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 seeks that there should be no order as to costs.  She argued that because the Applicant failed to “disclose the actual facts and events of the incident on 15 March 2022” it delayed and impeded her ability to bring her claim. She also claimed that the severity of her injuries and the ongoing strain further hampered her ability to bring the action.  I note here that the Respondent was represented by counsel in the proceedings brought by the Applicant who made no mention of nor raised in any way the alleged claim by the Respondent against the Applicant.  The Respondent further argued that she is experiencing financial strain in having to fund lawyers and emotional strain of the legal action.

9․The Applicant sought an order for costs against the Respondent relying on the presumption that “costs follow the event” and in this case, the Applicant was entirely successful and the Respondent should pay the costs.

Discussion

10․The determination of who should bear the costs of proceedings is a matter for the discretion of the Court (r 1721(1) of the Court Procedures Rules 2006 (ACT)) and while the discretion is wide, it must be exercised judicially, mindful of the purpose for which it is conferred and the statutory context. The Court must consider what order is fair and where the interests of justice lie, see Gray v Richards (No 2) [2014] HCA 47 at [2].

11․Here, the Respondent’s claim was, from the filing, “doomed to fail”.  There is no doubt that the Applicant was entirely successful.  In the preceding matter of Higgins v Pretorius (SC 420 of 2023), the Respondent (then defendant) sought and obtained a stay of the judgment on damages against her pending the resolution of her appeal from it, and from the argument and evidence on that application, it was tolerably clear that the Respondent has limited financial resources.

12․However, here, the interests of justice persuade me that there is no reason why the Court should not exercise its discretion and order the Respondent to pay the Applicant’s costs of the application.

Orders

13․For those reasons, I make the following order:

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

I certify that the preceding thirteen [13] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Acting Justice Ainslie-Wallace.

Associate:

Date: 21 July 2025