Brooks v Padman - [2025] VSC 328

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Brooks v Padman

Details

AGLC: Brooks v Padman [2025] VSC 328
Case: [2025] VSC 328
Decision Date: 12 June 2025

CaseChat Overview and Summary

The matter between Brooks and Padman arose from a personal injury claim in the Supreme Court of Victoria. The plaintiff sought to transfer the proceedings to the Supreme Court of Tasmania, citing the potential benefits of such a transfer on their health. The defendants opposed the transfer, arguing that the plaintiff's case did not meet the stringent criteria for a transfer under cross-vesting legislation.

The central legal issue before the court was whether the plaintiff's health and wellbeing constituted sufficient grounds for transferring the proceedings to another jurisdiction. This required the court to consider relevant case law, including BHP Billiton Ltd v Schultz, Ewins v BHP Billiton Ltd, Irwin v State of Queensland, Valceski v Valceski, and Hughes v Whittens Group Pty Ltd. These cases provided a framework for assessing the interests of justice and the impact of the transfer on the plaintiff's health.

In determining the appropriate course of action, the court examined the precedents and the plaintiff's specific circumstances. It found that, while the plaintiff's health was a significant factor, it did not outweigh other considerations, such as the expeditious resolution of the matter and the potential inconvenience to the defendants. The court concluded that the transfer would not serve the interests of justice in this instance. Consequently, the application for the transfer was dismissed.

The court's final orders were that the application for the transfer of proceedings to the Supreme Court of Tasmania was dismissed. The plaintiff was directed to pay the defendants' costs associated with the application.

Orders