Flight Centre ruling a caution to platform banks
Investment platform operators and their bank owners will be keen readers of a High Court judgment that leaves Flight Centre red-faced. The ACCC won an appeal from a Federal Court full court ruling over price-fixing allegations.Flight Centre leaned on Singapore Airlines, Malaysia Airlines and Emirates to curtail ticket price reductions on internet sales, apparently to maintain margins for itself and operators of agencies."The substantial question in this appeal is whether Flight Centre Travel Group Limited (previously Flight Centre Limited) was in competition with Singapore Airlines, Malaysia Airlines and Emirates when Flight Centre attempted to induce each of those airlines to agree not to discount the price at which that airline offered international airline tickets directly to customers."The answer to that question was "yes", wrote Justices Susan Kiefel (soon to be chief justice) and Stephen Gageler."The short answer is that Flight Centre was in competition with each airline. The competition was in a market for the supply, to customers, of contractual rights to international air carriage. The competition existed in that market notwithstanding that Flight Centre supplied in that market as agent for each airline."Kiefel and Gageler, spelled out the affair."Part of Flight Centre's marketing strategy was a 'price beat guarantee'. Flight Centre advertised that it would better the price for an airline ticket quoted by any other Australian travel agent or website, including a website operated by an airline, by $1 and would give the customer a voucher for $20. "The price beat guarantee made Flight Centre commercially vulnerable to an airline choosing to offer tickets directly to customers at a discount to the fare which the airline published to travel agents. That is what Singapore Airlines, Malaysia Airlines and Emirates each chose to do."In a series of emails sent to Singapore Airlines, Malaysia Airlines and Emirates between 2005 and 2009, Flight Centre tried to get each airline to agree to stop offering international airline tickets directly to customers at prices lower than the fares published to travel agents. "Flight Centre went so far as to threaten to stop selling the tickets of each airline if that airline did not agree."They elaborated: "The primary judge found that, by sending the emails, Flight Centre attempted to induce each airline to make a contract or arrangement, or arrive at an understanding, with Flight Centre. "The proposed contract, arrangement or understanding contained a provision that the airline would stop offering international airline tickets directly to customers at prices lower than the fares the airline published to travel agents. "The provision had the purpose and direct effect of fixing, controlling or maintaining the price at which that airline sold international airline tickets directly to customers. The provision had the further purpose and indirect effect of fixing, controlling or maintaining Flight Centre's commission (and therefore its retail margin) on its sales of that airline's tickets to customers."Flight Centre did not contest those findings on appeal."The justice said that the issue was "whether a price fixed, controlled or maintained by the proposed provision was in respect