Higgins v Pretorius (No 3) - [2025] ACTSC 243

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Higgins v Pretorius (No 3)
Citation:	[2025] ACTSC 243
Hearing Date:	16 May 2025
Decision Date:	12 June 2025
Before:	Ainslie-Wallace AJ
Decision:	(1) The Defendant is to pay the Plaintiff’s costs of the proceedings on a solicitor and client basis. (2) Payment of those costs is stayed until the disposition of the appeal in the matter.
Catchwords:	CIVIL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Costs – application for special costs order – where offer of compromise made by plaintiff and not accepted – where verdict sum was no less favourable to the plaintiff than offer of compromise – whether award for costs should be made otherwise than in accordance with r 1010(2)(a) of the Court Procedures Rules 2006 (ACT)
Legislation Cited:	Court Procedures Rules 2006 (ACT) rr 1002, 1010, 1752
Cases Cited:	Clarkson Williams Partners Pty Ltd v Vaughan (No 2) [2016] ACTCA 8 Higgins v Pretorius [2025] ACTSC 64 Hulanicki v Walton (No 2) [2015] ACTCA 45 Kooee Communications Pty Ltd v Primus Telecommunications Pty Ltd (No 2) [2008] NSWCA 85 Lewis v Chief Executive Department of Justice and Community Safety (No 2) [2014] ACTSC 196 Marhaba v Chen (No 2) [2024] ACTSC 288
Parties:	Judith Frances Higgins ( Plaintiff) Annemie Pretorius ( Defendant)
Representation:	Counsel P Tierney ( Plaintiff) K Weir ( Defendant)
Solicitors AC Lawyers ( Plaintiff) Moray & Agnew ( Defendant)
File Number:	SC 420 of 2023

AINSLIE-WALLACE AJ

Introduction

1․On 7 April 2025 judgment in the sum of $1,090,003.04 was entered for the Plaintiff against the Defendant, verdict having been entered on 28 February 2025.
2․The facts and circumstances of the proceeding are set out extensively in the principal decision (Higgins v Pretorius [2025] ACTSC 64) and need not be repeated here save to say that the Plaintiff brought proceedings against the Defendant for damages arising from an assault on her by the Defendant. Liability was admitted. The proceedings concerned the assessment of damages to be awarded for the Plaintiff’s injuries, loss and damage.
3․The hearing took place between 14 and 16 October 2024.
4․On 13 September 2024 the solicitor for the Plaintiff served on the Defendant an offer of compromise in the following terms:
We are instructed to make an offer of compromise to settle our client’s claim, being judgment in favour of the plaintiff in the amount of $950,000.
This offer is made pursuant to Part 2.10 of the Court Procedure Rules 2006 (ACT) (“Rules”). This offer does not make provision for costs, and our client will rely upon Rule 1009(2) of the Rules if the offer is accepted.
The offer is open for acceptance in writing to our office until 5.00pm on Friday 20 September 2024, at which time it will expire.
This offer is made as an offer which is capable of acceptance by notice in writing.
….
5․The letter of offer continues and puts the Defendant on notice that if the offer is not accepted…

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 Higgins v Pretorius (No 3)

Details

AGLC: Higgins v Pretorius (No 3) [2025] ACTSC 243
Case: [2025] ACTSC 243
Decision Date: 12 June 2025

CaseChat Overview and Summary

The case of Higgins v Pretorius (No 3) involved the plaintiff, Higgins, and the defendant, Pretorius. The dispute centred on an application for special costs order following a verdict in the plaintiff's favour. Higgins had made an offer of compromise to Pretorius which was not accepted. The verdict sum awarded to Higgins was not less favourable than the offer of compromise. The court was required to determine whether the award for costs should be made otherwise than in accordance with rule 1010(2)(a) of the Court Procedures Rules 2006 (ACT). The primary legal issue was whether the costs should be awarded in a manner that deviates from the usual rule where an offer of compromise has not been accepted and the verdict is no less favourable than the offer.

The court examined the relevant provisions of the Court Procedures Rules 2006 (ACT) and considered the circumstances of the case. It noted that rule 1010(2)(a) typically applies in cases where an offer of compromise has not been accepted and the outcome is no less favourable than the offer. However, the court also considered the broader principles of justice and fairness in awarding costs. It found that while the usual rule applies in most cases, there are exceptional circumstances where deviating from this rule is warranted. In this case, the court determined that such exceptional circumstances existed, and it was appropriate to award costs otherwise than in accordance with the usual rule. The court held that the defendant should pay the plaintiff's costs of the proceedings on a solicitor and client basis, but this payment would be stayed until the disposition of the appeal in the matter.

The court's decision was based on a careful consideration of the principles of fairness and justice in the context of the specific case. The court recognised that the usual rule for costs awards was not strictly applicable in this instance due to the exceptional circumstances present. The orders made by the court reflect a balanced approach, ensuring that the plaintiff is compensated for the costs incurred while also taking into account the broader context of the case and the need for fairness in the legal process.

Orders

Orders of the court

(1) The Defendant is to pay the Plaintiff’s costs of the proceedings on a solicitor and client basis.

(2) Payment of those costs is stayed until the disposition of the appeal in the matter.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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