Plaintiffs v First Defendant

1 The defendants have applied to permanently stay this proceeding on the grounds of forum non conveniens. I will refuse this application for the reasons that now follow.

2 On 14 July 2019, at Storsandskar near Umeå in Sweden, a small plane being used for skydiving crashed, resulting in the deaths of the pilot and all eight passengers on board. The plaintiffs, who are relatives of some of the victims of the crash, claim damages from the defendants for negligence. None of the plaintiffs reside in Australia. Apart from the ninth and tenth plaintiffs, who are American, all of the plaintiffs are Swedish.

3 The defendants are incorporated in Australia and carry on business in Gippsland, Victoria. The first defendant (Gippsareo) operates from Latrobe Regional Airport. It manufactured the Airvan GA8-TC 320 (the Airvan) in 2012. The second defendant (GA8 Airvan) holds the 'Type Certificates' that certify the Airvan meets the requisite standards for airworthiness. Three certificates were issued to the second defendant by the Australian Civil Aviation Safety Authority, the European Safety Authority, and the US Federal Aviation Authority in respect of the aircraft.

4 Gippsaero sold the Airvan to a Swedish company, GCC Capital, a financier, on 17 May 2013. The parent companies of GCC Capital AB were placed in liquidation on 2 December 2021. At the time of the crash, the Airvan was owned by a Swedish company called Skydive Umea AB (a customer of GCC Capital). Skydive Umea AB was placed in liquidation on 5 October 2022. It held, apparently, a policy of insurance in respect of the plane. The Airvan was being used by Umeå Parachute Club from Umeå airport in Sweden. The Umeå Parachute Club is a non-profit association.

5 There is presently no proceeding on foot in Sweden in relation to the crash, a prior claim by some passengers (including some of the current plaintiffs) filed with the District Court in Umea having been withdrawn on the basis of an agreement that no new claims be instituted. The prior claim appears to have been a misconceived carrier's liability claim made under the Montreal Convention 1999.

6 The plaintiffs allege that the defendants were negligent in failing to include critical information in an operating manual supplied with the aircraft at the time of purchase and in failing to ensure the aircraft was suitable for parachuting operations.

7 The Swedish Accident Investigation Authority investigated the crash and produced a report in September 2020 which is available in an English translation. The relevant witnesses interviewed were the person responsible for flight operations at the Parachute Club, the examiner who conducted the pilot's most recent proficiency check, the pilot's parents, parachutists from the Parachute Club, the air traffic controller on duty, the chairperson of the Swedish Parachute Association and several witnesses to the accident.

8 Briefly, the report concluded that passengers in the aircraft moved rearwards preparing to skydive which altered the weight distribution in the aircraft in a manner that required a critical response from the pilot. The aircraft went into an aerodynamic stall with its nose downward. While the aircraft was so positioned, a loss of lift caused it to spin in an uncontrolled state. The passengers could not exit the plane. The aircraft broke up and rotated with the left wing pointing straight up and then crashed into the ground.

9 The defendants drew attention to the following findings of that investigation.

(a) The load sheet for the flight did not contain the weight of the parachutists or the total mass of the load and thus the pilot was unable to check or make his own calculation of mass and balance prior to the flight and the Parachute Club did not ordinarily require mass and balance calculations to be performed prior to flight. The pilot has probably complied with the usual procedures at the Parachute Club;

(b) The aircraft was overloaded and tail heavy, the meteorological conditions, including the presence of clouds, made the flight more complex and the aircraft was flown at an altitude above the limit at which oxygen should be carried and used, indicating a risk that the pilot was affected by hypoxia;

(c) The pilot was flying the aircraft alone, had limited flight experience in general and particularly in the Airvan, and did not have requisite ability for the complexity of the flight. The pilot had no specific licence to perform parachuting activities despite the complexity of the activity. There was evidence to suggest the pilot had difficulty controlling the aircraft in an earlier flight on the day of the crash;

(d) The Parachute Club did not have systems that pertain to flight operations (for example, with respect to the preparation of checklists) and put the responsibility on the pilot to conduct extensive risk management equivalent to much larger aviation organisations;

(e) There were no technical faults discovered in the plane that could have contributed to the crash. Relevantly, the report noted that the aircraft flight manual and accompanying supplement provide no clear directions as to how the centre of gravity is to be calculated when carrying parachutists; only stating that they should be distributed evenly around the floor of the cabin. The report opined that the flight manual, when it comes to calculating mass and balance in parachute operations, lacks clarity on several points and does not provide the pilot with a sufficiently good basis to be able to fulfil his operational obligations, a deficiency that ought to be remedied in the certification process for aircraft approved for parachute operations.

(f) The probable causes of the accident were:

(i) the lack of a safe system for risk analyses and operational support, including data for making decisions concerning flights, termination or replanning of commenced flights;

(ii) the lack of a standardised practical and theoretical training programme with approval of a qualified instructor; and

(iii) the lack of a safe system for determining centre of gravity prior to and in conjunction with parachuting jumps.

10 The defendants invited me to conclude that the investigation report supported the prospect that each of pilot error and the conduct of the Parachute Club substantially contributed as possible causes of the crash.

11 A Swedish lawyer, Mr David Sandberg of the firm, Mannheimer Swartling Advokatbyra, has stated that:

A Swedish court or enforcement authority will not recognise or enforce an Australian judgment, including a judgment issued in the Australian proceedings involving GippsAero and GA8 against the plaintiffs and/or joined third parties. However, the claims made in the Australian proceedings could be tried again before a Swedish court, in which an Australian judgement would have evidentiary value. The specific evidentiary value of an foreign court judgment will have to be assessed on a case-by-case basis. The judgment resulting from such Swedish proceedings would be enforceable.

12 Another Swedish lawyer, Mr Stephan Eriksson of the firm Astra Advokater has stated that:

(a) The Swedish judicial system has no process of discovery and interrogatories akin to common law countries. However, there is a process of discovery through which a party can request a court to formally require the counterparty or anyone else to produce any document that may have evidentiary value.

(b) Both Sweden and Australia are signatories to the Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters. A Swedish court could compel evidence from an Australian witness and would allow testimony by digital systems.

(c) A judgment obtained in Sweden cannot be easily enforced against an Australian company under Swedish or international law.

(d) In his (qualified) opinion, Swedish law should be applied to the dispute, although it is not clear that Mr Eriksson saw a copy of the pleadings.

(a) Where the Airvan was to be used for parachute operations, Gippsaero and GA8 Airvan each owed a duty of care to all users of such aircraft, including pilots and parachutists such as the deceased:

(i) to ensure that safe flight could be maintained whilst undertaking parachute operations;

(ii) to ensure that the undertaking of parachuting operations would not jeopardise the flight characteristics of the aircraft.

(b) Gippsaero was required to provide, with the aircraft, a flight manual which contains, inter alia, information as to conditions, limitations, and procedures for the operation of the aircraft so that subsequent users of the aircraft could do so safely.

(c) GA8 Airvan was required to provide, as the applicant for the Type Certificate for the GA8-TC 320, a Flight Manual which contains, inter alia, information as to conditions, limitations and procedures for the operation of the aircraft so that subsequent users of the aircraft could do so safely.

(d) GA8 Airvan is responsible for the provision of instructions for the continued airworthiness control of all Airvans, including the aircraft.

14 The plaintiffs allege that the crash was caused by the negligence of Gippsaero and GA8 Airvan or either of them. The particulars of negligence can be summarised in three categories.

(a) failing to provide any or adequate instructions in the flight manual as to the proper operation of the aircraft when parachutists are jumping from the plane;

(b) failing to include any warnings in the aircraft as to the consequences of parachutists moving rearward to jump and the danger of this; and

(c) failing to ensure the aircraft was suitable for the conduct of parachuting operations.

15 Further, by reason of the negligence of the defendants and each of them, the plaintiffs have sustained loss and damage.

16 I pause to note that the relevant impugned conduct is in the manufacture of the plane, and the production of the flight manual, and possibly the design and/or certification of the plane as suitable for parachuting. The defendants' conduct occurred in Victoria, although the issue is a little more complex than that, as I will develop later in these reasons.

17 While the defendants submitted during the hearing that the complaint is about the content of the plane's operation manual and not about the plane's intended use or its design, that submission is narrower than the pleading as it currently stands. As the plaintiffs submitted, the breach of duty is pleaded to include, 'failing to provide a means whereby the position of parachutists within the aircraft could be maintained during flights so as to avoid interference with the centre of gravity', which could be a design issue. The issues potentially involve consideration of the design process in Australia, the certification process in Australia, and not merely the manufacturer's production of the flight manual or other aspects of the operation of the plane relevant to its use for parachuting.

18 The defendants filed a conditional appearance and this application and so have not filed a defence.

(a) They are incorporated and carry on business in Victoria.

(b) The crash occurred in Sweden. The site may require a view.

(c) The Swedish Accident Investigation Authority's investigations were conducted in Sweden and all witnesses appear to reside in Sweden.

(d) The plaintiffs are resident in Sweden and suffered their alleged loss (loss of dependency and nervous shock) in Sweden. They have no assets in Australia, and enforcing a costs order would be very difficult.

(e) There is no evidence the witnesses can speak English so there is expense associated with translation.

(f) The investigation report reveals that the pilot's estate and the Parachute Club contributed to the happening of the crash and are obvious defendants to be joined. Perhaps, upon further investigation, Skydive Umea might also be appropriately joined as a defendant. None of these potential defendants, nor their relevant stored records, have any connection to Australia. Discovery and enforcement of judgment would need to take place in Sweden.

(g) There is no corresponding difficulty in enforcing Swedish judgments in Australia. The defendants submitted that, at common law, a foreign judgment will be enforced in Australia if certain requirements are met:

(i) the foreign court must have exercised jurisdiction over the judgment debtor which Australian courts will recognise;

(ii) the foreign judgment must be final and conclusive;

(iii) there must be an identity of parties; and

(iv) the foreign judgment must be for a certain sum.[1]

The defendants submitted there is no evidence that the above factors would not be met, and further a permanent stay could be granted on the condition that the defendants accept the enforceability of the foreign judgment against them, should the plaintiffs be successful in obtaining in the future a Swedish judgment in some proceeding yet to be issued.

(h) The civil procedure regime in the Swedish courts, particularly in respect of discovery, is in no way oppressive or vexatious for the plaintiffs.

(i) The cost and inconvenience to the defendants to run the proceeding in Victoria is too high. The plaintiffs and key witnesses are in Sweden, other potential defendants are in Sweden, there are practical difficulties in accessing expert liability evidence and translations.

20 The defendants submitted that Victoria is a clearly inappropriate forum because the lex loci delicti[2] indicates that the lex causae[3] is Swedish law.

21 The defendants submitted that the occurrence of damage in Sweden was not fortuitous. The defendants intended that the directions given by the terms of the operating manual be acted on in Sweden. From the purchase agreement the defendants knew the purchaser of the aircraft was a Swedish entity with a Swedish address. The purchase agreement also specified that the aircraft flight manual was provided to the purchaser prior to the purchase being effected. The aircraft was required to be shipped to Sweden with a Swedish aircraft airworthiness certificate. A data sheet demonstrated that the Parachute Club had operated the aircraft in Sweden for five years with reference to the operating manual.

22 Further, the European regulatory authority required that the aircraft be configured in accordance with the requirements relevant to Europe, which was evident from the Type Certificate issued in accordance with the European Aviation Safety Authority. The defendants argued that the chain of documents, properly understood, precluded the conclusion that the location of the damage suffered was fortuitous. The plane, together with its manual, was manufactured and sold with the specific intent of being used and operated in Sweden.

23 They maintained that the manual was bespoke to this particular plane, which was purchased by a particular purchaser, in a particular location, and to be used for a particular purpose in accordance with prescribed requirements by a European Authority. This rendered the place the misstatement or omission from the manual was received to be significant and critical, as opposed to merely fortuitous. In the words of Amaca Pty Ltd v Frost,[4] the manufacturer's conduct was directed at Sweden.[5]

(a) On Gippsaero's website, there is a page dedicated to the relevant aircraft, the Gippsaero AirVan. It says the plane is designed for use in remote areas from airstrips, performing tasks such as passenger services, parachuting, humanitarian aid and search and rescue operations. The defendants submitted that depending on the nature of the use, the fitout of the plane would be different.

(b) A datasheet for the actual plane, with model number 2012 GippsAero GA-8-TC320 Airvan C/N GA8-TC 320 - 12-178, with call sign or registration 'SE-MES'. The registered owner is reflected as Skydive A.B. and the address is Sweden. Delivery date was 12 July 2013, some five years prior to the crash.

(c) The purchase agreement which is entitled, 'Skydive Umea AB 2013 GCC Capital AB', between GCC Capital AB with its address in Sweden, as purchaser, and GippsAero as seller, dated 2013. The agreement provides, among other things:

(i) 'GippsAero ... has the capability to manufacture a range of aircraft. This Agreement sets out the particulars of the aircraft selected and ordered by the Purchaser; and the terms and conditions regulating the manufacture and supply of the aircraft by [GippsAero].'

(ii) Supporting materials include: 'The following were provided to the Purchaser prior to the Purchaser entering into this Agreement: Technical Specifications; the Aircraft Flight Manual; and the GA Service Manual.'

(iii) Under 'Special Requirements' (clause 25) there are special requirements for a particular propeller to be ordered; the customer is referred to as Skydive Umea AB (albeit that GCC Capital is the purchaser).

(iv) Delivery (clause 26) is to be to Umea in Sweden with transit insurance paid by GippsAero; under 'Shipping' (clause 27) there is an option between 'Australian Certificate of Airworthiness' and 'Expert Certificate of Airworthiness to Sweden' and the latter is selected; under 'Registration' (clause 28), 'Australian' is selected but there is an insertion that 'Aircraft to be delivered on the Australian register. De-registration will be carried out upon request from the customer at the customer's expense'.

(v) The contract includes the technical specifications of the plane. There is a 'requested options list' that sets out various design choices like a 'Heavy Duty Starter Motor' and 'EASA Skydiving equipment.(Including 7 x single point restraints)'. Under 'Requested Changes' it says 'Removal of the passenger seats' and 'Removal of the Hartzell propeller and replace with...'.

(d) The Australian Type Certificate, required for anyone selling or producing these aircraft, contains a data sheet listing the certificate holder as the second defendant. The defendants maintained that it contains specific requirements depending on the model of the plane and various variations relating to its use.

(e) The European Aviation Safety Agency's Type Certificate and the American Federal Aviation Authority's Type Certificate for the relevant aircraft demonstrate that, depending on where the plane is being delivered, it has to be configured differently to comply with whatever the requirements of the relevant regulatory authority apply there. The aircraft in this case was configured to the European standards. For example, in Europe, unlike the other two regulatory authorities, there are special conditions required for the plane in regards to parachuting, including specifying an approved version of the pilot's operating handbook and flight manual; requiring equipping the plane with certain equipment; stipulating a requirement that the operation approval of a competent authority is required for fly operations, that authority being the Swedish authority.

25 The defendants produced written advice from Swedish lawyers which concluded that the proper law for application to the case is Swedish law. The advice stated that a conflict of laws analysis would 'with reservation' determine that 'Swedish law should be applied'. The defendants contended that the applicable law (Swedish law) is a very powerful factor in favour of a stay of this proceeding.

26 The defendants submitted that it will be oppressive for them to run a case in an Australian court that requires the application of Swedish law in a Swedish context.

27 The enforceability of an Australian judgment in Sweden was relevant, the defendants submitted, on the issue of costs should the defence succeed and in respect of the liability of other wrongdoers whose conduct contributed to the loss. The defendants contended that, essentially, the Swedish courts would need to relitigate the proceeding and the judgment would have only evidentiary value. The plaintiff would therefore be relatively easily able to enforce any judgment they obtained against the defendants in Australia; but if the defendants sought a judgment against the plaintiffs or other parties in Sweden, they would have to run the trial afresh in Sweden. The plaintiffs hold no assets in Australia so any judgment against them would necessarily have to be enforced in Sweden.

28 The defendants maintained that if the proceeding continues in Victoria they will be required to join other Swedish entities as third parties. This brings with it associated difficulties as it is most likely that those parties will be located in Sweden. The defendants submitted that this will be made more difficult for them in circumstances where Sweden is not bound by an Australian outcome. This is vexatious and oppressive to the defendants.

29 The defendants submitted that the observation of Campbell JA in the New South Wales Court of Appeal in Garsec, was applicable in this case:

If the subject-matter of a dispute had a tenuous connection with Australia such that an Australian court would have jurisdiction concerning it, but all the witnesses and documents were in another country and the transaction was governed by the law of that country it would be easy to reach a conclusion that the Australian court was a clearly inappropriate forum, regardless of whether there was another place that could hear the dispute.[6]

30 The defendants maintained there were strong similarities with McGregor v Potts.[7] In this case, the plaintiff sued in New South Wales where she resided, where part of her damage was suffered and one medical witness was present, but the overwhelming majority of connecting factors related to England: the lex causae was English law, virtually all evidence and witnesses where in England, the practice of veterinary surgeries and the English health system would have to be considered and a view would be possible in England but not New South Wales.[8] Brereton J stated:

The locus of the relevant incidents was England. It is there that the alleged negligent acts occurred. Ms McGregor's injuries and a substantial amount of her damages, were suffered in England.

It is common ground that the applicable law in determining at least questions of liability is the law of England. It is likely though not concluded, that, if the matter were litigated in New South Wales, questions of limitation and quantum of damages would also be governed by English law. The circumstance that the governing law is that of England is a very significant factor, partly because the court of the forum whose law is to be applied is prima facie the best qualified to apply it, and partly because if the foreign law is to be applied in a local forum there is immediate prejudice and additional cost in having to prove that foreign law.

...

Virtually all of the evidence is to be found in England.[9]

31 When Brereton J embarked on an analysis of the connecting factors, his Honour observed that if the local forum is clearly inappropriate, vexation and oppression to the foreign defendant by requiring it to litigate there will be presumed, and proof of actual vexation and oppression is not necessary.

32 In summary, the plaintiffs opposed the application because they have a prima facie right to have their chosen forum exercise jurisdiction in respect of their claim; it is the plaintiffs who are the foreign party choosing the defendants' local forum; the lex loci delicti is Victoria; the defendants are incorporated, and carry on business in Victoria; their assets are in Victoria where a judgment can be enforced; the relevant documents and witnesses in respect of the claims made against the defendants are most likely to be located in Australia; and discovery rules and procedures in Sweden are 'more restrictive' than those provided under the rules of this court.

33 The alleged wrongful conduct in the present case, the design, manufacture and sale of the aircraft and its manual, took place in Victoria. The defendants have neither pleaded to these allegations nor given the court any substance about allegations that the might make against other (Swedish) wrongdoers beyond general reference to the investigation report.

34 The plaintiffs submitted that the location of the damage was fortuitous in this case. An aircraft manufactured in Victoria could be flown and used anywhere, even though later dispatched for use by a Swedish entity. The relevant Aviation Safety rules do not prescribe the location of use of an aircraft such that it could be known to anyone where that aircraft will be operated. In the context of the European Union, the aircraft could have been used in any one or more of a multitude of nations that form Europe. Not only that, but aviation authority rules are generally uniform across jurisdictions, based on the USA FAA regulations as a template. As the location of the accident was, for the purposes of the test, fortuitous and the manual was prepared (the communication or representation made) in Australia in the context of aircraft sales to any part of the world, the relevant aspects of the defendants' conduct occurred in Australia and local laws will govern the cause.

35 Having brought this application early in the proceeding, the defendants must demonstrate on the material presently available that Victoria is a clearly inappropriate forum. The plaintiffs submitted that, in the context where a manufacturer is aware of the risks and dangers associated with a shift in the balance of weight in an aircraft, it is the manufacturer's responsibility to include appropriate warning in, or with, the aircraft. The plaintiffs submitted that it is 'fairly arguable' that there are design features beyond the content of the manual raised by the statement of claim. Such issues are relevant to and may inform whether Victoria is clearly an inappropriate jurisdiction to deal with the evidence likely to be led at trial. Design features are not like communications that are deemed to occur where they are received or inchoate actions that are completed in another place. They would be completed where the plane was manufactured. The oral, expert, and documentary evidence in respect of both the development of the content of the manual and other relevant design features is likely to be in Australia and in English.

36 Further, the plaintiffs submitted that operational documentation does not change if the aircraft is used in different jurisdictions. It is the manufacturer of the aircraft that passes the information to the operator of the aircraft, and it gives the operator the relevant handling instructions for the aircraft. Here, although the aircraft was purchased by and dispatched to a Swedish entity, it is not correct to attribute an intention to the manufacturer that the aircraft, throughout its working life, would not be highly mobile and would be limited to use in Sweden.

37 Either jurisdiction will be required to embark upon an analysis of foreign law.

38 The plaintiffs submitted that the defendants are inviting the court to impermissibly engage in a comparison of available jurisdictions, which is in substance the application of the Spiliada[10] test, rejected in Australia. There are practical difficulties associated with recovery in this case. The plaintiffs submitted that suing a defendant in its own jurisdiction gives the plaintiffs greater recourse. The plaintiffs also submitted that the enforceability of an Australian judgment in Sweden is irrelevant and the application of the clearly inappropriate test should not be predicated on whether a Swedish court will recognise an Australian judgment. In practical terms, there is only one avenue for recourse for the defendants, which is the insurance policy held by the insolvent Skydive Umea AB. Any Australian judgment becomes a basis for a claim against an insurer, or a basis to litigate contribution proceedings. The plaintiffs contended that the insurer is (presumably) liable regardless of whether a Swedish court recognises the judgment and all other potential wrongdoers are either insolvent or without substantial assets.

39 The plaintiffs submitted that the defendants inappropriately placed weight on the 'cost and inconvenience' associated with the plaintiffs giving evidence or where they are located. The correct question is whether the continuation of the proceeding is vexatious or oppressive for the defendants. The cost of litigating may be relevant to whether Sweden is a more appropriate forum but is not relevant to whether Victoria is a clearly inappropriate forum. In any event, the plaintiffs' pleaded case will not significantly depend on Swedish lay witnesses, but rather on the material documents and expert evidence, which are likely, on the allegations made, to be in Australia. The location of the plaintiffs and associated witnesses is of little significance in the application of the test. The location of expert witnesses and the translation of important documents will not pose insurmountable practical difficulties.

40 The plaintiffs submitted that a 'major point of connection' is the domicile of the defendants. The plaintiffs have properly invoked the jurisdiction of the court against locally incorporated companies. There are legitimate advantages for both parties in pursuing action here in Victoria. The plaintiffs invited the court to reject the submission that barriers to access to evidence and witnesses exist and will be vexatious. These issues are easily circumvented by the material evidence already being in English or easily translated, while the subpoena and discovery regime in Victoria advantages both parties.

41 The plaintiffs submitted that proffering undertakings to mitigate any disadvantage if the proceeding in Victoria is stayed does not address the fundamental issue that Victoria is not clearly inappropriate. The plaintiffs argued that for the court to decline to exercise jurisdiction and grant the stay, a 'high bar' must be jumped. The defendants have erroneously invited the court to adopt an incorrect approach to determine the application by engaging in a balancing exercise.

42 The doctrine of forum non conveniens[11] is an international private law doctrine that provides that an Australian court may decline to exercise its jurisdiction where it is satisfied that, having regard to the circumstances of the particular case, it is a clearly inappropriate forum for the determination of the proceeding.

43 The legal principles concerning the doctrine are well-settled.[12] A plaintiff who has regularly invoked the jurisdiction of the court has a prima facie right to insist on its exercise. The traditional power to stay proceedings on inappropriate forum grounds is to be exercised in accordance with the general principle empowering a court to dismiss or stay proceedings which are oppressive, vexatious or an abuse of process - the rationale being the avoidance of injustice between parties in the particular case. Consistent with that rationale, the mere fact that the balance of convenience favours another jurisdiction or that some other jurisdiction would provide a more appropriate forum does not justify such an order.[13]

44 The power to stay proceedings on the basis of forum non conveniens is discretionary, described by Deane J in Oceanic Sun as follows:

That power is a discretionary one in the sense that its exercise involves a subjective balancing process in which the relevant factors will vary and in which both the question of the comparative weight to be given to particular factors in the circumstances of a particular case and the decision whether the power should be exercised are matters for individual judgment and, to a significant extent, matters of impression.[14]

45 The power should only be exercised in a clear case and the onus lies on the defendant to satisfy the court that it is so inappropriate a forum that it would be oppressive and vexatious to continue. The onus is discharged where the defendant persuades the court, having regard to the circumstances of that case, and the availability of a foreign tribunal, it is clearly inappropriate to continue in that court.[15] Deane J noted that the reason why that is so is that - once it is accepted that the adjectives 'oppressive' and 'vexatious' are not to be narrowly or rigidly construed and are to be applied in relation to the effect of the continuation of the proceedings, rather than the conduct of the plaintiff in continuing them - the continuation of proceedings in a tribunal which is a clearly inappropriate forum would, in the absence of exceptional circumstances being established by the plaintiff, be oppressive or vexatious to such a defendant if there is some available and appropriate tribunal in another country.

46 The distinction between the English 'more appropriate forum' test[16] and the 'clearly inappropriate forum' test applicable in Australia is important.

47 In Spiliada,[17] the House of Lords considered the convenience of the parties and witnesses in a proceeding brought by shipowners for damage resulting from the loading of cargo (sulphur) that corroded the vessel. The cargo was loaded in Canada for transportation to India. The shipowners were Liberian and their management was predominantly in Greece. Some part of the management occurred in England. Those in charge of sailing the boats carried on business in Canada. The House of Lords rejected the argument that Canada was the more appropriate forum.

48 Lord Goff exercised a comparison test by adopting Scottish law and the House of Lords held that the fundamental principle applicable when granting a stay of proceeding on the ground of forum non conveniens was where:

the court is satisfied that there is some other available forum, having competent jurisdiction, which is the appropriate forum for the trial of the action, i.e. in which the case may be tried more suitably for the interests of all parties and the ends of justice.[18]

49 The High Court in Oceanic Sun declined to follow Spiliada. In Oceanic Sun, the plaintiff purchased a cruise ticket for the eastern Mediterranean. The vessel was Greek, owned by a Greek company. The booking was facilitated by a travel agent in Sydney. The plaintiff suffered injuries onboard and commenced proceedings against the shipowner first in New York and then in New South Wales. However, while Greece was the country in which the contract of carriage was to be performed, New South Wales was the State in which the contract was made. It was the locus contractus.[19] The witnesses to the accident lived in Greece and America; the witnesses for the damage and loss lived in Greece and Australia. The trial judge refused to grant a stay of proceedings on the ground of forum non conveniens holding that New South Wales was not only an appropriate forum but the most appropriate forum for determining the issue of the content of that contract,[20] with both Greek and New South Wales courts having competing claims for most appropriate forum when assessing quantum of damages.[21] The appeal was not successful.

50 Deane J identified grounds for thinking the more appropriate forum overall was Greece (though that hadn't been conclusively established) but concluded that it could not be said New South Wales was in all the circumstances, a clearly inappropriate forum.[22]

51 Deane J rejected the reasoning in Spiliada, stating:

Insofar as legal principle is concerned, the balance seems to me to come down against the adoption of the United Kingdom doctrine. It is a basic tenet of our jurisprudence that, where jurisdiction exists, access to the courts is a right. It is not a privilege which can be withdrawn otherwise than in clearly defined circumstances. A broader forum non conveniens discretion to dismiss proceedings within jurisdiction if it appears that some foreign tribunal is or clearly is a more appropriate forum cannot, in my view, be readily accommodated in any of the established principled qualifications of that basic tenet.[23]

52 The court's task is not to 'strik[e] a balance between competing considerations',[24] or to 'weigh[] all the factors'.[25] Instead, it must focus 'on the inappropriateness of the local court and not the appropriateness or comparative appropriateness of the suggested foreign forum'.[26] The forum will be inappropriate if it would be oppressive, i.e. it is seriously and unfairly burdensome, prejudicial or damaging to the defendant; or vexatious, meaning it is productive of serious and unjustified trouble and harassment to the defendant.[27]

53 In Voth, the High Court adopted Deane J's test in Oceanic Sun.[28] Later in Henry the High Court summarised the principles:

In Voth, this court adopted for Australia the test propounded by Deane J in Oceanic Sun, namely, that a stay should be granted if the local court is a clearly inappropriate forum, which will be the case if continuation of the proceedings in that court would be oppressive, in the sense of 'seriously and unfairly burdensome, prejudicial or damaging', or, vexatious, in the sense of 'productive of serious and unjustified trouble and harassment'. It was also held in Voth that, in determining whether the local court is a clearly inappropriate forum, 'the discussion by Lord Goff in Spiliada of relevant "connecting factors" and "a legitimate personal or juridical advantage" provides valuable assistance.'[29]

54 Relevant connecting factors are those affecting convenience or expense, such as availability of witnesses, relative ease of access to sources of proof, availability of compulsory processes for attendance of unwilling witnesses, cost of compelling witnesses, a view of the physical location of the event, and factors affecting the overall administration of justice, like utilising scarce judicial resources on conducting complex exercises in comparative law.[30] Connecting factors also include the law governing the relevant transaction or event and where the parties reside or carry on business.[31]

55 As to the law governing the cause, the selected forum is not inappropriate if it is fairly arguable that its substantive law is applicable.[32] That said, while the applicable law is a 'material consideration' or 'very significant factor' in the exercise of the court's discretion, the court should not focus upon that factor to the exclusion of all others.[33]

An Australian court cannot be a clearly inappropriate forum merely by virtue of the circumstance that the choice of law rules which apply in the forum require its courts to apply foreign law as the lex causae.[34]

56 A juridical advantage refers to a forensic advantage to the plaintiffs in the chosen forum. This could include effective limitation bars in the other proposed jurisdiction, a more favourable approach to awarding costs in the chosen forum, an advantageous calculation of damages for the plaintiff in the current court,[35] greater prospects of recovery,[36] better ancillary procedures, or assets in the jurisdiction against which any judgment can be enforced.[37]

57 Other relevant factors include whether both courts actually have jurisdiction; whether there is mutual recognition of the other court's orders and the ease with which this can be done; whether having regard to resources and understanding of language, the parties are able to participate in the respective proceedings on an equal footing.[38]

58 While the 'clearly inappropriate forum' test emphasises that where a court has jurisdiction, access to the court is a prima facie right, that notion should not be overstated. There may be some cases where it has a role to play. It may be significant in what is otherwise a finely balanced contest. But in other cases it does little more than indicate that the onus lies on the party seeking a stay to establish that the chosen forum is clearly inappropriate. If, for example, the cause of action arose in a country in which the parties reside or carry on business and their controversy can conveniently be litigated in that country, the notion of prima facie right can have no real bearing on the matter.[39]

The submission ... that the substantive law for the determination of rights and liabilities in respect of intra-Australian torts is the lex loci delicti should be extended to foreign torts ... without the addition of any `flexible exception'.[40]

60 The nature of the wrong is significant. In negligence, the plaintiff's damage is a necessary ingredient of the cause of action but where it happens might be fortuitous and that element should not, by itself, be the sole determinant of the lex loci delicti.[41] Instead, the question is where did the act giving rise to the cause of complaint occur.[42] In the case of an omission, it is the place where conduct occurred in the context of which the omission assumed significance.[43] For example, where the impugned conduct was a failure to warn as to the nature of goods sold, the court considered this an aspect of the sale of the goods. The relevant place was where the sale took place.[44]

61 In Distillers,[45] where a foreign manufacturer was alleged to owe a duty of care to an Australian purchaser, Lord Pearson, delivering the judgment of the Privy Council, said:

It is not the right approach to say that, because there was no complete tort until the damage occurred, therefore the cause of action arose wherever the damage happened to occur. The right approach is, when the tort is complete, to look back over the series of events constituting it and ask the question, where in substance did this cause of action arise?

Theory no (iii) is that the cause of action arose within the jurisdiction if the act on the part of the defendant, which gives the plaintiff his cause of complaint has occurred within the jurisdiction. That is the rule laid down in Jackson v Spittall, which is an authoritative case, and the rule is inherently reasonable, as the defendant is called upon to answer for his wrong in the courts of the country where he did the wrong.

62 A failure to warn arising through an inadequate manual is a form of negligent communication. A communication will generally be held to assume legal significance where it is received and relied on, as cases concerning the tort of negligent misstatement have held. But this is not a general rule because where a statement is completed or acted upon may also be entirely fortuitous. In each case, 'the place to be assigned to a statement initiated in one place and received in another is a matter to be determined by reference to the events and by asking ... where, in substance, the act took place'.[46]

63 Voth is a case of negligent misstatement by omission - the failure of USA based accountants to advise of a requirement to withhold income tax payable on a transaction. The plaintiffs, New South Wales companies, sued in New South Wales because that was where some or all of the damage was suffered.[47] The proceeding was stayed. The High Court noted that it is some act of the defendant, and not its consequences, that must be the focus of attention. The context was the provision of professional accounting services and the High Court characterised the omission as equivalent to a positive statement that tax was not payable, concluding that the cause for complaint was the act of providing services on an incorrect basis. But even if the act was approached as an omission, it took its significance from the same conduct in providing accounting services. Such conduct is not completed in a different place in the same way as receipt of and reliance on a message or communication. The act of providing accounting services was completed in Missouri, even if as a matter of technical legal classification the tax representation could be treated as a statement received in Australia. Ultimately, the act giving rise to the cause of complaint was committed in Missouri and the tort was, for the purposes of applying the principles to determine proper forum, committed there.[48]

64 The majority observed, pertinently for present purposes:

If a statement is directed from one place to another place where it is known or even anticipated that it will be received by the plaintiff, there is no difficulty in saying that the statement was, in substance, made at the place to which it was directed, whether or not it is there acted upon. And the same would seem to be true if the statement is directed to a place from where it ought reasonably to be expected that it will be brought to the attention of the plaintiff, even if it is brought to attention in some third place. But in every case the place to be assigned to a statement initiated in one place and received in another is a matter to be determined by reference to the events and by asking, as laid down in Distillers, where, in substance, the act took place.[49]

65 When the test is being applied in circumstances where the relevant conduct is an omission, the majority stated:

It may sometimes be that the 'cause of complaint' is the failure or refusal of the defendant to do some particular thing - in other words, an omission. It makes no sense to speak of the place of an omission. However, it is possible to speak of the place of the act or acts of the defendant in the context of which the omission assumes significance and to identify that place as the place of the 'cause of complaint'. That is what was done by Goddard LJ in George Monro Ltd v American Cyanamid and Chemical Corp, where the failure to warn as to the nature of goods was treated as an aspect of their sale. Sale took place outside the jurisdiction and accordingly, in the view of his Lordship, the tort was committed outside the jurisdiction.[50]

66 The defendants cited authorities in support of the contention that where the misstatement is received is determinative of the lex causae,[51] but they are just particular applications of the principles as explained by the High Court. That said, the courts have more generally concluded that in representation cases where a misstatement is directed is the crux of the question. In Sigma Coachair,[52] the Court set out the test as follows:

In the case of a negligent misrepresentation directed from one place to another, the tort is committed at the place to which it was directed whether or not it was acted upon there, provided it was a place where it could have been reasonably anticipated that it would be received by the plaintiff or brought to the plaintiff's attention, even if in fact it is received by the plaintiff elsewhere

67 If that notion of 'direction' is absent, that concept provides little practical guidance for resolving the issue of negligence by omission in the present case. There is a qualitative difference between a misleading statement as to quality in the context of a sale made directly to a purchaser over the phone or fax/email in a foreign country, and the conduct of a defendant determining the content of a manual to accompany an aircraft, that forms part of the complete product which happens to be received in Sweden, even though the manufacturer may have known aircraft could be sold to Swedish buyers. The aircraft were sold to buyers in many different countries.

68 The majority of the High Court in Dow Jones &Co Inc v Gutnick,[53] said of the difficulty involved in applying the rule:

Reference to decisions such as Jackson v Spittall, Distillers Co (Biochemicals) Ltd v Thompson and Voth v Manildra Flour Mills Pty Ltd show that locating the place of commission of a tort is not always easy. Attempts to apply a single rule of location (such as a rule that intentional torts are committed where the tortfeasor acts, or that torts are committed in the place where the last event necessary to make the actor liable has taken place) have proved unsatisfactory if only because the rules pay insufficient regard to the different kinds of tortious claims that may be made. Especially is that so in cases of omission. In the end the question is 'where in substance did this cause of action arise' (Distillers Co (Biochemicals) Ltd v Thompson at 468; Voth at 567)? In cases, like trespass or negligence, where some quality of the defendant's conduct is critical, it will usually be very important to look to where the defendant acted, not to where the consequences of the conduct were felt (Voth at 567).

69 The substantive place of the tort rule has been applied in the context of product liability cases lacking an element of misstatement where the notion of direction was employed. In Frost,[54] the tort arose from the manufacture, sale and distribution of asbestos product. It was neither a defective manufacture case nor a misrepresentation case. Before the New South Wales Court of Appeal it was argued, on the basis of Dow Jones,[55] that the place where 'the defendant acted' in a manufacture case would be the place the manufacturing occurred.[56]

70 Spigelman CJ, with Santow and McColl JJA agreeing, stated that the relevant defendant's act had first to be characterised, which is a matter of judgment on which opinions may reasonably differ. The question in that case was whether the act was manufacture simpliciter or the acts of manufacture and distribution to a point where the respondent was placed at risk.[57] Spigelman CJ, to identify the location where in substance the cause of action arose, looked back over the series of events constituting the tort,[58] noting that in a case where the negligent act and the damage suffered occurred in two different places, the question is a difficult one, leading to the caution that each case turns on its facts and it will rarely be appropriate to try to reason on the basis of factual analogies.[59]

71 The issue was particularly acute in product liability cases and Spigelman CJ noted that on occasions this issue has been determined in favour of the place of manufacture, rather than the place of exposure to risk or of causation.[60] In other cases, the relevant act has been found to continue to the point of exposure to risk or of causation. In such cases, the exposure may also be expressed in terms of a failure to warn, though this is not a necessary characterisation.[61] Spigelman CJ identified the thrust of contemporary doctrine to be that a court must focus on issues of substance and 'it is often necessary to look beyond the prolific smorgasbord of particulars to identify what is the true nature of the causation.'[62] The common theme is a concern with substance not form.[63]

72 Accordingly, in Frost the key conduct of the defendant was continuing to use asbestos in its products and failing to substitute non-asbestos material at its New Sought Wales manufacturing centre.[64] 'Continuing to use' could include manufacture, packaging, distribution, and supply. The place of distribution and supply was New Zealand. The breach was framed as a breach of duty to the plaintiff who worked in New Zealand and was there exposed. While Amaca had no presence in New Zealand, it distributed the products there and directly or indirectly supplied it to the respondent's employer.[65]

73 Spigelman CJ noted that a statement was 'in substance, made at the place to which it was directed',[66] and observed that although the term 'directed' was employed in the context of a statement, it is analogous with a case where goods are manufactured in one locality with a view to their distribution in another locality. In such a case, particular weight must be given to the place where the act was directed rather than the place it originated.[67] Importantly, the Chief Justice found that, unlike Distillers, where the nature of the product was such that it could be consumed anywhere in the world and that it could be said the place the damage occurred might be fortuitous, in Frost, the products were to be distributed only in Australia and New Zealand and accordingly exposure to the risk would occur in one of two nations.[68] Spigelman CJ concluded:

The act of manufacture simpliciter is not, in my opinion, the relevant act of the defendant. The product was inherently dangerous, in the sense that it could not be safely used without special precautions. It was not, however, defective in the sense that something went wrong in the manufacturing process. It was always intended the product would be distributed in New Zealand. The respondent, to whom the duty was owed, was always located in New Zealand.

... The admitted breaches were breaches of duty owed to a person in New Zealand. The element of causation occurred in New Zealand. In my opinion, as a matter of substance, the place where 'the cause of action arose' was where the respondent was exposed to that risk, that is, New Zealand. Until that happened there was no 'cause for complaint'. It was at that point that earlier conduct 'assumed significance'.[69]

74 The concept of 'direction' adopted by the Chief Justice in applying the authorities, depended on the specific agreed facts in that case leading to the conclusion that Amaca's acts were directed at a person to whom a duty was owed in New Zealand. The Chief Justice noted that, ultimately, 'in every case the place to be assigned to a statement initiated in one place and received in another is a matter to be determined by reference to the events and by asking ... where in substance the act took place.'[70]

75 Given the important role of Distillers in this test, it is helpful to consider what the court in Distillers meant when it said that the place of damage might be fortuitous. In that case, an English company sold a product containing thalidomide (manufactured in Germany) to a company in Australia and it was ultimately purchased by a woman in New South Wales, where the damage was suffered. The court explained that in a negligence case, the damage is a necessary ingredient in the cause of action and is the last event completing the cause of action. But, importantly―

the place where that happens might be quite fortuitous and should not by itself be the sole determinant of jurisdiction. One example would be this: suppose that a defendant carries on business in New South Wales and there he manufactures and distributes Distaval and sells a packet of it to the plaintiff's mother without warning of the danger: The defendant very soon afterwards gives up his business and retires to live in another country or state: the plaintiff's mother after purchasing the packet goes on holiday to any country in the world, say South Africa, and there consumes the Distaval whereby (it is assumed) the damage to the plaintiff is caused: the plaintiff's mother returns to her home in New South Wales ... It is not the right approach to say that, because there was no complete tort until the damage occurred, therefore the cause of action arose whenever the danger happened to occur. The right approach is, when the tort is completed, to look back over the series of events constituting it and ask the question, where in substance did the cause of action arise?

76 The court concluded that the goods were not incorrectly manufactured. The negligence lay in a failure to give warning that the goods would be dangerous if consumed by a woman in the first three months of a pregnancy. That warning might have been given by putting a warning notice on each package as it was made up in England. It could also have been given by communication to persons in New South Wales. The English company was negligent in New South Wales causing injury to the plaintiff in New South Wales.

This is the act (which must include the omission) on the part of the English company which has given the plaintiff a cause of complaint in law.[71]

However, the place where the particular mother (a customer who happened to purchase the products supplied in New South Wales) happened to ingest the drug was considered irrelevant because the place where the damage happened was irrelevant or fortuitous.[72]

77 The correct approach remains, as stated in Voth, to 'look back over the series of events ... and ask ... where in substance did the cause of action arise?'.[73] In doing so, the focus of attention must be the act of the defendant, and not its consequences and the place where the damage eventually occurred, for example, which may just be 'fortuitous'.[74] There is no general rule where the act is a form of communication or any process that begins in one place but is completed at a different time and location, that favours the place of receipt or of reliance, because of a distinction between an act and its consequences, on the one hand, and an act that is inchoate, on the other, e.g. where an act is in the form of communication. In such a case, the representation takes place where the message is received.[75] Receipt or reliance, where the conduct is acted upon, may have no connection at all with the place of initiation of or completion of a process alleged to be actionable such that the location of the consequences may also just be 'fortuitous'.[76]

78 I reject the 'advice' from Swedish lawyers that the proper law to be applied is Swedish law. The advice fails to identify sufficiently the dispute to which the proper law is to be applied and does not disclose sufficient reasoning. The parties did not address how I might use the letter which is exhibited to a solicitor's affidavit, but it is either inadmissible or not deserving of any weight.

79 Based on such evidence as there is, I cannot be persuaded that the location where the damage occurred in this case may not be fortuitous, meaning, in the sense explained in Distillers, that the place of ultimate damage was susceptible to some intervening random or unanticipated factor that resulted in the consequences of the defendant's conduct being visited on the plaintiff in some foreign jurisdiction. That simply cannot be said for the facts of this case. The particular intervening random or unanticipated factor is the inherent international mobility of an aircraft, including after it was sold to the Swedish purchasers.

80 Although the aircraft was the subject of a direct sale by the first defendant to a Swedish entity with the clear intention the plane be used in Sweden, for the purpose for which it was used, and certain aspects of the plane and its manual were supplied with this in mind, the conduct that is the cause of complaint or the substance of the negligence alleged against the defendants was antecedent to the sale of this particular Airvan. It is necessary to focus carefully on the series of events constituting the alleged tort and ask the question, where in substance did the cause of action arise?

81 The defendants' submission misses the point. It is immaterial that the contract and other materials demonstrate the seller's anticipation that the aircraft would be used in Sweden by a Swedish enterprise that intended to use the plane for parachuting in Sweden. That the content of the manual had, perhaps, minor differences because it had to comply with Swedish requirements is immaterial. What is material is that the manual happened to be largely the same as manuals for other countries because they are based on similar conventions and that directs the inquiry to the specific facts that must be examined.

82 The evidence on this application does not show that there is any process of modification of the design, fit out, or operating instructions provided by a manual, once it is established that the particular unit will be sold, and delivered to, Sweden for use in parachuting activities, or to any other country for any of the purposes for which the aircraft is fit. The plaintiffs argued that the flight manual was not bespoke in that aviation regulators endeavour to regulate aviation uniformly worldwide and for obvious reasons, such that an aircraft manufactured in Australia may be readily registered in any other jurisdiction that follows that broad system of regulatory regime, pursuant to various conventions. The plaintiffs submitted the Airvan was built in Australia and intended for worldwide use. All of the manuals and certifications originated from Australia and have just been adapted where required to ensure registration was permissible in Europe or America, wherever the aircraft might be.

83 Accepting that the material before the court on this application is limited, I am persuaded that the circumstances can be distinguished from those in Frost. The Airvan was not manufactured for sale in Sweden or, say, Nordic countries and particularly only for parachuting. The alleged tortious activity was not directed to Sweden. The place where the defendants' actions occurred, in the context of which the omissions on which the claim is based assume significance, was in Australia, specifically in Victoria. The quality of the defendants' conduct that is critical to the cause of complaint is located where the defendants were acting, not where the plane was flying, and the conduct alleged against them is all conduct that occurred in Victoria. By reference to the principles set out, I must conclude that the place where the consequences of the defendants' conduct was experienced, the crash in Sweden, cannot properly answer the question.

84 The relevant actions of the defendants were antecedent to the sale and to the characteristic of the sale on which the defendants rely for their contentions. The aircraft was designed, the manual was written, and in relevant respects, the fit out of the aircraft was set, well before the sale of the Airvan. Consistently with the analysis in Voth to identify the place of the 'cause of complaint', the failure to warn that the plaintiffs particularise as the breach of duty is based on the defendants' conduct antecedent to the sale of the Airvan to GCC Capital on 17 May 2013, when the Airvan might have been sold for use anywhere. It follows that the aspects of the sale the defendants emphasise to contend that the location where damage was suffered was not fortuitous, and that Sweden is the location of the cause for complaint, are unlikely to be matters of significance in the proceeding. The substance of the evidential inquiry at a trial of the pleaded issues will focus on conduct that occurred in, and is documented as happening in, Victoria.

85 Were the crux of the alleged wrongdoing limited to the failure to give appropriate warnings to the user of the plane (whether through the manual or in the body of the plane) and the nature of which was influenced by the particular purchaser's location, then the location of the cause for complaint points towards Sweden. The flight manual was approved by the European authority and various special requirements were necessary for parachuting in Europe. It is a nice question whether those statements specifically directed to a Swedish user were the actionable omission. I am not persuade of that. The ultimate test on this issue requires me to consider the overall substance of the wrongdoing, to look back over the series of events constituting it, to identify where in substance the cause of action arose. As I have said, I do not perceive those matters to be the crux of the wrongdoing being alleged.

86 The defendants' reasoning cannot hold if the cause for complaint extends to the design and manufacture of the plane more generally, including deciding on the content and expression of the manual and any displayed warnings in the plane's fit out. That conduct was part of the manufacturing process in Victoria and renders the ultimate use of the plane in Sweden as fortuitous. In other words, if this is not a warnings case of the traditional type (which it is not) or an inherently dangerous goods case, but a defective manufacture case (manufacture simpliciter), the place of design and manufacture becomes critical. The duty is arguably owed more generally to all international customers who purchase a plane, as opposed to a particular customer in Sweden. If the defect complained of is how the plane is generally manufactured for any customer (regardless of the slight specification changes for a particular Swedish client), then where the damage occurs becomes fortuitous.

87 As I have noted, the applicable choice of law test has room for judgment, for reasonable minds to differ on where overall wrongdoing 'in substance' occurred, and factual analogies from other cases can only go so far.

88 There were at least two logical flaws in the defendants' submissions in so far as they related to possible claims against third parties. The first is that the evidence suggests that such claims are, economically, worthless and will not be pursued, meaning they cannot be relevant to the present inquiry. That may explain the second flaw in the submission. It is not based on any effort to articulate the claims against other parties. The court is left to speculate as to how such claims may be alleged. Such speculation drives to the conclusion that the defendants do not do so because of the first reason. I do not know, except to the extent that I consider how I might, were I a pleader, what are the torts or wrongs to be alleged against those third parties and the material facts that would establish such claims. Put another way, this court is in a similar position at this stage of the pleadings, to the High Court in Puttick v Tenon Ltd:[77]

But because the relevant relationships between the parties could not be identified and described in any relevant details, and because it was not possible to say where (or for that matter how) the various requirements referred to in the plaintiff's pleading were made of Mr Puttick, not even a provisional finding could be made about what was the place of commission of the tort alleged. Rather, all that the material advanced in support of the application for a permanent stay demonstrated about questions of choice of law was that there would likely be a lively dispute about those questions, and that one possible outcome of the dispute is that New Zealand law would be found to govern the rights and duties of the parties.

89 At this stage, and if I am wrong in my analysis of the claims against the defendants, or other claims are introduced, it appears the question of choice of laws will give rise to a lively debate that may become clearer when the precise causes of the various complaints are refined and limited in scope. At this point, I am satisfied that the substantive law of the forum is the lex causae.

Role of lex causae in clearly inappropriate forum test

90 While the lex causae or lex loci delicti is not to be dispositive, the judgment of Gaudron J in Oceanic Sun suggested that there is a difference in the weight to be applied to this factor where the applicable law is the law of the chosen forum in which the defendants seek a stay, compared to the situation where the applicable law is some other jurisdiction. Where the applicable law is foreign, then an Australian court cannot be a clearly inappropriate forum merely because the choice of law rules of a different forum apply.[78] By contrast, however, where the applicable law coincides with the chosen forum, then the selected forum 'should not be seen as an inappropriate forum'.[79]

91 Gaudron J said that where the chosen forum is merely providing a procedural framework but applying foreign law, then this might suggest that considerations of convenience ought be taken into account. However, a 'doctrine which confers upon a court a discretion to decline to exercise its regularly invoked jurisdiction and thereby decline to participate in the application of its own substantive law ... raises fundamental problems.'[80]

92 Similarly, the High Court in Puttick v Tenon Ltd,[81] found that if the tort―

was shown not to be a foreign tort, Tenon's claim to a stay of the proceeding would have been greatly weakened. But it by no means follows that showing that the tort which is alleged is, or may be, governed by a law other than the law of the forum demonstrates that the chosen forum is clearly inappropriate to try the action. The very existence of choice of law rules denies that the identification of foreign law as the lex causae is reason enough for an Australian court to decline to exercise jurisdiction.

93 How far that disparity in weight goes is unclear. As Gaudron J explains, the applicable law may be of very great importance or of very little importance, as seen in the context of the whole case.[82] I need not pause to further consider this question in view of my conclusion that it is fairly arguable that Victorian Law is the lex causae.

Application of the clearly inappropriate forum test

94 In Voth, the High Court explained that the 'clearly inappropriate forum' test is similar to and, for that reason, is likely to yield the same result as, 'the more appropriate forum' test in the majority of cases. The critical difference, which will probably be rare, is where there is an available foreign tribunal which is the natural or more appropriate forum but where the local tribunal cannot be said to be a clearly inappropriate one.[83]

95 In Oceanic Sun, Deane J considered the facts of that case, set out above, to illustrate one of these rare cases. The focus of the test is on the advantages and disadvantages of continuing the proceeding in Victoria, rather than a comparison between the two forums. However, the High Court explained that 'considerations relating to the suitability of the alternative forum are relevant to the examination of the appropriateness or inappropriateness of the selected forum.'[84]

It seems there is a suggestion ... that your Honour shouldn't be effectively balancing the competing factors [between the two courts or systems] and somehow that constitutes some form of error. Well, we don't accept that, your Honour. In fact, we say that is exactly what your Honour is required to do... And the issue is ... in balancing to determine whether or not oppression or vexation is visited on the defendant in the matter being prosecuted or continuing to be prosecuted in Victoria, or unfairly or significantly oppressive or vexatious when compared to the legitimate advantage that the plaintiff seeks in pursuing the matter here.

97 The defendants submitted that this was exactly the process of balancing relevant factors that the High Court undertook in Voth:[85] The Court considered each of the advantages (a limitation bar, difference in costs awarded, advantage in the rules of damages by way of interest), some of which were mitigated by undertakings, and held that―

while doubtless significant to the respondent plaintiffs, are of diminished in the overall task of the court exercising its discretion based on the competing connexions of the respective forums with the subject-matter of the proceedings. They are not sufficient to resist the conclusion to which the other considerations irresistibly point, that New South Wales is the clearly inappropriate forum in which to permit the action to proceed.[86]

98 In Zhang the High Court reiterated that while some considerations of the competing factors is appropriate, the test does not require striking a balance between competing consideration, but rather the applicants must demonstrate that a trial in New South Wales would be productive of injustice because it would be seriously and unfairly burdensome, prejudicial, damaging, or cause unjustifiable trouble and harassment to the applicants.[87] In that case, even though the vehicle accident occurred, and the defendants were located, in a foreign jurisdiction, the practical considerations overall favoured a hearing in New South Wales. Therefore a trial in the chosen forum could not be oppressive or vexatious in the relevant sense and the application for a stay must fail.[88]

99 I have not been persuaded by the defendants that a trial of this proceeding in Victoria will be oppressive or vexatious in the relevant sense for them.

100 I have concluded that Victoria is the proper forum for the dispute as pleaded. The plaintiff submitted that if I concluded that it might be said that ascertaining the natural forum is complex and finely balanced, I then ought more readily conclude that this court is not a clearly inappropriate forum. Were it necessary to go this far, I would accept this submission.

101 The focus in this enquiry must be why the chosen forum is inappropriate. First, I note that it was chosen by the foreign plaintiffs who have appropriately engaged the jurisdiction of the court against local defendants. The plaintiffs appear content to litigate in an English speaking court in Australia and are not vexed by all that this will entail. Secondly, I have rejected the submission that the lex loci delicti indicates that the lex causae is Swedish law. I conclude my reasons by turning to the matters suggested by the defendants to be other relevant connecting matters or indicia that the proceeding would be oppressive or vexatious in the sense identified earlier.

(i) I am not persuaded that there is any significant language issue either for witnesses giving oral evidence or in the use of documents. The pleaded issues only point to Australian documents, i.e. the defendants' documents as being the main source of documentary evidence and instructions to experts. The investigation report is available in English and there is no suggestion that there will be difficulties, particularly insurmountable ones, should it be necessary to go behind that report. I am not persuade that all Swedish documentation will need to be translated at great effort and expense for the defendants.

(ii) The plaintiffs maintained that there will be extensive documentation from Victoria in the design and manufacture of the aircraft and the preparation of the manuals, including, for example, the independent engineers who are delegates of the local regulator who signed off on the aircraft.

(i) Many of the witnesses to the crash itself and the subsequent investigation will be in Sweden. It is evident from the investigation report into the crash, prepared by the Swedish Accident Investigation Authority, that interviews were conducted with the Swedish Transport Agency, the jump leader, the person responsible for the flight operations, the examiner who conducted the pilot's proficiency checks, the pilot's parents, parachuters in the Club, air traffic controllers, rescuers at the scene and so on, the debris from the crash remains in Sweden. The report also finds that the specific certifications imposed on the aircraft operator by the European authority were certified as complied with (like seating and restraints) as well as the supplemental manual for parachuting.

(ii) It is not clear that the evidence gathered by the investigation will be in issue and that all these witnesses will be required. The defendants have argued this application without filing a defence and any third party proceedings, making this contention rather speculative. Nor, as I have said, is it clear that there are significant language/translation issues. I would not simply jump to this conclusion. I am not persuaded that this is a real concern that amounts to oppression or vexation in the relevant sense. Witnesses can appear on an audio-visual digital platform.

(iii) On the plaintiffs' allegations there will mostly be Australian-based witnesses, both lay and expert. Questions about the design and manufacture of the plane, or the manual, can be answered by Australian experts.

(i) 18 of the 20 plaintiffs reside in Sweden. The defendants say they will need to give evidence. They may need a translator, not being professional people who may be more likely to speak English. As with the consideration above, witnesses may appear over audio-visual link. It is possible that this could incur additional costs for interpreters.

(ii) The plaintiffs maintain that this is their expense and their concern - it doesn't speak to vexation or oppression against the defendants. The defendants are domiciled in the chosen jurisdiction which seriously mitigates any question of oppression for them.

I cannot see how or why a view of the crash scene might assist in the resolution of the pleaded issues.

(i) These plaintiffs also have no assets in Australia. The suggestion that Sweden will not enforce an Australian judgment and it would have to be retried there is not sufficiently developed to persuade me that oppression or vexation in the relevant sense is possible. It is not, for example, clear whether such a 're-trial' would be a full re-run or a formality.

(ii) I am not persuade that this factor demonstrates a possibility of oppression or vexation. A liability to pay costs could be addressed by an application for security for costs. I have dealt with the possibility of an Australian judgment against a third party, but some further analysis is appropriate.

(i) The defendants submitted that at least four other parties could have been responsible for, or contributed to the loss and damage claimed by the plaintiffs. The investigation report into the crash makes findings which suggest that the crash was caused by the actions of the pilot, the Skydiving Club, Skydive Umea which is in liquidation, and CCG Capital, the owner or financier of the plane. I have addressed the practical issue that any judgment may not be economically recoverable.

(ii) In addition, while aircraft of this type, when used for skydiving, are normally fitted with certain safety equipment, and such equipment was to be so installed according to the contract of sale, the plane - at time of crash - did not have such equipment. The defendants suggested that the plane was modified after delivery, a conclusion the plaintiffs resisted. In any event, the modifier is likely to be the owner or operator and this suggestion does not advance the defendants' proposition.

102 I agree with the plaintiffs' submissions that none of these factors meet the threshold required to demonstrate that the defendants will suffer vexation or oppression, in the relevant sense, from a trial in Victoria. The defendants have failed to demonstrate that Victoria is a clearly inappropriate forum for the continuation of the plaintiffs' claims against the defendants.

103 The defendants' application for a permanent stay of the proceeding is dismissed.

[1] Benefit Strategies Group Inc v Prider (2005) 91 SASR 544, 552 [18].

[2] The law of the place where the tort occurred or was committed.

[3] The law to be applied by the forum court to resolve the cause.

[4] [2006] NSWCA 173; (2006) 67 NSWLR 635 (Frost).

[5] This reference is explained later in these reasons.

[6] Garsec v HM Sultan of Brunei [2008] NSWCA 211; (2008) 250 ALR 682, 712 [141].

[7] McGregor v Potts [2005] NSWSC 1098; (2005) 68 NSWLR 109, 123 [61].

[9] Ibid 122 [54] (citations omitted).

[10] Spiliada Maritime Corp v Cansulex Ltd [1986] UKHL 10; [1987] AC 460.

[11] Literally, the forum is not convenient.

[12] Oceanic Sun Line Special Shipping Co v Fay [1988] HCA 32; (1988) 165 CLR 197; Voth v Manildra Flour Mills Pty Ltd [1990] HCA 55; (1990) 171 CLR 538, 564, 572; Henry v Henry [1996] HCA 51; (1996) 185 CLR 571, 586-587.

[13] Voth, 554 (n 12).

[14] Oceanic Sun, 247-8 (n 12).

[16] St Pierre v South American Stores (Garth & Chaves) Ltd [1936] 1 K.B. 382; Owners of the Atlantic Star v Owners of the Bona Spes [1974] AC 436; MacShannon v Rockware Glass Ltd [1978] AC 795.

[17] Spiliada (n 10).

[19] Oceanic Sun, 255 (n 12).

[24] Regie Nationale des Usines Renault SA v Zhang [2002] HCA 10; (2002) 210 CLR 491, 520-1.

[26] Voth, 565 (n 12).

[28] Zhang, 521 (n 24); Voth, 564-5 (n 12).

[29] Henry, 586-7 (n 12).

[30] Oceanic Sun, 250 (n 12).

[31] Spiliada, 477-8 (n 10).

[32] Oceanic Sun, 266 (n 12).

[33] Voth, 566 (n 12).

[34] Zhang, 521 (n 24).

[35] Voth, 548 (n 12).

[36] In the Marriage of Gilmore [1993] FamCA 3; (1993) 16 Fam LR 285.

[37] Spiliada, 478 (n 10).

[38] Henry, 592-3 (n 12).

[40] Zhang, 520 [75] (n 24).

[41] Distillers Co v Thompson [1971] AC 458, 467-8.

[42] Voth, 567 (n 12).

[44] George Monro Ltd v American Cyanamid and Chemical Corp [1944] K.B. 432, 439.

[45] Distillers, 468 (n 41) (citations omitted).

[46] Voth, 567-8 (n 12).

[51] Delco v Equipment Enterprise [2000] FCA 821; (2000) 100 FCR 385, 392; Aussie Home Security v Sales Systems [2000] FCA 498; (2000) 172 ALR 141, 151 [42].

[52] Sigma Coachair Group Pty Ltd v Bock Australia Pty Ltd [2009] NSWSC 684, [84]-[85] (citations omitted) (emphasis supplied).

[53] (2002) 210 CLR 575, 606 [43] (Dow Jones) (citations omitted).

[55] Dow Jones (n 53).

[56] Frost, 640 (n 4).

[66] Ibid 644, citing Voth (n 12).

[72] See the analysis of Distillers in this regard in, eg, Voth, 567 (n 12); Sigma Coachair, [91]-[92] (n 52).

[73] Voth, 567 (n 12).

[77] [2008] HCA 54; (2008) 238 CLR 265, 275 [21] (Puttick).

[78] Zhang, 521 (n 24).

[79] Oceanic Sun, 266 (n 12).

[81] Puttick, 277-8 [31] (n 77).

[82] Oceanic Sun, 265 (n 12).

[83] Voth, 558 (n 12).

[87] Zhang, 521 (n 24).