceeding, the solicitors file the notice with the Victoria District Registry of this Court within 14 days after the Opt Out Deadline, and the notice shall be treated as an opt out notice received by the Court at the time it was received by either party to the proceeding or their solicitors.

7.    The solicitors for the parties have leave to inspect the Court file and to copy and uplift any Opt Out Form filed by Group Members.

Opt Out Distribution

8.    Pursuant to ss 33Y and 33ZF of the Act:

(a)    By 31 October 2025, the Respondent prepare a schedule (Schedule) containing, according to the Respondent’s records, and only to the extent that such information is reasonably available and/or ascertainable by the Respondent, in respect of all bookings for domestic or international flights that were scheduled to depart during the Relevant Period (as defined in paragraph 1 of the FASOC) but were cancelled by Qantas (Cancelled Flight), where a flight credit was recorded in respect of the Cancelled Flight (Bookings):

(i)    contact details comprising:

A.    the name, email address(es) and mobile phone number(s) of the primary contact in respect of each Booking;

B.    in respect of Bookings made under a corporate airfares agreement with the Respondent, the name and email address(es) of the nominated corporate account contact for the corresponding corporate airfares agreement in respect of each Booking;

(ii)    the booking reference(s); and

(iii)    the flight cancellation date(s).

(b)    By 3 November 2025, the Respondent send a letter to the solicitors for the Applicant confirming the number of Bookings and the number of unique contact details contained within the Schedule, but not the details of those Bookings and unique contact details.

(c)    By 21 November 2025, the parties confer and agree upon a Distribution Protocol for the distribution of the Notice to Group Members identifying:

(i)    a third-party distribution agent (the Distribution Agent);

(ii)    an enquiries telephone hotline for enquiries responsive to the Notice;

(iii)    a ‘no reply’ email address from which the Notice shall be sent;

(iv)    the formatting of the Notice email, which will be sent with the subject “Flight Credits Class Action against Qantas - Notice to Class Members” and with body text comprising the Notice text at Annexure A formatted so as to include a Federal Court of Australia seal;

(v)    the URL where an online version of the Notice is hosted by the Applicant pursuant to sub-paragraph (g) below, which may be sent by SMS to Group Members; and

(vi)    the dates and times, within ordinary business hours, that the Notice will be sent.

(d)    By 28 November 2025, the Respondent provide, or cause to be provided, the Schedule, on a confidential basis, which expressly excludes disclosure to the Applicant, Echo Law or any other third party, to the Distribution Agent specified in the Distribution Protocol, with such Distribution Agent to provide an undertaking to the Respondent to comply with applicable privacy laws in a form agreed between the Respondent and the Distribution Agent.

(e)    Between 28 January 2026 and 27 February 2026, the Applicant cause the Distribution Agent to distribute the Notice to Group Members in accordance with the Distribution Protocol, including by using the following methodology:

(i)    where an email address is available in the Schedule, by sending the Notice by email in accordance with the Distribution Protocol; and

(ii)    where a mobile phone number is available in the Schedule, by sending an SMS in accordance with the Distribution Protocol with the following text:

You are receiving this message because you may be a group member in the flight credits class action against Qantas. A more detailed notice about this class action, including your rights to opt out, is at [LINK]. You can find more information by searching ‘Flight Credits Class Action against Qantas’ online.

(f)    By 3 April 2026, the Applicant cause the Distribution Agent to prepare a list which indicates, for each of the persons identified in the Schedule, the email address used to send the Notice to that person and/or the mobile phone number to which an SMS was sent. If the Distribution Agent has not been able to deliver the Notice by email, then the Distribution Agent shall record an “Ultimate Delivery Failure” in respect of the relevant person.

(g)    The Applicant cause the Notice to be displayed on the website of the Applicant’s solicitors from 28 January 2026 until the Opt Out Deadline.

(h)    The Respondent cause a link to the Notice to be prominently displayed on the “Travel Credits” page within its website from 28 January 2026 until the Opt Out Deadline.

(i)    The Applicant cause the solicitors for the Applicant to distribute the Notice by email to each person who has provided contact details to the solicitors for the Applicant for the purpose of registering for this proceeding.

(j)    The District Registrar of the Victoria District Registry of the Court cause the Notice to be posted on the Federal Court website and available for inspection at the District Registry of the Court in Adelaide, Brisbane, Canberra, Darwin, Hobart, Melbourne, Perth and Sydney.

9.    The costs of the Distribution Agent referred to in paragraph 8 be paid in the first instance by the Applicant, on the basis that those costs together with such costs as are reasonably necessary to be incurred so as to ensure that the Applicant’s solicitors attend to queries and communications from Group Members in relation to the Notice in a timely and expeditious manner will be costs in the proceeding or as otherwise agreed by the parties.

Expert evidence - economics and/or forensic accounting

10.    Pursuant to paragraph 10 of the orders made on 7 August 2025, the questions in Annexure C to these orders (being questions to be asked of the experts with specialty in the disciplines of economics and/or forensic accounting) be approved.

Other

11.    Costs be reserved.

12.    There be liberty to apply.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

ANNEXURE A

Dear ,

Flight Credits Class Action against Qantas – Federal Court of Australia Notice – Proceeding No. 650 of 2023

The purpose of this notice is to inform you of a class action that has been commenced in the Federal Court of Australia against Qantas Airways Limited (Qantas). The class action relates to flight credits issued by Qantas to customers for flights that were scheduled to depart between 1 January 2020 and 1 November 2022 but were cancelled by Qantas (Cancelled Flights).

The class action alleges that:

•    Qantas breached its legal obligations by failing to provide customers with refunds for cancelled flights within a reasonable time and instead issuing flight credits;

•    Qantas misled customers, engaged in unconscionable conduct and breached the Australian Consumer Law; and

•    Qantas unlawfully benefited from this practice.

Qantas denies these allegations and is defending the class action.

The class action is seeking monetary compensation for all Qantas customers adversely affected by Qantas’ alleged conduct. This includes customers who have since used the flight credit they were issued, or who have subsequently obtained a refund. These people remain in the class action and compensation is being sought on their behalf.

The Federal Court of Australia has ordered that this notice be published for the information of persons who may be group members in this class action. This is a Court-approved notice that is separate to, and not a part of, Qantas’ usual communications to its customers.

You should read this notice carefully as it concerns your rights. If there is anything in it that you do not understand you should seek your own legal advice.

You can find further information about the class action:

•    on the website of the solicitors’ conducting this class action, at [LINK];

•    by searching online for the ‘Qantas Flight Credits Class Action’.

You can also confirm the legitimacy of this notice by viewing a copy of it on:

•    Qantas’ website, at [LINK];

•    The Federal Court of Australia’s website, at [LINK].

1.    Why am I receiving this notice?

You are receiving this notice because Qantas’ records show that you are a contact person for a booking (or bookings) on a Cancelled Flight and a flight credit was recorded for that Cancelled Flight. As referred to above, a Cancelled Flight is a domestic or international Qantas flight that was scheduled to depart between 1 January 2020 and 1 November 2022 but was cancelled by Qantas.

You may be one or more of the following categories of contact persons for a booking or bookings on a Cancelled Flight:

1.    the primary point of contact who was nominated to receive communications regarding the booking (a Nominated Contact Person);

2.    an authorised travel agent of Qantas, where you made a booking on behalf of a customer(s); and / or the contact person for a Corporate Airfares Account with Qantas.

As a Nominated Contact Person in respect of a booking for a Cancelled Flight, you may be:

1.    a group member in this class action; and / or alternatively,

2.    the primary point of contact for one or more purchasers or passengers who are group member(s) in the class action.

As the Nominated Contact Person for these bookings, you are encouraged to provide a copy of this notice to the passengers and/or purchasers so that they can consider their options which are set out below. You should contact [insert class action hotline] if you need information about the class action.

2.    What do I have to do?

If you are a Group Member, you have two options which are set out in detail below:

3.    Am I a Group Member in this class action?

You are a Group Member in this class action if:

1.    you purchased for yourself or another person, or had purchased on your behalf, a ticket on a Qantas flight (domestic or international) that was scheduled to depart between 1 January 2020 and 1 November 2022; and

2.    that flight was cancelled by Qantas; and

3.    you have suffered loss or damage by reason of Qantas’ conduct as alleged in the class action, or Qantas was unjustly enriched at your expense. Most commonly, this criteria is satisfied where a flight credit was issued by Qantas rather than an automatic refund or rebooking.

Even if you have used the flight credit you were issued, or you have subsequently obtained a refund, you remain a Group Member and are eligible to benefit from any court ordered damages award or settlement that may be agreed (subject to the terms of that damages award or settlement).

4.    What will happen if I remain a Group Member?

You do not have to pay any out of pocket legal costs yourself to participate in the class action.

If the class action is successful, then you may be entitled to share in the benefit of any order, judgment or settlement in favour of the Applicant and Group Members. However, you may have to satisfy certain conditions before your entitlement arises.

The upfront costs of the class action are being paid in the first instance by litigation funders. In the event of a successful outcome:

1.    the Applicant will seek the Court’s approval for the costs of the class action paid by the litigation funders to be reimbursed from the amount recovered whether by way of settlement, or court ordered damages (the Resolution Sum); and

2.    the litigation funders of this class action will also seek the Court’s approval to be remunerated for having paid the costs of the class action and for having agreed to pay any adverse costs orders or security for costs ordered against the Applicant, in an amount that does not exceed 25% of the Resolution Sum (excluding any amounts paid by way of outstanding refunds as part of the settlement or Court award).

The total amounts deducted from the Resolution Sum for legal costs and the funders’ remuneration will not exceed more than 50% of any amount that Group Members are entitled to in the event of a successful outcome.

If the class action is unsuccessful, Group Members will have no legal or financial liability and will not have to pay anything.

If the action is unsuccessful or is not as successful as you might have wished, and you have not completed the opt out form below, you will be bound by the outcome, will not be able to pursue the same claims and may not be able to pursue related claims against Qantas in other legal proceedings.

5.    What if I want to seek a refund from Qantas directly?

On 31 August 2023, Qantas announced that all COVID Credits would be refundable without expiry. You should contact Qantas Customer Service or your travel agent to obtain a refund of your COVID Credit if you have not already done so. Obtaining a refund does not impact your rights as a Group Member in the class action.

This class action will not impact Qantas’ usual activities in respect of its customers or processing refund requests.

Qantas cannot, however, speak to you about the class action and you should not contact Qantas if you are seeking further information about this class action.

Even if you now obtain a refund, you will remain a part of the class action and may be eligible to benefit from any court ordered damages award or settlement that may be agreed (subject to the terms of that damages award or settlement).

6.    Where can I get more information about the class action or obtain copies of relevant documents?

The solicitors running the case are Echo Law and Piper Alderman.

If you are unsure whether you are a Group Member or would like more information, you can find more information about the class action on the website of the Applicant’s solicitors, Echo Law, at [LINK]. The website includes copies of the Court documents setting out the claim that you can check, and answers to a number of frequently asked questions. Alternatively, you can seek your own legal advice or call [HOTLINE NUMBER].

ANNEXURE B

Form 21 Rule 9.34

OPT OUT FORM

No. VID650/2023

Federal Court of Australia

District Registry: Victoria Registry

Division: General

MARIANNE HAVERKORT

Applicant

QANTAS AIRWAYS LIMITED (ACN 009 661 901)

Respondent

________________________________(print name of Group Member), a Group Member in this class action, gives notice under section 33J of the Federal Court of Australia Act 1976 (Cth), that I am opting out of the class action on behalf of myself and any persons named in the schedule below.

Date: ……………………..

Signature: …………………………

Group Member/ solicitor or representative for the Group Member (circle as applicable)

Please complete the information on the following page

**PLEASE ALSO COMPLETE CONTACT DETAILS OVER THE PAGE**

ANNEXURE C

Questions for expert witnesses with specialty in the disciplines of economics and/or forensic accounting

Group Members in this proceeding purchased and/or were passengers on Qantas flights scheduled to depart between 1 January 2020 and 1 November 2022. Those flights were cancelled by Qantas prior to departure.

Qantas implemented a flight credit program under which passengers whose flights were cancelled were provided flight credits by Qantas (Flight Credits) and not refunds of the money paid. The Flight Credits could be used in order to book future Qantas flights and the face value of the credit generally corresponded with the price paid for the original booking. The contractual terms, and constraints on the use, of the Flight Credits changed over time.

The Applicant’s case is that Qantas should have refunded her and the Sample Group Members for their cancelled flights upon cancellation of those flights, rather than issuing Flight Credits.

The questions are:

1.    What amount (if any) would compensate each of the Applicant and the Sample Group Members for being held out of the money paid to Qantas for their Cancelled Flights?

2.    Was there a difference between the value of a refund for a cancelled flight and the value of a Flight Credit during the period from 1 January 2020 until the present?

3.    If the answer to question 2 is “yes”, what was that difference or what were the differences?

4.    Does the answer to question 2 or 3 depend on the relevant contractual terms of the Flight Credits as in force at different times during the period from 1 January 2020 until the present (including Qantas’s removal of applicable expiry dates from 31 August 2023)?

5.    By what amount (if any) was Qantas enriched by the use of the money paid by each of the applicant and the Sample Group Members to Qantas for their Cancelled Flights:

(a)    since the date the money was paid to purchase the flights; or

(b)    alternatively, since the date of the cancellation of the flights?

REASONS FOR JUDGMENT

MOSHINSKY J:

Introduction

1    These reasons deal with two issues relevant to this representative proceeding:

(a)    the form of the opt out notice and associated orders; and

(b)    the form of questions for expert witnesses relating to economics and/or forensic accounting.

2    These issues were the subject of submissions at a case management hearing on 4 September 2025. Subsequently, in emails from my chambers to the parties dated 9 September 2025 and 10 September 2025, I indicated my decisions on the key issues that had been discussed at the case management hearing, and noted that reasons would follow later. I also provided proposed wording for the opt out notice and associated orders and the questions for the expert witnesses, and gave the parties the opportunity to make brief written submissions on the proposed wording. The parties subsequently provided brief submissions.

3    I now provide my reasons in relation to the key issues discussed at the case management hearing and in relation to the issues of wording.

Opt out notice and associated orders

4    In relation to the opt out notice and associated orders, the parties’ written submissions (filed in advance of the case management hearing on 4 September 2025) flagged the following main issues:

(a)    whether the email address from which the opt out notices are sent should end with “qantas.com”;

(b)    whether the opt out notice should be displayed on Qantas’s website;

(c)    issues relating to the mechanisms for distribution and responding to queries;

(d)    whether personal details of group members (such as the booking reference, the date of the cancelled flight, and whether a credit is outstanding) should be included in the opt out notice; and

(e)    whether the opt out notice should include confirmation of permission to opt out on behalf of another person.

5    In relation to (b) above, the issue was resolved at the hearing. Qantas stated in its written submissions that it agreed to display a link to a copy of the opt out notice on the Travel Credits page on the Qantas.com website, for the purposes of enabling recipients to check the legitimacy of the communication they receive. At the hearing, the applicant indicated that she was content with that proposal. This will be reflected in the orders to be made.

6    In relation to (c) above, the parties indicated at the hearing that they were content to defer this issue, to allow time for further conferral between the parties. Accordingly, it is unnecessary for me to deal with the issue at this stage. The issues still to be determined include whether the proposed hotline will be conducted by the distribution agent, the applicant’s solicitors or a third party.

7    In relation to (e) above, there does not appear to be any real issue between the parties. I note that the opt out form proposed by each party is relevantly the same as regards permission to opt out. Accordingly, I do not consider it necessary to deal with this issue.

8    I will now deal with the remaining issues, namely (a) and (d) above.

Issue (a)

9    Issue (a) is whether the email address from which the opt out notices are sent should end with “qantas.com”, which is an email address used by and associated with Qantas. The applicant contends that the opt out notices should be sent from an email address ending “qantas.com” to allay concern as to whether the email is genuine. Qantas submits that it is inappropriate and potentially confusing for such an email address to be used. Qantas proposes that an email address associated with the distribution agent be used.

10    In my view, for the following reasons, it is not appropriate to order that an email address ending “qantas.com” be used for sending the opt out notices to group members.

11    First, the opt out notice is not a communication from Qantas. Sending the email from Qantas’s email address may give an incorrect or misleading impression that Qantas is the sender of the communication.

12    Secondly, I consider that there is a risk of confusion if an email address ending “qantas.com” is used. This is because the notice will appear without Qantas branding and therefore will be inconsistent with other emails that group members receive from Qantas. This may create concern in the minds of group members who receive the email.

13    Thirdly, using an email address ending “qantas.com” increases the risk of Qantas being contacted with queries from group members about the proceeding, in circumstances where such queries should be directed elsewhere (in particular, to the hotline or the applicant’s solicitors).

Issue (d)

14    Issue (d) is whether personal details of group members (such as the booking reference(s) and the date(s) of the cancelled flight(s)) should be included in the opt out notice. The applicant contends that such details should be included. Qantas opposes the inclusion of such details.

15    In my view, for the reasons that follow, the personal details of group members referred to above should not be included in the opt out notice.

16    First, I consider that some group members would be concerned to see this information (which is personal and confidential) in the opt out notice, in circumstances where many would be unlikely to be aware of the existence of the class action. Similar observations were made recently by Neskovcin J in Bain v International Capital Markets Pty Ltd (No 4) [2025] FCA 1060 at [23].

17    Secondly, insofar as the applicant submits that inclusion of the personalised information will reduce the risk of group members thinking the email is a “scam”, I am not satisfied that it will achieve that objective. Given a recent cyber incident relating to Qantas (referred to in the affidavit material), it may be that including this information will heighten the risk of group members thinking the email is not genuine.

18    Thirdly, it is doubtful that many group members will feel they need this level of detail to make a decision whether or not to opt out of the proceeding.

Wording of opt out notice and associated orders

19    Apart from the issues discussed above, there were a number of differences between the wording proposed by the applicant and the wording proposed by Qantas. As noted above, following the case management hearing, the parties were provided with my proposed wording and given the opportunity to make submissions on the proposed wording. The following is a brief explanation of the wording that I have adopted, having considered the parties’ further submissions.

20    In relation to the orders, I have largely modelled these on the applicant’s draft. I have deleted paragraph 8(a)(iv) of that draft (whether or not there is unused credit outstanding) as this information is likely to change from time to time and therefore be out of date very soon. In paragraph 8(c)(vi) (the date and times when the notice is to be sent), I have deleted “in the lead up to the deadline in (d) below” as it is unclear which deadline is referred to, and the words are probably unnecessary in any event. Paragraph 8(h) (display of the opt out notice on Qantas’s website) has been adjusted to reflect the agreed position that there will be a link to the notice on a particular page of the Qantas website.

21    In relation to paragraph 8(a), I do not consider it necessary to insert the words proposed by Qantas (“for the purposes of answering group member queries …”) as it will be apparent from the form of the opt out notice that personalised information is not to be included in the opt out notice. In relation to paragraph 8(c)(iii), I do not consider it necessary to include the words proposed by Qantas (“which email address will contain …”) as this is a matter that can be discussed and determined between the parties.

22    In relation to the opt out notice (set out in Annexure A to the orders), this is largely modelled on the applicant’s draft, with the following changes. In relation to the section “1. Why am I receiving this notice”, I have adopted Qantas’s wording, as it appears to be more precise and tailored to the various alternative scenarios. In relation to the section headed “Option 2”, I have adopted Qantas’s wording for the second and third bullet points for the same reasons. In section 5, the first sentence has been bolded as suggested by Qantas. Also, in the same section, in the fourth paragraph, I have changed “are eligible” to “may be eligible” so as not to give a possibly inaccurate impression to recipients of the notice.

23    Two issues about wording emerged in the parties’ supplementary submissions. I will deal with these in turn.

24    First, the applicant proposed an amendment to the wording of paragraph 8(d) of the proposed orders that had been provided by email from my chambers, such that group members’ contact and booking details could be provided (on a confidential basis) to the applicant’s solicitors and any agreed third party. Alternatively, an amendment was proposed to a paragraph of the proposed opt out notice (the italicised paragraph immediately before heading “2. What do I have to do?”) to remove a statement to the effect that the hotline can provide information about details of bookings. I do not consider it appropriate, at least at this stage, to adopt the applicant’s proposed amendment to the wording of paragraph 8(d). The information about booking references and cancelled flights is confidential to group members and it is not clear that it is necessary for the applicant’s solicitors (or an agreed third party) to have access to this information. This matter can be revisited, if necessary, once the distribution protocol has been agreed. It may be that, depending on the terms of the protocol, it is necessary for the applicant’s solicitors or a third party to have access to the Schedule.

25    I consider the applicant’s alternative proposal to be acceptable. That is, I will amend the relevant paragraph of the proposed opt out notice to remove the statement to the effect that the hotline can provide information about the details of bookings. It is prudent to make this amendment as it is not clear at this stage whether this information will be available through the hotline.

26    Second, Qantas proposed an amendment to the wording of the proposed opt out notice. The amendment was to the section headed “3. Am I a Group Member in this class action?”. The proposed wording of that section in the email from my chambers to the parties was:

3.    Am I a Group Member in this class action?

You are a Group Member in this class action if:

1.    you purchased for yourself or another person, or had purchased on your behalf, a ticket on a Qantas flight (domestic or international) that was scheduled to depart between 1 January 2020 and 1 November 2022; and

2.    that flight was cancelled by Qantas; and

3.    you have suffered loss or damage by reason of Qantas’s conduct as alleged in the class action, or Qantas was unjustly enriched at your expense. Most commonly, this criteria is satisfied where a flight credit was issued by Qantas rather than an automatic refund or rebooking.

Even if you have used the flight credit you were issued, or you have subsequently obtained a refund, you remain a Group Member and are eligible to benefit from any court ordered damages award or settlement that may be agreed (subject to the terms of that damages award or settlement).

27    Qantas proposed inserting an additional paragraph after paragraph 2 above as follows: “3. a flight credit was issued in respect of the flight”. Qantas also proposed deleting the sentence, “Most commonly …” at the end of paragraph 3 as set out above. Qantas submits that, in practical terms and having regard to the allegations in the further amended statement of claim (FASOC), the applicant’s claim is concerned only with cases where flight credits were issued for cancelled flights. Whether that is correct is contested. In any event, the wording Qantas proposes does not reflect the group member definition in [1] of the FASOC. I consider it important that the group member description in the opt out notice mirror the group member definition in the pleading. I therefore will not adopt this proposed amendment.

Questions for expert witnesses

28    On 7 August 2025, I made an order that, subject to further order, the expert reports to be filed by the parties in the proceeding be limited to responding to questions that have been approved by the Court. The purpose of this order was to ensure that the experts for both parties were answering the same questions (notwithstanding that the parties may brief the experts with different assumptions and different materials).

29    At the case management hearing on 4 September 2025, there was discussion about four questions that had been proposed by the applicant for expert witnesses relating to economics and/or forensic accounting, which were as follows:

1.    From 1 January 2020 to the present:

a)    what rate(s) of interest would compensate the Applicant and Sample Group Members for being held out of the Advanced Funds by reference to the value of the funds to them?

b)    what is the likely total cost to Group Members of being held out of the Advanced Funds? Identify any qualifications on the likelihood that this amount is the total cost to Group Members.

c)    what rate(s) of interest would represent the value to Qantas of its retention of the Advanced Funds?

d)    what was the aggregate value to Qantas of its retention of the Advanced Funds?

2.    Was there a difference between the value of a refund for a cancelled flight and the value of a Flight Credit during the period from 1 January 2020 until the present?

3.    If the answer to question 2 is “yes”, what was that difference or what were the differences?

4.    Does the answer to question 2 or 3 depend on the relevant contractual terms of the Flight Credits as in force at different times during the period from 1 January 2020 until the present and as set out in this annexure?

30    There was no issue between the parties about questions 2, 3 and 4 (the applicant agreeing to Qantas’s proposed change to question 4).

31    The two main issues canvassed at the hearing were:

(a)    whether question 1 should extend to a calculation of loss (if any) with respect to all group members (as proposed by the applicant) or only the applicant and the four Sample Group Members (as contended by Qantas); and

(b)    whether (as proposed by the applicant) the questions should deal with calculation of any enrichment to Qantas. I note that Qantas contended that the questions should not deal with this issue and, by extension, that the question whether there was any enrichment to Qantas should not form part of the initial trial.

32    Subsequently, by email, Qantas indicated that it largely agreed with the applicant’s formulation of question 1(a) (with some minor adjustments to the wording).

First issue

33    In relation to the first issue, in my view, question 1 should be limited to a calculation of loss (if any) with respect to the applicant and the four Sample Group Members and should not extend to all group members. The initial trial is of the applicant’s case and the cases of the four Sample Group Members. It is sufficient for the purposes of the initial trial to have a calculation of the loss (if any) suffered by the applicant and the four Sample Group Members. I consider it unnecessary and potentially wasteful to ask the experts to perform the calculation for all group members.

Second issue

34    In relation to the second issue, subject to any application to vary the existing orders, the question whether Qantas has been enriched (and, if so, by how much) forms part of the initial trial. The issue is raised by the FASOC at [91] (see paragraph (iv) of the particulars). It therefore forms part of the cases of the applicant and the Sample Group Members. In these circumstances, I consider it appropriate for the issue to be the subject of the questions for the experts.

Wording issues

35    I now deal with the issues of wording in relation to the questions.

36    In relation to the question about loss, I consider that there should be a single question (question 1) and it should be framed in terms of “amount” rather than “interest”, as the word “amount” is more reflective of the pleaded issue in the particulars to [77] of the FASOC (which relevantly refers to “[d]amages for the loss of use of money in accordance with the principles in Hungerfords v Walker”). For example, it may be that the applicant or one of the Sample Group Members would have invested the money and derived investment earnings, rather than (for example) placing the money on deposit and thereby earning interest or reducing a loan upon which interest was payable. I therefore consider that question 1 should be as follows:

What amount (if any) would compensate each of the Applicant and the Sample Group Members for being held out of the money paid to Qantas for their Cancelled Flights?

37    In relation to the question about enrichment, in the email to the parties from my chambers the following wording was proposed (as a new question 5):

By what amount (if any) was Qantas enriched by the use of the money paid by each of the applicant and the Sample Group Members to Qantas for their Cancelled Flights:

(a)    since the date the money was paid to purchase the flights; and

(b)    since the date of the cancellation of the flights?

38    This formulation reflects the wording of the relevant paragraph of the FASOC: see [91], particular (iv). I note that, while the question is formulated in terms that relate to the amounts paid by the applicant and the four Sample Group Members, it may be that an expert considers that he or she needs to calculate a figure relating to the payments made by all group members before being able to calculate the amounts referable to the payments made by the applicant and the four Sample Group Members. The question is not intended to preclude that process of analysis.

39    In its further submissions, Qantas proposed a minor change to the above proposed wording of question 5, namely to change “and” to “or” at the end of paragraph (a), and to insert “alternatively” at the beginning of paragraph (b). This was designed to make clear to the experts that (a) and (b) were alternatives. I consider that amendment to be appropriate. Therefore, question 5 will be as follows:

By what amount (if any) was Qantas enriched by the use of the money paid by each of the applicant and the Sample Group Members to Qantas for their Cancelled Flights:

(a)    since the date the money was paid to purchase the flights; or

(b)    alternatively, since the date of the cancellation of the flights?

Conclusion

40    I will therefore make orders as indicated above.

Associate:

Dated:    18 September 2025