In Bryant v Commonwealth Bank of Australia [1995] FCA 1299; (1995) 57 FCR 287, the question was whether Anshun estoppel applied where there had been a failure to raise a cross-claim in earlier proceedings. In that case, Bryant had been sued by the Bank in the Supreme Court of New South Wales for recovery of possession of mortgaged property and for debt. He raised various defences and cross-claims but later amended his pleadings to withdraw some of the cross-claims. He then brought separate proceedings in the Federal Court based on the cross-claims he had withdrawn. The Full Court of the Federal Court held that the proceedings were barred by Anshun estoppel. The court followed the approach taken in Rahme, noting that it was consonant with the High Court's emphasis in Anshun on looking at the substance of the issue sought to be raised in the later case, rather than its form. The court went on:
It is true that, in [Tanning Research Laboratories Inc v O'Brien [1990] HCA 8; (1990) 169 CLR 332] Brennan and Dawson JJ stated that the Anshun principle will ordinarily not apply to cross-claims. They made an exception of cases where the relief claimed in the second proceedings is inconsistent with the judgment in the first. In making this distinction, their Honours may have had in mind a situation such as the one before them in that case, where the cross-claim depended on facts remote from those of the principal claim. Questions of substantive degree may be involved; and in contrast to defences, many cross-claims may have little or no connection with the principal claim in the action; there may be no more than an identicality of parties. Where that is so, there may be no policy justification for forcing defendants to litigate their claims as cross-claims rather than as principal claims in separate actions in the forum of their choice. But, where, as here, a defendant's claim is intimately connected with that of the plaintiff, in the sense that each arises, substantially, out of the same matters of fact, there is every reason to require that both be litigated at the one time; thereby minimising costs and avoiding the possibility of inconsistent judgments (297 - 298).
In Ling v Commonwealth [1996] FCA 1646; (1996) 68 FCR 180, the Full Federal Court (184, 195) emphasised that the fundamental issue in the application of an Anshun estoppel is whether it was unreasonable for the party bringing the second action to have failed to raise its subject in the first action. Wilcox J (with whom Whitlam J agreed) went on to make the following comments in relation to reasonableness in this context:
In considering reasonableness ... consideration must be given to all aspects of the case. They include the extent of the overlap between the facts underlying each claim; the greater the overlap, the easier it is to argue that it was unreasonable not to raise the matter in the first case. They also include any difficulties that existed, or might reasonably have been perceived, in raising the matter earlier ... In assessing the reasonableness of Mr Ling's failure to raise his claim against the Commonwealth when he was sued by it in the earlier action, it is necessary to look at the whole of the circumstances that he then confronted (184).
Wilcox J also uttered a note of caution about the application of the principle in Anshun to cross-claims. His Honour (who had been a member of the Full Court in Bryant) said:
The decision in Bryant does not mean that it will always be appropriate to apply the Anshun principle to cross-claims. Some cross-claims have little or no connection with the claim in the action. There may be no more than an identicality of parties. It is difficult to see any justification for applying the Anshun principle to a case of that kind. Some cross-claims overlap the facts of the principal claim but involve additional facts. Where this occurs, a question of degree arises. It would be wrong to say that the Anshun principle is excluded whenever there are additional facts; to go so far would be to render it nugatory. However, where the additional facts are substantial, it may be appropriate to accept the reasonableness of separate proceedings (183).
Wilcox J referred with approval to the observation of the Judicial Committee of the Privy Council in Yat Tung Investment Co Ltd v Dao Heng Bank Ltd [1975] AC 581, 590, that to shut a party out of bringing a case on the basis of such a principle is a serious step, a power not to be exercised except 'after a scrupulous examination of all the circumstances'. As his Honour noted, if the Anshun principle is too readily applied, there is a possibility of serious injustice [80] - [83].