Cattell v State of New South Wales

File Number(s): 2024/318181

Publication restriction: Nil

JUDGMENT

1. On 9 December 2024, the State of New South Wales (‘the State’) (the applicant with respect to the Notice of Motion and the defendant in the proceedings) filed a Notice of Motion in these proceedings seeking to set aside the default judgment entered against it on 12 November 2024, under r 36.16(2)(a) of the Uniform Civil Procedure Rules 2005 (NSW) (‘UCPR’) or, alternatively, under r 36.16(2)(b) of the UCPR.

2. Mr Cattell (the respondent to the Notice of Motion and the plaintiff in the proceedings) opposes the application.

3. The matter was heard on 12 March 2025. The State relies upon an affidavit of Ms Stephanie Koch dated 7 March 2025 and two affidavits of Ms Lucinda Bozic dated 9 December 2024 and 10 December 2024.

4. Mr Cattell relies upon his affidavits, the first sworn on 5 December 2024 and filed on 6 December 2024 and the second sworn on 24 December 2024.

The proceedings

5. These proceedings were commenced by the filing of a statement of claim on 26 July 2024.

6. In the proceedings, Mr Cattell alleges that the State has committed the tort of malicious prosecution against him. Mr Cattell seeks damages.

7. The claim of malicious prosecution is based upon the following facts and allegations, which are set out in the statement of claim:

1. On 14 August 2023 the defendant commenced proceedings against the Plaintiff, by taking out an interim and enforceable apprehended violence order, relating to historical allegations from 2016 and 2017.

2. On 30 October 2023 the defendant charged the plaintiff with four counts of common assault relating to the allegations from 2016 and 2017.

3. On 5 April 2024, the matter was heard at Cooma Local Court, where the apprehended violence order and charges were withdrawn/dismissed and a costs order made against the defendant.

4. On 6 April 2024, the defendant took out a new apprehended violence order application against the plaintiff, relating to historic allegations from 2017 and 2018.

5. On 2 May 2024, the plaintiff submitted an application for a stay in proceedings, alleging abuse of process.

6. On 23 May 2024, the matter was listed at Maitland Local Court, where the apprehended violence order was withdrawn/dismissed.

7. The plaintiff alleges the defendant brought proceedings against the plaintiff that were malicious and without reasonable cause or sufficient evidence.

8. The plaintiff alleges that numerous requests were made to the defendant to withdraw proceedings, citing lack of evidence and use of proceedings to manipulate family court proceedings, however the defendant chose to maintain proceedings.

8. The statement of claim, together with an affidavit, were served by email on the Crown Solicitor and the NSW Police Force on 29 August 2024 (see Crown Proceedings Act 1988 s 6).

9. The service of the documents on the Crown Solicitor was acknowledged by email to Mr Cattell.

10. A pre-trial conference in the matter was listed on 1 October 2024. The State did not attend. The matter was adjourned.

11. A directions hearing was listed for 22 October 2024. The State did not attend. Mr Cattell applied for default judgment. The Judicial Registrar adjourned the matter to a directions hearing on 12 November 2024 and made an order that, if there was no appearance by the State by that date, default judgment would be entered. The Judicial Registrar emailed the orders to the Crown Solicitor’s Office.

12. At the directions hearing on 12 December 2024, there was, again, no appearance for the State. Default judgment was entered against the State with damages to be assessed. Mr Cattell was ordered to file an affidavit in support of damages by 6 December 2024. The matter was listed for an assessment of damages on 10 December 2024.

13. Mr Cattell filed and served an affidavit in support of damages on 6 December 2024.

14. Prior to 9 December 2024, the State had taken no steps in the proceedings.

15. On 9 December 2024, Mr Cattell received a letter from the Crown Solicitor’s Office informing him that the State intended to file a Notice of Motion to set aside the default judgment. At 8:13pm on the same day, a sealed copy of the Notice of Motion was served upon Mr Cattell. An affidavit was served upon Mr Cattell the next day.

16. The Notice of Motion filed and served on 9 December 2024 is the Notice of Motion the subject of this decision. The following orders are sought in the Notice of Motion:

1. The default judgment entered against the defendant on 12 November 2024 be set aside pursuant to Rule 36.16(2)(a) of the Uniform Civil Procedure Rules 2005 (NSW).

2. Further and/or in the alternative, the default judgment entered against the defendant on 12 November 2024 be set aside pursuant to Rule 36.16(2)(b) of the Uniform Civil Procedure Rules 2005 (NSW).

17. At the hearing on 10 December 2024, the assessment hearing was vacated and the matter referred to the Judicial Registrar for the timetabling of the exchange of affidavits in relation to the Notice of Motion.

The State’s evidence and submissions on the Notice of Motion

18. The UCPR says, in rules 36.16(2)(a) and (b):

(2) The court may set aside or vary a judgment or order after it has been entered if—

(a) it is a default judgment (other than a default judgment given in open court), or

(b) it has been given or made in the absence of a party, whether or not the absent party had notice of the relevant hearing or of the application for the judgment or order, or

…

19. The State submitted that “fundamentally, the question is whether it is in the interests of justice” to allow the judgment to be set aside and the proceedings defended on the merits (see Dunwoodie v Teachers Mutual Bank Ltd [2014] NSWCA 24 at [43]).

20. The State referred to J & M McNamee Holdings Pty Ltd v Mungerie Vale Pty Ltd trading as Greenwood Group Realtors [2019] NSWCA 283 in which Gleeson JA, with whom Brereton JA and Simpson AJA agreed, said at [48] – [52]:

48. It is well established that the considerations relevant to an application to set aside a default judgment include whether the applicant has a bona fide ground of defence, an adequate explanation for the failure to defend and the length of any delay: Adams v Kennick Trading (Int) Ltd (1986) 4 NSWLR 503 at 506 (Hope JA; Glass JA agreeing). Whether the plaintiff will be prejudiced if the default judgment were set aside is also relevant.

49. Fundamentally, the question is whether it is in the interests of justice to allow the party seeking to set aside a default judgment to be permitted to defend the proceedings on the merits: Dai v Zhu [2013] NSWCA 412 at [83] (Sackville AJA; Barrett and Leeming JJA agreeing), citing, with approval, the remarks in Reinher Industrial Lease & Finance Pty Ltd v Jordan (Court of Appeal (NSW), 4 June 1974, unrep).

50. Two further matters referred to by Sackville AJA in Dai v Zhu should be mentioned. One is the observation by his Honour at [89] that the rationale for the requirement that the applicant for relief demonstrate a bona fide ground of defence is that, “In the exercise of its ‘unfettered, though judicial, discretion’ the Court will consider … (a) whether any useful purpose would be served by setting aside the default judgment, and (b) how it came about that the applicant found himself bound by a judgment regularly obtained”.

51. The other matter, which is related to this, is his Honour’s observation at [92] that, “In determining whether the defendant has a bona fide defence on the merits, the Court does not embark on a hearing of the full merits of the case … [A]ll that is necessary is for the defendant to show that the defence is asserted bona fide and that there is an arguable or triable issue. His Honour continued at [92]:

The nature of the evidence required in a particular case may depend on the circumstances, including the cogency of the defendant’s explanation for the delay or failure to comply with orders of the Court.

52. It is also to be accepted that the application of these principles must now be subject to the provisions of the Civil Procedure Act 2005 (NSW). In Dai v Zhu, Sackville AJA gave as an example at [93], that there may be circumstances where it would be contrary to “the just determination of the proceedings”, referring to s 57(1)(a) of the Civil Procedure Act 2005 (NSW), to require a defendant to adduce affidavit evidence demonstrating a bona fide defence and in such cases the Court would be unlikely to reject the defendant’s application to set aside a default judgment solely on the ground that no such affidavit had been filed whilst emphasising each case must of course depend on its own facts.

21. The State submitted that the tort of malicious prosecution is difficult to prove. The elements of malicious prosecution are set out in A v State of New South Wales [2007] HCA 10 at [1]:

(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.

22. The State does not concede that the third and fourth elements have been or could be proven by Mr Cattell.

23. In HD v State of New South Wales [2016] NSWCA 85 at [78] – [82], Gleeson JA, with whom Leeming JA and Emmett AJA agreed, said:

78. In deciding the issue of malice in a case such as the present involving a public prosecution, initiated by a police officer and conducted in the Local Court by a police prosecutor, it is necessary to keep in mind the statement in the joint judgment in A v New South Wales at [41]:

… where a prosecutor has no personal interest in the matter, and no personal knowledge of the parties or the alleged events, and is performing a public duty, the organisational setting in which a decision to prosecute is taken could be of factual importance in deciding the issue of malice.

79. The joint judgment continued at [42]:

In the case of a private prosecution, it may be easier to prove that a prosecutor was acting for a purpose other than the purpose of carrying the law into effect than in a case of a prosecution instituted in a bureaucratic setting where the prosecutor’s decision is subject to layers of security and to potential review.

80. To constitute malice, the dominant purpose of the prosecutor must be a purpose other than the proper invocation of the criminal law – an “illegitimate or oblique” motive. That improper purpose must be the sole or dominant purpose actuating the prosecutor: A v New South Wales at [91].

81. Examples of improper purposes include spite or ill will, to punish the defendant, and to stop a civil action brought by the accused against the prosecutor. However, as the joint judgment in A v New South Wales emphasised at [92], it is not possible to identify exhaustively when the processes of the criminal law may be improperly invoked. What the plaintiff has to prove, in order to establish malice in an action for malicious prosecution, is a purpose other than a proper purpose: A v New South Wales at [92].

82. It has been said that malice can be inferred from an absence of reasonable and probable cause: A v New South Wales at [90]. However, this statement needs to be read in context with what follows at [91] in A v New South Wales: (see above at [79]). This Court summarised the position in State of New South Wales v Abed [2014] NSWCA 419 at [150]-[152], as follows:

[150] Absence of reasonable and probable cause in maintaining a prosecution may, in a given case, be evidence of malice, but as the High Court emphasised in A v New South Wales at [40] there are two separate issues to be decided. The High Court also warned (at [90]) against attempts to reduce the relationship between absence of reasonable and probable cause and malice to an aphorism such as - absence of reasonable cause is evidence of malice, but malice is never evidence of want of reasonable cause. The joint judgment continued (at [90]) by recognising that "proof of particular facts may supply evidence of both elements", but noted that "no universal rule relating proof of the separate elements can or should be stated".

[151] In Trobridge v Hardy [1955] HCA 68; 94 CLR 147 Kitto J at 163 referred to the "indirect route" of proving malice. His Honour continued (at 164), in the context of a jury trial:

"If they think it more probable than not that the prosecutor lacked the belief in the guilt of the accused, they are justified in taking the next step of concluding that the prosecution was not instituted from a genuine desire to serve the ends of justice and is not to be satisfactorily explained save on the supposition that the prosecutor was actuated by an indirect or improper motive. If so, they may legitimately make a finding of malicious, even though they may not feel able to say precisely what the malicious motive was."

[152] However, whilst proof of malice will often be a matter of inference, it bears repeating that "it is proof that is required, not conjecture or suspicion": A v New South Wales at [93].

24. The State submitted that the evidence of Mr Cattell does not establish, as it must in order for him to succeed, that the sole or dominant purpose actuating the prosecutor was malice. It was argued that it is a “high hurdle” for Mr Cattell to clear.

25. The State submitted that there is at least an arguable or triable issue “that the purpose of the prosecution was the invocation of the criminal law to prosecute Mr Cattell for allegations of domestic violence committed by him against his partner”. This was said to be clear on the basis of the documents supporting the Apprehended Violence Order (AVO). It was said that the fact of the delay by the complainant in making the complaint which led to the order is of little, if any, relevance to establishing malice.

26. In his affidavit, Mr Cattell relates the gist of some conversations he had with Constable Holt in October 2023 in relation to the accusations underpinning the charges of 30 October 2023. The State submitted both that the statements of Constable Holt did not amount to proof of malice and that, even if they did, the State ought to be given the opportunity to investigate, test and respond to such evidence.

27. Mr Cattell also provided a transcript of proceedings before a Magistrate on 18 January 2024 in which the Magistrate made a series of comments about the context of the accusations against Mr Cattell (see the annexure to Mr Cattell’s affidavit of 5 December 2024). The State submitted that the Magistrate’s comments are irrelevant and inadmissible. Further, the State submitted that Mr Cattell’s inferences as to the motivation of the complainant, and the possible link between the complaints and family law proceedings between the complainant and Mr Cattell, were not relevant to these proceedings.

28. The State has provided a draft Defence which denies the allegation that the proceedings brought against Mr Cattell were “malicious and without reasonable cause or sufficient evidence” as alleged in paragraph 7 of the statement of claim.

29. The State asserted that the charges of 30 October 2023 were “brought reasonably and with probable cause”.

30. The State argued that the fact that the charges were withdrawn and dismissed does not establish that it was unreasonable to bring those charges or that there was no probable cause. The fact that the NSW Police Force did not prove service of the brief of evidence in the Local Court does not prove that no such brief existed. There was an electronically recorded Domestic Violence Evidence in Chief (“DVEC”), photographs and an affidavit.

31. In any event, the State submitted, the Court is not required to decide the question of whether the prosecution was malicious or without cause to determine the motion before it. The Court need only be satisfied that there is an arguable or triable case that the proceedings were not affected by malice or instituted without reasonable or probable cause.

32. The explanation for the State’s defaults in appearance in the proceedings are set out in the affidavit of Lucinda Bozic of 9 December 2024. Ms Bozic is a solicitor employed in the office of the Crown Solicitor. In summary, Ms Bozic says the following:

33. The statement of claim was served on the Crown Solicitor on 29 August 2024.

34. On the same day, service of the statement of claim was acknowledged by email, to which Mr Cattell responded.

35. Also on 29 August 2024, the statement of claim was forwarded to the NSW Police Force by email “for instructions”.

36. The matter was apparently “allocated internally” within the NSW Police Force on 29 August 2024. However, the file was erroneously noted on the file management system as relating to another file in which the instructing police officer had the surname Cattell. That other matter was completed, and the result was that this matter was not allocated to a legal services provider and was not notified to the State’s insurer as is the usual course.

37. The Director, Crown Solicitor’s Office, followed up with the NSW Police Force the request for instructions on 16 September 2024, 1 October 2024, 16 October 2024, 29 October 2024, 12 November 2024 and 20 November 2024. In response to the November approaches, the NSW Police Force advised simply that a legal service provider was yet to be appointed.

38. The Judicial Registrar of the District Court informed the Crown Solicitor’s Office on 3 October 2024 that the matter had been adjourned to 22 October 2024 at 10:30am. Due to an “oversight” that email was not forwarded to “the appropriate legal officer” for provision to the NSW Police Force.

39. The outcome of the hearing on 22 October 2024 was received from the Judicial Registrar by the Crown Solicitor’s Office on 23 October 2024. It was received by a clerical officer who did not forward it to the “appropriate legal officer” for provision to the NSW Police Force.

40. The NSW Police Force became aware of the default judgement when it was sent to it on 6 December 2024 by Mr Cattell, together with his affidavit.

41. The Crown Solicitor’s Office received urgent instructions to act for the defendant on 9 December 2024. An Appearance was filed in Court on 9 December 2024 and served on Mr Cattell by email on the same day. Mr Cattell responded to the letter from Ms Bozic which accompanied the Appearance, also on the same day.

Mr Cattell’s evidence and submissions on the Notice of Motion

33. Mr Cattell gave a comprehensive timeline of the proceedings against him in the Local Court. Mr Cattell also provided a detailed timeline of the steps taken in these proceedings.

34. Mr Cattell pointed out that the Notice of Motion was served on him at 8:13pm on 9 December 2024 which was the night before the assessment hearing was to have taken place. An affidavit was served on 10 December 2024 which was the morning of the hearing. Mr Cattell submitted that the State had sufficient time and resources to provide these documents with reasonable notice to him.

35. Mr Cattell objected to the filing of the affidavit of Ms Koch well after the date given by the Court for the service of affidavits in reply by the State, which was 17 January 2025.

36. Mr Cattell submitted that the State “has not presented any evidence that supports a prima facie case and the court would be unable to judge the case on its merits”. Mr Cattell submitted that the State “has not presented any evidence that could be considered a bona fide defence to Malicious Prosecution.”

37. Mr Cattell submitted that the State has not provided a reasonable explanation for failing to file a defence. He said that the police officers at Maitland Police Station “were well aware of proceedings since its commencement”. Mr Cattell noted that the State claims that “multiple administrative errors” were the cause of its default in the proceedings, but further notes that the State received multiple notifications from him and from the Court. Once again, Mr Cattell submitted that “the defendant had sufficient time and resources to participate in proceedings prior to default judgment”.

38. Mr Cattell submitted that the State has been afforded procedural fairness at every step of the way. Mr Cattell argued that he has been disadvantaged by the on-going delays and submitted that “if this motion is granted it would be procedurally unfair for the Plaintiff, therefore causing significant prejudice”.

39. Mr Cattell further said that “it is in the best interests of the community for this motion to be dismissed and the judgment for Malicious Prosecution to remain”.

40. Mr Cattell argued that the State, on two occasions (14 August 2023 and 6 April 2024), was provided, by the complainant in the matters against him in the Local Court, with an affidavit made for use in the Federal Circuit and Family Court of Australia. Mr Cattell submitted that the use of these affidavits in the Local Court matters was in breach of the Harman Undertaking and also constituted indictable offences under s 114Q of the Family Law Act 1975. Mr Cattell said that the Federal Circuit and Family Court of Australia had determined that “this action”, which I take to mean the use of the affidavits by the police, “was a breach of the law”.

41. Mr Cattell submitted that the evidence taken from those affidavits was “the fruit of the poisonous tree”, which supports his allegation of Malicious Prosecution.

Consideration

Civil Procedure Act 2005 ss 56(1) and (2) and 57(1)(a)

42. The Civil Procedure Act 2005 provides, in s 56(1) and (2) and s 57(1) and (2):

56 Overriding purpose

(cf SCR Part 1, rule 3)

(1) The overriding purpose of this Act and of rules of court, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.

(2) The court must seek to give effect to the overriding purpose when it exercises any power given to it by this Act or by rules of court and when it interprets any provision of this Act or of any such rule.

…

57 Objects of case management

(1) For the purpose of furthering the overriding purpose referred to in section 56 (1), proceedings in any court are to be managed having regard to the following objects—

(a) the just determination of the proceedings,

(b) the efficient disposal of the business of the court,

(c) the efficient use of available judicial and administrative resources,

(d) the timely disposal of the proceedings, and all other proceedings in the court, at a cost affordable by the respective parties.

(2) This Act and any rules of court are to be so construed and applied, and the practice and procedure of the courts are to be so regulated, as best to ensure the attainment of the objects referred to in subsection (1).

43. Superficially, it might seem that the quick and cheap resolution of the real issues in these proceedings would best be served by a refusal to set aside the default judgment. However, efficiency is not always best served by the quick resolution of a procedural point as time- and resource- consuming appeal processes may follow the making of a procedural decision with undue emphasis on speed. Such processes will also affect the timeliness of the disposal of the proceedings. The justice of the resolution of the issues warrants further consideration.

Does the State have a bona fide ground of defence?

44. The four basic elements of malicious prosecution are set out at [21], above. Mr Cattell has established that the first two elements are present; criminal proceedings were initiated against him and those proceedings were terminated in his favour.

45. I bear in mind that it is not appropriate, in the context of this application, to embark upon a full hearing of the merits of the case. I must decide whether any useful purpose would be served by setting aside the default judgment on the basis of what is before me.

46. The State has provided a draft Defence which simply denies the allegation in paragraph 7 of the Statement of Claim that the proceedings were “malicious and without reasonable cause or sufficient evidence”.

47. The evidence before me does not give rise to a situation whereby Mr Cattell’s case is so clearly bound to succeed that no useful purpose would be served by setting aside the default judgment. It is not patently clear from the evidence to date that the State, in initiating or maintaining the proceedings, acted maliciously. It is not for the State, in these proceedings, to disprove the allegation that it acted with malice. Mr Cattell, as the plaintiff, must prove the allegation on the balance of probabilities under s 140 of the Evidence Act 1995. The complainant’s motivation, or inferences as to the complainant’s motivation, are not relevant to the resolution of that question. It must be shown that the defendant was malicious. On the evidence to date, the State has a bona fide defence in that there is an arguable and triable issue as to whether the State, or the police prosecutor, acted maliciously.

48. There is also an arguable and triable issue as to whether the proceedings were pursued without reasonable and probable cause. There is material before me which supports the accusations made. That material has not, of course, been tested in these proceedings. It may be vulnerable to challenge both as to its veracity and as to its admissibility on the bases set out in Mr Cattell’s submissions.

Has the State provided an adequate explanation for the failure to defend the proceedings?

49. The State has provided a clear and cogent explanation for the failure to defend the proceedings, which I believe.

50. The explanation involves three distinct failures in the administrative processes of the NSW Police Force (see [32] above). The linking of the matter in the system on 29 August 2024 with a completed matter, on the basis that the surname “Cattell” was involved in both matters, and the resultant lack of action in the matter, is a concerning failure of the system. The response by the NSW Police Force to the enquiries by the Director, Crown Solicitor’s Office on 12 November 2024 and 20 November 2024, which entirely failed, on both occasions, to address the obvious problem that the matter would proceed through the processes of the Court as time passed, is surprising and, again, concerning.

51. There were two separate administrative failures in the Crown Solicitor’s Office. The first was that the courtesy email to the Crown Solicitor’s Office from the Judicial Registrar of the District Court on 3 October 2024, providing information as to the progress of the matter, was simply ignored. The outcome of the hearing on 22 October 2024, which included the listing of the matter on 12 November 2024 and said that if there was no appearance by the defendant on that occasion, default judgment would be entered, was also sent to the Crown Solicitor’s Office and ignored.

Has Mr Cattell suffered any prejudice?

52. Mr Cattell has not shown that he has suffered any prejudice in the relevant sense, in that there is no suggestion that his ability to prepare and present his case has been affected by the delay caused by the State’s defaults. I acknowledge, however, that, having apparently complied with all of the obligations upon him to serve proceedings, and having pursued his case through three Court hearings without the State responding in any way, despite the Judicial Registrar having taken steps, twice, to further alert the Crown Solicitor’s Office, has resulted in frustration for Mr Cattell and has put him to considerable extra effort and made the pursuit of this litigation more stressful for him.

Is it in the interests of justice to set the default judgment aside?

53. This question is fundamental to the question as to whether the default judgment should be set aside and is also posed, in this context, by s 56(1) and s 57(1)(a) of the Civil Procedure Act 2005.

54. The proceedings raise a serious allegation against the NSW Police Force. On the material before me, an arguable or triable issue in relation to the question of liability is raised by the proceedings. It is in the interests of justice that the questions of fact and the application of the law to the facts be decided in the proceedings.

55. Damages are sought in the proceedings, so the disbursement of public funds is in issue.

Conclusion and order

56. In all of the circumstances, having regard to all of the relevant considerations, the interests of justice require that the default judgment be set aside.

57. The following order will issue:

58. The defendant’s application dated 9 December 2024 is granted and the default judgment entered against the defendant on 12 November 2024 is set aside pursuant to r 36.16(2)(a) of the Uniform Civil Procedure Rules 2005 (NSW).

59. I will hear the parties as to costs.

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