Pretorius v Higgins (No 2)

[2025] ACTSC 314

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Pretorius v Higgins (No 2)

Citation: 

[2025] ACTSC 314

Hearing Date: 

On the papers

Decision Date: 

21 July 2025

Before:

Ainslie-Wallace AJ

Decision: 

(1)     The Respondent is to pay the Applicant’s costs of and incidental to the Application, such costs to be assessed or agreed.

Catchwords: 

CIVIL LAW – PRACTICE AND PROCEDURE – Assessment of costs –  application to set aside or permanently stay proceedings – originating claim set aside and the claim set out in that originating claim permanently stayed – question of costs heard on the papers following the application – exercise of the Court’s discretion in relation to costs – consideration of what order is fair and where the interests of justice lie – respondent to pay the applicant’s costs

Legislation Cited: 

Civil Law (Wrongs) Act 2002 (ACT), Pt 5.2
Court Procedures Rules 2006 (ACT), r 1721

Cases Cited: 

Gray v Richards (No 2) [2014] HCA 47
Pretorius v Higgins [2025] ACTSC 216

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 her neighbour, Judith Higgins (the Applicant) seeking damages for personal injuries arising from an alleged attack on her which occurred on 15 March 2022.

2․On 31 March 2025 the Applicant filed an application seeking orders that the Respondent’s Originating Claim be set aside and her claim permanently stayed.

3․On 23 May 2025 orders were made that the Originating Claim be set aside and the claim set out in that Originating Claim be permanently stayed.

4․The reasons for those orders are set out in Pretorius v Higgins [2025] ACTSC 216. While it was found that the Originating Claim did not comply with Pt 5.2 of the Civil Law (Wrongs) Act 2002 (ACT) which had the effect of bringing the proceedings to a halt until the Respondent sought leave of the Court, principally the Originating Claim and the underlying alleged cause of action was permanently stayed because it amounted to an abuse of process.

5․On 15 March 2022 the Respondent assaulted the Applicant and caused her significant, life changing injuries.  The Applicant brought a claim against the Respondent in which liability was admitted and ultimately damages in the sum of $1,090,003.04 were awarded.  The claim that the Respondent sought to agitate by the proceedings commenced on 25 February 2025 was alleged to have arisen from the same incident.  Although the Respondent’s then solicitors produced a draft Statement of Claim raising the alleged assault, it was never filed and, crucially, never raised in the proceedings brought by the Applicant.

6․Thus, findings were made that the Respondent was estopped from pursuing the claim.

7․The question of costs on the application was not agitated during the hearing and the parties were directed to make brief written submissions on that question.

8․The Respondent…