A former commando at the centre of one of Australia's most controversial and secret military cases has begun legal proceedings against the Australian Government and the former director of military prosecutions, Brigadier Lynette McDade, for malicious prosecution.

Key points: David Millar had manslaughter charges — that were later dismissed — brought against him by director of military prosecutions (DMP) over deadly Afghanistan raid

David Millar had manslaughter charges — that were later dismissed — brought against him by director of military prosecutions (DMP) over deadly Afghanistan raid He claims allegations surrounding that case are demonstrably false but remain publicly available

He claims allegations surrounding that case are demonstrably false but remain publicly available Legal proceedings by Mr Millar against the Australian Government and DMP believed to be the first in Australian military history

The former reservist, David Millar, filed a statement of claim in the New South Wales Supreme Court last month.

It is believed to be the first claim of its kind in Australian military history.

The claim alleges that the former director of military prosecutions (DMP) brought manslaughter charges against Mr Millar "maliciously, and without reasonable and probable cause".

Mr Millar, a lance corporal at the time, was the lead scout in a horrific commando raid on a family compound in Uruzgan province, Afghanistan, in which five children and a man were killed in 2009.

Both he and another commando, Sergeant J, were subsequently charged with manslaughter with criminal negligence by Brigadier McDade.

According to the soldiers, when they entered the compound in the early hours of the morning of February 12, 2009, the Afghan man began continuously firing at them from a room and, due to the layout of the enclosure, they had no means of escape.

On orders from Sergeant J — the sergeant in command — Lance Corporal Millar threw two grenades into the room.

Mr Millar told Australian Story in May that it was only on entering the room after the dust had settled that they realised women and children were also inside.

Space to play or pause, M to mute, left and right arrows to seek, up and down arrows for volume. Watch Duration: 1 minute 1 m David Millar tells Australian Story of his experience in Afghanistan ( Australian Story )

The manslaughter charges sent shockwaves through the military and were the subject of a sustained public outcry, with accusations of "armchair" ignorance of combat conditions.

In May 2011, the military's Chief Judge Advocate, Brigadier Ian Westwood, dismissed the case against the two men at a pre-trial hearing and a court martial did not eventuate.

According to the statement of claim, there was insufficient evidence to warrant the laying of charges and Mr Millar's actions "were in accordance with his Rules of Engagement and the orders given by Sergeant J".

It is claimed that the DMP "was aware or should have been aware" that for a charge of manslaughter with criminal negligence to succeed, it was necessary to establish that Mr Millar had a duty of care to the civilian victims, however, forces of the Crown have no such duty of care in armed conflict for an offence of this type.

The statement asserts that the DMP "knew or ought to have known" that there was no reasonable prospect of a court martial being satisfied that Mr Millar knew there were non-combatants in the room into which he threw the grenades.

It is also claimed that the DMP "knew or ought to have known" that Mr Millar had no avenue of retreat without placing himself and other soldiers in the field of machine-gun fire coming from the building.

In the pre-trial hearing before Brigadier Westwood, no alternative course of action was put forward by the prosecution.

Claim says allegations are 'demonstrably false' but remain public

The statement of claim also cites a ministerial submission that surfaced in May after a Freedom of Information request from Australian Story.

This document, a memorandum dated September 23, 2011, was sent by Brigadier McDade to then-defence minister Stephen Smith after he had requested a full account of the failure of the charges against the soldiers.

Brigadier McDade stated that she charged the two commandos because they threw grenades into a room "when they ought to have known" that women and children were present and before posting the second grenade "knew for certain that there were women and children in the room" and that they both supplied statements to this effect, which the soldiers strongly denied.

According to the claim, these allegations are demonstrably false but remain publicly available, including on a Defence website, which has caused Mr Millar "additional anguish, distress and mental harm".

The claim also states that the submission from the DMP was "high-handed, malicious and oppressive and aggravated the injury to the plaintiff".

Mr Millar is claiming general damages for harm to his reputation and professional standing, for mental distress and for significant dislocation to his life caused by the DMP's actions.

The document also outlines claims for aggravated and exemplary damages, and for past and future economic loss.

No claim figure has been raised.

Lance Corporal Millar has DMP's 'greatest sympathy'

Mr Millar and other members of his regiment told Australian Story earlier this year that they were still angry that the Australian Defence Force had not formally exonerated them. A request for redress of this situation is expected to be renewed.

The ABC understands that the statement of claim has not yet been served on the defendants, but lawyers for Mr Millar have notified Veterans Affairs Minister Dan Tehan, in the hope that he can assist an early settlement with the relevant government agencies including the Directorate of Military Prosecutions and the Defence department, to avoid a full hearing and the associated trauma that this would involve for Mr Millar and other parties.

In a brief statement to Australian Story, when asked for a response to the claim, Brigadier McDade said:

"He has my greatest sympathy. However this litigation, if he has commenced it, will not assuage his guilty conscience. I wish him well in what must be a difficult time for him."

Watch David Millar's story in Into the Fog of War Part One and Part Two on Australian Story.