You have bought defective goods from a supplier, which has
caused damage to your property. You refuse to pay for those goods,
so the supplier sues you. You defend the claim on the basis that
the supplier has given you defective goods, but you do not yet
pursue your claim for damages - you want to see how this claim
plays out before going to the cost of pursuing your own.
You reach a settlement with the supplier, which makes no
reference to any claim for damages you might have, and then
commence your own claim against the supplier. But is it too late?
Have you lost the opportunity to pursue your claim?
In Portof Melbourne Authorityv Anshun
Pty Ltd  HCA 45, the High Court laid down the principles
which came to be known as "Anshun estoppel". In essence,
a party can be prevented from making claims which should have been
pursued in the former proceedings.
The test laid down is one of reasonableness. That is, a
party cannot raise an issue in subsequent proceedings in
circumstances in which it is unreasonable for them not to have
raised them in the first proceedings. If it is unreasonable, that
party may be "estopped" (or prevented) from doing so,
effectively losing the right to make that claim at all.
This is quite different to the principles known as res
judicata and "issue estoppel", where a party is
trying to re-litigate a matter that has already been decided. With
Anshun estoppel, a party can lose the right to litigate a matter
that has never been raised before.
This is not a new concept – the Anshun
decision was handed down in 1981 – but its principles are
just as relevant today. It is important to consider, at an early
stage, whether there are any potential claims you may ultimately
wish to pursue. If you do not pursue them in the course of existing
proceedings, there is a risk you may lose the right to pursue them
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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This was an interlocutory decision about the appointment of a tutor for the child appellant, to carry on his proceedings.
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