Where a party is prevented from using documents by a Harman undertaking, that restriction may provide a reasonable explanation for not raising related causes of action in earlier proceedings, defeating an Anshun estoppel argument. A defendant who opposes a plaintiff's attempts to consolidate proceedings may find it difficult to later argue that the plaintiff's failure to raise all claims in the earlier proceeding was unreasonable. Non-parties to an employment agreement containing a non-disparagement clause may pursue statutory causes of action under the Australian Consumer Law notwithstanding privity of contract, but rolled-up damages claims that fail to particularise loss referable to each cause of action and each plaintiff will be struck out.
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