Abuse of process
58 As noted earlier, the Minister's primary submission that the present proceeding was an abuse of process depended primarily on the propositions that the issues the applicants now seek to raise for determination could and should have been raised before the appeal judge on the appeal from the judgment of the primary judge; and that, if not raised on the appeal, then they could and should have been raised in the application for special leave.
59 The applicants instituted their appeal as of right against the judgment of the primary judge under s 24(1)(d) of the FCA Act. The evidence established that both the applicants' legal representative and the second applicant were aware of the disclosure of the first applicant's name in the first online version of the reasons of the primary judge (i.e., the second publication) within 28 days after the filing of the notice of appeal and, in any event, well before the hearing of the appeal. Had they thought of the s 91X issues they now raise, the applicants could therefore have amended their notice of appeal as of right under r 36.10 of the Federal Court Rules to raise the s 91X issues and to seek in substance the same kind of relief under s 28(1)(b) and (c) of the FCA Act as they now seek under s 39B of the Judiciary Act.
60 I reject the applicants' argument that an appeal would have been "the wrong procedural vehicle" by which to raise the present issues. The subject matter of the appeal was the judgment of the primary judge, which under s 28(1)(c) of the FCA Act might be set aside, without the need for the primary judge or the FCCA to be joined as a respondent (as on this judicial review application: see [120] below): see Dynamic Hearing Pty Ltd v Polaris Communications Pty Ltd [2010] FCAFC 135; 273 ALR 696 at [74]. In other words, the difference in parties is a product of the process in question, but it does not support the conclusion that there was only one process in which the s 91X issues could have been raised. The issue that the applicants raise on their present application, as to whether a breach of s 91X can give rise to a jurisdictional error that vitiates the judgment of the primary judge, could, it seems to me, have been advanced in the appeal proceeding. Where there is, as in this Court, a statutory right of appeal by way of re-hearing (see SZVFW at [21], [29]; Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17; 205 CLR 507 at [75], [176]; Fairfax Media Publications Pty Ltd v Chau [2020] FCAFC 48 at [28]; Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; 117 FCR 424 at [20]; and MZWVH v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1016 at [14]), it would have been open to the applicants to have sought to raise their claims regarding the effect of the s 91X breach in the appeal (and to have sought to adduce new evidence on the appeal pursuant to s 27 of the FCA Act in connexion with those claims). As the Full Court affirmed in Fairfax Media at [28], an appeal by way of rehearing is an appeal for the correction of error, and the applicants' claim is in substance that there has been an error vitiating the judgment of the primary judge: see also Branir at [22] and SZVFW at [30]-[31]. It is well accepted that, for example, a claim of denial of procedural fairness (itself a claim of jurisdictional error) by the court whose judgment is subject to appeal can be raised on the appeal, as SZRUR v Minister for Immigration and Border Protection [2013] FCAFC 146; 216 FCR 445 and the recent case of Fairfax Media at [33] and [73] illustrate. As indicated above, the applicants' primary claim was made on two closely connected bases: first, on the basis of an argument of statutory construction and, second, on the basis of a claimed denial of procedural fairness. (I would interpolate at this point that, in so saying, I do not intend to accept the applicants' claims of error, the merits of which are discussed below.) The merits of the applicants' claims are not to the point in addressing whether the applicants could have raised the s 91X issues in the appeal in the Federal Court or in the special leave application in the High Court.
61 This does not mean that the Minister's proposition that the applicants should have raised the s 91X issues on the appeal must be accepted. There are other matters to be considered. Had the applicants not sought to amend their notice of appeal within the time allowed by r 36.10 of the Federal Court Rules, then it would also have been open to them to have sought leave to amend their notice of appeal to raise the s 91X issues at a later date. If satisfied that the point was arguable, then the appeal judge would presumably have granted such leave. Bearing in mind that this is not a particularly high threshold; that their knowledge of the breach arose after judgment had been given; and that the determination of the issues might have been thought to have some general importance, there was, so it seems to me, a fair chance that the appeal judge would have granted the requisite leave.
62 Even if they had amended their notice of appeal under r 36.10 of the Federal Court Rules, since this was a fresh issue the applicants would apparently have needed the leave of the appeal judge to raise it on the appeal. The issue of leave in this case would not have been affected by considerations of the kind referred to in Branir at [38]. Had they satisfied the appeal judge that it was expedient in the interests of justice that the s 91X issues should be entertained on the appeal, such leave would presumably have been forthcoming: see, for example, Sun v Minister for Immigration and Border Protection [2016] FCAFC 52; 243 FCR 220 at [90]. Given the circumstances in which the issues arose and their general importance, it again seems to me that there was a fair chance that such leave would have been granted. It may also be accepted that had the s 91X issues been raised before the appeal judge and determined adversely to the applicants, then, had the applicants' special leave application been granted, the issues would have fallen for consideration by the High Court on appeal.
63 In summary, had the applicants turned their minds to the s 91X issues prior to, or even at, the hearing of the appeal, it would have been open to them to have sought to raise the issues in the appeal proceeding and, subject to their overcoming any procedural barriers, to have agitated the s 91X issues in the appeal proceeding. They failed to do so because, so it appears, no one thought then to raise the arguments that the applicants now advance on the present application. At the time of the appeal, as Mr Albert put it, "minds were just not turned to" the issues that the applicants now seek to raise.
64 There is, moreover, no direct evidence that prior to the hearing of the appeal the applicants' then legal representative was aware of the difficulty created by the note of the "Corrections" in the third publication. Nor is there any direct evidence that he was aware by then that the second applicant's name had also been disclosed in the online publications of the reasons of the primary judge. I accept that, prior to the hearing of the appeal, the contents of the primary judge's reasons published online at the time were accessible to the applicants' legal representative and the applicants (although one or other or both of them appears to have had a limited facility with the English language, as indicated by the fact that they were assisted by an interpreter at the hearing before the Refugee Review Tribunal). Although I find it difficult to accept that, in the circumstances known to him, an appropriately qualified legal practitioner would not have perused the online publications of the reasons of the primary judge, including the third publication, in the course of preparing the applicants' case for the hearing of the appeal, the fact is that the Minister did not contend that, at the time of the appeal, the applicants' then legal representative knew or ought to have known about the difficulty raised by the note of the "Corrections" in the third publication or the disclosure of the second applicant's name in any online version of the primary judge's reasons. I shall therefore put both these possibilities to one side.
65 I would also add at this point, though nothing apparently turns on it, that, contrary to Mr Albert's submission, SZVFW does not stand for the proposition that the reasons for judgment of a judge of the FCCA deciding an application under s 476 of the Migration Act are immaterial on an appeal to this Court from that judgment. The focus of any appeal from a judgment on an application of this kind will depend, naturally enough, on the issues raised by the appeal, but the fact that in many cases the appellant seeks to impugn the judgment of the primary judge in the FCCA by reference to the reasons of the administrative decision-maker does not mean that the judge's reasons are unimportant.
66 The fact is that the applicants did not seek to raise the s 91X issues before the appeal judge although, as indicated above, they could have done had they been alive to the issues at the time. For present purposes, however, I accept that they were not alive to these issues, in part because they were not aware of the continuing disclosure of the second applicant's name and the effect of the note of the "Corrections" in the third publication.
67 As we have seen, the applicants did not raise the s 91X issues either in their amended special leave application or at the hearing of their special leave application even though, by then, their legal representative and, it seems, at least the second applicant were aware that the publications of the primary judge's reasons for judgment had up until then disclosed both the first and second applicants' names in whole or part, either directly or indirectly.
68 I accept, as Mr Wood submitted, that had the High Court been persuaded at the hearing of the applicants' special leave application that the s 91X point had some merit, it is "not at all self-evident" that the Court would not have allowed the point to be agitated before it, granting such leave as necessary to permit this to be done, especially given that, at the time of the special leave application, the applicants' then legal representative (and, it seems, the second applicant) had only become aware of the disclosure of the second applicant's name in the online publication of the primary judge's reasons in the course of the representative's preparation for the special leave application. There is nothing in the material before the Court to explain why the applicants' legal representative did not recommend that the applicants consult counsel prior to the hearing of the special leave application, rather than immediately after this application had been refused. This said, one can readily understand the reluctance of the legal representative to seek to advance a new issue not advanced in the appeal; and, of course, it cannot be assumed that an application for leave to advance this new issue would have been granted.
69 The applicable principles as to when an abuse of process will arise fall to be considered in the context of the matters set out above. It may be accepted that the Court can strike out or dismiss a claim which is an abuse of process according to accepted principles. These principles have been set down in many cases. It suffices to begin with Walton v Gardiner [1993] HCA 77; 177 CLR 378, and to touch upon only some of the more pertinent decisions referred to in it and decided thereafter.
70 In Walton v Gardiner, Mason CJ, Deane and Dawson JJ described the inherent jurisdiction of a superior court to prevent an abuse of its processes in the following terms, at 392-393:
The inherent jurisdiction of a superior court to stay its proceedings on grounds of abuse of process extends to all those categories of cases in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness. Thus, it has long been established that, regardless of the propriety of the purpose of the person responsible for their institution and maintenance, proceedings will constitute an abuse of process if they can be clearly seen to be foredoomed to fail. Again, proceedings within the jurisdiction of a court will be unjustifiably oppressive and vexatious of an objecting defendant, and will constitute an abuse of process, if that court is, in all the circumstances of the particular case, a clearly inappropriate forum to entertain them. Yet again, proceedings before a court should be stayed as an abuse of process if, notwithstanding that the circumstances do not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings. The jurisdiction of a superior court in such a case was correctly described by Lord Diplock in Hunter v. Chief Constable of the West Midlands Police as "the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people".
(Citations omitted.)
71 In this passage, their Honours identified one class of abuse of process cases as those in which the plaintiff or applicant sought to litigate anew a case that had already been disposed of in a previous proceeding. In this connexion, they referred to Reichel v Magrath (1889) 14 App Cas 665 and Connelly v Director of Public Prosecutions [1964] AC 1254; [1964] 2 All ER 401.
72 In Australian Mud Pty Ltd v Coretell Pty Ltd (No 2) [2018] FCA 1109; 134 IPR 359, Besanko J described Reichel v Magrath, at [55], in the following terms:
In Reichel v Magrath (1889) 14 App Cas 665, the plaintiff unsuccessfully brought an action for a declaration that he had not resigned as vicar of a benefice. His successor to the benefice, who had not been a party to the first action, brought a claim against the plaintiff for relief in relation to the benefice. The plaintiff sought to defend the action on the same basis he had advanced in the original action. It was held that his defence was frivolous and vexatious and an abuse of process. Lord Halsbury LC said the following:
My Lords, I think it would be a scandal to the administration of justice if, the same question having been disposed of by one case, the litigant were to be permitted by changing the form of the proceedings to set up the same case again. It cannot be denied that the only ground upon which Mr. Reichel can resist the claim by Mr. Magrath to occupy the vicarage is that he (Mr. Reichel) is still vicar of Sparsholt. If by the hypothesis he is not vicar of Sparsholt and his appeal absolutely fails, it surely must be in the jurisdiction of the Court of Justice to prevent the defeated litigant raising the very same question which the Court has decided in a separate action.
I believe there must be an inherent jurisdiction in every Court of Justice to prevent such an abuse of its procedure and I therefore think that this appeal must likewise be dismissed.
73 As Besanko J also noted, at [56], Connelly was a case involving criminal offences in which the House of Lords "applied a similar principle saying that the doctrines of autrefois acquit and autrefois convict did not exhaust the powers of the Court to prevent a person from being convicted twice in relation to the same matter". Neither case is directly on point here. In Reichel v Magrath the plaintiff sought to relitigate a particular issue previously decided against him. In the present case, the applicants did not seek to relitigate a particular issue earlier decided against them, since that issue had never previously been raised.
74 The doctrine of abuse of process is not limited to fixed classes: see Rogers v The Queen [1994] HCA 42; 181 CLR 251 at 286 and Aon Risk at [33]-[34]. Nonetheless, as McHugh J observed in Rogers at 286:
[A]buses of procedure usually fall into one of three categories: (1) the court's procedures are invoked for an illegitimate purpose; (2) the use of the court's procedures is unjustifiably oppressive to one of the parties; or (3) the use of the court's procedures would bring the administration of justice into disrepute.
75 The importance of these three considerations was reflected in French CJ's reasons for judgment in Aon Risk. In Aon Risk the appellant insurance broker challenged the grant of an adjournment to the respondent University as well as the grant of leave to amend the University's statement of claim (by adding a substantial new claim on the third day of a trial fixed for four weeks). In the course of his reasons (at [33]), French CJ addressed the possibility that if the amendments were not allowed, there would be further proceedings, observing that if the University instituted fresh proceedings, "raising claims which could have been raised against Aon much earlier in the existing proceedings" it would face "the potential barrier of an abuse of process objection and, possibly, that kind of estoppel discussed in Henderson v Henderson [(1843) 3 Hare 100; 67 ER 313] and … Port of Melbourne Authority v Anshun Pty Ltd [(1981) 147 CLR 589]" (citation omitted). His Honour went on to discuss abuse of process principles, saying:
Abuse of process principles may be invoked to prevent attempts to litigate that which should have been litigated in earlier proceedings as well as attempts to re-litigate that which has already been determined. Reichel v Magrath is a long standing example of a re-litigation case decided on abuse of process grounds, rather than on the basis of res judicata or issue estoppel. It was relied on in Walton v Gardiner and Rogers v The Queen.
(Citations omitted.)
76 At [34], his Honour added:
The House of Lords in Johnson v Gore Wood & Co acknowledged the distinction between "Henderson v Henderson abuse of process" on the one hand, and cause of action estoppel and issue estoppel on the other. Referring to public interest considerations of the kind discussed earlier in these reasons, Lord Bingham of Cornhill said:
"The underlying public interest is the same: that there should be finality in litigation and that a party should not be twice vexed in the same matter. This public interest is reinforced by the current emphasis on efficiency and economy in the conduct of litigation, in the interests of the parties and the public as a whole. The bringing of a claim or the raising of a defence in later proceedings may, without more, amount to abuse if the court is satisfied (the onus being on the party alleging abuse) that the claim or defence should have been raised in the earlier proceedings if it was to be raised at all."
A broad merits-based judgment was required, taking account of public and private interests affected and focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it an issue which could and should have been raised earlier. As Lord Bingham said:
"As one cannot comprehensively list all possible forms of abuse, so one cannot formulate any hard and fast rule to determine whether, on given facts, abuse is to be found or not."
…
(Citations omitted.)
77 As indicated in the passages set out above, although the doctrines of estoppel and abuse of process may overlap on the facts of a particular case, the authorities make it clear that they are distinct. In this case, although not relied on by the Minister, one type of estoppel, commonly known in Australian jurisdictions as Anshun estoppel, stepped into part of the territory covered by the Minister's abuse of process argument in this case. In Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; 147 CLR 589, Gibbs CJ, Mason and Aickin JJ said, at 602-603:
… 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. In this respect, we need to recall that there are a variety of circumstances, some referred to in the earlier cases, why a party may justifiably refrain from litigating an issue in one proceeding yet wish to litigate the issue in other proceedings e.g. expense, importance of the particular issue, motives extraneous to the actual litigation, to mention but a few.
78 The principles of Anshun estoppel have, furthermore, been held to apply to judicial review of administrative action: see Wong v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 242; 146 FCR 10 at [39], although the Full Court in that case there said that "where the beneficiary of such a principle is a Minister of State, who has no personal interest in the outcome of a proceeding, such a principle may be of only secondary significance".
79 Nonetheless while the doctrines may overlap, there is a recognised difference between estoppel and abuse of process, as the High Court explained in Tomlinson v Ramsey Food Processing Pty Limited [2015] HCA 28; 256 CLR 507, at [24]-[26], in the following way:
The doctrine of abuse of process is informed in part by similar considerations of finality and fairness. Applied to the assertion of rights or obligations, or to the raising of issues in successive proceedings, it overlaps with the doctrine of estoppel. Thus, the assertion of a right or obligation, or the raising of an issue of fact or law, in a subsequent proceeding can be simultaneously: (1) the subject of an estoppel which has resulted from a final judgment in an earlier proceeding; and (2) conduct which constitutes an abuse of process in the subsequent proceeding.
Abuse of process, which may be invoked in areas in which estoppels also apply, is inherently broader and more flexible than estoppel. Although insusceptible of a formulation which comprises closed categories, abuse of process is capable of application in any circumstances in which the use of a court's procedures would be unjustifiably oppressive to a party or would bring the administration of justice into disrepute. It can for that reason be available to relieve against injustice to a party or impairment to the system of administration of justice which might otherwise be occasioned in circumstances where a party to a subsequent proceeding is not bound by an estoppel.
Accordingly, it has been recognised that making a claim or raising an issue which was made or raised and determined in an earlier proceeding, or which ought reasonably to have been made or raised for determination in that earlier proceeding, can constitute an abuse of process even where the earlier proceeding might not have given rise to an estoppel. Similarly, it has been recognised that making such a claim or raising such an issue can constitute an abuse of process where the party seeking to make the claim or to raise the issue in the later proceeding was neither a party to that earlier proceeding, nor the privy of a party to that earlier proceeding, and therefore could not be precluded by an estoppel.
(Citations omitted.)
80 In this case, the Minister relies on the "broader and more flexible" doctrine of abuse of process, rather than estoppel. The critical question is whether in the circumstances outlined earlier the applicants are now seeking to raise a claim about the effects of the breaches of s 91X which they ought reasonably to have raised for determination in the earlier appeal and/or special leave application.
81 It has not been said that this case falls into the first category identified by McHugh J in Rogers at 286-287: the Minister has not argued that the applicants made their present application for any purpose other than the legitimate purpose of being granted appropriate relief in the face of the breaches of s 91X that relate to them. Nor has it been said that this case falls into the second category identified by his Honour: the Minister has not argued that the use of the Court's procedures is unjustifiably oppressive to the respondents. Rather, the Minister has argued that the applicants' use of this Court's procedures to challenge the judgment of the primary judge in this proceeding after that judgment had been upheld on appeal and special leave to appeal has been refused would bring the administration of justice into disrepute, because they could and should have raised their claims about s 91X in those earlier proceedings.
82 As the above discussion illustrates, the basis of this argument is sound enough. Even apart from doctrines of estoppel and abuse of process, the courts have not countenanced applications that in substance seek to re-litigate an issue expressly or impliedly decided against them on an earlier occasion: see University of Wollongong v Metwally (No 2) [1985] HCA 28; 60 ALR 68 at 71 and D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; 223 CLR 1 at [34], both cited by Gageler J in Plaintiff S3/2013, the case upon which the Minister principally relied.
83 At issue in Plaintiff S3/2013 was whether the institution of an application in the original jurisdiction of the High Court for the issue of constitutional writs under s 75(v) of the Constitution to set aside a decision of the Refugee Review Tribunal was an abuse of process. This issue arose because the plaintiff had already unsuccessfully sought judicial review of the Tribunal's decision under s 476 of the Migration Act in the original jurisdiction of the Federal Magistrates Court (now the FCCA) and had unsuccessfully appealed against that Court's judgment to this Court. Further, in the appeal, the appeal court had already decided one of the two grounds advanced in the new High Court matter against the plaintiff. Further, the second of the two grounds raised in the High Court proceeding could, plainly enough, have been raised in the Federal Magistrates Court and, if not raised there, it could have been raised, with leave, in the Federal Court on the appeal.
84 In dismissing the application to challenge the decision of the Tribunal again, Gageler J cited Metwally (No 2) at 71, D'Orta-Ekenaike, Walton v Gardiner at 393, and the statement in Johnson v Gore Wood & Co [2002] 2 AC 1 at 31 quoted with approval by French CJ in Aon Risk at [34] before stating, at [13]-[14], that:
The jurisdiction statutorily conferred on the Federal Magistrates Court by s 476 of the Migration Act to review a decision of the Refugee Review Tribunal is relevantly co-extensive with the jurisdiction of the High Court to review a decision of that Tribunal under s 75(v) of the Constitution. The exercise of statutorily conferred jurisdiction of that nature is an exercise of the judicial power of the Commonwealth to quell a controversy about existing legal rights and legal duties. To permit an unsuccessful applicant for review in the Federal Magistrates Court simply to start again in the original jurisdiction of the High Court would be inconsistent with the nature of the power already exercised by the Federal Magistrates Court. It would be subversive of the processes that exist for appeal under statute from that Court to the Federal Court and ultimately, by special leave, to the High Court under s 73 of the Constitution.
The plaintiff's application in the original jurisdiction of the High Court seeks to re-litigate claims that either were made or could and should have been made in the earlier proceeding she brought in the Federal Magistrates Court and which she took on appeal to the Federal Court. Her application is an abuse of the process of the High Court and will be dismissed accordingly pursuant to r 27.09.4(c) of the High Court Rules 2004.
85 There are, however, some material differences between Plaintiff S3/2013 and the present case. While the jurisdiction conferred on the Federal Magistrates Court under s 476 of the Migration Act was aptly described as relevantly co-extensive with the jurisdiction conferred on the High Court under s 75(v) of the Constitution, the appellate jurisdiction conferred on the Federal Court under s 24 of the FCA Act is not aptly characterised as co-extensive with the original jurisdiction conferred on the Federal Court under s 39B of the Judiciary Act, notwithstanding that the present applicants could, with leave, have raised the s 91X issues in the appeal proceeding. Because the jurisdictions of the Federal Magistrates Court and the High Court were in Plaintiff S3/2013 relevantly co-extensive, Gageler J held that it would be subversive of the relevant appeal processes for the plaintiff to begin in the High Court for a second time. Since the appellate jurisdiction of the Federal Court under s 24 of the FCA Act is not co-extensive with the Federal Court's original jurisdiction under s 39B of the Judiciary Act, it cannot be said that the present application is subversive of the appellate processes in the same way, notwithstanding, as I have said, that it would have been open to the applicants to have sought to raise the s 91X issues in the appeal.
86 This difference is highlighted by the fact that in Plaintiff S3/2013 a ground that the plaintiff sought to relitigate as of right in the High Court under s 75(v) of the Constitution was among the very grounds previously determined in the Federal Magistrates Court. In the present case, the specific s 91X issues that the applicants seek to raise in this application have not been previously decided. The previous issues decided by the primary judge on judicial review under s 476 of the Migration Act focussed on the applicants' claims of jurisdictional error affecting the decision of the Refugee Review Tribunal. The issues on the appeal were directed solely to whether the primary judge had erred in failing to find jurisdictional error in the Tribunal's decision. No question was raised concerning the effect of actions in the FCCA. Further, even though the applicants could have raised the s 91X issues in the appeal, their ability to raise them to allow full argument and definitive determination depended on the favourable exercise of judicial discretion to overcome procedural obstacles, the outcome of which was not certain. Given that these issues were not raised on the appeal, the favourable exercise of discretion was even more problematic in the special leave application. In these circumstances, it does not seem to me that it can be said that this application is subversive of the relevant appeal processes in the same way as the s 75(v) application in the High Court was held to be in Plaintiff S3/2013.
87 As I have said, the critical question is whether in the circumstances outlined earlier, the applicants are seeking to raise a claim about the effects of the breaches of s 91X which they ought reasonably to have raised for determination in the earlier appeal and/or special leave application. Put another way, given that they could have sought to raise the s 91X issues, the question is whether they should have done so.
88 Ultimately, the Minister, who bore the onus on this issue, has failed to satisfy me that the application should be properly characterised as an abuse of the process. This is in the main because the applicants, through their legal representatives, not only did not appreciate that there had been a breach of s 91X until after they filed their notice of appeal, they were not aware that, notwithstanding the replacement of the second publication by the third publication, the name of the first applicant continued to be identifiable in the subsequent online version of the primary judge's reasons (through the "Corrections" note to the third publication, read with the second publication) and that the name of the second applicant (although not specifically identified as her name) was also disclosed from the time the first online version of his Honour's reasons appeared until replaced by the fourth publication less than a month before the hearing of the special leave application. It is apparent, therefore, that, from the applicants' perspective, at the time of the appeal, the known breach of s 91X had been brief and had been remedied. It is also relevant in this connexion to recall that one or both of the applicants themselves apparently had no great facility in the English language. As already observed, moreover, their ability to raise the s 91X issue either in the appeal proceeding in the Federal Court or in the special leave application in the High Court depended on the favourable exercises of judicial discretion to overcome procedural obstacles.
89 Another important consideration is, so it seems to me, that, as earlier stated, the appeal proceeding was focussed on what was in fact the conventional question, whether the primary judge had erred in failing to find jurisdictional error in the Tribunal's decision. Given the applicants' lack of knowledge of the ongoing disclosures in the third publication of the primary judge's reasons, their failure to raise the s 91X issues on the appeal was, so it seems to me, reasonably explicable.
90 Even though, by the time of hearing of their special leave application, they can be taken to have been aware of the disclosure of the second applicant's name in the third publication and the risk associated with the "Corrections" note to the third publication, the special leave application was properly directed to the judgment of the appeal judge and, as already stated, the applicants needed a favourable exercise of judicial discretion to overcome the fact that the issue had not been raised before the appeal judge.
91 In all the circumstances I would not conclude that the applicants are seeking to raise a claim about the effects of the breaches of s 91X which they ought reasonably to have raised for determination in the earlier appeal and/or special leave application. Put another way, although they could have raised the s 91X issues earlier, I would not conclude that they should have done, such that their failure to do so means that their present application is an abuse of the process of the Court.
92 Although courts are now less cautious than in the past to stay or dismiss a proceeding on the basis of an abuse of process, it still remains important "to maintain the integrity of the principle that under cover of the inherent jurisdiction to stop abuse of process litigants are not to be deprived of the right to submit real and genuine controversies to the determination of the courts by the due procedure appropriate for the purpose": see Dey v Victorian Railways Commissioners [1949] HCA 1; 78 CLR 62 at 92 (Dixon J). In the circumstances of this case, I would not dismiss the present application, although instituted on reasonable grounds for a proper purpose, on the basis that it was an abuse of the process of the Federal Court because, if the applicants had had more knowledge and if the relevant judicial discretions had been exercised in their favour, they could have brought the issues they raise on the application for determination earlier on the appeal, or even the special leave application, where to do so would deprive them of the judicial determination of issues arising from the admitted breaches of s 91X, the determination of which is clearly important to them and, perhaps more generally, to the administration of justice in cases to which s 91X is directed.