Pretorius v Higgins - [2025] ACTSC 216

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Pretorius v Higgins
Citation:	[2025] ACTSC 216
Hearing Date:	16 May 2025
Decision Date:	23 May 2025
Before:	Ainslie-Wallace AJ
Decision:	See [43]
Catchwords:	CIVIL LAW – PRACTICE AND PROCEDURE – Application to set aside or permanently stay proceedings – where defendant to previous personal injury proceedings has brought claim alleging personal injury arising from same factual circumstances – non-compliance with Pt 5.2 of Civil Law (Wrongs) Act 2002 (ACT) – whether defendant waived compliance – whether proceedings abuse of process – Anshun estoppel – whether plaintiff estopped from bringing further proceedings – claims sought to be raised previously litigated and determined – continuance of claim would represent abuse of process
Legislation Cited:	Civil Law (Wrongs) Act 2002 (ACT) Pt 5.2, ss 51, 54, 59
Cases Cited:	Henderson v Henderson (1843) 3 Hare 100, 67 ER 313 Higgins v Pretorius [2025] ACTSC 64 Manny v Commonwealth of Australia (No 2) [2025] ACTSC 146 Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 Ruspandini v Summernats Pty Ltd (No 2) [2025] ACTSC 171 Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28; 256 CLR 507 Walton v Gardiner (1993) 177 CLR 378
Parties:	Judith Frances Higgins ( Applicant) Annemie Pretorius ( Respondent)
Representation:	Counsel P Tierney ( Applicant) Self-Represented ( Respondent)
Solicitors AC Lawyers ( Applicant) Self-Represented ( Respondent)
File Number:	SC 55 of 2025

AINSLIE-WALLACE AJ

Introduction

1․On 25 February 2025, Annemie Pretorius (the Respondent) commenced proceedings against Judith Higgins (the Applicant) seeking damages for personal injuries said to have been sustained by her on 15 March 2022 when the Applicant attacked her. As a consequence, the Respondent says she has suffered significant and persisting injuries, loss and damage.
2․By application in proceeding filed on 31 March 2025, the Applicant seeks orders that the Respondent’s Originating Claim be set aside and that her claim be permanently stayed or that the Respondent be restrained from taking any further step in the proceedings without the leave of the Court and without payment of the judgment debt owed to the Applicant arising from proceedings SC 420 of 2023 (Higgins v Pretorius).
3․It is useful to provide some background to this action by reference to the earlier proceedings.
4․On 15 March 2022 the Respondent assaulted the Applicant with the result that the Applicant suffered significant life changing injuries. The claim alleged that the Respondent aggressively assaulted the Applicant. The Respondent admitted liability and admitted that the assault was aggressive. The hearing proceeded as an assessment of the Applicant’s damages.
5․The proceedings Higgins v Pretorius (the previous proceedings) were heard between 14 and 16 October 2024, and judgment was delivered on 28 February 2025 (Higgins v Pretorius [2025] ACTSC 64). Verdict was entered on 7 April 2025.
6․It is useful here to set out the parts of the judgment that refer to the assault.
1. On 15 March 2022 Judy Higgins (the Plaintiff) was speaking to…

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 Pretorius v Higgins

Details

AGLC: Pretorius v Higgins [2025] ACTSC 216
Case: [2025] ACTSC 216
Decision Date: 23 May 2025

CaseChat Overview and Summary

In Pretorius v Higgins, the plaintiff brought proceedings against the defendant, seeking damages for personal injury arising from the same factual circumstances as a previous personal injury proceeding. The defendant argued that the plaintiff's proceedings were an abuse of process, were non-compliant with the statutory requirements of Part 5.2 of the Civil Law (Wrongs) Act 2002 (ACT), and that the plaintiff was estopped from bringing the proceedings by virtue of Anshun estoppel. The court was required to determine whether the plaintiff's non-compliance with the statutory requirements could be waived, whether the proceedings constituted an abuse of process, and whether the plaintiff was estopped from bringing the claim.

The court held that the plaintiff's non-compliance with Part 5.2 of the Act could be waived by the defendant, and that the defendant had not effectively waived this requirement. The court further held that the plaintiff's proceedings did not constitute an abuse of process, and that the plaintiff was not estopped from bringing the claim by virtue of Anshun estoppel. The court found that the plaintiff's claims sought to be raised were not previously litigated and determined, and that a continuance of the claim would not represent an abuse of process.

The court dismissed the defendant's application to set aside or permanently stay the proceedings. The court held that the defendant had not demonstrated that the plaintiff's non-compliance with Part 5.2 of the Act was a significant impediment to the fair administration of justice, and that the defendant had not demonstrated that the plaintiff's proceedings constituted an abuse of process. The court found that the plaintiff's claims sought to be raised were not previously litigated and determined, and that a continuance of the claim would not represent an abuse of process. The court held that the plaintiff was not estopped from bringing the claim by virtue of Anshun estoppel, as the plaintiff had not had a full and fair opportunity to litigate the claims in the previous proceeding. The court found that the plaintiff's claims were not identical to those previously litigated, and that the plaintiff had not had a full and fair opportunity to litigate the claims in the previous proceeding.

Orders

Orders of the court

See [43]

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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