There is a longstanding legal principle that all relevant legal issues must be raised in the one set of Court proceedings. It is not possible to be silent on an issue and then raise it later. This comes from the decision of Port of Melbourne Authority v Anshun Pty Ltd.
The recent decision in Timbercorp Finance Pty Ltd v Collins has varied this principle, known as the Anshun principle. It is a matter where Timbercorp had commenced group proceedings against some of its members and their directors for loss of money stemming from the failure to disclose information about risks and also concerning other representations.
Separate proceedings were later commenced by Timbercorp against various investors for breach of loan agreements which Timbercorp says it entered into with them. The Defendants argued that there was no loan agreement and that various misrepresentations had been made by or on behalf of Timbercorp. Timbercorp appealed to the High Court arguing that these defences should have been raised in the main proceedings and that the Anshun principle now prevented the raising of these defences.
The High Court held that nothing prevented the validity of the loan and related issues from now being raised in new proceedings. It held that there was no issue in the main group proceedings concerning the validity of the loan and that, in any event, the Defendant members had limited control over the group proceedings and it was not unreasonable for them to raise their defences.