What is Anshun estoppel?
Anshun estoppel is a principle arising from a decision of the High Court of Australia: Port of Melbourne Authority v Anshun 147 CLR 589.
In that case, the Court made clear that a party can be prevented from bringing a claim in fresh proceedings which should have been brought in the original proceedings.
The test is one of reasonableness; was it unreasonable that a party did not raise claims in the initial proceedings? If so, the party will be barred from bringing that claim.
Application in a family law context
In Amery & Kedrina, the Wife sought to set aside consent orders pursuant to Section 79A(1)(a) of the Family Law Act. The Wife had previously sought an application under Section 79A(1)(c) to set aside those orders. The Court made orders permanently staying proceedings. The Wife brought an Appeal in the Full Court of the Family Court of Australia against that Order.
The consent orders were entered into in 2005 and saw the Wife receive assets and entitlements of around $31.24 million and the husband to receive assets and entitlements of approximately $38.18 million. Both the Wife and Husband had legal representation.
In 2017, the Wife brought proceedings under Section 79A(1)(c) for the Consent Orders to recover an amount of dividends and distributions from the husband, which she stated should have been paid to her. Crucially, the 2005 consent orders were silent on the issue of payment of dividends and distributions.
Section 79A(1)(c) requires the Court to be satisfied that “a person has defaulted in carrying out an obligation imposed on the person by the order and, in the circumstances that have arisen as a result of that default, it is just and equitable to vary the order or to set the order aside and make another order in substitution for the order…. the court may, in its discretion, vary the order or set the order aside and, if it considers appropriate, make another order under section 79 in substitution for the order so set aside.”
The parties then entered consent orders for the payment of $455,151.73 to the Wife for these unpaid dividends and disbursements. In the 2017 consent orders, the parties did not seek to set aside the 2005 orders.
In January 2018, the Wife brought new proceedings under Section 79A(1)(a) for the 2005 Consent Orders to be set aside.
Section 79A(1)(a) requires the Court to be satisfied that “there has been a miscarriage of justice by reason of fraud, duress, suppression of evidence (including failure to disclose relevant information), the giving of false evidence or any other circumstance.” Then in June 2018, the Wife filed an amended Initiating Application seeking the payment of $5 million within 30 days of the Orders and an additional $50 million within six months. The husband sought Orders that her Application be permanently stayed on the following bases:
- That her claim is precluded by operation of Anshun estoppel. The husband argued that the subject matter of her application was so relevant to the 2017 proceedings that her failure to bring that application at the same time was unreasonable. He further argued that should the Court find that the Wife was estopped from bringing those claims, there would be no special circumstances which would allow the continuation of the 2018 proceeding; and
2. That her claim is an abuse of process because of the delay in bringing the claim and by the Wife’s failure to bring that claim in the 2017 proceedings.
The trial judge summarised the Wife’s evidence; The Wife made assertions that after the 2017 proceedings were commenced, she became suspicious of the husband’s “candour” and “honesty“, which caused her to investigate the circumstances surrounding the 2005 consent orders. The Wife then alleged the sale price of some shares in the 2005 consent orders was understated at the time.
The trial judge summarised the husband’s submission: “Any application by the wife seeking to impugn the original s 79 consent orders should have been properly bought in the context of her subsequent application to enforce the very same orders “as it was fundamental to that part of the 2017 orders which enforced the 2005 [consent] orders that the latter were valid and enforceable“.”
The trial judge found in favour of the husband, agreeing with the husband that the Wife had obtained damages and compensation for shares and units as sought by her and “the wife, it is correctly submitted, now seeks a second round of relief under s 79A of the Act.”
The Wife then brought an appeal on the following grounds:
Ground 1: The trial judge did not take into account her evidence explaining the delay in seeking to have the 2005 orders set aside;
Ground 2: Alternatively, if he did, her explanation was wholly or partially misunderstood, causing the trial judge to mistakenly find that the facts gave rise to an estoppel;
Ground 4: That the proper approach was to find that there was a material factual controversy to be decided which could only be resolved by a final hearing of the issue; and
Ground 5: That the trial judge erred in finding an estoppel arose or that special circumstances did not exist to operate as an exception to any estoppel found to correctly apply, which caused the application to be permanently stayed.
Concerning Ground 5, the Court held there was no force in the Wife’s argument as it conflated the nature of the orders sought and the outcome achieved.
The Court made clear that “the question of whether two proceedings are “connected” or “so relevant” to one another, that it would be unreasonable not to have raised the point now sought to be agitated in the first proceedings, is determined by having regard to the substantial equivalence of rights and subject matter of the actions, not the outcome achieved or the orders sought.’
In relation to Grounds 1 and 2: For these grounds to succeed, the Wife would need to show that had the trial judge accepted the Wife’s explanation for her delay, he would not have permanently stayed the 2018 proceedings. The Full Court of the Family Court disagreed.
In relation to Ground 4: The Court stated that this ground misunderstood the relevant legal principles. The Court cited Zetta Jet Pte Ltd v The Ship Dragon Pearl (No 2) “It is a common law doctrine informed, in its relevant application, by similar considerations of finality and fairness. Yet, its operation is not confined to an exercise of judicial power; it also operates in the context of a final judgment having been rendered in other adversarial proceedings. It operates in such a context as estoppel operates in other contexts: as a rule of law, to preclude the assertion of a right or obligation or the raising of an issue of fact or law.”
What are special circumstances?
As held by the Full Court of the Federal Court of Australia in the case of Wong v Minister for Immigration and Multicultural and Indigenous Affairs there are some instances where even where a matter should have been raised earlier but was not, there are special circumstances which permit them raising that issue in a subsequent proceeding. The Court has discretion in this regard; however, the circumstances must be exceptional.
The test for precluding the Wife’s claim under s79(1)(a):
- The issue sought to be raised in the second proceedings was so relevant to the subject matter of the first proceedings that it was unreasonable for it not to have been raised in the first proceedings; and
2. If these two matters are established, then whether any claim to special circumstances, which would nonetheless operate to permit the claim to be continued, has been established.
Therefore, if the Wife could have discovered the issue she was now agitating when she first brought her application in June 2017, she would be estopped from bringing this claim.
The Full Court of the Family Court referred to the trial judge’s finding that if the Wife were allowed to continue her proposed application, this would give rise to a possibility of contradictory judgments.
As held in Anshun, if a successive action would result in a judgment that contradicts or is in conflict with the original action, then the successive action will be estopped.
The Wife was unsuccessful in her appeal.
  FCAFC 132; (2018) 265 FCR 290 at .
  FCAFC 242; (2004) 146 FCR 10 at 38.