Case: Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45 ; (1981) 147 CLR 589
Outcome: followed
In Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45 ; (1981) 147 CLR 589 it was concluded that reliance could not be placed upon an indemnity agreement as it should have been earlier relied upon as a defence. Gibbs CJ, Mason and Aickin JJ there observed that " this is not a case of issue estoppel in the strict sense ". Their Honours continued at 598: The critical issue, then, is whether the case falls within the extended principle expressed by Sir James Wigram VC in Henderson v Henderson [(1843) 3 Hare 100 , 67 ER 313]. The Vice-Chancellor expressed the principle in these terms: "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." And at 602 their Honours concluded: ... 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. ... 23 In England it has been suggested that Anshun estoppel does not apply to judicial review proceedings: R v Secretary of State for the Environment; Ex parte Hackney London Borough Council [1984] 1 All ER 358, [1984] 1 All ER 956. But that is not the position in Australia and an Anshun estoppel may be invoked in a proceeding such as the present: Taylor v Ansett Transport Industries Ltd (1987) 18 FCR 342 ; Wong v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 242 at [39] , [2004] FCA 51 ; 146 FCR 10 at 18; Australian Education Union v Lawler [2008] FCAFC 135 at [177] per Jessup J (Moore and Lander JJ agreeing); SZBJM v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCA 404 at [15] [18] per Madgwick J. See also: Campbell E, Relitigation in Government Cases: A Study of the Use of Estoppel Principles in Public Law Litigation (1994) 20 Mon Univ L Rev 21. 25 In discharging the evaluative process envisaged by Anshun estoppel, and whether it was " reasonable " for Mr Tervonen to have raised the argument earlier, consideration has been given to the fact that the Applicant is a person detained in custody. But that status assumes little if any importance when it is further borne in mind that he was represented by Counsel in the proceeding at first instance. No explanation has been forthcoming as to why the present argument was not previously advanced. 31 In Wong v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 242 at [38] [39], [2004] FCA 51 ; 146 FCR 10 at 17 18 Emmett, Conti and Selway JJ noted that Anshun estoppel has been applied to proceedings in the nature of review of administrative action " insofar as Anshun estoppel is aimed at avoiding abuse of process ". Their Honours further observed, however, that " there will be instances where, even though there is every reason why the matter should have been raised earlier but was not, there are special circumstances that prevail to permit a party to raise the issue in a subsequent proceeding ": at [38]. Where the beneficiary of an Anshun estoppel, their Honours observed, " is a Minister of State, who has no personal interest in the outcome of a proceeding, such a principle may be of only secondary significance ": at [39].