FEDERAL COURT OF AUSTRALIA

Alpert v Commonwealth of Australia (Department of Defence) (No 2) [2024] FCA 447

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s interlocutory application dated 1 September 2023 be dismissed.

2.    Within 21 days of these orders, the parties are to:

(a)    confer and, if possible, agree upon orders for the timely case management of the proceeding; and

(b)    advise the court of their agreement or otherwise, as the case may be.

3.    The applicant pay the respondents’ costs of and incidental to the interlocutory application, including the costs reserved on 28 September 2023, in each case to be assessed in default of agreement in accordance with the court’s Costs Practice Note (GPN-COSTS).

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

SNADEN J:

INTRODUCTION

1    The applicant is a former member of the Australian Defence Force (hereafter, the “ADF”). In 2004, he was acquitted of charges that were brought against him under the Defence Force Discipline Act 1982 (Cth) (the “DFDA”). Nearly two decades later, he commenced the present proceeding, by which he moves for declaratory and other relief related to his acquittal and the manner in which the charges against him were pressed. The respondents are the Commonwealth and the various ADF officers who were involved in the process that culminated in the acquittal.

2    The applicant’s originating application is supported by an amended statement of claim dated 20 April 2023. He now seeks to expand upon the causes of action that he hopes to prosecute. By an interlocutory application dated 1 September 2023, he moves for leave to file an amended originating application and a further amended pleading. On the footings shortly to be explored, the respondents resist the granting of that relief.

3    The interlocutory application came before the court on 28 September 2023. For reasons discussed at that hearing (and that do not warrant repetition here), the court acceded to an adjournment request that the respondents made in order that they might have an opportunity to respond to detailed written submissions filed a few days earlier by the applicant.

4    The matter then proceeded to hearing on Friday, 20 October 2023. Thereafter—specifically, on 16 November 2023—the applicant’s solicitors wrote to my chambers (and the respondents’ solicitors), attaching further re-drafts of his proposed amended originating application (hereafter, the “Proposed AOA”) and his proposed second (or further) amended statement of claim (hereafter, the “Proposed SASOC”), both dated 16 November 2023. Those proposed re-drafts contained some corrections that were the subject of debate at the hearing of 20 October 2023.

5    Although that hearing was conducted on the basis of the amendments proposed at the time, the respondents’ substantive bases for resisting the relief for which the applicant moves apply equally to the Proposed AOA and the Proposed SASOC. I proceed, as requested, as though the interlocutory application is one for leave to file those documents.

6    Before exploring the relief for which the applicant now moves and the basis upon which the respondents resist it, something should be said about the nature of the applicant’s claims.

7    In 2001, the applicant and his unit were deployed to Malaysia. During a period of leave, the applicant travelled to Thailand. There, he met a woman who later alleged to authorities that he had raped her. The applicant denied the allegation but was nonetheless charged with a “service offence” under the DFDA.

8    That charge was the subject of a general court martial, conducted—or purportedly conducted, as the case may be—pursuant to the DFDA. On 7 December 2004, a hearing was convened, at which the applicant pled not guilty to the charge preferred against him. The prosecutor did not lead any evidence and the applicant was duly acquitted. It will be necessary, later, to explore the roles that each of the individual (second to seventh) respondents played in that process; but, for now, that suffices as a summary of the process that led to the applicant’s acquittal.

9    Subsequently, the applicant learned (or claims to have learned) of some anomalies in the manner in which he came to be acquitted. Specifically, he now contends (perhaps amongst other things) that the charge that was laid (or purportedly laid) against him was falsified, that certain preconditions to the preferring of a charge under the DFDA had not been met, and that the prosecution of the charge had been commenced and continued in contravention of a prosecution policy.

10    The applicant’s initial (and present) originating application presses for declaratory relief pursuant to s 21 of the Federal Court of Australia Act 1976 (Cth), as well as for damages in tort for malicious prosecution and misfeasance in public office. By the present application, the applicant hopes to:

(1)    introduce a new cause of action in negligence against each of the respondents;

(2)    maintain that cause of action as the primary source of his entitlement to damages as against the first, second, third and fourth respondents;

(3)    maintain his cause of action in tort for misfeasance in public office as the primary source of his entitlement to damages as against the fifth and sixth respondents;

(4)    maintain his cause of action in tort for malicious prosecution as the primary source of his entitlement to damages as against the seventh respondent, and as an alternative source as against the sixth respondent; and

(5)    press his action in negligence as an alternative (or, in the case of the sixth respondent, a further alternative) source of entitlement to damages as against the fifth, sixth and seventh respondents.

11    At least is that the course made apparent by the Proposed SASOC. In terms of the relief that is sought, the Proposed AOA does not seem directly to marry with the proposed pleading but, for now at least, little if anything turns on that. For the reasons that follow, the applicant should not have leave to file either the Proposed AOA or the Proposed SASOC.

RELEVANT PRINCIPLES GOVERNING AMENDMENT

12    Rule 8.21 of the Federal Court Rules 2011 (Cth) (hereafter, the “FCA Rules”) concerns the amendment of originating applications. Pursuant to that rule, a party may apply to the court for leave to amend an originating application for any reason, including (as here) to add or substitute new claims for relief.

13    Rule 16.53 of the FCA Rules concerns the amendment of pleadings. Again, it permits a party to make an application for leave to amend a pleading so as to add or substitute new claims for relief.

14    In Tamaya Resources Ltd (in liq) v Deloitte Touche Tohmatsu (A Firm), in the matter of Tamaya Resources Ltd (in liq) [2015] FCA 1098 (hereafter, “Tamaya”), Gleeson J had occasion to consider both rules. Her Honour observed (at [125]-[128]):

The applicable principles are well established. The Court’s powers in rules 8.21(1) and 16.53 are broad. Consideration of whether to grant leave to amend must be undertaken in accordance with the overarching purpose set out in s 37M(1) of the Federal Court Act: Australian Competition and Consumer Commission v Jutsen (No 2) [2010] FCA 982 at [12]; Suzlon Energy Ltd v Bangad [2011] FCA 92 ; (2011) 196 FCR 259 at [19]; University of Sydney v ResMed Limited (No 5) [2012] FCA 232 at [14]; Bowen Energy Ltd v 2KD Drilling Pty Ltd [2012] FCA 275 at [8].

The onus is on the party seeking leave to amend to persuade the court that such leave should be given: Dye v Commonwealth Securities Ltd (No 2) [2010] FCAFC 118 at [17].

The principles articulated by the High Court in [Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175] apply to matters in this court: Cement Australia Pty Ltd v Australian Competition and Consumer Commission [2010] FCAFC 101; (2010) 187 FCR 261 (“Cement Australia”) at [43]. Relevant matters the Court is to consider include:

(1)    The nature and importance of the amendment to the party applying for it: Aon at [102];

(2)    The extent of the delay and the costs associated with the amendment: Aon at [102];

(3)    The prejudice that might be assumed to follow from the amendment, and that which is shown: Aon at [5], [100] and [102];

(4)    The explanation for any delay in applying for that leave: Aon at [108]; and

(5)    The parties’ choices to date in the litigation and the consequences of those choices: Aon at [112] and Luck v Chief Executive Officer of Centrelink [2015] FCAFC 75 (“Luck“) at [44];

(6)    The detriment to other litigants in the Court: Aon at [93], [95] and [114] and Luck at [44]; and

(7)    Potential loss of public confidence in the legal system which can arise where a court is seen to accede to applications made without adequate explanation or justification: Aon at [5], [24] and [30].

The weight to be given to the considerations identified in Aon, individually and in combination, and the outcome of the balancing process, may vary depending on the facts in the individual case: Cement Australia at [51].

15    In Caason Investments Pty Ltd v Cao (2015) 236 FCR 322, 326-327 [19]-[21] (Gilmour and Foster JJ; Edelman J dissenting), the majority observed:

The power of the Court to grant or refuse leave must be exercised in the way that best promotes the Court’s overarching purpose to facilitate the just resolution of disputes according to law as quickly, inexpensively and efficiently as possible…

The Court’s power to grant leave to amend is broad and has the remedial objective of ensuring that any defect in the pleadings is cured and that the real questions in the controversy are properly agitated and to avoid a multiplicity of proceedings… The object of the Court is not to punish parties for mistakes made in the conduct of their case, but to correct errors with the result that a decision can be made on the real matters in controversy …

Leave to amend should be granted unless the proposed amendment is futile, such that the issue sought to be added is unlikely to succeed, the amendment is likely to be struck out or would cause substantial prejudice or injustice to the opposing party in a way that cannot be compensated by costs…

16    The principles regulating the striking out of a pleading are similarly well-settled. In Uber Technologies Incorporated v Andrianakis (2020) 61 VR 580 (Niall, Hargrave and Emerton JJA), the Victorian Court of Appeal endorsed (at 599-600 [50]) the following summary of principle that was enumerated in Wheelahan v City of Casey (No 12) [2013] VSC 316, namely (reference omitted):

…

(b)    the function of a pleading in civil proceedings is to alert the other party to the case they need to meet (and hence satisfy basic requirements of procedural fairness) and further, to define the precise issues for determination so that the court may conduct a fair trial;

(c)    the cardinal rule is that a pleading must state all the material facts to establish a reasonable cause of action (or defence). The expression ‘material facts’ is not synonymous with providing all the circumstances. Material facts are only those relied on to establish the essential elements of the cause of action;

(d)    as a corollary, the pleading must be presented in an intelligible form — it must not be vague or ambiguous or inconsistent. Thus a pleading is ‘embarrassing’ within the meaning of r 23.02 when it places the opposite party in the position of not knowing what is alleged;

(e)    the fact that a proceeding arises from a complex factual matrix does not detract from the pleading requirements. To the contrary, the requirements become more poignant;

(f)    pleadings, when well-drawn, serve the overarching purpose of the Civil Procedure Act 2010 (Vic);

(g)    a pleading which contains unnecessary or irrelevant allegations may be embarrassing — for example, if it contains a body of material by way of background factual matrix which does not lead to the making out of any defined cause of action (or defence), particularly if the offending paragraphs tend to obfuscate the issues to be determined;

(h)    it is not sufficient to simply plead a conclusion from unstated facts. In this instance, the pleading is embarrassing;

(i)    every pleading must contain in a summary form a statement of all material facts upon which the party relies, but not the evidence by which the facts are to be proved (r 13.02(1)(a));

(j)    the effect of any document or purport of any conversation, if material, must be pleaded as briefly as possible, and the precise words of the document or the conversation must not be pleaded unless the words are themselves material (r 13.03);

(k)    particulars are not intended to fill gaps in a deficient pleading. Rather, they are intended to meet a separate requirement — namely, to fill in the picture of the plaintiff’s cause of action (or defendant’s defence) with information sufficiently detailed to put the other party on guard as to the case that must be met. An object and function of particulars is to limit the generality of a pleading and thereby limit and define the issues to be tried;

(l)    a pleading should not be so prolix that the opposite party is unable to ascertain with precision the causes of action and the material facts that are alleged against it;

(m)    extensive cross-referencing of facts in a pleading may render parts of the pleading unintelligible;

(n)    in an application under r 23.02, the court will only look at the pleading itself and the documents referred to in the pleading;

(o)    the power to strike out a pleading is discretionary. As a rule, the power will be exercised only when there is some substantial objection to the pleading complained of or some real embarrassment is shown; and

(p)    if the objectionable part of the pleading is so intertwined with the rest of the pleading so as to make separation difficult, the appropriate course is to strike out the whole of the pleading.

17    As a “general principle”, then, leave to amend a pleading “…should be granted unless the proposed amendment is obviously futile or would cause substantial prejudice or injustice which could not be compensated for”: Ron Medich Properties Pty Ltd v Bentley-Smythe Pty Ltd [2010] FCA 494, [8] (Stone J).

18    Presently, the applicant submits that:

(1)    the amendments that he proposes to his pleading are necessary to “enable the real questions in controversy between the parties to be decided”;

(2)    the proceedings are at an early stage and the respondents have not yet filed a defence, so there could be no substantial prejudice to the respondents in allowing the amendments;

(3)    the allegations contained within the Proposed SASOC arise from “substantially the same facts” as those already articulated in the amended statement of claim;

(4)    the proposed amendments seek to address complaints that the respondents have raised in correspondence that has been sent to the applicant;

(5)    the additional causes of action and relief sought would allow the court to hear and decide all issues in dispute and, thereby, avoid the prospect of a multiplicity of proceedings;

(6)    the addition of a claim in negligence arises from substantially the same facts as those upon which the existing claims rest; and

(7)    the proposed amendments are drawn in a way that avoids the unwieldy repetition of the same material facts for each respondent and in respect of each cause of action.

19    The respondents oppose the relief that is sought on two bases. First, they maintain that the Proposed SASOC “…is in many parts prolix, confusing and difficult to follow, including because it contains grammatical errors, is heavily dependent on cross-referencing, adopts confusing (and possibly erroneous) numbering, and is unnecessarily lengthy”. That being so, they submit that the proposed amendment is embarrassing and, therefore, would be liable to be struck out, such that leave to file it ought not to be granted.

20    Second, the respondents maintain that the Proposed SASOC seeks to pursue causes of action that are futile or that would separately be liable to be struck out for want of proper articulation.

21    Insofar as the applicant seeks, by his Proposed AOA, to press causes of action that are of that (futile) nature, the respondents equally maintain that leave to file that document should also be declined.

22    It is convenient to address each issue in turn.

IS THE PROPOSED SASOC EMBARASSING?

23    The Proposed SASOC begins with definitions and formalities, proceeds to identify what are said to be duties that the respondents owed to Mr Alpert, sets out some salient features of the DFDA, makes various factual assertions that are common to the different causes of action that are pressed, and then identifies various instances of conduct attributable to each of the natural (that is to say, the second to seventh) respondents and the reasons why it is said to afford Mr Alpert the relief that he claims. It is, for the most part, divided into headings and subheadings that follow an identifiable logic.

24    That structural logic, however, is very easily lost sight of under the unusually dense and discursive narrative that populates it. The Proposed SASOC stretches across an unwieldy 128 pages. Fortunately, it is unnecessary to replicate lengthy passages from it. Nonetheless, I make this observation at the outset: I have significant doubt that the causes of action that Mr Alpert hopes to prosecute are so complicated as to warrant a pleading of the magnitude that is proposed.

25    The respondents maintain that the Proposed SASOC is embarrassing—and, therefore, ought not to attract the leave for which Mr Alpert moves. Broadly, the bases upon which they so submit fall into three categories. The first might fairly (if somewhat unimaginatively) be described as miscellaneous, discrete pleadings complaints: the respondents point to individual passages within the Proposed SASOC that are said variously to be circuitous, vague, prolix or equivalently objectionable. The second focuses upon what is described as the “Officers’ duties” that feature significantly in Mr Alpert’s proposed claims in negligence. The third concerns Mr Alpert’s pleas about the “Principle of Non-Intervention”.

26    I shall address each category in turn; although, for reasons that might be imagined, I shall begin with the second and third categories first.

The Officers’ Duties

27    Substantively (and excepting some preliminary definitions, and other introductory and historical assertions), the Proposed SASOC commences with proposed paragraphs 2A to 2D, which appear under the heading (or proposed new heading), “The DFDA and the ADF Chain of Command”. Those paragraphs read as follows:

2A.    At all material times, other than for a brief period when the Australian Military Court existed before it was found to be unconstitutional by the High Court of Australia for breaching Chapter III of the Constitution, ADF service tribunals, lawfully established under the DFDA:

(i)    do not exercise the judicial power of the Commonwealth;

(ii)    do not exercise criminal jurisdiction of the Commonwealth or otherwise;

(iii)    deal with ADF service offences which are disciplinary in nature and effect;

(iv)    are administrative tribunals, being an exercise of the defence power in section 51(vi) of the Constitution and an exception to Chapter III of the Constitution, although they must act judicially when performing their lawful functions.

2B.    At all material times, in connection with service tribunals lawfully established under the DFDA, ADF service members remain in their chain of command and may fulfill roles called:

(a)    prosecuting officers;

(b)    defending officers,

- without being legal practitioners and may be any member of the ADF so appointed to act on an ad hoc basis.

2C.    At all material times, during peacetime, a special relationship arises under the ADF chain of command between officers and other ranks (Special Relationship) through:

(a)    the DFDA applying to all members of the ADF;

(b)    under section 35, DFDA, ADF members may not by act or omission perform a duty negligently;

(c)    the ADF chain of command is a hierarchical structure that outlines the authority and communication channels within the ADF from the lowest rank to the highest rank;

(d)    within the ADF chain of command an officer owes several important duties to their subordinates, which are essential for developing a sense of camaraderie, trust, and mutual respect, and these duties arise out of the necessity within the ADF to maintain a cohesive and effective military force, which duties include (collectively, Officers’ duties):

(i)    the Law applicable to the Prosecution;

Particulars

The matters pleaded in paragraph 25 are repeated.

(ii)    Leadership;

Particulars

An officer must provide strong and effective leadership to inspire and guide their subordinates towards achieving the unit's objectives.

(iii)    Welfare and Well-being;

Particulars

Officers must prioritize the well-being and welfare of their subordinates, providing support and assistance as needed, both professionally and personally.

(iv)    Discipline;

Particulars

Officers must enforce discipline fairly under the DFDA within the unit, ensuring that standards are met and maintaining order and respect among the ranks.

(v)    Communication;

Particulars

It is an officer's duty to ensure clear and open communication with their subordinates, keeping them informed about relevant information and providing feedback.

(vi)    Safety;

Particulars

Officers are responsible for the safety of their subordinates, both in training and during operations, by implementing proper safety procedures and protocols.

(vii)    Equal Treatment;

Particulars

Officers must treat all subordinates fairly and equally, regardless of their background, race, gender, or any other characteristic.

(viii)    Accountability; and,

Particulars

Officers are accountable for their actions and decisions, and they must take responsibility for the outcomes and consequences affecting their subordinates.

(ix)    Respect and Support.

Particulars

An officer must show respect for their subordinates and support their needs, fostering a positive working environment.

2D.    The Second to Seventh Respondents as officers in the ADF within the ADF chain of command performed duties that the member was required to perform by the member’s office or appointment and in exercising those duties:

(a)    under the DFDA; and

(b)    the Special Relationship,

- owed to Mr Alpert the Officers’ duties as Mr Alpert was a subordinate to each of the Second to Seventh Respondent officers.

28    The “Special Relationship” and “Officers’ duties” assume central significance to many of the other proposed amendments to the applicant’s pleading, particularly those concerning his claims in negligence. Later in the proposed pleading, it is alleged that each of the respondents owed Mr Alpert a duty of care; and that, in various ways, each conducted himself in breach of that duty and in a manner apt to visit loss upon him. In each case (and at least in part), the duty of care alleged is said to have arisen “…under the Officers’ duties” and in (or partly in) connection with the “Special Relationship”.

29    The respondents submit:

(1)    that paragraphs 2A to 2D of the Proposed SASOC fail properly to identify the nature or source of the alleged “Officers’ duties” in sub-paragraph 2C(d), and, in particular, contain no explanation as to whether they are “owed” at common law, pursuant to statute (and if so, what statute) or on some other basis;

(2)    that paragraph 2C fails to identify the content or meaning of the phrase “Special Relationship”, which is inherently nebulous but which is later relied upon in many other paragraphs of the proposed pleading, including for the purposes of giving shape to the duties of care that Mr Alpert claims that he was owed; and

(3)    that the particulars that appear beneath sub-paragraph 2C(d)(i) engage, for the purposes of defining the “Law applicable to the Prosecution” (which is itself said to be one of the duties that comprise the “Officers’ duties”), what is later said at paragraph 25, which in turn refers to numerous documents (including unspecified statutory provisions, the “ADF Prosecution Policy” and the “Discipline Law Manual”), such that it is unclear what part or parts of those documents constitute or give rise to the “duty” that is sought to be established.

30    I accept all of those submissions. Insofar as it purports to identify duties owed by officers of the ADF to their subordinates, paragraph 2C is plainly and fundamentally inadequate. In order that they might understand—and respond to—the suggestion that they owed Mr Alpert duties of care, each of the respondents is entitled to know how it is to be put that such a duty arose. Insofar as it is said to have arisen because, in his capacity as an ADF officer, each of the personal respondents laboured under various other duties, each is entitled to know with precision what those duties are or were, which necessarily envisages the identification of how each is said to have arisen.

31    In its present form, the Proposed SASOC fails at each of those hurdles. Bald descriptions of constituent duties such as “Leadership” and “Discipline” are self-evidently impossible for the respondents sensibly to address. What is and is not contemplated by each is impermissibly unclear; and in part is that so because the source of each alleged duty is equally indeterminate. Paragraph 2C of the Proposed SASOC presents as a textbook example of what the authorities recognise as embarrassing.

32    The significance of those criticisms is evident and cannot be overstated. As has been noted, the “Special Relationship” and the “Officers’ duties” to which paragraph 2C refers feature extensively throughout the Proposed SASOC—particularly within Mr Alpert’s proposed negligence claims. Given the inherent want of clarity that attends those concepts, the Proposed SASOC piles imprecision upon imprecision; and the net result is that it is simply impossible for the respondents to know—as they are entitled—precisely what is alleged against them.

33    It follows that I have no hesitation in accepting that paragraphs 2A to 2D—and 2C in particular—are (or would be) embarrassing. The numerous and varied references throughout the Proposed SASOC to the concepts that are sought to be established by those paragraphs are (or would be) equally objectionable and vulnerable. Leave to file the Proposed SASOC should be refused at least on that basis.

The “Principle of Non-Intervention”

34    The respondents also take issue with the newly proposed paragraphs 16A to 16C of the Proposed SASOC. Those paragraphs are as follows, namely:

16A.    At all material times, it was and is a foremost restriction imposed by international law upon a State that:

(a)    failing the existence of a permissive rule to the contrary, that State may not exercise its power in any form in the territory of another State (the Principle of Non-Intervention).

Particulars

Permanent Court of International Justice, SS ‘Lotus’ (France v Turkey) (Judgment) [1927] PCIJ (Ser A) No 10, 18-19.

Charter of the United Nations art 2(7).

Declaration on Principles of International Law Concerning Friendly Relations and Cooperation Among States in Accordance with The Charter of The United Nations, GA Res 2625, UN GAOR, 25th sess, 1883rd mtg, Supp No 28 (24 October 1970) art 3. See also ‘Draft Declaration on Rights and Duties of States’ [1949] Yearbook of the International Law Commission 286 art 3.

Corfu Channel (United Kingdom v Albania) (Merits) [1949] ICJ Rep 4, 35.

(b)    under the Principle of Non-Intervention there is a prohibition on the exercise of sovereign power through, [inter alia], the performance of official duties by a member of the forces of that country, in other countries without consent of that country.

Particulars

I Brownlie, Principles of Public International Law (Oxford University Press, 7th ed, 2008), 292.

M Akehurst, ‘Jurisdiction in International Law’ (1972) 46 British Yearbook of International Law 145; M Shaw, International Law (Cambridge University Press, 6th ed, 2008) 650–1.

16B.    At no time in the Relevant Period, did the First Respondent:

(a)    have a Status of Forces Agreement in place with:

(i)    the Kingdom of Thailand;

(ii)    the United Kingdom of Great Britain and Northern Ireland (United Kingdom);

(b)    seek nor obtain the consent of:

(i)    the Kingdom of Thailand;

(ii)    the United Kingdom,

to allow members of the ADF to carry out official duties under the DFDA involving the investigation of a purported service offence under the DFDA in either:

(i)    the Kingdom of Thailand

(ii)    nor the United Kingdom.

16C.    In the premises referred to in paragraphs 16A and 16B, the actions by members of the ADF referred to in:

(a)    paragraph 17, which were undertaken in the Kingdom of Thailand;

(b)    paragraphs 81, 104 – 107, which were undertaken in the United Kingdom,

were at all material times:

(i)    acts by the First Respondent in breach of international law, being breaches of the Principle of Non-Intervention; and

(ii)    any evidence so obtained was liable to be inadmissible as against Mr Alpert before any service tribunal properly constituted at law.

35    Paragraph 17 of the Proposed SASOC is in the following terms, namely:

Following receipt of the complaint:

(a)    on 6 December 2001, a military police investigation was commenced (MP Investigation);

(b)    no sworn statement was taken from the complainant until 26 February 2002;

(c)    on 31 May 2002, Mr Alpert was interviewed by the Military Police (MP) WO2 Vicki Louise Jones and SGT Andrew Paul Johnston;

(d)    on 31 May 2002 after the interview with Mr Alpert, WO2 Vicki Jones, a senior investigator and Section Commander with full knowledge of the contents of the Brief of Evidence then wrote to SSGT WH Shepherd stating, amongst others things, “this kid [Mr Alpert] was pretty good” and then questioning the complainant’s credibility stating, amongst other matters that pointed to the complainant having made a false complaint: “the female is not all she seems” (the MP Memorandum);

…

(e)    on 25 July 2002, a military police "Brief of Evidence" was finalised and released by CAPT PLCOMD M.J.Britton;

(f)    the Brief of Evidence included the statements of:

(i)    the complainant, on 26 February 2002, wherein she admitted to having consensual oral sex with Mr Alpert;

(ii)    Miss E.L Carey on 26 February 2002;

(iii)    Miss K.A. Lloyd on 25 February 2002;

(iv)    Miss A. Bizet on 28 February 2002;

(v)    Mr Wynn-Davies on 28 February 2002;

(vi)    Mr R.A.B. Johnson on 26 February 2002;

(vii)    LT Peter John Ketton on 6 December 2001;

(viii)    LT N.M. White on 14 February 2002;

(ix)    MAJ C.W. Paine on 6 December 2001;

(x)    Mr K.B. Teh on 12 March 2002;

(xi)    the complainant on 26 November 2001 [this was a letter addressed to Commanding Officer 6 RAR];

(xii)    PTE S.W. Alpert on 4 October 2001.

(g)    neither Mr Alpert, nor any Defending Officer under the DFDA, was given a copy of the Brief of Evidence nor the MP Memorandum before the hearing before the Purported Summary Authority;

(h)    SSGT W H Shepherd who conducted the MP investigation, recommended that consultation with the relevant legal officer be sought prior to any administrative or disciplinary steps being taken;

(i)    no further evidence regarding the complaint was ever obtained.

36    The respondents complain that paragraph 16C is embarrassing because it does not unambiguously identify what are the “actions … referred to in paragraph 17” that are said to have offended the principle of non-intervention. Paragraph 17 refers to a number of matters and circumstances and it is plain that not all of them could fall within the contemplation of what is alleged at 16C. Further, the respondents complain that sub-paragraph 16C(ii) fails to identify what evidence was said to have been improperly or irregularly “obtained”, let alone the basis or bases upon which its admissibility might be doubted (although, on that score, it seems likely to be intended that the alleged want of admissibility arises from the manner in which the evidence was obtained).

37    Those criticisms of the Proposed SASOC are fair. Paragraph 16C is needlessly difficult to navigate. It is clear that it contemplates that the respondents (or some of them) engaged in some conduct, that that conduct was such as to offend against the principle of non-intervention to which 16A and 16B refer, that that conduct was engaged in toward the obtaining of evidence that was later used against the applicant, and that the evidence so obtained was not or would not have been admissible as against him. But, short of recognising those headline conceptual assertions, the paragraph is impermissibly confusing and extremely difficult, if not impossible, for the respondents to address.

38    It suffices to observe that it would benefit from substantially more precise refinement. In its present form, it is embarrassing; and leave to file the Proposed SASOC should also be refused on that basis.

The "miscellaneous" pleadings issues

39    The respondents also submit that leave to file the Proposed SASOC should be refused on the ground that it contains a number of passages that are confusing or circuitous, that contain obvious cross-referencing errors or that are otherwise embarrassing. By their written submissions in opposition to the interlocutory application, the respondents identified 43 discrete examples of pleas within the Proposed SASOC that were said to be objectionable on one or more of those bases. For reasons that will shortly become apparent, it is unnecessary that I should here set each of them out, nor that I should record specifically the bases upon which they are challenged.

40    Other than at a headline level, the applicant offered little by way of defence to the respondents’ challenges. Senior counsel for Mr Alpert contended in oral submissions that the respondents’ complaints amounted to little more than “pleading snipes”; and maintained that “the Commonwealth understands exactly what this case is about”.

41    Again, at a headline level, those might be fair observations; but they aren’t especially helpful for present purposes. By design, the purpose of a pleading is to afford much more than just a headline summary of the case advanced to vindicate or defend identified causes of action. The respondents are entitled to know precisely the nature of the case that is advanced against them; and that requires that the pleading by which it is advanced be couched in terms that permit of precise comprehension.

42    There was an implicit acceptance on the part of the applicant that the Proposed SASOC might not meet that rudimentary and conventional expectation. Senior counsel for Mr Alpert conceded that there were some examples within the Proposed SASOC of pleas that could be “addressed”. Nonetheless, he contended that whatever might be said of the discrete complaints levelled against the Proposed SASOC, they could not accumulate to a point where the court might “refuse leave on that basis [or those bases]”.

43    Insofar as that should be understood as a reference to the application for leave to amend the originating application, the submission might have much to commend it. But insofar as concerns the application for leave to amend the pleading, it is a proposition that cannot be accepted. A pleading that employs excessive cross-referencing, rolled-up allegations, confusing or prolix language, and erroneous numbering is not one that identifies with precision the case that the respondents are to meet. It is, by definition, embarrassing; and leave to rely upon an instrument so described ought not to be granted.

44    What, then, is the court to make of the discrete complaints to which the respondents referred? In the absence of equally discrete resistance to them, it is difficult to say. As it is, I have resolved not to grant the applicant leave to file his Proposed SASOC. That being so, it is not necessary that I should identify and address each of the 43 discrete complaints that the respondents press.

45    Nonetheless, it might be of some assistance for the court to make some observations, at least at a high level, about the Proposed SASOC. As has already been noted, it is excessively long. In and of itself, its length is not necessarily objectionable; but, combined with its verbose, narrative style, and its heavy dependence upon cross-referencing (and the complexity that that inevitably introduces), it is extremely difficult—I think impossible—to understand with precision the discrete, constituent allegations that are advanced against the respondents. Although the core accusations are clear enough, the constituent allegations that populate them often are not. As a matter of general observation, the pleading does not meet the standard upon which the respondents are entitled to insist as litigants before this court.

FUTILITY

46    In addition to their complaints about the Proposed SASOC being embarrassing, the respondents’ opposition to the applicant being granted leave to file the Proposed SASOC proceeds on the footing that much of what he hopes to advance lacks a proper legal foundation. Again, there are multiple dimensions to that proposition.

47    First, the respondents contend that the Proposed SASOC seeks to advance claims in negligence that are unsustainable. It is said that, quite apart from the deficient manner in which they are articulated, the duties of care that each of the respondents is alleged to have owed the applicant have no prospect of being established because they are irreconcilable with other duties that the respondents owed under the DFDA.

48    Second, it is said that the Proposed SASOC fails to allege matters that are necessary to establish causes of action in tort for malicious prosecution and misfeasance in public office. Specifically, the respondents complain that the Proposed SASOC does not properly identify a basis upon which any of them might be thought to have engaged in any conduct with the requisite malice that must necessarily attend any reasonable prospect of success on those causes of action.

49    Third, the fifth respondent maintains that, insofar as the DFDA affords him the same protections and immunities as a Justice of the High Court, the applicant has no prospect of successfully prosecuting tortious causes of action against him.

50    Those things being so, the respondents maintain that the Proposed AOA and the Proposed SASOC foreshadow the prosecution of claims that are foredoomed to failure. They submit that “there is no way that the case can be articulated that insulates it against strike out” because the causes of action that are to be advanced are fundamentally bad. For that reason, it is said that the court should not grant either species of leave for which the applicant moves.

51    I shall address each of the contentions in turn.

Futility of the applicant’s claims in negligence

52    In relation to the applicant’s claims in negligence, the respondents argue that the duties of care that are alleged are unknown to the law, would irreconcilably conflict with duties conferred by the DFDA, and would reflect an incoherence in the law insofar as concerns the elements that are essential to other tortious causes of action (specifically malicious prosecution and misfeasance in public office).

53    As concerns duties imposed by the DFDA, it is important to make some observations about the nature of the roles that the applicant alleges that each of the second to seventh respondents played in the process that led to his acquittal.

54    The Proposed SASOC purports to constitute the second respondent in the role of “First prosecutor” under the DFDA. Although there is scope for criticism in the way that it is put, it is plain that he is alleged to have been responsible for reviewing a brief of evidence and forming a view as to whether the applicant ought to have been prosecuted for the alleged rape of which he stood accused.

55    The Proposed SASOC casts the third respondent in the role of “Supervising prosecutor” under the DFDA. Again, leaving aside the manner in which it is articulated, it is clear that he is said to have been responsible for “…supervising, coordinating and actioning or not actioning the complaint for the purposes of any prosecution of [the applicant] for the alleged rape”.

56    The fourth respondent is said to have assumed the role of “Second prosecutor” under the DFDA. It is alleged that he reported to the third respondent and, amongst other things, was responsible for preparing advice for the third respondent.

57    The fifth respondent is alleged to have occupied the role of “Purported Summary Authority”. In his capacity as such, he was responsible for determining (summarily) whether the applicant ought to stand trial before what is elsewhere described as a “Convening Authority”.

58    That role of “Convening Authority” under the DFDA (or, as the Proposed SASOC puts it, “Purported Convening Authority”) is said to have been taken up by the sixth respondent. The precise nature and limits of his role in the process that ended with the applicant’s acquittal are not easy to discern; but it seems to suffice, for present purposes, that he was charged with deciding whether the allegation against the applicant should require the convening of a General Court Martial under the DFDA.

59    The Proposed SASOC casts the seventh respondent in the role of Director of Military Prosecutions. It is at least tolerably clear that he is said to have been responsible for discharging a prosecutorial function in connection with the General Court Martial that was convened to hear the charge laid against the applicant.

60    Those roles now identified, it suffices to note that the second to seventh respondents were each tasked (and are each alleged to have been tasked) with discrete aspects of the preferment, prosecution and/or hearing of the charge that was laid (or said to have been laid) against the applicant under the DFDA. There remains, at least as against the fifth and sixth respondents, a question as to whether their appointments in that process were competently effected (or whether, as the Proposed SASOC alleges, they merely “purported” so to act). I do not consider that to be of material significance for immediate purposes. Whether the conduct of the individual respondents was conduct in which they engaged as actual or purported office holders doesn’t much matter: at issue is whether the law might recognise a duty of care owed on their part to the applicant.

61    The respondents maintain that, understanding the roles that each of the individual respondents is said to have played, the court could not properly accept that each was subject to a duty of care sufficient to ground a cause of action in tort. Insofar as it maintains otherwise (as plainly it does), the respondents maintain that the Proposed SASOC would be unsustainable; and leave to rely upon it should not be granted for that reason. Further and for the same reason, it is said that the applicant should not have leave to file his Proposed AOA (and, thereby, to press the causes of action in negligence that it contemplates).

62    In Grimwade v State of Victoria (1997) 90 A Crim R 526, the Supreme Court of Victoria had occasion to consider the extent to which a duty of care might sit alongside prosecutorial duties not dissimilar to those alleged in this matter. There, the plaintiff had been investigated by the National Crime Authority, arrested, charged, and prosecuted by the Victorian Director of Public Prosecutions for conspiracy to defraud investors, for receiving secret commissions, and for making or attempting to make misleading, false or deceptive inducements. A magistrate determined that he should not be committed for trial; but the Director of Public Prosecutions nonetheless commenced criminal proceedings against him directly in the Supreme Court. Due to the plaintiff’s medical condition, the first trial was aborted without a verdict. After a second trial, the plaintiff was convicted; but that conviction was overturned on appeal and the court declined to order a new trial. The plaintiff brought a claim (among others) of negligence on the grounds that the defendants had or ought to have known that the trial had become unfair to a point where its continued prosecution would foreseeably put the plaintiff in jeopardy of loss of his liberty, reputation, or other loss and damage. He maintained that the defendants had breached a duty of care owed to him.

63    Harper J observed (at 545-546):

The law should be meticulously careful to avoid the imposition of conflicting yet inescapable duties on the same person. Nobody should be damned if they do and damned if they do not. Indeed, whenever possible, the law should avoid placing the citizen in a situation in which regard must be had to two competing and legitimate interests, with penalties being imposed if one is favoured above the other.

It might on a superficial view of certain relationships be thought that the law not infrequently does just that. Persons properly exercising power over others may in certain circumstances act contrary to the expressed wishes, or the objectively ascertainable interests, of those others, or contrary to both those interests and those wishes: armed forces commanders, prison and police officers and medical practitioners dealing with mentally ill patients are examples of office-holders upon whom are imposed duties to act in the public interest and upon whom are conferred the powers necessary to give effect to those duties. At the same time, a duty of care may be owed by those office-holders to the persons who become the subject of the exercise of the power. Thus, a prison officer owes a duty of care to prisoners in that officer’s charge: Hall v Whatmore [1961] VR 225 at 226; and the police owe a like duty to those whom they have taken into custody: Kirkham v Anderton [1990] 2 QB 283. So, too, the police may be liable in negligence to a psychiatrically disturbed person who is injured as a result of their carelessness in attempting to subdue him: Zalewski v Turcarolo [1995] 2 VR 562. But, in these cases, the person in authority has defined, and therefore limited, duties attaching to the office or calling through which the power is derived; and the duties are placed in a hierarchical structure, so that when they are in conflict, choices between them are relatively easy to make. More to the point, the duties attaching to the position do not require those upon whom they are imposed to act in ways which do, or which might, adversely impact upon the very interests which the duty of care is (or, if it existed, would be) designed to protect. By contrast, once a prosecutor has discharged the duty to act fairly (a duty which, because it is imposed in the interests of justice generally rather than in the interests of an individual accused, must be contrasted with a duty of care recognised by the law relating to negligence) then his or her duty is to prosecute the case with vigour; and any resultant harm to the accused is simply a consequence of justice taking its course. Indeed, were a prosecutor, for fear of doing harm to an accused, to fail to prosecute with such vigour as is consistent with fairness, then that prosecutor would probably be in breach of his or her duty to the State.

The duty upon which the plaintiff relies would if it existed raise just this conflict. The plaintiff seeks to place upon a prosecutor a duty to take care of the interests of the accused “in relation to the continuance and/or carrying on of … criminal proceedings” … At the same time, the prosecutor has a duty — imposed upon him or her either by the office which he or she occupies or by the brief which he or she has accepted — to prosecute (with appropriate vigour and, if possible, to conviction) each case which properly warrants prosecution. It would in my opinion be extraordinarily difficult for a prosecutor to do justice to the duties of the office or the brief while at the same time taking care of the interests of the accused “in relation to the continuance … of criminal proceedings”. The conjuncture of these duties would, to adapt the words of Mason CJ and Deane, Gaudron and McHugh JJ in Gala v Preston (1991) 172 CLR 243 at 255 “involve a weighing and adjusting of [their] conflicting demands … in which it would be neither appropriate nor feasible for [a prosecutor] to engage”.

The law should not impose those difficulties upon prosecutors. Far better to leave it to accused persons and their advisers, relying appropriately on the protection which the law and the courts otherwise provide, to guard their own interests.

64    Similar observations have been made in other authorities, including in criminal or quasi-criminal contexts materially equivalent to that in which the applicant found himself in this matter: Sullivan v Moody; Thompson v Connon (2001) 207 CLR 562 (Gleeson CJ, Gaudron, McHugh, Hayne and Callinan JJ); New South Wales v Paige (2002) 60 NSWLR 371 (Spigelman CJ , Mason P and Giles JA); Wilson v New South Wales (2001) 53 NSWLR 407 (O’Keefe J) (at [63]); Lee v Abedian [2017] 1 Qd R 549 (Bond J); Emanuele v Hedley (1997) 137 FLR 339, 359-360 (hereafter Emanuele v Hedley; Higgins J).

65    In Emanuele v Hedley, Higgins J was more succinct, observing (at 359, emphasis added):

There is no tortious liability towards an accused person for negligently investigating or prosecuting that person. If there was such a cause of action, a prosecutor would be liable for damages notwithstanding that there was no malice and no lack of reasonable and probable cause for the investigation and prosecution in question. That would make malicious prosecution and misfeasance in public office and, indeed, intentional infliction of harm by an unlawful act, otiose. It would also by-pass the torts of defamation and injurious falsehood.

66    In D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1, McHugh made an equivalent observation, albeit in obiter (at 36 [99], references omitted):

Persons who institute prosecutions owe no actionable duty to the defendant to take reasonable care in launching the prosecution. A prosecutor can be sued for the damage to the liberty and reputation of the defendant only when the prosecutor acted maliciously and without reasonable and probable cause. Moreover, the action is not in negligence but for the tort of malicious prosecution.

67    None of the authorities just referred to concerned the discharge of statutory (or investigative or prosecutorial) duties identical to those that the Proposed SASOC attaches to the second to seventh respondents. Nonetheless, at the level of principle, what they say is compelling: absent some suggestion of malicious impropriety, the law does not recognise an action in tort against a respondent that negligently discharges a duty pertaining to the investigation, prosecution or hearing of a criminal (or equivalent) charge.

68    The applicant seeks to distinguish the authorities referred to above from the present case on the basis that the second to seventh respondents were all more senior members of the ADF “chain of command”. That, he says, stands in contrast to cases involving prosecutors (or equivalent), who are typically independent of the person who claims to have been owed the duty of care. Here, the applicant maintains, the existence of that hierarchy is such that the common law would more readily recognise the existence of a duty owed toward junior members.

69    The applicant says, further, that the existence of such a duty of care toward junior ADF members is consistent with the statutory prohibition against negligent conduct for which the DFDA provides. Until it was replaced by substantially similar terms upon the passage of item 4 of sch 1 to the Defence Legislation Amendment Act 2003 (Cth), s 35 of the DFDA was headed “Negligent performance of duty” and provided as follows:

35 Negligent performance of duty

A defence member is guilty of an offence if the member:

(a)    is required by the member’s office or appointment to perform a duty; and

(b)    by act or omission, performs that duty negligently.

Maximum punishment: Imprisonment for 3 months.

70    Plainly, the negligent discharge of duties owed by defence force members was (and still is) actionable—indeed, by liability to criminal sanction—under the DFDA. Might it be said, then, by virtue of that reality, that there should be no impediment to the observance of an equivalent common law duty of care apt to afford tortious protection to those such as the applicant?

71    I do not consider that it can be. The present case strikes as a conventional example of one in which the functions that fell to be discharged by the respondents were of a kind to which no tortious duty of care attached. It is one thing for the DFDA to require, generally, that duties owed under that act not be performed negligently—that is to say, that those charged with administering important functions associated with the nation’s defence should ensure that their duties are performed with at least a minimum degree of competence. It is quite another to suggest that officers should owe duties of care to other defence force members in connection with the manner in which they discharge their obligations. On the principles that emerge from the authorities referred to above, the correct view in the present case (as applied to the second to seventh respondents and their interactions with the applicant) is that no such common law duty existed.

72    That is so regardless of what positions were relatively occupied within the ADF hierarchy or “chain of command”. At a level of abstraction, there might well be examples of conduct undertaken by members of that hierarchy in respect of which the law might recognise a duty of care owed toward lower-ranked members; but, insofar as concerns the investigative, prosecutorial and determinative powers with which the respondents were in this case alleged (actually or purportedly) to be seized, it is plain on the state of authority that the common law recognises no such duty owed to the applicant.

73    Whether or not such a duty was owed in this matter is a question of law. For present purposes, its existence or otherwise falls to be established on the basis of what is pleaded in the Proposed SASOC: Repacholi Aviation Pty Ltd v Civil Aviation Safety Authority [2010] FCA 994, [38] (Gilmour J). It is not a question of the kind that should necessarily be reserved for consideration at trial, in that the court is not here confronted with “…a seriously arguable novel point of law [that] may well depend upon the factual context”: RSD Chartered Accountants v Bolitho (2014) 102 ACSR 528, 532 [18] (Nettle JA). Rather, the existence of the duties that are alleged is a question ripe for determination at this interlocutory stage: Polar Aviation Pty Ltd v Civil Aviation Safety Authority (No 4) (2011) 203 FCR 293, 299 [12] (Kenny J; hereafter “Polar Aviation”).

74    I accept the contentions advanced by the respondents. The applicant’s proposed causes of action in negligence are futile, in that they necessarily presuppose the existence of duties of care that, even taking the Proposed SASOC at its highest, the second to seventh respondents did not owe to the applicant. There is no reasonable prospect that the applicant will be able to succeed on what he proposes to allege. Leave to rely upon the Proposed SASOC should be refused on that basis, as should be leave to amend the originating application.

75    Having so concluded, there is, perhaps, little to be gained by addressing the additional submission that the respondents advanced about the applicant’s case in tort against the fifth respondent (specifically, that that case would necessarily fail because, by operation of s 193(1) of the DFDA and insofar as concerned the discharge of his role as the “Summary Authority”, the fifth respondent was subject to a statutory immunity equivalent to that enjoyed by justices of the High Court). Nonetheless, as the point was the subject of considered submission, I should offer at least some observations about it.

76    The applicant’s proposed claim in negligence against the fifth respondent proceeds upon the premise that he breached a duty of care owed to the applicant by having failed properly to ascertain whether the charge of rape here in focus was competent to be referred to a convening authority. It also presupposes that what was, in fact, so referred was something other than a charge laid properly and in accordance with the processes established under the DFDA. For that reason, the Proposed SASOC casts the fifth respondent in the role of Purported Summary Authority (my emphasis). The applicant’s contention is that the fifth respondent did not, in fact, ever perform any duties as a “summary authority”.

77    Section 193(1) of the DFDA provides (and provided) as follows, namely:

193 Protection of members of courts martial etc.

(1)    A member of a court martial, a judge advocate, a Defence Force magistrate, a summary authority or a reviewing authority has, in the performance of his or her duties as such a member, judge advocate, magistrate or authority, as the case may be, the same protection and immunity as a Justice of the High Court.

…

78    A Justice of the High Court is not liable in tort for anything that he or she does when acting bona fide in the exercise, real or purported, of the jurisdiction with which he or she is invested: Stratford (a pseudonym) v Judge Vasta [2023] FCA 1020, [206] (Wigney J). It is impossible to read s 193(1) otherwise than as conferring upon a “summary authority” an equivalent immunity: that is to say, that the bona fide conduct of a summary authority under the DFDA exercising or purporting to exercise jurisdiction as such is immune from a civil action for damages.

79    The applicant’s contention presently is that the fifth respondent was never, in truth, a “summary authority” under the DFDA; and, therefore, that no immunity attaches by operation of s 193(1) of the DFDA to the conduct attributed to him. Whatever might be said of that contention, I would not regard it as so obviously hopeless as to warrant that it be struck out or, as here, that leave to agitate it ought to be refused. If the fifth respondent is immune under s 193(1) of the DFDA from the suit brought against him, he can plead as much.

Malice in the other tort claims

80    The respondents note that the applicant’s claims in tort for malicious prosecution and misfeasance in public office both presuppose that the conduct attributed to them was, in each instance, engaged in with a malicious intent. Malice, in that sense, is an essential component of each tort. There is no contest that that is so.

81    The respondents complain that the Proposed SASOC fails to allege matters that, if proved on the evidence, would suffice to establish malice. In relation to the applicant’s claims of malicious prosecution, it was said that (emphasis original, reference omitted):

[T]he applicant’s case is that there was a lack of reasonable and probable cause, not because the respondents lacked an honest belief in the sufficiency of the material, but because the material was objectively lacking in certain respects. In other words, the applicant relies on the objective, rather than subjective, basis for establishing a lack of reasonable and probable cause.

82    The respondents maintain that an objective want of “reasonable and probable cause” is not sufficient to establish malice on their part. Rather, they submit that that circumstance (assuming, for the moment, that it would be found to have existed at relevant times) would be consistent with their having acted with honest and/or innocent intents. To establish malice, they submit, the applicant must identify other matters that “tilt the balance” toward some subjective recognition on their part that what was pursued was lacking in the ways upon which he relies.

83    That need to “tilt the balance” was said to emerge from the observations of Lord Millett in Three Rivers District Council v Governor and Company of the Bank of England (No 3) [2003] 2 AC 1 (hereafter “Three Rivers”), 292 [186]. There, it was said (in relation to an allegation of fraud or dishonesty) that (emphasis original):

It is not open to the court to infer dishonesty from facts which have not been pleaded, or from facts which have been pleaded but are consistent with honesty. There must be some fact which tilts the balance and justifies an inference of dishonesty, and this fact must be both pleaded and proved.

84    Those observations have found favour in this court: see Plaintiff M83A/2019 [2020] FCA 1198, [57] (Mortimer J; hereafter “Plaintiff M83A”), Polar Aviation, 320-321 [110] (Kenny J), and Pharm-a-Care Laboratories Pty Ltd v Commonwealth of Australia (No 3) (2010) 267 ALR 494, 512 [69] (Flick J; hereafter “Pharm-a-Care”).

85    The equivalent contention was advanced in respect of the applicant’s claims of misfeasance in public office. Again, it was said that the matters pleaded in the Proposed SASOC are consistent with the respondents having discharged their duties honestly and with proper (that is to say, non-malicious) motives.

86    The applicant submits that the observations of Lord Millett in Three Rivers are inconsistent with those recorded by the High Court in Northern Territory v Mengel (1995) 185 CLR 307 (Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ; hereafter, “Mengel”) and Trobridge v Hardy (1955) 94 CLR 147 (Fullagar, Kitto and Taylor JJ; hereafter, “Trobridge”); and also with lower court authority, specifically Wood v New South Wales [2019] NSWCA 313 (Gleeson JA, Payne JA and Simpson AJA; hereafter, “Wood”) and Mullett v Nixon [2016] VSC 512 (T Forrest J; hereafter, “Mullett”).

87    Something should be said about the elements of the relevant torts. In A v New South Wales (2007) 230 CLR 500 (“A v New South Wales”), the High Court had occasion to consider the elements of the tort of malicious prosecution. The plurality (Gleeson CJ, Gummow, Kirby, Hayne, Heydon and Crennan JJ) observed (at 502-503 [1]) as follows (reference omitted):

For a plaintiff to succeed in an action for damages for malicious prosecution the plaintiff must establish:

(1)    that proceedings of the kind to which the tort applies (generally, as in this case, criminal proceedings) were initiated against the plaintiff by the defendant;

(2)    that the proceedings terminated in favour of the plaintiff;

(3)    that the defendant, in initiating or maintaining the proceedings acted maliciously; and

(4)    that the defendant acted without reasonable and probable cause.

88    The elements of misfeasance in public office are less well-defined: see Brett Cattle Company Pty Ltd v Minister for Agriculture (2020) 274 FCR 337, 403-404 [269]-[272] (Rares J). In I Cook Foods Pty Ltd v State of Victoria [2022] VSC 649, John Dixon J identified them as follows (at [9]-[10], references omitted):

There are five elements to be pleaded to allege the tort of misfeasance in public office:

(a)    An invalid or unauthorised act;

(b)    The act must be done maliciously;

(c)    The act must be done by a public officer;

(d)    The act must be done in the purported discharge of the public officer’s public duties; and

(e)    The act must cause loss or harm to the plaintiff.

The relevant state of mind, malice, that is critical to any determination that a public officer misused a public office is:

(a)    An intention to cause injury, where the injury intended is something that the plaintiff would not or might not have suffered if the power available to the public officer had been validly exercised; or

(b)    Knowledge of the invalidity of the act and knowledge that the act would cause, or be likely to cause, injury or was otherwise recklessly indifferent to that possibility.

89    It is convenient, at this juncture, separately to consider what the Proposed SASOC identifies for the purposes of establishing malice in respect of each of the two species of claim.

Malicious prosecution

90    In A v New South Wales, the plurality considered how a plaintiff might go about establishing malice in an action alleging malicious prosecution. It was observed (at 531 [90], references omitted):

No little difficulty arises, however, if attempts are made to relate what will suffice to prove malice to what will suffice to demonstrate absence of reasonable and probable cause. In particular, attempts to reduce that relationship to an aphorism – like, absence of reasonable cause is evidence of malice, but malice is never evidence of want of reasonable cause – may very well mislead. Proof of particular facts may supply evidence of both elements. For example, if the plaintiff demonstrates that a prosecution was launched on obviously insufficient material, the insufficiency of the material may support an inference of malice as well as demonstrate the absence of reasonable and probable cause. No universal rule relating proof of the separate elements can or should be stated.

91    In Sheehan v Brett-Young [2016] VSC 53, John Dixon J said (at [50]), in the same context (references omitted):

Malice cannot be conflated with reasonable and probable cause. It is a separate element to be established by proof of a relevant motive or intention – to use the court process, in this case criminal proceedings, not to secure the proper enforcement of the criminal law but for an improper purpose. There may be cases where an absence of reasonable and probable cause properly permits an inference of malice. The plaintiff may allege the primary facts that support the inference of the defendant’s malicious motive, which may include spite, ill will, or vengeance, or the inference that the prosecution can only be accounted for by imputing to the prosecutor an improper motive, such as the prosecution’s collateral purpose. Malice will be present where the dominant purpose motivating the prosecutor is an illegitimate or oblique motive other than the proper invocation of the law.

92    In Mullett, T Forrest J, again considering malice in the context of a tortious claim for malicious prosecution, held (at [18], references omitted):

While an absence of reasonable and probable cause may support an inference of malice, these two elements each have a distinct role to play in the tort of [malicious prosecution], and they should not be conflated. For a claim to succeed, two separate findings are required on these elements: one positive (malice), and the other negative (absence of reasonable or probable cause).

93    For the purposes of the tort of malicious prosecution, then, the pursuit of an action absent reasonable and probable cause, though not necessarily sufficient, may suffice to ground an inference that what was done was done maliciously.

94    In this case, the Proposed SASOC proceeds upon the footing that the respondents (or those of them against whom a claim for malicious prosecution is pressed):

(1)    acted “without any reasonable or probable cause in that a person of ordinary prudence and caution could not have honestly believed…that [the applicant] was guilty or likely to be found guilty…”; and

(2)    were actuated by a purpose “…other than the proper invocation of the DFDA disciplinary law” and “to inflict harm on [the applicant]”.

95    I am not persuaded that what is alleged is incapable of establishing what the applicant needs to establish to make good his claims of malicious prosecution. On the present state of authority, it could not be said that the applicant has no prospect of establishing, by inference, the states of mind that he needs to establish. There may or may not be an element of ambition to what is pleaded; but I consider it clear enough on the state of authority that the actuating purposes to which the Proposed SASOC refers are capable of being established, by inference, on the strength of what is said to be the wholesale absence of “reasonable or probable cause”.

96    As it happens, the conclusion just stated does not suffice to salvage the applicant’s claims to the interlocutory relief for which he moves. Nonetheless, the observation might prove useful for the purposes of what I am confident will be future iterations of his pleading.

Misfeasance in public office

97    Referring to the observations of the majority in Mengel, Kenny J in Polar Aviation held (at 319 [102]):

[M]isfeasance in public office is “a deliberate tort in the sense that there is no liability unless either there is an intention to cause harm or the officer concerned knowingly acts in excess of his or her power”. Further, to quote the joint judgment in the subsequent case of Sanders v Snell [(1998) 196 CLR 329 (Gleeson CJ, Gaudron, Kirby, Hayne and Callinan JJ)] at [38]:

For the purposes of deciding Mengel, the majority considered it sufficient to proceed on the basis that the tort requires an act which the public official knows is beyond power and which involves a foreseeable risk of harm but noted that there seems much to be said for the view that misfeasance extends to the situation of a public official recklessly disregarding the means of ascertaining the extent of his or her power.

98    In Mullett, T Forrest J observed (at [16]), in the context of an act “done maliciously” in misfeasance of a public office (references omitted):

•    …An assessment of ‘malice’ contemplates both:

a)    The state of mind of the alleged tortfeasor as to the illegality or unauthorised nature of the act; and

b)    The state of mind of the alleged tortfeasor as to the harm that may flow to the plaintiff as a result of the act.

•    There is some discrepancy between the majority reasons and the separate reasons of Brennan J and Deane J in Mengel on the constitution of this element. Decisions in other courts seem from time to time to conflate the Deane J and majority standards, and have cited favourably the House of Lords formulation in Three Rivers DC v Governor & Co of the Bank of England… which differs from the Mengel majority judgment on this point.

•    Considering the requisite mental state, the majority in Mengel said:

The cases do not establish that misfeasance in public office is constituted simply by an act of a public officer which he or she knows is beyond power and which results in damage…For present purposes, we include in (the) concept acts which are calculated in the ordinary course to cause harm, or which are done with reckless indifference to the harm that is likely to ensue, as is the case where a person, having recklessly ignored the means of ascertaining the existence of a contract, acts in a way that procures its breach.

And continued:

(L)iability for misfeasance in public office should rest on intentional harm, in the sense that that is the actuating motive, or on an act which the public officer knows is beyond power which is calculated in the ordinary course to cause harm. However, it is sufficient for present purposes…that liability requires an act which the public officer knows is beyond power and which involves a foreseeable risk of harm.

•    Their Honours also commented:

(T)here is much to be said for the view that…misfeasance in public office is not confined to actual knowledge but extends to the situation in which a public officer recklessly disregards the means of ascertaining the extent of his or her power.

99    The weight of authority makes clear that, for the purposes of establishing tortious misfeasance in public office, a court may infer a malicious intent from a respondent’s reckless indifference to the limits of the powers attaching to his or her office.

100    The Proposed SASOC alleges that the fifth and sixth respondents:

(1)    “had no jurisdiction under … the DFDA” to deal with (or, in the case of the sixth respondent, try) the rape charge that was preferred against Mr Alpert; and

(2)    acted “with reckless indifference” as to whether they had or lacked power under the DFDA and acted with reckless indifference to “the harm that [the applicant] would be likely to suffer”.

101    Again, leaving aside any difficulties with the way in which the claims are articulated, it is apparent that the Proposed SASOC sufficiently engages with what the applicant would need to establish to make good his claims of misfeasance in public office. As with his claims of malicious prosecution, there may or may not be some ambition to what is pleaded. Nonetheless, I am not persuaded that what is alleged fails to identify a cause of action upon which the applicant has reasonable prospects of success.

102    It follows that I would not deny the applicant leave to amend his pleading merely for that reason.

LEAVE TO FILE THE PROPOSED AOA

103    The respondents assert:

[F]or the reasons given in relation to the [Proposed SASOC], the claims of negligence against the respondents fail to disclose a cause of action and are embarrassing in the several respects identified. As such, it would be futile to permit the inclusion of relief based on those causes of action (damages and declaratory relief) in the applicant’s [Proposed AOA].

104    I accept that submission. Having concluded as I have about the futility of the applicant’s claims in negligence, it must necessarily follow that his application for leave to file the Proposed AOA should fail.

DISPOSITION

105    The applicant’s interlocutory application of 1 September 2023 should be dismissed.

106    The respondents seek an order for costs. Senior counsel for Mr Alpert offered some, albeit muted, resistance to that course based upon observations made by the Defence Force Discipline Appeal Tribunal in Private R Army v Chief of Army [2022] ADFDAT 1 (Logan, Perry and Barr JJ); specifically (at [159]) that a serviceman, “…should not have to expose himself to financial burden in order to test the legality of his trial at court martial or before a [Defence Force Magistrate]”.

107    I do not consider that those observations translate into the present context. Here, Mr Alpert seeks not merely to test the legality of anything; but, more substantially, to address by means of declaratory and compensatory relief what he alleges was the trespass upon rights that he says were afforded to him by law.

108    In that context, the usual rule should follow. Having failed in his bids for leave to amend, Mr Alpert should pay the respondents’ costs of and pertaining to his interlocutory application of 1 September 2023. For the avoidance of doubt, those costs should include the costs that were reserved on 28 September 2023.

109    The parties should confer and, if possible, agree upon orders for the further case management of this matter. In the absence of agreement, it will be listed for a case-management hearing on a date to be fixed.

Associate:

Dated:    2 May 2024

SCHEDULE OF PARTIES