In this case Applegarth J was concerned with the present scope of Anshun estoppel in respect of which it can be said, as appears from his Honour’s judgment, that the tide is well and truly out. The issue arose in the following manner. The plaintiff had hired trucks and a low loader from the defendant for the purposes of performing a contract at a mine site. After a dispute about payment arose the defendant sought an adjudication under BCIPA and was successful. The plaintiff commenced an action (after a period of five months) to set aside the adjudication on the basis of jurisdictional error; namely that the work in respect of which payment was claimed was not “construction work”. The plaintiff was unsuccessful at first instance and on appeal. By the second action the plaintiff sought to set aside the adjudication on different grounds even though those grounds could have been agitated in the earlier action. In his reasons for judgment Applegarth J considers the scope of Anshun estoppel in detail and his Honour’s discussion provides a careful analysis of the present status of the principle. In the course of his reasons his Honour made the following points:
•That Anshun estoppel is founded upon unreasonable conduct and not abuse of process but is, to a degree, an extension of the res judicata doctrine;
• The appropriate test when applying the principle of Anshun estoppel is to ask, was the matter so relevant to the subject matter of the first proceeding that it can be said to have been unreasonable not to have relied upon it in that first proceeding? Hence the question is not whether the matter “could” have been brought in the first proceeding but whether or not it should have been brought?
• An important matter to take into account is whether or not allowing the matter to be relied upon in second proceedings gives rise to a risk of conflicting judgments which includes judgments which appear to declare rights which are inconsistent.
• In considering the question of the reasonableness of not bringing the matter in the first action, the court is involved in a broad merits-based judgment which takes account of the “public and private interest involved and also takes account of all of the facts of the case.” In doing so, account has to be taken of the value judgments involved in conducting litigation and modern methods of litigating economically.
His Honour’s reasons also contain a very useful discussion concerning the concept of “abuse of process” and its relationship with the Anshun principles.