A Federal Court judge’s scathing rebuke of three separate lawsuits over a horror airboat crash at one of Outback Wrangler Matt Wright’s tourism ventures has sparked a push to bring the legal battles together.
The civil cases stem from a 2023 airboat tour that ended in disaster when a vessel carrying 13 tourists slammed into a tree in crocodile-infested waters south-west of Darwin, leaving passengers seriously injured and traumatised.
At the last hearing in September, Justice Michael Lee demanded to know why victims of the same accident were fighting in three different courts rather than pursuing a class action.
“There’s a whole series of people affected by this accident. Why it’s not in a class action is beyond me,” he declared.
“Why should three superior courts be dealing with similar matters?”
On Thursday, he immediately returned to the issue, asking lawyers what steps had been taken to “rationalise” litigation spread across the Federal Court and the Supreme Courts of Victoria and the Northern Territory.
Barrister Timothy Smartt, representing eight applicants in the Federal Court, revealed that an application had already been made to transfer the Victorian proceedings.
“One of the applicants in the other superior court has filed a cross-vesting application, and I understand that the respondents in this application will consent to it,” he said.
“So that will come to here.”
Mr Smartt said lawyers had also spoken to applicants in the NT Supreme Court.
“They’re seriously considering it. I can’t predict what they’ll do, but I think they’ll come,” he said.
Amanda Bond, appearing for Mr Wright, his wife Kaia and Top End Safari Camp, confirmed a summons had been filed in the Victorian Supreme Court proceedings and anticipated it would be heard within three weeks.
The developments follow mediation last Friday that failed to resolve the dispute over the crash at the Wrights’ Top End Safari Camp.
In the Federal Court, Ryan and Philippa Payne and their two children, and Scott and Bianca McFarlane and their two children, are suing Mr Wright, Mrs Wright and Top End Safari Camp.
They allege negligence and breaches of Australian Consumer Law arising from a crocodile tour at the company’s Bynoe tourism operation on May 10, 2023.
Their statement of claim paints a terrifying picture of the moments before the collision.
The families allege their airboat was travelling at high speed when a large tree became visible about 200 metres ahead.
The four adults initially believed the airboat driver, referred to only as Anton, was joking and would swerve at the last moment.
When the McFarlanes realised a collision was imminent, they allegedly grabbed their children and cradled them against their chests to absorb the impact.
The vessel struck the tree, leaving passengers injured and stranded in crocodile-infested waters.
The applicants described the aftermath as a “warzone”, alleging there was no functioning radio or first-aid kit aboard.
The driver of another airboat allegedly radioed the camp, saying: “We screwed up – there’s a big crash, we screwed up.”
The applicants allege they have suffered ongoing psychological and physical injuries.
Mr Wright, Mrs Wright and Top End Safari Camp deny breaching their duties of care.
They dispute substantial parts of the applicants’ account, deny Anton was an employee of their company and maintain there was no requirement for seatbelts on the vessel at the time.
At September’s hearing, Mr Smartt told the court that other crash victims had suffered “very significant damages”, including injuries “in the nature of very serious brain injury”.
In the NT Supreme Court, Amelia-Kate and Gregory Potts have launched a separate negligence claim against Top End Safari Camp over the same crash.
Their writ alleges Mrs Potts suffered physical and psychiatric injuries, while her husband suffered physical injuries as well as psychological harm from witnessing the collision and his wife’s injuries.
The couple claim the airboat lost control while travelling through a confined wetland environment before striking a tree. They accuse the company of failing to safely operate the vessel, implement proper procedures and provide adequate passenger safety measures.
They are seeking damages, interest and legal costs. Unlike the Federal Court case, their claim names Top End Safari Camp as the sole defendant.
Justice Lee also flagged a fast-tracked trial early next year to settle a potentially crucial insurance battle between the Wrights, their tourism business and Allianz Australia Insurance.
The separate insurance fight centres on whether Allianz must indemnify the respondents against the passenger claims.
Allianz alleges the airboat, Gale Force, was certified to carry 13 people, including its driver, but was carrying 14 when it crashed.
The insurer argues the alleged breach of passenger limits triggered policy exclusions and entitled it to avoid the policy.
It also maintains the Wrights were not named insured parties and therefore were not personally covered.
Allianz’s senior counsel, Matthew Harvey KC, argued the court needed to determine whether the Marine Insurance Act applied to the insured risk and whether the policy’s exclusions for illegal operation were triggered.
Justice Lee made clear he wanted every issue relevant to Allianz’s refusal to provide cover, including disputed facts about the number of people aboard the airboat, determined as soon as possible.
“I’m not just going to have this bifurcation of the sea question,” he said.
“I’m just going to deal with all issues relating to indemnity.”
He warned that the wider litigation could not progress without resolving the insurance dispute first.
“This case will never go anywhere and it would be contrary to the overarching purpose for it to continue without sorting out indemnity questions,” he said.
“It seems to me a pretty short two-day trial at the most.”
The judge suggested a separate trial to deal with the insurance dispute could be held early next year.
The judge adjourned the matter to December 2 for another directions hearing.
The civil proceedings remain separate from criminal prosecutions brought by NT WorkSafe against Top End Safari Camp and Matt and Kaia Wright over the same airboat crash.
The WorkSafe matters are due to return to the Darwin Local Court on November 23, when the defendants are expected to enter pleas.
Separate NT WorkSafe charges against Mr Wright over alleged safety breaches involving his now-liquidated helicopter company, Helibrook Pty Ltd, will also return to the Darwin Local Court on November 23.
Mr Wright is expected to enter pleas to three charges of failing to comply with health and safety duties, stemming from allegations that flight hours were falsified across the Helibrook’s helicopter fleet, potentially compromising aircraft maintenance and safety.
Two other, more serious, charges – of reckless conduct risk death or injury – against Mr Wright were withdrawn last year.
And all five charges against Helibrook – two counts of reckless conduct risking death or injury and three counts of failing to comply with health and safety duties – have been withdrawn.
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