Fremantle Port Authority v DP World Australia Ltd
[2007] WADC 202
•16 NOVEMBER 2007
FREMANTLE PORT AUTHORITY -v- DP WORLD AUSTRALIA LTD [2007] WADC 202
| Link to Appeal : | [2009] WASCA 16 |
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2007] WADC 202 | |
| Case No: | CIV:710/2007 | 2 NOVEMBER 2007 | |
| Coram: | O'BRIEN DCJ | 15/11/07 | |
| PERTH | |||
| 16 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| PDF Version |
| Parties: | FREMANTLE PORT AUTHORITY DP WORLD AUSTRALIA LTD |
Catchwords: | Defendant's application for summary judgment Whether plaintiff estopped Issue estoppel Res judicata Anshun estoppel |
Legislation: | Rules of the Supreme Court 1971 |
Case References: | Blair & Perpetual Trustee Co Ltd v Curran (Adam's Will) (1939) 62 CLR 464 Bryant v Commonwealth Bank of Australia (1995) 57 FCR 287 Dey v Victorian Railways Commissioners (1949) 78 CLR 62 Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 Henderson v Henderson (1843) 3 Hare at 115; 67 ER 313 Lindon v Commonwealth of Australia (No 2) (1996) 136 ALR 251 Miles v Bull [1969] 1 QB 258 Mills v Fremantle Ports & Anor [2007] WADC 101 Port of Melbourne Authority v Anshun Pty Ltd [1980-1981] 147 CLR 589 Wedge v Service Finance Corp Ltd [2002] WASCA 54 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
DP WORLD AUSTRALIA LTD
Defendant
Catchwords:
Defendant's application for summary judgment - Whether plaintiff estopped - Issue estoppel - Res judicata - Anshun estoppel
Legislation:
Rules of the Supreme Court 1971
Result:
Application dismissed
(Page 2)
Representation:
Counsel:
Plaintiff : Mr G Hancy
Defendant : Mr L A Tsarkis
Solicitors:
Plaintiff : DLA Phillips Fox
Defendant : Cocks Macnish
Case(s) referred to in judgment(s):
Blair & Perpetual Trustee Co Ltd v Curran (Adam's Will) (1939) 62 CLR 464
Bryant v Commonwealth Bank of Australia (1995) 57 FCR 287
Dey v Victorian Railways Commissioners (1949) 78 CLR 62
Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Henderson v Henderson (1843) 3 Hare at 115; 67 ER 313
Lindon v Commonwealth of Australia (No 2) (1996) 136 ALR 251
Miles v Bull [1969] 1 QB 258
Mills v Fremantle Ports & Anor [2007] WADC 101
Port of Melbourne Authority v Anshun Pty Ltd [1980-1981] 147 CLR 589
Wedge v Service Finance Corp Ltd [2002] WASCA 54
(Page 3)
1 O'BRIEN DCJ: This is an application by the defendant ("DP World") for summary judgment to be entered against the plaintiff ("FPA") pursuant to O 16 r 1 of the Supreme Court Rules.
2 In general terms, DP World applies for summary judgment on the ground that FPA is estopped from bringing the action.
FPA's claim
3 In its Statement of Claim filed on 9 July 2007, FPA pleaded as follows:
• FPA owned a ship loader/unloader ("crane") which operated from its Kwinana bulk jetty ("jetty");
• DP World provided stevedoring services to FPA;
• On 17 October 2002 strong winds moved the unsecured crane along its rails and it collided with a sweeper truck ("truck") on the jetty; then with a barrier and finally it ran off its rails near the end of the jetty ("the incident").
4 FPA claims on various bases damages against DP World for emergency salvaging and make safe costs ($300,000); for the loss of the crane ($243,000); and assessor's costs ($5,770) ("damage to the crane"/"the damages claim").
5 FPA's claim is pleaded to arise in this way.
6 FPA claims that there was a contract made in or about October 2002 between FPA as owner of the crane, CSBP Ltd ("CSBP") as hirer and DP World as operator.
7 FPA claims the contract provides that DP World agreed to operate the crane for CSBP and indemnify FPA against all losses, damages, claims, demands, fines, costs, penalties and expenses whatsoever caused by or to the crane.
8 FPA pleads that the contract arose from or was evidenced by:
[4.3] a course of dealings between FPA and DP World over a number of years prior to October 2002 by which FPA as owner, CSBP as hirer and DP World as operator entered into contracts of hire of the crane and DP World subsequently operated the crane for CSBP;
(Page 4)
- [4.4] written application forms called "Application for Hire of Bulk Unloader" signed by both CSBP and DP World;
[4.5] DP World's conduct in October 2002 in operating the ship loader for CSBP;
[4.6] a facsimile dated 10 May 2002 from Captain Chris Bourne of FPA to Mr Gibson of DP World that set out FPA's terms and conditions that applied in October 2002.
9 At the hearing of this application for summary judgment, counsel for FPA informed the Court of a foreshadowed amendment to the statement of claim whereby FPA would not rely upon [4.6].
10 FPA claims that it was pursuant to the contract that from 13 to 18 October 2002, DP World operated and was the bailee of the crane.
11 FPA claims that DP World by its employees failed to secure the crane to the jetty and left it unsecured so that the wind blew the crane along the jetty causing the incident.
12 FPA claims that DP World breached its duty of care owed to FPA as bailee and its general duty of care to exercise reasonable care to avoid conduct that may cause damage to the crane.
13 Further, FPA claims that DP World is liable to indemnify FPA pursuant to the indemnity clause in the contract.
The previous proceedings
14 In District Court action Mills v Fremantle Ports & Anor [2007] WADC 101, the driver of the truck on 17 October 2002, Kim Wayne Mills, took action against FPA and P & O Ports Ltd (now called and hereinafter referred to as "DP World") for damages for injuries he received in the incident ("the Mills Case").
15 Mills pleaded that FPA owned the crane but that it was operated, maintained, serviced and/or repaired by DP World.
16 Mills pleaded that FPA was negligent in that it failed to provide a safe system of work to secure the crane to prevent it from moving; failed to ensure that the crane would not move; failed to inspect the crane; failed to warn him of the dangers posed by the crane in the prevailing circumstances; and allowed Mills to continue his duties when it knew or ought to have known that it was dangerous to do so.
(Page 5)
17 Mills also claimed that FPA was liable under s 5 of the Occupiers Liability Act 1985.
18 Mills pleaded similar allegations against DP World, save that there was no claim against DP World under the Occupiers Liability Act.
19 FPA denied negligence and pleaded that the injury and damages were caused solely by or alternatively contributed to by the negligence of DP World. FPA also pleaded contributory negligence by Mills.
20 DP World also denied negligence. It denied that it was the operator of the crane and pleaded that the crane was hired from FPA by Cockburn Shipping Services, a division of Wesfarmers CSBP Ltd which I take to be CSBP.
21 DP World claimed contributory negligence by Mills. Further and in the alternative, DP World claimed that if the incident occurred, then it was caused or contributed to by the negligence of FPA or alternatively by the negligence of CSBP.
22 FPA issued a notice of contribution to DP World pursuant to s 7 of the Law Reform (Contributory Negligence and Tortfeasors Contribution) Act 1947 on the grounds that:
1. DP World and not FPA had the effective control and management of the crane; and/or in the alternative
2. that there was a contract between FPA and DP World for the hire of cranes by DP World from FPA for use by DP World in the provision of stevedoring services to CSBP.
23 The contract was claimed to be partly written and partly by conduct.
24 Insofar as it was written, FPA claimed that a facsimile dated 10 May 2002 enunciated terms and conditions under which FPA and DP World had previously agreed to operate and continued to operate under.
25 Further, to the extent that the contract was by conduct, FPA claimed that DP World did not respond to the facsimile but continued to use the crane by which conduct DP World agreed to its terms and conditions.
26 FPA claimed that it was an express term of the contract outlined in the facsimile that DP World indemnify FPA for all liabilities arising out of the use and operation of the cranes and for injuries to persons arising out of that operation.
(Page 6)
27 DP World also issued a notice of contribution to FPA claiming contribution and/or indemnity on the grounds of the negligence pleaded by Mills.
Decision in the Mills Case
28 With respect to FPA's claim in contract against DP World, the trial Judge found that FPA did not produce in evidence any contract between it and DP World for the hire and use of cranes and that FPA had not made out its claim in contract against DP World.
29 His Honour decided that the evidence did not satisfy him that there was any contract between FPA and DP World for the hire or use of cranes at the jetty.
30 He did not regard DP World's conduct in continuing to use the cranes after 10 May 2002 as being conduct which adopted or agreed to the terms.
31 His Honour found that both FPA and DP World were negligent and apportioned responsibility 80 per cent against FPA and 20 per cent against DP World. Further, he decided that FPA was not entitled to any contractual indemnity from DP World.
32 In the present application, counsel for FPA sought to make the distinction between the apportionment of damages and contribution between the defendants in the Mills Case. It would appear that the trial Judge in the Mills Case did not specifically refer to the respective notices of contribution. However, given that his Honour made the apportionment between the defendants, it is my view that for practical purposes, any decision on contribution necessarily follows the apportionment he made. In the circumstances of this case, the distinction is artificial.
Summary of the Mills Case decision
33 The trial Judge made factual findings in relation to:
• The circumstances of the incident;
• Who was responsible in negligence;
• The apportionment of liability between FPA and DP World.
34 The trial Judge also found:
• That there was no contract as pleaded between FPA and DP World;
• That FPA was not entitled to any contractual indemnity from DP World.
(Page 7)
35 It is common cause in this application by DP World for summary judgment that the issue of the liability of DP World to FPA for damage to the crane was not a cause of action or issue raised by FPA in the Mills Case.
The grounds for summary judgment
36 DP World submits that the issue of indemnity is res judicata and the principle in Port of Melbourne Authority v Anshun Pty Ltd [1980-1981] 147 CLR 589 ("the Anshun estoppel") applies to FPA's claim for indemnity.
37 As to FPA's claim that FPA caused the incident by its negligence, DP World submits that the defence of issue estoppel arises.
38 DP World submits that as to FPA's claim for an indemnity, it is res judicata and further that the issue of the presently claimed indemnity was open to be and should have been pleaded in the Mills Case so that the whole of FPA's case on the indemnity issue could be disposed of in the one action (Anshun estoppel).
39 As to FPA's claim that FPA (sic) caused the incident by its negligence, DP World submits that the defence of issue estoppel arises because the same factual dispute arises in the determination of liability for damage to the crane (albeit a different cause of action) and further that it was unreasonable for FPA not to litigate that issue in the Mills Case (Anshun estoppel).
Summary judgment: the law
40 Order 16 of the Supreme Court Rules (WA) relevantly provides that on an application for summary judgment by a defendant "the Court, if satisfied that the action is frivolous or vexatious, that the defendant has a good defence on the merits, or that the action should be disposed of summarily with or without pleadings" it may order summary judgment for the defendant with or without costs.
41 The principles in relation to applications for summary judgment are well settled.
42 The High Court outlined the over-arching principle in Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 at 99:
"The power to order summary or final judgment is one that should be exercised with great care and should never be
(Page 8)
- exercised unless it is clear that there is no real question to be tried: see Clarke v Union Bank of Australia Ltd; Jones v Stone; Jacobs v Booth's Distillery Co."
43 There have been numerous elaborations and examples of this rule in the cases.
44 In Dey v Victorian Railways Commissioners (1949) 78 CLR 62 Dixon J said, at 91:
"A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner by the court with or without a jury….. Once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous or vexatious and an abuse of process."
45 In Lindon v Commonwealth of Australia (No 2) (1996) 136 ALR 251 at 256 Kirby J held it is a serious matter to deprive a person of access to the courts of law for it is there that the rule of law is upheld, including against government and other powerful interests:
"An opinion of the court that a case appears weak and such that it is unlikely to succeed is not, alone, sufficient to warrant summary termination. Even a weak case is entitled to the time of a court. Experience teaches that the concentration of attention, elaborated evidence and argument and extended time for reflection will sometimes turn an apparently unpromising cause into a successful judgment; ... If there is a serious legal question to be determined, it should ordinarily be determined at a trial for the proof of facts may sometimes assist the judicial mind to understand and apply the law that is invoked and to do so in circumstances more conducive to deciding a real case involving actual litigants rather than one determined on imagined or assumed facts."
(Page 9)
46 In General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125, Barwick CJ summarised the principles applicable to a court's power to terminate an action summarily. At p 129 he said:
"... The plaintiff ought not to be denied access to the customary tribunal which deals with actions of the kind he brings, unless his lack of a cause of action - if that be the ground on which the court is invited, as in this case, to exercise its powers of summary dismissal - is clearly demonstrated. The test to be applied has been variously expressed; 'so obviously untenable that it cannot possibly succeed'; 'manifestly groundless'; 'so manifestly faulty that it does not admit of argument'; 'discloses a case which the court is satisfied cannot succeed'; 'under no possibility can there be a good cause of action'; 'be manifest that to allow them' (the pleadings) 'to stand would involve useless expense'. At times the test has been put as high as saying that the case must be so plain and obvious that the court can say at once that the statement of claim, even if proved, cannot succeed; or 'so manifest on the view of the pleadings, merely reading through them, that it is a case that does not admit of reasonable argument'; 'so to speak apparent at a glance'."
47 As to the criterion for summary judgment that there "ought to be some other reason to be a trial of that claim", the following passage from "Civil Procedure Victoria" (Williams) p 3377 was quoted with approval by Wallwork J in Wedge v Service FinanceCorp Ltd [2002] WASCA 54 at [24]:
"The words are invoked if the defendant cannot point to a specific issue which ought to be tried, but nevertheless satisfies the court that there are circumstances that ought to be investigated: ibid. The court can give leave to defend for a reason other than that there is a question to be tried: Bank Fur Gemeinwirtschaft v City of London Garages Ltd [1971] 1 All ER 541. In that case Cairns LJ said at 548, that the only reported case in which that provision has been applied is Miles v Bull [1969] 1 QB 258; [1968] 3 All ER 632. Megarry J there gave leave to defend because the documents on which the claim was based had some appearance of a sham. It is not difficult to think of other circumstances where it might be reasonable to give leave to defend although no defence is shown, eg if the
(Page 10)
- defendant was unable to get in touch with some material witness who might be able to provide him with material for defence; or if a claim were of a highly complicated or technical nature which could only properly be understood if oral evidence were given; or if the plaintiff's case tended to show that he had acted harshly and unconscionably and it was thought desirable that if he was to get judgment at all, it should be in the full light of publicity."
48 In Miles v Bull [1969] 1 QB 258 at 265 Megarry J said with reference to the words "that there is an issue or question in dispute which ought to be tried or that there ought for some other reason to be a trial":
"If the defendant cannot point to a specific issue which ought to be tried but nevertheless satisfies the court that there are circumstances that ought to be investigated, then I think that those concluding words are invoked. There are cases when the plaintiff ought to be put to strict proof of his claim, and exposed to the full investigation possible at a trial; and in such cases it would, in my judgment, be wrong to enter summary judgment for the plaintiff."
49 The same principles apply to a defendant's application for summary judgment.
50 It is clear from this summary of relevant authority that caution should be exercised before granting an application for summary judgment.
51 In this case, the defendant does not claim that the plaintiff's claim is vexatious or frivolous or should be dismissed on its merits. Rather, as I understand the defendant's position, it is that it has a defence to the claim based on estoppel as I have outlined at pars 52-61 below and that judgment should be entered for DP World.
Estoppel – relevant legal principles
52 This application involves a consideration of the "estoppels" of issue estoppel and res judicata and the principle now referred to as Anshun estoppel
53 The High Court in Anshun referred to with approval the following cases.
(Page 11)
54 In Blair & Perpetual Trustee Co Ltd v Curran (Adam's Will) (1939) 62 CLR 464 at 531, Dixon J expressed the difference between res judicata and issue estoppel. In res judicata he said:
"The very right or cause of action claimed or put in suit has…passed into judgment. So that it is merged and has no longer an independent existence…[in issue estoppel], for the purpose of some other claim or cause of action, a state of fact or law is alleged or denied the existence of which is a matter necessarily decided by the prior judgment … ."
55 This distinction was restated by Fullagar J in Jackson v Goldsmith (1950) 81 CLR 446 at 466. Fullagar J would not classify res judicata as an estoppel but as a rule of broad public policy.
56 The High Court in Anshun held that:
"The rule as to res judicata comes into operation whenever a party attempts in a second proceeding to litigate a cause of action which has merged into judgment in a prior proceeding." (at 597).
57 In Anshun, the "critical issue" was whether that case fell within the "extended principle" expressed in Henderson v Henderson (1843) 3 Hare 100 at 115; 67 ER 313 at 319 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 (sic) 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."
(Page 12)
58 The High Court reviewed a number of decisions in Anshun at pp 598 to 602 and held at 602:
"… 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. Generally speaking, it would be unreasonable not to plead a defence if, having regard to the nature of the plaintiff's claim, and its subject matter it would be expected that the defendant would raise the defence and thereby enable the relevant issues to be determined in the one proceeding."
59 The consequences of failing to comply with the principle include increased costs, conflicting judgments: Anshun at 602; Bryant v Commonwealth Bank of Australia (1995) 57 FCR 287 at 298 and per Murphy J in Anshun at 605:
"… notions of res judicata and issue estoppel are founded on the necessity, if there is to be an orderly administration of justice, of avoiding re-agitation of issues, and of preventing the raising of issues which could have been and should have been decided in earlier litigation."
60 Murphy J characterised the raising of an issue which was plainly open to be agitated in previous litigation against an unwilling defendant as an abuse of process: (605).
The indemnity – FPA's position
61 FPA contends that although it claimed an indemnity from DP World in the Mills Case, that claim was pursuant to a different contract – different date, different parties and different documents evidencing the contract.
62 On the face of the pleadings and the affidavit sworn by Hans Tammen on 4 October 2007, that appears to be the case.
63 It is not in dispute that the documents which are claimed to evidence the contract in the present case were not discovered by FPA or DP World in the Mills Case. They have since been obtained. There is no evidence why either party failed to discover the documents, nor any evidence to explain when and the circumstances in which DP World now have access to the documents.
(Page 13)
64 Mr Tammen deposed as to the terms of the contract and the documents relevant to the contract having "made enquiries of employees of the FPA with apparent knowledge of the facts …". I infer that that information must have been known to FPA, through its (unspecified) employees prior to and during the course of the Mills Case being litigated. The same can be said of DP World.
Indemnity: res judicata
65 In the Mills Case FPA raised an indemnity as a defence to DP World’s notice of contribution. It was not an indemnity based on the documents on which it now relies in the present case. Nonetheless, the decision in the Mills Case involved a determination involving the issue of indemnity.
66 In this case, FPA submits that the present indemnity was not pleaded because the documents evidencing the claimed contract of indemnity were not discovered by either party in the Mills Case. That being so, and notwithstanding that there is nothing to explain why FPA did not discover the documents, it seems to me that FPA's case should not be summarily terminated. Neither party sought to explain why there was no discovery of the relevant documents and in those circumstances, I am of the view that the claim of indemnity should not be dismissed on the ground of res judicata. The reason why the documents were not discovered requires investigation. In this regard, DP World has not established that there is no issue to be tried.
Indemnity: Anshun estoppel
67 There are strong grounds for the view that Anshun estoppel arises in relation to the indemnity clause pleaded in the present action on the grounds that it was unreasonable not to raise it in the Mills Case as, if proved, it would constitute a defence to DP World's claim for contribution and it was so closely connected with the subject matter of the indemnity in the Mills Case that it could be expected that FPA would raise it as a defence.
68 If FPA had pleaded and proved the indemnity claimed in the present case it would have been an answer to DP World's claim for contribution against FPA (see Anshun at 596).
69 There was nothing to prevent determination of the indemnity issue after the determination of Mills' claim against FPA and DP World as it
(Page 14)
- involved a finding of negligence against each of the defendants in the Mills Case (see Anshun at 596).
70 It seems to me that the indemnity issue falls squarely within the situation outlined in Henderson v Henderson (1843) 3 Hare at 115; 67 ER 313 at 319.
71 The only reason given for why the presently pleaded indemnity was not raised is that the relevant documents evidencing the contract were not discovered. FPA submits that it would not be just to apply the Anshun principle to preclude FPA from seeking to run a case based on the "true facts that were known to both parties" (FPA's written outline, par 6).
72 In my view, the reasonableness or otherwise of not raising the present indemnity is a matter that requires investigation and in my view, should be determined at trial rather than in a summary judgment application.
FPA’s claim in damages
73 DP World submits that FPA should have raised the issue of liability for damage to the crane in the Mills Case. DP World relies on issue estoppel and Anshun estoppel in support of its application for summary judgment.
Damages claim: issue estoppel
74 FPA relies on the submission that the issue of liability for damage to the crane was not a cause of action which arose for consideration in the Mills Case. The Mills Case was concerned with damages for personal injury to Mills. Liability for damage to the crane was irrelevant to determination of that. That is true and is not in dispute.
75 DP World contends that issue estoppel applies in that there was a final judicial decision directly involving an issue of fact which disposed once and for all that issue, so that it cannot afterwards be raised between the same parties or their privies.
76 DP World submits that the factual issues raised in the Mills Case and the present case are identical as they relate to findings about the cause of and liability for the incident. It submits that Mills' claim, FPA's Notice of Contribution in the Mills Case and its present claim squarely raised the obligations and duties of FPA and DP World not only to Mills but to each other. An examination of the statement of claim in the Mills Case and
(Page 15)
- FPA's statement of claim in the present case appears to support this contention.
77 DP World contends that there has been a final judicial determination as to the factual issue of who was negligent in relation to the incident. Whether or not the cause of action related to liability for personal injuries to Mills or to liability for damage to the crane, the pleadings, evidence and decision in the Mills Case squarely raised the latter aspect of liability.
78 As in Anshun (see p 596) the judgment which FPA now seeks to obtain is one which is said to contradict the judgment which has been entered in the Mills Case where each defendant was found negligent on the same evidence which will be adduced in the present case. The judgment in the Mills Case was, in effect, that FPA could recover 20 per cent of Mills' damages and costs from DP World and DP World could recover 80 per cent of Mills' damages and costs from FPA. The judgment which FPA now seeks is one whereby it recovers from DP World the whole of the damages.
79 Whilst there is merit in the submissions made by DP World, it is necessary to bear in mind that this is an application for summary judgment. I refer to without repeating the principles applicable to determination of such an application outlined in pars 40-50 above.
80 The issue of who was negligent insofar as Mills was concerned has been finally determined. Even if the evidence in each case is substantially the same, there has been no determination as a matter of fact, where liability lies for damage to the crane. Different factual considerations may apply.
81 FPA's present claim involves a claim that DP World is liable as a bailee. That was not considered in the Mills Case. That claim appears to arise out of the contract now pleaded which was not before the Court in the Mills Case. That is an issue to be tried.
82 There is not necessarily conflict in judgments given that the Mills Case involved a different category of damages to that claimed in the present case.
83 Accordingly, I would not uphold the application for summary judgment on the ground of issue estoppel in relation to FPA’s claim for damage to the crane.
(Page 16)
Damages claim: Anshun estoppel
84 DP World submits that it was unreasonable for FPA not to bring its claim for damage to the crane in the Mills Case.
85 DP World submits that whilst Anshun was decided in the context of a failure to plead a defence, the principle is not so confined.
86 FPA submits that there is a real issue to be tried as to whether, and if so, how Anshun estoppel applies and that summary judgment should not be entered for the defendant.
87 Counsel for FPA conceded that the present claim for damages to the crane could have been litigated in the Mills Case. However, he submitted that DP World have not established why it was unreasonable not to do so.
88 Given the caution required in dismissing a plaintiff's claim summarily as outlined in the authorities referred to above and given that I would not uphold the application for summary judgment on any of the grounds considered thus far, I would not deprive FPA at this stage of the litigation of its right to proceed especially as the factual issue relating to culpability for damage to the crane was not considered in the Mills Case.
89 I would dismiss the defendant's application for summary judgment for the reasons outlined.
5