Alpert v Commonwealth of Australia

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

1. By an interlocutory application dated 15 August 2024, the applicant, Mr Alpert, moves the court for leave to file revised versions of his originating application and statement of claim. The application has an unfortunate procedural history. In the 18 months since it was filed, the amendments in respect of which it is pressed have been the subject of significant evolution. Little is to be gained by exploring the causes that have animated that reality; although I note, nonetheless, that neither side (if I might temporarily collectivise the respondents) is entirely blameless.
2. The revamping of Mr Alpert's proposed amendments has precipitated some unfortunate complications of expression, the particulars of which also needn't be explored. It suffices to note that it was not until November of 2025 - by which point the application had been the subject of two hearings and an array of written submissions - that the amended instruments that are the subject of the present application met their final, settled forms.
3. For the reasons that follow, I am not disposed to grant the leave for which Mr Alpert moves. The interlocutory application should and will be dismissed.
4. In order to appreciate the nature of the amendments in respect of which leave is sought and why the application should fail, something must be said about the background to the matter. Mr Alpert is a former member of the Australian Defence Force (the "ADF"). In 2001, whilst on a period of leave in Thailand, he met a young woman, who later accused him of rape. He denied the allegation but was subsequently charged (or at least purportedly charged) with a "service offence" under the Defence Force Discipline Act 1982 (Cth) (the "DFD Act"). The circumstances leading up to and following the preferring of that charge are lengthy and complex. For present purposes, it suffices to note that Mr Alpert was the subject of a General Court Martial under the DFD Act; but the complainant ultimately withdrew her support for it, which, in 2004, resulted in his acquittal.
5. By the present action, Mr Alpert maintains that the prosecution of the charge to which he was subjected was attended by tortious misconduct. That, he says, is so in different ways as concerns each of the human respondents. To varying extents, each was involved in the process that culminated in Mr Alpert's acquittal; and each is said, by his conduct, to have acted toward Mr Alpert in a manner that entitles him to the damages that he seeks. As might be anticipated, equivalent relief is sought as against the Commonwealth as the principal on whose behalf each of the other respondents relevantly acted.
6. The present application is not the first time that Mr Alpert has attempted to amend his case. The first was determined in May 2024, when the court dismissed Mr Alpert's attempt to widen the scope of the matter so as to include claims in negligence (additional to the claims that find expression in his current pleading, which allege misfeasance in public office and malicious prosecution): Alpert v Commonwealth of Australia (Department of Defence) (No 2) [2024] FCA 447 (Snaden J) ("Alpert (No 2)").
7. The principles that guide the exercise of the court's discretion now have not changed. They were recorded in Alpert (No 2) in a way that the parties now endorse: Alpert (No 2), [12]-[17]. I needn't set them out again.
8. Instead, attention should turn to the nature of the amendments in respect of which Mr Alpert seeks leave. I shall begin that analysis by reference to the proposed second amended statement of claim; specifically, in the form upon which it settled as of November 2025 (the "Proposed SASOC").
9. Before addressing matters of substance, I should wish to record some headline observations about the Proposed SASOC. In Alpert (No 2), speaking of what was also there a proposed second amended statement of claim, I said as follows (at [23]-[24]):
   1. 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 [DFD Act], 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.
   2. 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.

1. Equivalent observations may be made of the Proposed SASOC. In its original (August 2024) form, it weighed in at a trimmer (although still substantial) 81 pages; some 30 pages heavier than Mr Alpert's existing pleading. As at November 2025, the Proposed SASOC ballooned out to its present length of 116 pages. That is without the claims in negligence that were given voice by the proposed pleading that was the subject of consideration in Alpert (No 2), which (as the above extract attests) was even lengthier at 128 pages.
2. Again, I have occasion to reiterate the doubt that I expressed in Alpert (No 2). Without foreclosing upon anything, the causes of action that Mr Alpert proposes to press against the respondents - that is to say, his actions in tort for malicious prosecution and misfeasance in public office - are unlikely to be so complicated as to warrant a pleading of the magnitude that is proposed. That headline observation aligns with a common and repeated complaint of the respondents: namely, that the Proposed SASOC remains impermissibly prolix, convoluted, conclusory and confusing.
3. Lengthy pleadings are not a new phenomenon. In days long gone, they were dispatched with perhaps greater ramification than what I am asked to visit now. In Mylward v Weldon [1595] EWHC Ch 1 ("Mylward"), for example, the High Court of Justice (Chancery Division) had occasion, as I do now, to consider a pleading that "...doth amount to six score sheets of paper". It was said that "...all the matter thereof which is pertinent might have been well contrived in sixteen sheets of paper". That being the case, the court was minded to identify the pleading's author, "...to the end that the offender might, for example sake, not only be punished, but also be fined to Her Majesty for that offence". The court went on to describe the punishment that it had in mind. The warden into whose custody the offender - a gentleman named Richard - was to be taken was ordered to bring him into Westminster Hall, whereupon the offending pleading would be pierced with a hole large enough to accommodate a man's head. Thereafter, the warden was directed to:

...put the said Richard's head through the same hole, and so let the [pleading] hang about his shoulders, with the written side outward; and then, the same so hanging...lead the same Richard, bare headed and bare faced, round Westminster Hall, whilst the Courts are sitting, and [to] shew him at the bar of every of the three Courts within the Hall, and...then take him back again...and keep him prisoner, until he shall have paid 10_l_. to Her Majesty for a fine, and 20 nobles to the defendant, for his costs in respect of the aforesaid abuse...

1. It is unlikely that this court is endowed with equivalent powers - and much less likely that they would be appropriately used here if it is - but, in any event, Mylward serves ably to recognise that lengthy pleadings have long been a stone in the proverbial shoe of legal process.
2. With that detour completed, it is prudent to address the features of the Proposed SASOC with which the respondents take issue. When the application first came before the court in late February 2025, their opposition was conveniently comprised in three parts. First, the respondents complained that the Proposed SASOC, insofar as it maintained that conduct attributable to the individual respondents was attended by malice, did so in ways that are embarrassing or otherwise liable to be struck out. Second, it was said that the claims sought to be agitated as against the fifth respondent - who, by force of the DFD Act, has immunities akin to those of a justice of the High Court - were foredoomed to failure and, therefore, ought not to be entertained. Third - and much as they did in respect of Mr Alpert's first attempt to file a second further amended statement of claim - the respondents complained about various, discrete aspects of the proposed pleading, which were said variously to be confusing, needlessly lengthy, embarrassing and (otherwise or consequently) objectionable. The Proposed SASOC having now (that is to say, since that hearing) assumed its present form, a fourth species of objection has emerged. It focuses upon Mr Alpert's claims that each of the second, third and fourth respondents was "vicariously responsible as a prosecutor" for the decision that the sixth respondent made to proceed with Mr Alpert's prosecution by General Court Martial under the DFD Act.
3. It is convenient to address each category in turn.

MALICE IN THE ABSENCE OF REASONABLE AND PROBABLE CAUSE

1. Central to each of the two torts upon which the Proposed SASOC proceeds (malicious prosecution and misfeasance in public office) is impropriety of purpose: specifically, the notion that a tortfeasor has acted toward a plaintiff with an intent properly described as malicious. Malice, in that sense, is provable in various ways. One of the ways in which Mr Alpert seeks to establish it by showing that the respondents engaged in the conduct that is relevantly attributed to them in circumstances where, he says, the charge of rape that was levelled against him was levelled without reasonable and probable cause, and in circumstances that bespoke a reckless indifference to the potential harm that their conduct would visit upon him.
2. In Alpert (No 2), [87]-[88], [90]-[93], [97]-[99], I traced (with reference to authority) the constituent elements of the torts of malicious prosecution and misfeasance in public office. Without repeating what was said on that occasion, it might be noted that:

(1) an absence of reasonable and probable cause is itself a constituent element of the tort of malicious prosecution; and

(2) malice is a constituent element of both torts and may - I stress may - be established by inference from an absence of reasonable and probable cause (or its close analogue, reckless indifference to the limits of power).

1. There are two ways in which Mr Alpert might establish that the respondents (or those of them against whom the allegation is pressed) each engaged in conduct without reasonable and probable cause - first, by showing that the person who engaged in the conduct did not honestly believe the case that he sought thereby to prosecute; and, second, by showing that there was no sufficient basis upon which such an honest belief might have been founded: A v New South Wales [2007] HCA 10; (2007) 230 CLR 500, 527 [77] (Gleeson CJ, Gummow, Kirby, Hayne, Heydon and Crennan JJ) ("A v New South Wales"). In other words, Mr Alpert might establish a want of reasonable and probable cause objectively (by showing what the facts of his case were and how they could not afford any of the respondents a sufficient basis upon which to prefer that he should be charged as he was) or subjectively (by showing, presumably as a matter of inference to be drawn from other, identified facts, that none of the individual respondents honestly believed that there was a basis to think that he might be convicted of rape).
2. At this juncture, it pays to rehearse the manner in which the Proposed SASOC seeks to establish a want of reasonable and probable cause. That might conveniently be done by reference to what is sought to be pleaded as against the second respondent, Colonel Russel Pearce. Colonel Pearce - or, as he was at relevant times, Major Pearce - was and is a lawyer and an officer of the ADF. Insofar as concerns the process of General Court Martial to which Mr Alpert was subjected, Col Pearce's role was to advise others as to the rape case that might be made against him. The Proposed SASOC alleges that it was advice given by Col (then Maj) Pearce that set in train the process to which Mr Alpert was subjected.
3. The Proposed SASOC alleges that Col Pearce, "...failed to take reasonable care to inform himself of the true state of the case against Mr Alpert including the inherent weaknesses of the prosecution case which, on the information available [to him] had no reasonable prospects of conviction..." (emphasis original). Later, the "true state of the case, including the inherent weaknesses of the prosecution case" is made referrable to various matters earlier identified, all of which touch, to one degree or another, upon matters that are (and were) apt to inform the likelihood that Mr Alpert might be convicted of the charge that was levelled against him.
4. There then follows a heading: "MAJ PEARCE'S ROLE IN THE INSTITUTION OF THE PROSECUTION OF MR ALPERT WAS WITHOUT REASONABLE AND PROBABLE CAUSE". It is immediately followed by a sub-heading: "The objective test: what should MAJ Pearce have made on the material before him?" Under that subheading is a single paragraph, which it is convenient here to replicate (numbering original, revisions omitted):

53A. (a) MAJ Pearce acted without reasonable and probable cause:

(i) by reason of the facts and matters alleged at sub-paragraphs 51(a) to 51(i), 51(k), 51(l), 51(m) and 51(n) herein, as he failed to take reasonable care to inform himself of the true state of the case including the inherent weaknesses of the prosecution case against Mr Alpert;

(ii) as there was not any sufficient basis for him to honestly believe that Mr Alpert should be charged and prosecuted for the service offence of rape because, the totality of evidence, assessed objectively, in accordance with the requirements of the section 87(1) of the [DFD Act], the [Australian Defence Force Publication 201] and the ADF Prosecution Policy (as alleged at paragraphs 31 and 32 herein):

1. was not sufficient for the laying of a service charge of rape; and
2. pursuant to s 87(1), [DFD Act], did not provide reasonable grounds for an authorised member to believe that Mr Alpert had committed the Alleged Rape;
   1. that the admissible evidence available was not capable of establishing each element of the offence;

(b) because he knew or ought to have known based on his experience in Military Law and his experience in the [Australian Army Legal Corps ("AALC")] that there was no reasonable prospect of a service tribunal (the General Court Martial), properly instructed on the law, being satisfied beyond reasonable doubt that Mr Alpert was guilty of the service offence of rape;

...

(e) in that a person of ordinary prudence and caution could not have honestly believed, based on the information available to them or on reasonable grounds, that Mr Alpert was guilty or likely to be found guilty of the Alleged Rape.

1. A further or alternative plea is then made about Col Pearce's subjective state of mind. Whereas the plea above is directed to what Col Pearce "should" have made of the material before him, the further and alternative plea is directed to what he "did" make of it. Paragraph 53B of the Proposed SASOC reads (in its proposed, consolidated form) as follows (emphasis original):

53B. Further or alternatively, MAJ Pearce acted without reasonable and probable cause because:

(a) based on his own wrong assessment of the state of the case against Mr Alpert as recorded in the Pearce Advices, he was recklessly indifferent:

(i) as to the true state of the case including the inherent weaknesses of the prosecution case against Mr Alpert;

(ii) as to whether the service charge could not be sustained in law; and

(iii) as to whether there was no reasonable prospect of conviction;

(b) his conduct was:

(i) not consistent with innocence in the execution of MAJ Pearce's duties as a prosecutor;

(ii) not consistent with honest incompetence or carelessness;

(iii) intentional, as he deliberately chose to provide in writing, in his own words:

1. the preliminary legal advice to RSM O'Brien (see paragraph 34 herein);
2. the 26 September 2002 Minute (see paragraph 35 herein);
   1. the 12 October 2002 Minute (see paragraph 44 herein).

D. the 18 October 2002 advice (see paragraph 45 herein).

(in this pleading, A, B, C and D are collectively referred to as the (Pearce Advices));

(c) by his conduct, he was recklessly indifferent to the potential harm to Mr Alpert if MAJ GEN Evan did not use his discretion as Convening Authority, independently;

(d) he did not believe that Mr Alpert was probably guilty of the offence by reason of the facts and matters alleged herein at:

A. sub-paragraph 34(d);

B. sub-paragraph 35(d);

C. sub-paragraph 35(f);

D. sub-paragraph 35(g);

E. paragraph 36;

F. paragraph 42;

G. paragraph 44;

H. sub-paragraph 45(a);

1. sub-paragraph 47(d):- the false Complaint admission

   (f) ...

1. A few paragraphs later, the Proposed SASOC turns to the question of malice. Again, it is convenient to rehearse in full the salient parts (emphasis original):

MAJ Pearce: MALICE in the absence of any reasonable and probable cause

Objectively assessed

53F. MAJ Pearce's active role in the institution of the prosecution in the absence of any reasonable and probable cause, objectively assessed, as alleged at sub-paragraphs 53A(a), 53A(b) and 53A(e) herein:

(a) was actuated by an improper purpose, namely, a dominant purpose other than the proper invocation of the criminal law; and

Particulars

For the purposes of this allegation, Mr. Alpert is unable to identify precisely what the improper purpose was:-

Wood v New South Wales [2019] NSWCA 313 at [49]

Trobridge v Hardy [1955] HCA 68; (1955) 94 CLR 147 at 164

A v New South Wales [2007] HCA 10; (2007) 230 CLR 500 at 531 [91]

(b) was done maliciously to inflict harm on Mr Alpert; or

(c) alternatively, was done with reckless indifference to the harm that would be (and has been) caused to Mr Alpert.

Particulars of harm alleged at 53F(b) and 53F(c)

(1) Two of the three heads of damage identified in Commonwealth Life Assurance Society v Smith [1938] HCA 2; (1938) 59 CLR 527 at 544, namely:

(i) the harm that Mr Alpert was likely to suffer, namely, that his liberty may be restrained if convicted for the Alleged Rape;

(ii) the damage to his reputation that Mr Alpert was likely to suffer (and has, suffered) by being charged and prosecuted for the abhorrent crime of rape as a result the adverse publicity in the media and on the internet that follows from that charging and prosecuting.

Further particulars of sub-paragraph 53F(c)(ii)

The description of rape as an "abhorrent crime" is taken from the reasons for judgment of Justice Kirby in Re Aird and Ors; Ex parte Alpert (2004) 220 CLR 308 at 355 [150].

(2) The loss and damage alleged at paragraphs 178 to 180 herein.

Subjectively assessed

53G. Further or alternatively to the allegations at paragraph 53F herein, MAJ Pearce's active role in the institution of the prosecution in the absence of any reasonable and probable cause, subjectively assessed, as alleged at paragraph 53B herein:

(a) was - Mr Alpert repeats and relies on the allegations at sub-paragraph 53F(a) herein;

(b) was - Mr Alpert repeats and relies on the allegations at sub-paragraph 53F(b) herein;

(c) alternatively, Mr Alpert repeats and relies on the allegations at sub-paragraph 53F(c) herein.

1. The respondents object to paragraphs 53B, 53F and 53G (amongst others) principally on four bases. The first focuses upon the extent to which those paragraphs invoke "the true state of the case", which is said to be plagued by an impermissible (and objectionable) want of clarity. Second, it is said that the paragraphs contain self-evident grammatical errors, which it would be unfair for them to have to address. Third, the respondents focus upon Mr Alpert's suggestion (at [53B(a)] of the Proposed SASOC) that Col Pearce "...acted without reasonable and probable cause...because...based on his own wrong assessment of the state of the case against Mr Alpert as recorded in the Pearce Advices, he was recklessly indifferent...as to the true state of the case including the inherent weaknesses of the prosecution case against Mr Alpert [and] as to whether there was no reasonable prospect of conviction..." It is said that the Proposed SASOC identifies a "wrong assessment" as a bare conclusion, the truth of which rests upon other facts not stated or apparent. Finally, the respondents maintain that [53B] of the Proposed SASOC pleads other bare conclusions - notably that Col Pearce was "recklessly indifferent" as to "the true state of the case", that he acted dishonestly and that he was "recklessly indifferent" to the harm that his conduct might visit - each of which rests upon unstated factual foundations.
2. All four complaints have substance.
3. Insofar as concerns what the Proposed SASOC identifies as "the true state of the case including the inherent weaknesses of the prosecution case against Mr Alpert", the Proposed SASOC is confusing (and, therefore, embarrassing) on several fronts. As earlier alluded to, the document purports to define that concept ("the true state of the case [etc]") by reference (first) to 12 discrete pleas set out earlier within it (each of which adverts to a circumstance or characteristic of the evidence about the rape allegation that was available to Col Pearce), and (second) to an allegation that "the true state of the case [etc]...was...in addition [Col Pearce's] failure to interview the [woman who had accused Mr Alpert of rape] in order to personally assess her credibility".
4. The grammatical nonsensicality that is inherent in what is alleged is immediately apparent; but it is not what makes the plea objectionable (or, at least, is not the only thing that does so). To understand why that is so, it is necessary to descend into some of the detail contained within the 12 discrete pleas referred to above. One of them is paragraph 23 of the Proposed SASOC. That paragraph purports to identify matters that were exposed by a brief of evidence that Col Pearce is said to have had available to him at relevant times. Paragraph 23 is a little over eight pages in length, comprising of 14 individual observations (some particularised to varying extents) that the brief of evidence is alleged to have exposed. At the risk of over-simplifying things, each of them individually serves - and all of them collectively serve - to identify a basis or bases for doubting that Mr Alpert might be convicted of rape. Those asserted realities then accumulate (with others that I needn't outline) to support what is alleged at [25] of the Proposed SASOC, which reads as follows:

25. By reason of the matters alleged in paragraphs 20(d), 20(i), 23 and 24:

(a) there was no admissible evidence the prosecution could otherwise lead in support of the Alleged Rape charge at trial;

(b) there was insufficient evidence to prove beyond reasonable doubt each and every element of the service offence of rape;

(c) there existed no reasonable prospect of obtaining a conviction from a General Court Martial properly instructed as to the law; and

(d) accordingly, there were no grounds to charge Mr Alpert with the alleged service offence of rape under section 87(1) of the [DFD Act].

1. If "the true state of the case [etc]" were limited to what is stated at [25], it might (again, I stress, might) be that the respondents would have less about which to complain. Again at the risk of over-simplification, Mr Alpert must be understood there to allege, by reference to the state of the evidence as it relevantly stood when Col Pearce came to consider whether or not the rape allegation should be progressed, that the prospects of a successful conviction were not good; and in any event were insufficient to warrant the progression of the matter that Col Pearce went on to prefer. That, it seems, is the "true state of the case" that, so Mr Alpert appears to suggest, an honest and competent prosecutor exercising the role that was entrusted to Col Pearce would naturally have come to appreciate.
2. Regrettably, though, the allegation does not terminate there. "[T]he true state of the case [etc]" extends beyond what is said to have been apparent from the evidence; specifically, to the nature of a conversation that Col Pearce is alleged to have had with the young woman who had accused Mr Alpert of rape, and to a written minute in which Col Pearce later recorded what is alleged to have been an admission that she made (to the effect that she "merely wanted to see that her allegations had been taken seriously [and] didn't want [Mr Alpert's] career to be destroyed by what she herself recognise[d] as perhaps, un-gentlemanly, as opposed to criminal conduct"). Thus, the "true state of the case [etc]" is defined such that it extends beyond the adjectival veracity of the allegations that were relevantly in contemplation - that is to say, beyond matters that identify or describe the "state" of the case that might have been open to press against Mr Alpert - and into the realm of discrete circumstances that were apt to bear upon what that "state" actually was.
3. That complexity is compounded by the additional matter that the Proposed SASOC seeks to bring within its defined conception of the "true state of the case [etc]". To repeat an element of the definition already rehearsed: the "true state of the case, including the inherent weaknesses of the prosecution case, was...in addition [to the 12 discrete pleas already referred to], included [sic] [Col Pearce's] failure to interview the complainant in order to personally assess her credibility". Thus, where the Proposed SASOC purports to allege (as it does, for example, at [53A(a)(i)]) that Col Pearce "failed to take reasonable care to inform himself of the true state of the case including the inherent weaknesses of the prosecution case against Mr Alpert", it appears to be suggested that one of the things of which Col Pearce is said not to have taken reasonable care to inform himself was that he had failed "to interview the complainant [etc]".
4. The notion that Col Pearce failed to take reasonable care to inform himself of things that he himself did or did not do is nonsensical. When combined with the bewildering array of constituent elements that are said to accumulate as to what ought to have been recognised as "the true state of the case [etc]" - stated, as they are, over many disparate paragraphs and equally disparate parts of what is already a very lengthy document - it is as good as impossible to see how the respondents (or, for present purposes, the second respondent) might sensibly respond to what is alleged. Moreover, it is no easier for the court to understand what is alleged.
5. What, then, should be made of the suggestion that Col Pearce "...acted without reasonable and probable cause...because...based on his own wrong assessment of the state of the case against Mr Alpert as recorded in the Pearce Advices, he was recklessly indifferent...as to the true state of the case including the inherent weaknesses of the prosecution case against Mr Alpert"? One need only replicate the allegation in the form that I have just replicated it to see how many constituent elements comprise it and how difficult it must, thereby, be sensibly to answer.
6. The Proposed SASOC nominates as the "Pearce Advices" four instances of written communication that Col Pearce effected between 26 September and 18 October 2002. Their content is relevantly described earlier in the document; moreover, described compendiously and by reference to various opinions that Col Pearce is alleged to have formed and communicated. Much of that content appears to traverse beyond what one might sensibly conceive of as "assessment[s] of the state of the case against Mr Alpert".
7. For example:

(1) paragraph 34(d) alleges that, by way of preliminary legal advice that he provided to another ADF officer on 26 September 2002, Col Pearce identified that he was "...unable to offer a definitive opinion as to the prospects of a successful prosecution"; and

(2) paragraph 35(d) alleges that, in a separate minute of advice, Col Pearce recorded having been informed by the woman who had accused Mr Alpert of rape that "...she might favourably agree to resolve the matter by means other than disciplinary proceedings for an offence of sexual intercourse without consent".

1. In other respects, the "Pearce Advices" are described in ways that more comfortably align with a suggestion that Col Pearce had offered (or made) an "...assessment of the case against Mr Alpert". For example, [34(f)] of the Proposed SASOC alleges that Col Pearce drafted a minute of advice to the effect that "the evidence in its present form is sufficient to establish a prima facie case". Similarly, [44] of the Proposed SASOC alleges that, by other correspondence, Col Pearce opined that "...there is presently no reasonable basis for not charging [Mr Alpert, in that] a Complaint has been made and investigated; the evidence of the Complainant alone is sufficient to constitute a prima facie case; and she has indicated her preparedness to give evidence on oath".
2. The difficulty for the respondents is that it is unclear what parts of the "Pearce Advices" should be understood to convey Col Pearce's "assessment of the state of the case". There is an additional difficulty in that it is not clear - and much less is there any allegation that serves to identify - which "assessment[s] of the state of the case" were "wrong", or in what way or ways they were "wrong".
3. That last observation, of course, harks back to the Proposed SASOC's conception of "the true state of the case [etc]". It would not be difficult to understand how the Proposed SASOC might conceive as "wrong" an assessment made by Col Pearce (or others) as to "the state of the case" if and to the extent that it were contrary to what was earlier and unambiguously identified as the "true state" thereof. However, in the absence of a comprehensible conception of "the true state of the case [etc]", it is impossible to see how the respondents might be able to understand the respect or respects in which their own assessments might be impugned as "wrong".
4. Perhaps it doesn't much matter. In every case, Mr Alpert's invocation of a "wrong assessment" (expressed, in respect of some respondents as "plainly wrong assessment[s]") of "the state of the case" appears to serve as an explanation for, or a circumstance that is said to have animated, something else - in the case of Col Pearce, his "reckless indifference" as to certain matters. Why it should matter how those states of reckless indifference arose is unclear. For obvious reasons, though, that observation poses more questions than it answers and I needn't dwell further upon it.
5. To the extent that the Proposed SASOC identifies states of "the case" that was apt to be advanced against Mr Alpert - be they assessments made to that end (wrongly or otherwise) by individual respondents or some conception of its "true state" - it does so in a way that impermissibly retards intelligent rejoinder. In that sense, it is classically embarrassing such as to warrant the refusal of the leave that is now sought.
6. I turn, then, to the respondents' fourth complaint about the states of mind that are alleged by [53B] of the Proposed SASOC. It is sought to be alleged that, insofar as he engaged in the conduct that is attributed to him, Col Pearce "acted without reasonable and probable cause" because:

(1) he was "recklessly indifferent" as to "the true state of the case [etc]";

(2) his conduct was "deliberate" and "intentional", and was inconsistent with innocence, honest incompetence or carelessness; and

(3) he acted with reckless indifference to the harm that his conduct might visit upon Mr Alpert.

1. The respondents complain that those pleas "...are stated in a conclusory way, without making clear the distinct factual basis on which each of them is made". Reliance is placed upon the observation of the High Court in A v New South Wales, 529-530 [86]-[87](Gleeson CJ, Gummow, Kirby, Hayne, Heydon and Crennan JJ):
   1. It is, nonetheless, important to recognise what, standing alone, may not suffice to show a want of objective sufficiency. It is clear that absence of reasonable and probable cause is not demonstrated by showing only that there were further inquiries that could have been made before a charge was laid. When a prosecutor acts on information given by others it will very often be the case that some further inquiry could be made. Lister v Perryman [(1870) LR 4 HL 421], where a charge was preferred on account of what had been reported to the prosecutor, is a good example of such a case. And as Lord Atkin rightly said in Herniman v Smith [[1938] AC 305, 317]:

"It is not required of any prosecutor that he must have tested every possible relevant fact before he takes action. His duty is not to ascertain whether there is a defence, but whether there is a reasonable and probable cause for a prosecution."

1. For like reasons it cannot be stated, as a general and inflexible rule, that a prosecutor acts without reasonable and probable cause in prosecuting a crime on the basis of only the uncorroborated statements of the person alleged to be the victim of the accused's conduct. Even if at trial of the offence it would be expected that some form of corroboration warning would be given to the jury, the question of absence of reasonable and probable cause is not to be decided according to such a rule [citing John G Fleming, The Law of Torts, (LBC Information Services, 9th ed, 1998), 685]. The objective sufficiency of the material considered by the prosecutor must be assessed in light of all of the facts of the particular case.

1. Additionally, the respondents contend that "'reckless indifference' to harm is not a concept relevant to the tort of malicious prosecution."
2. Proverbially speaking, the respondents' complaints sail closer to the wind than some of the others that I have already addressed. It is not beyond the realm of what's possible that the court might be persuaded to infer - from, for example, the conduct in which Col Pearce is said to have engaged, the circumstances in which he is said to have engaged in it and, in particular, the "reckless indifference" that is alleged in [53B(a)] and [53B(b)] of the Proposed SASOC (and, I think, potentially [53B(c)]) - the requisite want of subjective belief in the case that was ultimately prosecuted. Nothing in A v New South Wales forecloses upon that possibility. A subjective state of mind of that kind could - could - suffice to bespeak a want of reasonable and probable cause and, thereby, malice.
3. Of course, it is upon Mr Alpert to identify by his pleading the factual foundation for any such inference. Thin though the Proposed SASOC might be in that regard, I would be slow to accept that there is no reasonable prospect that the court might be persuaded to infer what is alleged (such that it might be appropriate now to decline the application for leave to amend).
4. In saying so, I acknowledge the extent to which the Proposed SASOC's other shortcomings might bear upon the process of inference that [53B] of the Proposed SASOC contemplates. As it is, none of the observations that I make on this score can accumulate to salvage the Proposed SASOC; and, in that sense, I risk extending beyond what is necessary to determine the application by straying further than I already have.
5. The respondents' objections to the relevant parts of the Proposed SASOC are reasonably advanced. Paragraphs 53A and 53B, in particular (as well as paragraphs 53F and 53G, insofar as they proceed upon what those earlier paragraphs allege), are embarrassing in that they invoke concepts that, as presently articulated, defy convenient comprehension ("the true state of the case [etc]" and "wrong assessment of the state of the case"). Although the analysis above is limited to the claim that is advanced as against the second respondent, those same concepts are invoked variously and in equivalent ways against the other individual respondents, and the observations that I have made apply mutatis mutandis.
6. Before concluding on this aspect of the respondents' objections to the Proposed SASOC, something should be said about a contention that was addressed (perhaps only tangentially) in Alpert (No 2) but appears to be reanimated now. Insofar as concerns Mr Alpert's case in tort for malicious prosecution, it is said that the manner in which Mr Alpert seeks to establish malice is objectionable (which is to say, embarrassing) because "...it asserts malice (i.e. an improper purpose) without identifying material facts capable of supporting such a finding".
7. I have already extracted [53F] and [53G] of the Proposed SASOC. Much as in Alpert (No 2), I am not persuaded that Mr Alpert lacks a reasonable prospect of establishing malice by what is there pleaded (and by equivalent pleas contained elsewhere in the Proposed SASOC in relation to other respondents). As I said on that occasion, after referring to relevant authority (Alpert (No 2), [93]):

For the purposes of the tort of malicious prosecution...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.

1. Leave to replead in the terms that are proposed will, as will now be clear, be refused on other bases; but not on the grounds that Mr Alpert has failed to allege material facts capable of supporting an allegation of malice.

1. In Alpert (No 2), I had occasion to consider whether Mr Alpert should have leave to articulate a case in negligence against the respondents. As is already apparent, leave was refused. One of the bases upon which the respondents urged that course - or a basis that was relevant at least insofar as concerned the fifth respondent, Lieutenant Colonel Glen Babington - concerned the import of s 193(1) of the DFD Act. It is convenient to replicate what was said on that front (Alpert (No 2), [76]-[79]):
   1. 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 [DFD Act]. 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 [DFD Act] 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.

...

1. 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 [DFD Act] exercising or purporting to exercise jurisdiction as such is immune from a civil action for damages.
2. The applicant's contention presently is that the fifth respondent was never, in truth, a "summary authority" under the [DFD Act]; and, therefore, that no immunity attaches by operation of s 193(1) of the [DFD Act] 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 [DFD Act] from the suit brought against him, he can plead as much.

1. A few months after I made those observations, the High Court gave judgment in Queensland v Stradford (a pseudonym) [2025] HCA 3; (2025) 99 ALJR 396 ("Stradford"; Gageler CJ, Gordon, Edelman, Steward, Gleeson, Jagot and Beech-Jones JJ). That matter concerned the liability of an inferior court judge to relief in an action in tort relating to the discharge, or purported discharge, of his judicial function. The High Court overturned a finding at first instance that the judge in question was not immune to relief under a civil action in respect of conduct in which he had engaged in that regard.
2. In so concluding, the High Court had occasion not only to confirm that judicial immunity was extended to the judge in question; but also to identify its scope. The majority (Gageler CJ, Gleeson, Jagot and Beech-Jones JJ) observed (at 424 [111]) that:

...the scope of immunity afforded to inferior court judges must: be clear in definition and application; be capable of summary application; not be tied to any contestable meaning of "jurisdiction"; and not invite any inquiry into the judicial officer's state of mind...

1. Those observations followed earlier acknowledgment that prior pronouncements as to the scope of judicial immunity at common law might be open to criticism as "uncertain or fact-intensive" (Stradford, 423 [100]). The majority accepted, in the event, that there was no "...proper justification for a difference between the scope of the immunity of superior court judges and inferior court judges" (423 [107]).
2. The majority in Stradford also made extensive reference to the earlier decision of Re East; Ex parte Nguyen [1998] HCA 73; (1998) 196 CLR 354. There, the plurality (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ) described judicial immunity (at 365-6 [30]) as involving an "...immunity from suit which protects judicial officers from actions arising out of acts done in the exercise of their judicial function or capacity." In Stradford, that concept was, perhaps, extended, in that the majority recognised that it should also cover the "purported exercise" of judicial function or capacity: Stradford, 424 [112]. Their Honours continued by way of explanation (424-5 [112]; emphasis original):

Describing the immunity as including any purported exercises of the judicial function confirms that the scope of the immunity extends to the circumstance where the court to which the judge is appointed ceases to have jurisdiction over the relevant matter or the judge commits a jurisdictional error in dealing with the relevant matter over which the court has jurisdiction.

1. Those observations echoed what their Honours were at pains to say at the outset (Stradford, 406 [3]):

Recourse against a wrongful act or omission by a judicial officer (including a negligent, unjust, or even malicious act or omission by a judicial officer) in the performance or purported performance of a judicial function is to be found within such system of appeals as might be applicable, such means of collateral challenge as might be available, and such processes of discipline and removal from office to which the judicial officer might be amenable. It is not to be found in a civil suit against the judicial officer.

1. There is no serious doubt about the scope of the immunity that the common law confers upon justices of the High Court: insofar as concerns conduct engaged in in the exercise or purported exercise of their functions as such, they are immune from civil suit. Presently, the fifth respondent is said to have been cast as what the DFD Act calls a "summary authority". The Proposed SASOC alleges that he engaged in conduct in purported (but not actual) discharge of his role as such. If s 193(1) of the DFD Act, properly construed, should be understood to confer protections and immunities equivalent to what he would have if he were a justice of the High Court, then the respondents' objection to the allegations that Mr Alpert seeks to level against him would be as good as irresistible.
2. There is, for what it might be worth, much to commend the respondents' contention. As they submitted, "...[t]he evident intention of the provision is to apply the immunity to the named persons in a manner consistent with the common law scope of the immunity". That may be so; but it may not be. As was made clear in Stradford, the common law immunity that is conferred upon justices of the High Court extends to both actual and purported exercises of their powers as such. The statutory source of the immunity that Lt Col Babington asserts does not, at least not obviously by its terms. Perhaps it was intended to; and perhaps it does upon its proper construction - aided, as it no doubt will be, by submissions directed to the significance (if any) of relevant extrinsic material. But, by its terms, the protection that s 193(1) of the DFD Act extends to a "summary authority" extends no further than in respect of "the performance of his or her duties".
3. Whether because he was not, in truth, properly constituted as a "summary authority" or because the conduct in which he is said relevantly to have engaged was not conduct that he engaged in properly in the performance of his duties as such, there is at least some prospect that Mr Alpert might establish that the protections afforded by s 193(1) of the DFD Act should not inoculate Lt Col Babington against the case that is hoped to be pressed against him. Whatever degree of ambition attaches to Mr Alpert's claim in that regard, I do not regard it as sufficiently untenable such that I should decline to grant the leave that is now sought.

1. The Proposed SASOC now contains allegations that seek to visit upon the second, third and fourth respondents vicarious liability for the harm that Mr Alpert is said to have endured by reason of the convening of a General Court Martial under the DFD Act to determine the service charge of rape that was levelled against him. That was a decision that was (or is said to have been) made by the sixth respondent, Lieutenant General Evans (then a Major General), in his capacity as what the DFD Act calls a "Convening Authority".
2. It is convenient to replicate paragraphs 53C, 53D and 53E, by which vicarious liability is sought, to that end, to be established as against the second respondent, Col Pearce:

53C. On or about 27 September 2002, MAJ GEN Evans reviewed MAJ Pearce's preliminary legal advice that was sent to him by BRIG Wilson.

53D. In the premises alleged at paragraphs 51, 52, 53A and 53B herein, the Pearce Advices were:

(a) plainly wrong;

(b) misleading; and

(c) prepared and provided by MAJ Pearce to RSM O'Brien, BRIG Wilson, COL Dunn and LT COL Carlin (as hereinbefore alleged at paragraphs 34, 35, 44 and 45) with the knowledge that, within the chain of command, they would be reviewed by MAJ GEN Evans in order:

(i) to persuade him to convene a General Court Martial to try Mr Alpert for the alleged rape;

(ii) alternatively, to procure him to do so by dishonestly prejudicing his judgment;

53E. By reason of the facts and matters alleged at paragraph 53C and 53D herein, MAJ Pearce:

(a) materially affected the independent discretion of MAJ GEN Evans to convene a GCM to the extent his discretion was overborne whereby he was incapable of independently exercising his discretion under section 103, [DFD Act];

(b) is vicariously responsible as a prosecutor (jointly and severally with LT COL Carlin and LT COL McConaghy):

(i) for the purported decision of MAJ GEN Evans on 6 December 2002 to institute the prosecution of Mr Alpert by convening a General Court Martial to try Mr Alpert for the Alleged Rape; and

Particulars

As to the vicarious responsibility of a prosecutor: see Commonwealth Life Assurance Society Ltd v Brain [1935] HCA 30; (1935) 53 CLR 343 at 379, Dixon J.

(ii) for the resultant harm likely to be suffered or suffered by Mr Alpert.

As to the harm suffered by Mr Alpert, he repeats and relies on the facts and matters alleged in the particulars to sub-paragraphs 53F(b) and 53F(c) pleaded at sub-paragraph 53F(c)(1) and paragraphs 178 to 180 herein.

1. Paragraph 53C of the Proposed SASOC is unobjectionable. The problems with paragraphs 53D and 53E, however, are manifest. Paragraph 53D suggests that, "...[i]n the premises alleged [in earlier paragraphs, one of which doesn't exist]", the "Pearce Advices" (to which reference has already been made) were "plainly wrong". It is unclear what that means. Paragraph 51 of the Proposed SASOC contains the definition of "the true state of the case [etc]". It alleges that Col Pearce "played an active role in the institution of the prosecution of Mr Alpert in circumstances" that are then identified in 13 subparagraphs, which extend across the following four-and-a-half pages. One of them is that Col Pearce "failed to take reasonable care to inform himself of the true state of the case against Mr Alpert including the inherent weaknesses of the prosecution case which, on the information available to MAJ Pearce (as alleged at paragraph 29 herein), had no reasonable prospects of conviction".
2. Paragraph 53D of the Proposed SASOC appears to allege that, by (or partly by) reason of his "failure to take reasonable care to inform himself [etc]", the "Pearce Advices" were plainly wrong and misleading. Appreciating that such a failure might explain why parts of the Pearce Advices were, as Mr Alpert puts it, plainly wrong or misleading, it says nothing about how they were plainly wrong or misleading; that is to say, nothing about the respects in which anything that was said within them was contrary to truth or liable to induce their audience into thinking something that was contrary to truth. There is nothing about any of the other "premises" upon which paragraphs 51, 53A or 53B shed light that assists in understanding what is said to be the respects in which the "Pearce Advices" were wrong, let alone plainly wrong.
3. In that regard, the observations made earlier about the absence of reasonable and probable cause - and the want of correspondence that is said to exist as between the content of the Pearce Advices and the "true nature of the case [etc]" (above, [26]-[36]) - ring just as loudly. It is simply impossible for the respondents conveniently or sensibly to understand or respond to the suggestion that the "Pearce Advices" were plainly wrong and misleading.
4. Equivalent observations apply to the allegations of vicarious liability in respect of the third and fourth respondents (save to the extent that no conduct attributed to the third respondent is sought to be impugned as "plainly wrong").
5. There are additional concerns. First, paragraph 53D(c) of the Proposed SASOC alleges that Col Pearce prepared and provided his "Pearce Advices" with knowledge that they would ultimately serve to persuade the sixth respondent to convene a General Court Martial under the DFD Act or "...procure him to do so by dishonestly prejudicing his judgment". As the respondents fairly observe, "...the basis for alleging that the second respondent had some dishonest intention of 'prejudicing' the sixth respondent's judgment is entirely unstated or unidentified".
6. Paragraph 53E(a) alleges that, by the content and provision of the "Pearce Advices", Col (then Maj) Pearce so materially affected the independent discretion of the sixth respondent to convene a General Court Martial that his (Lt (then Maj) Gen Evans's) discretion was overborne. As contextual propositions upon which that conclusion might rest, Mr Alpert nominates "the facts and matters alleged at paragraph 53C and 53D herein"; but there is nothing in those paragraphs that stands capable of making good on the proposition that is alleged. Instead, what is alleged stands as a bare conclusion that is advanced in a way that is self-evidently objectionable.
7. Again, then, the respondents' objections to the "vicarious responsibility for the prosecution" parts of the Proposed SASOC are well-founded. For at least the reasons stated, those pleas are embarrassing or otherwise constitute abuses of process, and leave to file the Proposed SASOC should, on those bases, be refused.

1. The hearing of Mr Alpert's application was scheduled for Monday, 24 February 2025. On Friday, 21 February 2025, the solicitors for the respondents - one of whom, it is to be recalled, is the Commonwealth - filed and served a 32-page outline of submissions that identified their reasons for maintaining that Mr Alpert should be denied the leave for which he moves. It was because of the proximity of its provision to the hearing that Mr Alpert was given an opportunity to consider - and potentially to address - some of the complaints that it made, which then led to the regrettably convoluted and lengthy process that followed (a process that, with the benefit of hindsight, might best have been avoided).
2. Be that as it may, there was embedded within the respondents' outline - and under the heading (or sub-heading), "Allegations that are prolix, ambiguous and embarrassing" - a six-and-a-half-page table that identified over 90 individual passages within the Proposed SASOC (in the form that it then assumed) that were said "...in various ways [to be] vague, unclear, ambiguous, confusing and thus embarrassing".
3. In the nine months that followed, Mr Alpert conceded and sought to address some of the criticisms, and rejected others of them. The culmination of that process has been a re-working of the table that first appeared in the respondents' outline of submissions in February 2025. Both sides (again, if I might temporarily collectivise the respondents) have articulated within it some responses and replies to the complaints that were initially identified. The table now approaches forty pages in length. I have read it. Some of the individual complaints are resolved. Others Mr Alpert describes (perhaps, at least in some cases, fairly) as "frivolous"; others the respondents press (perhaps, at least in some cases, no less fairly). All of them are susceptible to resolution with appropriate industry and goodwill.
4. It would take a significant amount of time - possibly several weeks and many dozens of pages - to deal with each and every one of those complaints (or those that remain unresolved). It is plain, from the already lengthy reasons stated thus far, that Mr Alpert should not be granted the leave for which he moves. It is unnecessary - and much less would it be an efficient use of limited judicial resources - that I should indulge the parties by addressing individually each of the low-level, miscellaneous drafting complaints about which they continue to squabble. The result will be the same.
5. Instead, I will make only some general observations about the manner in which the Proposed SASOC - and, indeed, the existing amended statement of claim (of which, I note, Mr Alpert's present counsel was not the sole author) - is drafted.
6. The Proposed SASOC is not a model of pleadings elegance. That is so not merely because of its length (although, as might be apparent, that doesn't help). Respectfully, it is structured in a logical and navigable way; but that structure buckles occasionally under the weight of dense prose that has grown like a thicket upon it. Perhaps the most significant criticism that might be made of it is that it has a tendency to employ very lengthy paragraphs, which are often comprised of many subparagraphs that extend over multiple pages and that touch upon intermixed propositions in ways that are apt to confuse even the most committed of readers. It also tends to over-employ cross-referencing, often in ways that result in paragraphs that support many permutations that, again, are not always conveniently apparent or addressable. Allegations are often said to be made "in the premises" that are alleged elsewhere, which introduces additional and sometimes significant scope for permutation and confusion, and which results in pleas that are not only difficult to understand but also to which convenient and intelligible response is restricted (and, in some cases, not possible).
7. In saying as I have, I wouldn't wish to be understood to suggest that the court will not accept from Mr Alpert anything less than polished excellence. Though I have, as I have said, no intention of addressing them all individually at this juncture, I accept that some of the miscellaneous drafting criticisms that the respondents have levelled against the Proposed SASOC appear marginal. Absent the meatier objections addressed in detail in these reasons, it might be that some or many of them would sensibly dissolve within solutions of forensic preference.
8. Further speculation about that is unnecessary.

1. Attention should now turn to whether Mr Alpert ought to have leave to file his proposed amended originating application (the "Proposed AOA"). For the reasons that follow, he should not.
2. The respondent submits on this point that:

...it would be futile to grant leave to file the [Proposed AOA] if leave is refused to file the Proposed [SASOC]. The relief sought in the [Proposed AOA] is referable to, and dependent upon, the claims articulated in the Proposed [SASOC]. As such, it would be inappropriate and inefficient to permit the filing of the [Proposed AOA] but not the Proposed [SASOC].

1. The Proposed AOA is, it is true, "referable" to the Proposed SASOC: the relief to which it refers is proposed "on the grounds stated" in that (proposed) pleading. Of course, if that relief were sufficiently supported by the grounds set out in the pleading that is currently before the court - namely, the amended statement of claim dated 23 April 2023 - then that reality should not necessarily stand in the way of my granting leave to file it substantially in the form that it assumes. That much is consistent with the submissions advanced by Mr Alpert, who asserts that "[t]he amendments arise from substantially the same facts as pleaded in the [amended statement of claim]...".
2. Ultimately, there is at least one respect in which the disconnect between the Proposed AOA and the current pleading is more fundamental. By paragraph 2(i) of the Proposed AOA, Mr Alpert seeks a declaration that the convening of the General Court Martial by Lt Gen Evans was "unlawful, in breach of section 103(1)(d) of the [DFD Act]". The pleas that might support that declaratory relief do not, to my eye, clearly emerge on the existing statement of claim.
3. But for that incongruity, I would have been inclined to grant leave to file the Proposed AOA. As it happens, the better course at this juncture is not to.

1. Mr Alpert's interlocutory application of 15 August 2024 should and will be dismissed with costs.

I certify that the preceding eighty-one (81) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Snaden.