is "dishonesty at the very core of the claim" and Mr Lehrmann has offered no honest account of the incident and Mr Lehrmann's denial of sex with Ms Higgins should be characterised as "a hideous lie that undermines the very foundation of bringing this action". In this way, it is said his "wicked conduct" rises to the level of a very exceptional case of abuse of process and it would bring the administration of justice into disrepute to award Mr Lehrmann any damages.
994 I confess to finding the reasoning in this line of English cases somewhat problematical, as it does not distinguish between abuse of the process with the distinct notion of the appropriate remedial response where a claimant is entitled to some relief, but has engaged in disreputable conduct (and, more particularly, on how relief by way of damages is to be assessed in the light of that conduct).
995 As the High Court explained in Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256 (at 262–265 [2]–[8] per Gleeson CJ, Gummow, Hayne and Crennan JJ), the term "abuse of process" is used in a number of contexts and what amounts to an abuse of process is insusceptible of a formulation comprising closed categories. It is fundamental to the proper functioning of a principled legal system that a judiciary can safeguard its own processes. A core mechanism used by courts to guard against judicial proceedings being converted into instruments of injustice or unfairness is the inherent or implied power to stay (or dismiss) proceedings where there is an abuse of process (see Emerson Hynard and Aiden Lerch, 'The Tort of Collateral Abuse of Process' (2021) 44(2) UNSW Law Journal 714, a paper which contains a useful summary of the tort of collateral abuse of process).
996 But here, we are not talking about a disentitlement to continue using the Court's processes as an instrument of oppression, which must be ended by granting a stay or dismissal, but the different concept of a Court granting appropriate relief, after its processes have been used by the party seeking that relief, in part, inappropriately.
997 I adhere to the view I recently expressed in Russell (No 3) (at [471]), that it would be erroneous to "reduce" any component of ordinary compensatory damages otherwise appropriate to be properly awarded on the evidence because of general misgivings as to a claimant's conduct on the basis it is said to be some form of abuse of process.
