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 decide against
pursuing your claim for damages – you want to see how this
claim plays out before incurring the substantial costs of pursuing
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?
The principles known as "Anshun estoppel" may be
a quarter of a century old, having been laid down by the High Court
in Port of Melbourne Authority v Anshun Pty Ltd  HCA
45, but they retain critical importance. In essence, an Anshun
estoppel can prevent a party from making claims which should have
been pursued in earlier proceedings.
The test laid down is one of reasonableness: a party cannot
raise a claim or issue in subsequent proceedings if that claim or
issue is so connected with the subject matter of the first
proceeding that it is unreasonable for them not to have raised it
in the first proceedings (Tomlinson v Ramsey Food Processing
Pty Ltd  HCA 28, at ).
This is distinct from the principles known as res
judicata and "issue estoppel", which apply where a
party attempts 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 before been raised. Further, even
if res judicata, issue estoppel or Anshun estoppel do not
arise, the courts have cautioned that an attempt to litigate an
issue or matter resolved in litigation may amount to an abuse of
process (Tomlinson, at ).
It remains as important as ever to consider, at an early stage,
whether there are any potential claims you might wish to pursue. If
they are not pursued at the appropriate time, you may run the risk
of losing the right to pursue them altogether.
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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