Ling v Commonwealth

Noel Ling brought an action against the Commonwealth of Australia in the Supreme Court of Victoria seeking damages for losses suffered as a result of representations made by the Commonwealth regarding its policy on facilitating access to English language courses by overseas students. The Commonwealth had previously sued Ling to recover fees paid by students who were unable to obtain visas to study in Australia. The Commonwealth argued that Ling's claim for damages should have been brought as a cross-claim in the earlier proceeding, and that Anshun estoppel applied to prevent Ling from bringing the claim in a separate proceeding. The primary judge dismissed Ling's claim and the Full Court allowed the Commonwealth's appeal. Ling appealed to the Full Court against the primary judge's order and the sequestration order made against him. The Full Court held that the Anshun estoppel did not apply to prevent Ling from bringing his claim in a separate proceeding. The Full Court found that while there was a factual connection between Ling's claim and the Commonwealth's earlier claim, the facts underlying the claims diverged significantly. The Full Court also found that it was not unreasonable for Ling to have failed to raise his claim as a cross-claim in the earlier proceeding, given the substantial factual differences between the claims, the jurisdictional issues that would have had to be overcome, and the procedural obstacles that would have had to be navigated. The Full Court allowed Ling's appeal, set aside the sequestration order, and remitted the matter to the primary judge for pre-trial directions.