Pretorius v Higgins
[2025] ACTSC 216
•23 May 2025
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 – |
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 |
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 her next-door neighbour, Annemie Pretorius (the Defendant) on or near the nature strip that abutted both their properties. The conversation was the continuation of a dispute between the Defendant and the Plaintiff about the nature strip. The Defendant contended it was her property and she could make changes to it as she wished. Some of those changes were inconvenient to the Plaintiff.
2. On this day, the Defendant was busy making some changes to the nature strip when the Plaintiff spoke to her. Words were exchanged and the Defendant moved away slightly from the Plaintiff who inadvertently touched the Defendant’s hat meaning to touch her shoulder to indicate that the conversation had not ended. Without warning, and shockingly, the Defendant swung a rubber mallet and deliberately struck the Plaintiff on the side of her head.
7․In the result, the Applicant was awarded damages of $1,090,003.04. The Respondent has appealed those orders. As the proceedings concerned only the assessment of damages, the above paragraphs of the judgment are uncontroversial.
The present proceedings
8․There are three bases on which the orders are sought by the Applicant; that the Respondent has failed to comply with Pt 5.2 of the Civil Law (Wrongs) Act 2002 (ACT) (Civil Law (Wrongs) Act); that the Applicant is estopped from bringing the claim in light of the judgment in Higgins v Pretorius, and that the proceedings amount to an abuse of process.
Part 5.2 of the Civil Law (Wrongs) Act
9․Part 5 of this Act deals with claims for personal injuries. It provides a scheme to encourage and facilitate the resolution of claims for personal injury without the need for litigation and in a manner that is timely and that minimises legal costs.
10․The effect of the various sections in Pt 5.2 was summarised in Ruspandini v Summernats Pty Ltd (No 2) [2025] ACTSC 171, where McCallum CJ said at [13]-[15]:
Part 5.2 specifies the procedures for making a claim. Section 51, in addition to requiring a claimant to give the written notice of the claim before bringing proceeding based on the claim, specifies the information that must be included in a notice of claim. Section 52 makes provision for a respondent to give a preliminary response to a notice of claim seeking further information if it cannot decide on the information in the notice of claim whether it is properly a respondent to the claim. That section further provides for the claimant either to provide the further information sought or to insist (my word) that it considers the respondent to be properly a respondent to the claim and requires it to respond to the claim in accordance with s 54. Section 53 protects a respondent by making plain that an admission that it is properly a respondent to the claim is not an admission of liability.
Section 54 requires a respondent to respond to a notice of claim. As with s 51, that section specifies the information that must be included within a response. Sections 55 to 58 make provision for the addition of other respondents.
Section 59 provides that, if a claimant does not give a complying notice of claim, the claimant cannot proceed further with the claim unless the respondent has given notice accepting that the claim is complying or waives any noncompliance or the court declares that the claimant has remedied the noncompliance or authorises the claimant to proceed further with the claim despite the noncompliance. As I noted in Rees-Wlodek at [24], that section provides a remedy for a claimant faced with the contention that their notice of claim is noncomplying.
11․I add here that s 51(3) provides time limits in which the notice must be served.
12․The Respondent now represents herself.
13․The present Statement of Claim was filed by the Respondent on her own behalf and does not comply with Pt 5.2.
14․The Respondent’s non-compliance with the requirements of s 51 brings consequences. She may take no further step in the proceedings and, if she wishes to proceed must seek relief under s 59.
15․In her affidavit in reply to the Applicant’s application, the Respondent asserts that:
14. As far as I am aware:
a. Agnew and Moray notified the [Applicant’s] solicitor on 10 October 2024 in writing that the [Respondent] intends to bring a separate claim of injury (the claim) against the [Applicant].
b. The parties discussed the claim in an attempt to reach settlement, prior to the hearing in October 2024, with the understanding that the [Applicant’s] solicitor would seek instructions from the [Applicant].
c. The [Applicant] never objected to notice not being a complying notice of claim or provided any further instructions regarding settlement.
d. The [Respondent] took that the [Applicant] waived any noncompliance under Section 59 of the Civil Law (Wrongs) Act 2002 (ACT).
16․As to the assertion that the Applicant did not object to the non-compliance with Pt 5.2, the draft Statement of Claim sent in October 2024 was not filed and clearly from the Respondent’s affidavit, together with the Respondent’s schedule of damages, was sent to the Applicant’s solicitor to determine whether there might be settlement negotiations. In those circumstances, it was not incumbent on the Applicant to raise any objection about compliance because proceedings had not been commenced. However, what is clear is that within a short time of the Statement of Claim being filed, the Applicant brought the application seeking, amongst other things, a stay of the proceedings because of the Respondent’s failure to comply with Pt 5.2. No question of waiver of compliance arises.
17․In any event, I note the provisions of s 59 in this regard:
(1)If a claimant does not give a complying notice of claim, the claimant cannot proceed further with the claim unless—
(a)the respondent to whom notice of the claim was purportedly given—
(i) has given the claimant a written notice to the effect that the respondent is satisfied the notice is a complying notice of claim or the claimant has taken reasonable action to remedy the noncompliance; or
(ii) is presumed, under section 54 (3) (Respondent's response to notice of claim), to be satisfied the notice is a complying notice of claim; or
…
18․Whether the Respondent thought that the Applicant had waived compliance, clearly she had not.
19․On this basis alone, the Respondent may take no further step in the proceedings until she has sought and obtained leave of the Court.
Anshun Estoppel
20․The Applicant asserts that the Respondent is barred from proceeding with her claim against her because of the circumstances and conduct of the prior proceedings.
21․On 10 October 2024 the Respondent’s solicitors served on the solicitors for the Applicant a “draft statement of claim and a schedule of damages in relation to a separate claim our client intends to bring against your client”. The draft Statement of Claim alleged that the Applicant “attacked” the Respondent causing significant injury, loss and damage, and she acted in self-defence against this attack.
22․The schedule of damages is headed:
CONFIDENTIAL, WITHOUT PREJUDICE AND SOLELY FOR THE PURPOSE OF SETTLEMENT DISCUSSIONS
23․Given that the hearing of the prior proceedings commenced on 14 October 2024, it is tolerably clear that the proposed draft Statement of Claim on behalf of the Respondent was intended as an inducement to the Applicant to settle her claim.
24․Whatever the intention, the matter as between the parties in the prior proceedings did not settle.
25․The Respondent did not give evidence in the prior proceedings, nor was there any suggestion that she was acting in “self defence” to an “attack” on her by the Applicant.
26․In her submissions on this application, the Respondent contended that she had always maintained that the Applicant attacked her and said that she was “disappointed” that the Applicant’s pleadings did not represent “the correct version of events”, presumably her contention that the Applicant attacked her and that she was acting in self defence. The Respondent further said that had her version of events been taken into account, it would have “materially altered the conclusions about risk of injury”.
27․As to why she did not prosecute her claim before, the Respondent said that it was due to the severity of her injuries and she “trusted her lawyers” to deal with the defence. She admitted that she should have given more attention to her defence.
28․The Applicant’s solicitor swore an affidavit on 31 March 2025 in support of the application that the present proceedings be dismissed and said:
7. The [Respondent] did not raise the claim which she now seeks to bring as a counterclaim in the prior proceedings.
8. As far as I am aware, the [Respondent] never raised the facts relevant to the claim pleaded in her Statement of Claim at any time during the hearing of the prior proceedings.
29․By affidavit filed on 14 April 2025 in reply to that affidavit, the Respondent said:
4. This is not true. On 15 March 2022, the [Respondent] defended herself against an aggressive attack from the [Applicant] on the front nature strip of the [Respondent’s] property at 1 Peken Place, Nicholls. [The Respondent annexed still images of the encounter said to constitute the Applicant’s assault on her to her affidavit].
30․There is no doubt that the present proceedings arise out of the same factual circumstances considered in the prior proceedings. The Originating Claim in the prior proceedings alleged that the blow delivered by the Respondent to the Applicant was an assault which the Respondent admitted and that the blow was struck while the Respondent and Applicant were speaking at the front of their houses.
31․In the cross examination of the Applicant in the prior proceedings, it was not suggested to her that she “attacked” the Respondent or pushed her. At its highest, the case for the Respondent was articulated in submissions when counsel for the Respondent said that the Applicant had touched her on the head and the Respondent was “not expecting to be touched and was taken by surprise” in explanation as to why the Respondent struck the Applicant on the head with a mallet.
32․Anshun estoppel rests on the principle articulated in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589, citing Henderson v Henderson (1843) 3 Hare 100, 67 ER 313 at 319 that:
… where a given matter becomes the subject of litigation in, and of adjudication by, a Court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time.
33․The plurality of the High Court, after considering the authorities, said at 602:
In this situation we would prefer to say that there will be no estoppel unless it appears that the matter relied upon as a defence in the second action was so relevant to the subject matter of the first action that it would have been unreasonable not to rely on it. Generally speaking, it would be unreasonable not to plead a defence if, having regard to the nature of the plaintiff’s claim, and its subject matter it would be expected that the defendant would raise the defence and thereby enable the relevant issues to be determined in the one proceeding. In this respect, we need to recall that there are a variety of circumstances, some referred to in the earlier cases, why a party may justifiably refrain from litigating an issue in one proceeding yet wish to litigate the issue in other proceedings e.g. expense, importance of the particular issue, motives extraneous to the actual litigation, to mention but a few.
Was it reasonable for the Respondent to withhold her claim against the Applicant?
34․The Respondent’s proposed action against the Applicant was formulated before the hearing of the previous proceedings, as is demonstrated by the draft Statement of Claim and particulars sent to the Applicant’s solicitors on 10 October 2024, before the hearing commenced. Any suggestion that the basis for the present claim by the Respondent is unrelated to the previous proceedings is vanquished by her own affidavit in which she claims that on 15 March 2022 when she assaulted the Applicant, she was acting in “self-defence”.
35․Counsel for the Applicant suggested that it can be inferred that the decision not to bring this claim as part of the earlier proceedings was deliberate. It is unnecessary to make that inference because as the High Court made clear, the question is whether it was “unreasonable” for the Respondent not to have brought forward her claim in the previous proceedings. It was.
36․In my view, this was a claim which could and should have been brought in the previous proceedings and the Respondent will be estopped from further prosecuting her claim based on the same facts and circumstances.
Abuse of process
37․In Manny v Commonwealth of Australia (No 2) [2025] ACTSC 146, McWilliam J considered the relevant principles in determining this question, referring to Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28; 256 CLR 507 at [24]-[26]:
... The doctrine of abuse of process is informed in part by similar considerations of finality and fairness. Applied to the assertion of rights or obligations, or to the raising of issues in successive proceedings, it overlaps with the doctrine of estoppel. Thus, the assertion of a right or obligation, or the raising of an issue of fact or law, in a subsequent proceeding can be simultaneously: (1) the subject of an estoppel which has resulted from a final judgment in an earlier proceeding; and (2) conduct which constitutes an abuse of process in the subsequent proceeding.
Abuse of process, which may be invoked in areas in which estoppels also apply, is inherently broader and more flexible than estoppel. Although insusceptible of a formulation which comprises closed categories, abuse of process is capable of application in any circumstances in which the use of a court's procedures would be unjustifiably oppressive to a party or would bring the administration of justice into disrepute. It can for that reason be available to relieve against injustice to a party or impairment to the system of administration of justice which might otherwise be occasioned in circumstances where a party to a subsequent proceeding is not bound by an estoppel.
Accordingly, it has been recognised that making a claim or raising an issue which was made or raised and determined in an earlier proceeding, or which ought reasonably to have been made or raised for determination in that earlier proceeding, can constitute an abuse of process even where the earlier proceeding might not have given rise to an estoppel. Similarly, it has been recognised that making such a claim or raising such an issue can constitute an abuse of process where the party seeking to make the claim or to raise the issue in the later proceeding was neither a party to that earlier proceeding, nor the privy of a party to that earlier proceeding, and therefore could not be precluded by an estoppel.
(Footnotes omitted.)
38․The Court has inherent power to prevent misuse of its procedure. In Walton v Gardiner (1993) 177 CLR 378 at 392-393 the Court said, in rejecting the suggestion that a stay of proceedings for abuse of process may only be ordered where “the court is satisfied either that any hearing before the Tribunal would necessarily be unfair or that the proceedings in the Tribunal have been brought for an improper purpose”:
The inherent jurisdiction of a superior court to stay its proceedings on grounds of abuse of process extends to all those categories of cases in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness. Thus, it has long been established that, regardless of the propriety of the purpose of the person responsible for their institution and maintenance, proceedings will constitute an abuse of process if they can be clearly seen to be foredoomed to fail. Again, proceedings within the jurisdiction of a court will be unjustifiably oppressive and vexatious of an objecting defendant, and will constitute an abuse of process, if that court is, in all the circumstances of the particular case, a clearly inappropriate forum to entertain them. Yet again, proceedings before a court should be stayed as an abuse of process if, notwithstanding that the circumstances do not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings. …
(Footnotes omitted.)
39․Here, clearly, the Respondent’s proceedings are an abuse of process, they invoke Anshun estoppel and are “doomed to fail”.
40․The Application sought an order that the Originating Claim be set aside, and that the Plaintiff’s claim be permanently stayed.
41․The Applicant sought, in the alternative, orders that the Respondent’s proceedings be stayed pending leave of the Court and pending payment by her to the Applicant of the verdict sum awarded in the prior proceedings. Having found that these proceedings must be stayed because of Anshun estoppel and that their continuance would represent an abuse of process, there is, it seems to me, no other remedy but to permanently stay the proceedings.
Costs
42․Usually, costs would follow the event and the Respondent would be ordered to pay the Applicant’s costs of the Application. However, no submission was addressed by the Respondent to that eventuality. Although her submissions in relation to an Application for a special costs order sought by the Plaintiff in the prior proceedings point to what she described as limited financial circumstances and it may be anticipated what her submissions might be, it is nonetheless appropriate that the Respondent be given an opportunity to provide a short submission on the costs of this application, to be filed within a short time and with a following reply by the Applicant. The issue of costs will be decided on the papers without need for a further hearing.
Orders
43․For those reasons, the following orders are made:
(1)The Originating Claim number SC 55 of 2025 filed on 25 February 2025 be set aside.
(2)The claim as set out in Originating Claim number SC 55 of 25 February 2025 be permanently stayed.
(3)The Respondent to file and serve any submission on the question of costs of the Application by 4pm 28 May 2025.
(4)The Applicant to file and serve any submission in reply to that of the Respondent by 4pm 5 June 2025.
| I certify that the preceding forty-three [43] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Acting Justice Ainslie-Wallace. Associate: Date: 26 May 2025 |
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