Brooks v Padman
[2025] VSC 328
•12 June 2025
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
PERSONAL INJURIES LIST
S ECI 2024 06202
| JACKIE MARINA BROOKS | Plaintiff |
| v | |
| GAVIN JOHN PADMAN | First Defendant |
| MITCHELL JEFFREY HARVEY | Second Defendant |
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JUDGE: | K Judd J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 2 May 2025 |
DATE OF JUDGMENT: | 12 June 2025 |
CASE MAY BE CITED AS: | Brooks v Padman & Anor |
MEDIUM NEUTRAL CITATION: | [2025] VSC 328 |
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COMMON LAW – Personal Injury – Cross-vesting legislation – Application for proceeding to be transferred to the Supreme Court of Tasmania – Interests of justice – Impact of transfer on plaintiff’s health - BHP Billiton Ltd v Schultz (2004) 221 CLR 400 – Ewins v BHP Billiton Ltd [2005] VSC 4 – Irwin v State of Queensland [2011] VSC 291 – Valceski v Valceski (2007) 70 NSWLR 36 - Hughes v Whittens Group Pty Ltd [2017] NSWSC 329.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | M Hooper SC H Daniel | Blumers Personal Injury Lawyers |
| For the Defendants | J Bloomfield | McLean, McKenzie & Topfer |
HER HONOUR:
Overview
This is an application by the defendants for an order that the proceeding be transferred to the Supreme Court of Tasmania, pursuant to s 5(2)(b)(iii) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Vic), on the basis that it is in the best interests of justice that the Supreme Court of Tasmania determine the proceeding.
On 18 November 2024, the plaintiff commenced proceedings against the defendants by generally endorsed writ, claiming damages as a consequence of the negligence of the defendants. The claim appears to be one for damages for mental harm to the plaintiff suffered due to the death of the plaintiff’s father – following two consecutive motor vehicle incidents involving the defendants and the plaintiff’s father on 25 March 2022, on the Bass Highway at Carrick, Tasmania. There is also potentially a claim pursuant to the provisions of the Fatal Accidents Act 1934 (Tas). At present, no statement of claim has been filed in the proceedings.
Evidence
In support of their application, the defendants rely upon affidavits of Mr Aaron Berens Murphy sworn 4 February 2025 and 21 March 2025, and the exhibits thereto, which include a Tasmania Police Crash Report created on 25 March 2022 and correspondence with the Supreme Court of Tasmania concerning potential listing dates. The defendants also tendered a Coroner’s Record of Investigation Into Death dated 15 July 2024.
The plaintiff, in response, relies upon an affidavit of Ms Bernadette Davies sworn on 4 March 2025, and the exhibits thereto. Those exhibits include a report from Betty Gurovski, psychologist, dated 5 February 2025 and a report from Dr Simmi Kumari, psychiatrist, dated 3 December 2024.
Legal principles
In an application to transfer a proceeding, there is no onus of proof on either party.[1] In that regard, it is not necessary for the applicant for a transfer ‘to show some good reason for disturbing the plaintiff’s initial choice of venue,’[2] nor is it the case that ‘the plaintiff’s choice of court is to be given weight’:[3]
It is only if both courts are equally appropriate that the initial choice will have significance; if one is more appropriate than the other, however so slightly, a transfer to the more appropriate court is mandatory.[4]
[1]Valceski v Valceski (2007) 70 NSWLR 36, 60 [70] (Brereton J).
[2]Valceski v Valceski (2007) 70 NSWLR 36, 60 [70] (Brereton J).
[3]Ibid.
[4]Ibid.
Similarly, the High Court has stated:
In the context of the Cross-vesting Act, one is not concerned with the problem of a court, with a prima facie duty to exercise a jurisdiction that has been regularly invoked, asking whether it is justified in refusing to perform that duty. Rather, the court is required by statute to ensure that cases are heard in the forum dictated by the interests of justice. An application for transfer under s 5 of the Cross-vesting Act is brought upon the hypothesis that the jurisdiction of the court to which the application is made has been regularly invoked. If it appears to that court that it is in the best interests of justice that the proceedings be determined by another designated court, then the first court “shall transfer” the proceedings to that other court. There is a statutory requirement to exercise the power of transfer whenever it appears that it is in the interests of justice that it should be exercised. It is not necessary that it should appear that the first court is a “clearly inappropriate” forum. It is both necessary and sufficient that, in the interests of justice, the second court is more appropriate.[5]
[5]BHP Billiton Ltd v Schultz (2004) 221 CLR 400, 421 [14] (Gleeson CJ, McHugh and Heydon JJ) (‘BHP v Schultz’).
The judicial determination as to whether to transfer or not, has at times been described as a ‘nuts and bolts’ management decision.[6] A wide range of considerations or ‘connecting factors’ may be taken into account and ‘must be fairly balanced’[7] so as to identify ‘the most appropriate, or natural, forum’.[8]
[6]BHP v Schultz, 421 [13], quoting Bankinvest AG v Seabrook (1988) 14 NSWLR 7111, 714 (Street CJ).
[7]Vernon v Kaefer Integrated Services Pty Ltd [2023] VSC 667, [13] (Forbes J).
[8]BHP v Schultz, 423 [19].
Those connecting factors include the interests of the parties. However, as the interests of justice are wider than the interests of the parties, the interests of the parties will not necessarily be determinative.[9]
[9]BHP v Schultz, 423 [19]; Irwin v State of Queensland [2011] VSC 291, [14](d) (Robson J).
Relevant connecting factors might include:
(i)In a tort case, the place where the wrong occurred.
(ii)Residence of the parties and where it is an individual, the place where he or she resides, and in the case of a corporation where it carries on business. The latter is not necessarily its place of registration, although of course the latter is important to ensure jurisdiction.
(iii)The convenience to the parties and witnesses. However in this day and age this factor may not carry substantial weight, because of the ability to move witnesses around Australia at small expense and little inconvenience, and also because of the provision of evidence by audio visual link.
(iv)The law governing the proceeding.
(v)The experience of a particular Court and its ability to provide an efficient and speedy trial, for example, in a personal injury case where the life expectancy of the plaintiff is limited requiring a speedy outcome.[10]
[10]Ewins v BHP Billiton Ltd [2005] VSC 4, [29] (Gillard J).
As noted by Gillard J in Ewins v BHP Billiton Ltd:
… it is right to attach importance to the procedural and evidentiary advantages offered to all parties in a particular court. It is relevant to have regard to a particular court’s specialisation and experience in a particular field.[11]
[11]Ibid, [31].
The fragility of the mental health of a plaintiff and the possibility of its endangerment by a proceeding being moved to another jurisdiction may constitute a compelling reason why, in the interest of justice, no transfer order should be made.[12]
[12]Hughes v Whittens Group Pty Ltd [2017] NSWSC 329, [31] (Button J).
Defendants’ submissions
The defendants submitted that the Supreme Court of Tasmania is the more appropriate forum for deciding this proceeding, relying on connecting factors including that:
(a) this proceeding will be subject to Tasmanian law, specifically: the Motor Accidents (Liabilities and Compensation) Act 1973 (Tas), the Civil Liability Act 2002 (Tas), and possibly the Fatal Accidents Act 1974 (Tas) and the Wrongs Act 1954 (Tas);
(b) the place where the alleged tortious wrong occurred is Tasmania;
(c) although the plaintiff resides in Victoria, the first and second defendants are understood to reside in Tasmania and the place of business of the Motor Accidents Insurance Board, the statutory insurer that indemnifies the defendants, is Launceston, Tasmania; and
(d) the convenience and expense of conducting the proceeding favours Tasmania, particularly bearing in mind that, if liability is in issue, the defendants may need to call a number of witnesses who reside in Tasmania.
In respect of the plaintiff’s submissions concerning the health of the plaintiff, the defendants submit that the difficulty with travel can be overcome by the plaintiff giving evidence by audiovisual link, and that the concerns that the plaintiff has about time away from work and resulting financial detriment are jurisdiction neutral. Other than travel time, there is little difference between attending a trial in person and attending a trial in Tasmania.
In respect of the experience of a particular court to provide an efficient and speedy trial, it is not possible to conclude one way or the other whether one jurisdiction can provide a more expeditious trial.
Plaintiff’s submissions
The plaintiff opposes the application to transfer the proceedings to the Supreme Court of Tasmania, submitting:
(a) there is no relevant difference in the law to be applied, given that the common law of Australia is largely applicable and any statutory differences between the two jurisdictions are minimal and not difficult to apply;
(b) the plaintiff resides in Derrimut, Victoria, receives medical treatment in Victoria and works in Victoria, and will be subjected to significant expense and inconvenience if all, or a majority, of her witnesses are required to give evidence in person in Tasmania;
(c) travelling to Tasmania would have a significant impact on the plaintiff’s mental health and may also have an impact on her employment arrangements and earning capacity;
(d) there is no good evidence of the place of residence of the defendants;
(e) the potential witnesses on liability, two of whom reside in South Australia, may not be required to give evidence if liability is not in issue, and in any event could give evidence via audiovisual link;
(f) the plaintiff’s identified witnesses on damages all reside in Victoria, and if the matter were to proceed in Victoria, the defendants have the opportunity of engaging Victorian experts so as to minimise inconvenience to these witnesses;
(g) the experience of each court, and their ability to provide an efficient and speedy trial, favours Victoria.
Consideration
There are connecting factors to both Victoria and Tasmania.
The motor vehicle accidents occurred in Tasmania and the plaintiff’s claim arises from torts that occurred there.
The law governing the proceeding is that of Tasmania, although this is somewhat tempered by the legal similarities between the two jurisdictions, including as to their statutory structures and the applicability of the underlying common law.
The location and convenience of the parties is not clear cut. Although it is unlikely that liability will be in issue in respect of the actions of the second defendant, who has made certain admissions in relation to his fault, it is far from clear that there will be no need to call liability witnesses in respect of the first defendant’s actions, or in respect of the actions of the deceased if the dependency claim is pursued.
In that regard, I accept that some of the liability witnesses, if required, are likely to reside in Tasmania.
However, I am unable to accept that the two defendants themselves, as well as two other witnesses involved in the accident, do in fact reside in Tasmania. The affidavit evidence is insufficient in that regard. The relevant evidence from Mr Murphy’s affidavits relies on addresses included in the Tasmania Police Crash Report, and goes little further than asserting that there are potentially four liability witnesses involved in the accident who were last known to have Tasmanian residential addresses.
Two further liability witnesses reside in South Australia, and accordingly can be said to have no greater connection with either Victoria or Tasmania.
The likely witnesses relevant to an assessment of damages include the plaintiff herself, the plaintiff’s partner, and both the plaintiff’s and defendants’ medical witnesses. The known witnesses relevant to an assessment of damages reside in Victoria, including the plaintiff’s medical witnesses. Further, given the proceeding is in its early stages, the defendants still have the opportunity of engaging Victorian medical experts.
The uncontested evidence is that the plaintiff’s psychological condition does affect her ability to travel to Tasmania and there could be several potential ramifications to her health if she were required to travel, including increased anxiety and stress.
Despite submissions from the plaintiff to the effect that the Supreme Court of Tasmania may not have the same technical ability and preparedness to accommodate audiovisual links, I do not accept that audiovisual links would not be able to be sensibly and adequately utilised by a Tasmanian Court. As such, I proceed on the basis that the Tasmanian Supreme Court would have the capacity and preparedness to utilise audiovisual links for the purposes of the plaintiff and her witnesses attending the trial and giving evidence remotely. However, even so, the plaintiff’s residence in Victoria and her desire to attend the court in person weigh in favour of no order for transfer being made.
I am not persuaded that the potential consequences to the plaintiff’s employment arrangements and earning capacity have much relevance to the outcome of this application, as those consequences could occur whether the trial is in Melbourne or Tasmania.
I place little weight on the location of the statutory insurer, noting that an insurer is more likely to be able to accommodate an interstate trial than the individual plaintiff in this proceeding.
There was some evidence adduced and submissions made as to which jurisdiction was more able to provide a speedy trial. I regard this issue as jurisdiction neutral, as I am unable to conclude that either court has the capacity to conduct a more efficient, expeditious and speedy trial than the other.
Based on the above considerations, the evidence and arguments as to the more appropriate forum are finely balanced. But two considerations tip the scales in favour of not acceding to the defendants’ application to transfer the proceeding.
The first is that the psychological evidence supports a finding that a transfer of the proceeding is likely to have an impact on the plaintiff’s health and well-being.
The second is that there was insufficient evidence to conclude that the majority of witnesses are likely to be based in Tasmania. This was a major plank in the defendants’ argument. However, the evidence that does exist demonstrates that there is more certainty as to relevant witnesses being based in Victoria than in Tasmania, particularly when regard is had to witnesses relevant to an assessment of damages.
Conclusion
Weighing all of the matters discussed above, I am of the view that the most natural and appropriate forum for this proceeding is Victoria.
Accordingly, the application for transfer of the proceeding to the Supreme Court of Tasmania must be dismissed.
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