Forum non conveniens and the tragic crash of a skydiving aircraft in Sweden

In brief - His Honour Justice John Dixon in the Supreme Court of Victoria recently was called upon to consider an application made on behalf of the Australian manufacturer and holder of airworthiness type certificates for a permanent stay of proceedings brought by relatives of the victims of a crash which occurred in Sweden. The decision in Kvist and others v GippsAero Pty Ltd and GA8 Airvan Pty Ltd [2023] VSC 275 was handed down on 30 May 2023.

Accident on 14 July 2019 resulted in the death of the pilot and all eight passengers

An Airvan GA8-TC 320 manufactured in Victoria in 2012 was being used for skydiving when it crashed in Sweden killing all on board. A claim was brought by relatives of victims claiming damages for negligence in failing to include critical information in an operating manual supplied at the time of purchase and failing to ensure the aircraft was suitable for parachuting operations.

Accident investigation in Sweden concluded that the accident occurred when passengers moved towards the rear of the aircraft altering the weight distribution in the aircraft such that it required a critical response from the pilot. The aircraft experienced an aerodynamic stall and with its nose positioned downwards went into an uncontrolled spin before impacting the ground and breaking up.

Alleged negligence

It was alleged that the defendants were negligent in: 

• failing to provide adequate instructions in the flight manual as to proper operation when parachutists are jumping from the plane;

• failing to include warnings as to consequences of parachutists moving rearwards to jump and the associated danger of this;

• failing to ensure the aircraft was suitable for parachuting operations.

The stay application by the defendants

The defendants filed a conditional appearance and submitted that Victoria was a clearly inappropriate forum for the litigation because the lex loci delicti indicated the lex causae is Swedish law.

They noted that the crash occurred in Sweden and a view of the site may be required. They also noted that investigation occurred in Sweden, witnesses reside there and suffered loss there and have no assets in Australia, such that enforcement of any cost order would be very difficult. It was also submitted that additional Swedish parties such as the pilot's estate and the Parachute Club may need to be joined in the proceedings.

They said the cost and inconvenience for the defendants to run the proceeding in Victoria were too high.

They relied on written advice from a Swedish lawyer that the proper law for the application was Swedish law.

The plaintiffs position

The plaintiffs opposed the application saying they had the right to bring proceedings where the defendants carried on business and where they had assets against which judgment could be enforced.

They also noted the wrongful conduct occurred in Victoria and the location of the damage was fortuitous and that local laws would govern the cause.
The obligation rested with the defendants to demonstrate that Victoria was a clearly inappropriate forum.

The principles of the doctrine of forum non conveniens

Justice Dixon noted that the power to stay proceedings is discretionary - as observed by Justice Deane in Oceanic Sun Line Special Shipping Co v Fay [1988] 165 CLR 197, and should only be exercised in a clear case with the onus resting on the defendant to satisfy the court that it is so inappropriate a forum that it would be oppressive and vexatious to continue.

The Australian decisions differ from that in Spiliada Maritime Corp v Consulex Ltd [1987] AC 460 in rejecting a 'more appropriate forum' test for a 'clearly inappropriate forum' test. 

Applying the principles, Victoria was not a clearly inappropriate forum

The judge was not persuaded that the proper law to be applied was Swedish law. He said it was important to consider where, in substance, did the cause of action arise? The answer to that was Victoria as the manual supplied was largely the same as those for other countries, the aircraft being built in Australia and intended for worldwide use.

He did not consider that the location of the accident was unlikely to be a matter of significance in the proceeding. Rather, evidential inquiry at the trial of the pleaded issues would focus on conduct that occurred in Victoria. Similarly, issues around the design or suitability of the aircraft were issues arising in Victoria and were not related to the place of operation.

The judge considered that the substantive law of the forum was the relevant 'lex causae'. He further noted that in Oceanic Sun, Justice Gaudron was of the view that where the applicable law coincides with the chosen forum then the selected forum 'should not be seen as an inappropriate forum'.

He did not consider a trial in Victoria would be oppressive or vexatious for the defendants and concluded that Victoria is a proper forum for the dispute and not clearly inappropriate.

Overall the judge considered the defendants had failed to meet the threshold and their application for a permanent stay of the proceeding was dismissed.

Comment

The judgment is well reasoned and provides a useful analysis of the relevant Australian law on forum non conveniens. It also is a good example of the application of the principles to the factual framework and demonstrates the high bar that must be met if applications such as this are to succeed.