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.