Legal action arising from a 2023 airboat crash at Matt Wright’s Top End Safari Camp could be brought together after a Federal Court judge criticised the decision to pursue three separate lawsuits in different courts.
Justice Michael Lee renewed his call for the litigation to be “rationalise[d]” during a directions hearing on Thursday, asking why victims of the same accident were not 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 said at an earlier hearing in September. “Why should three superior courts be dealing with similar matters?”
The crash occurred during a crocodile tour at the Wrights’ Bynoe operation, south-west of Darwin, on May 10, 2023. An airboat carrying 13 tourists struck a tree, leaving passengers seriously injured and traumatised.
Timothy Smartt, representing eight applicants in the Federal Court, told Justice Lee that an application had been made to transfer proceedings brought in the Victorian Supreme Court.
“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,” Mr Smartt said. “So that will come to here.”
He said lawyers had also spoken to applicants in the Northern Territory Supreme Court, who were “seriously considering” moving their case to the Federal Court.
Amanda Bond, representing Mr Wright, his wife Kaia and Top End Safari Camp, confirmed that a summons had been filed in the Victorian proceedings and was expected to be heard within three weeks.
The developments followed mediation on Friday that failed to resolve the dispute.
Families allege airboat was travelling at high speed
In the Federal Court, Ryan and Philippa Payne and their two children, along with Scott and Bianca McFarlane and their two children, are suing the Wrights and Top End Safari Camp.
The families allege negligence and breaches of Australian Consumer Law. Their claim says the airboat was travelling at high speed when a large tree appeared around 200 metres ahead.
They allege the four adults initially believed the driver, identified in the proceedings only as Anton, was joking and would steer away at the last moment. When the collision became unavoidable, the McFarlanes allegedly grabbed their children and held them against their chests.
The passengers claim they were left injured in crocodile-infested water, with no functioning radio or first-aid kit on board. They describe the aftermath as a “warzone” and allege the driver of another airboat radioed the camp: “We screwed up – there’s a big crash, we screwed up.”
The applicants say they have suffered continuing physical and psychological injuries. Mr Wright, Mrs Wright and Top End Safari Camp deny breaching their duties of care, dispute substantial parts of the account, deny that Anton was their employee and maintain that seatbelts were not required on the vessel at the time.
Mr Smartt told the court in September that other crash victims had suffered “very significant damages”, including injuries “in the nature of very serious brain injury”.
Amelia-Kate and Gregory Potts have brought a separate negligence claim in the Northern Territory Supreme Court against Top End Safari Camp alone. They allege the airboat lost control in a confined wetland environment before hitting a tree.
The couple accuse the company of failing to operate the vessel safely, establish proper procedures and provide adequate passenger safety measures. Their claim says Mrs Potts suffered physical and psychiatric injuries, while her husband suffered physical injuries and psychological harm after witnessing the crash and his wife’s injuries.
Insurance dispute could be heard early next year
Justice Lee also indicated that a separate insurance dispute involving Allianz Australia Insurance could be fast-tracked, warning that the wider litigation could not properly proceed until the question of cover was resolved.
Allianz disputes whether it must indemnify the Wrights and their tourism business against the passenger claims. The insurer alleges the airboat, Gale Force, was certified to carry 13 people including its driver, but had 14 people aboard when it crashed.
It argues that the alleged breach of the passenger limit triggered policy exclusions and entitled it to avoid the policy. Allianz also maintains that the Wrights were not named insured parties and were not personally covered.
Its senior counsel, Matthew Harvey KC, said the court needed to decide whether the Marine Insurance Act applied and whether exclusions relating to illegal operation had been triggered.
“I’m not just going to have this bifurcation of the sea question,” Justice Lee said. “I’m just going to deal with all issues relating to indemnity.”
He suggested the insurance dispute could be dealt with in a trial lasting no more than two days early next year. The matter was adjourned to December 2 for another directions hearing.
The civil cases are separate from criminal prosecutions brought by NT WorkSafe against Top End Safari Camp and Matt and Kaia Wright over the crash. Those matters are due to return to Darwin Local Court on November 23, when the defendants are expected to enter pleas.
