Lucas Cattell v State of New South Wales

Category: Procedural rulings

Parties: Lucas Cattell (Plaintiff)
State of New South Wales (NSW Police Force) (Defendant)

Representation: Plaintiff (self-represented)
Crown Solicitor’s Office (Defendant)

File Number(s): 2024/318181

Publication restriction: Nil

JUDGMENT

1. The plaintiff filed two notices of motion in this matter on 27 October 2025.

2. In the first notice of motion (‘NOM A’), the plaintiff seeks leave to serve interrogatories on the defendant in the form of interrogatories annexed to the notice of motion. The plaintiff seeks orders that the defendant provide answers to the interrogatories within 28 days of service.

3. In the second notice of motion (‘NOM B’), the plaintiff seeks leave to serve interrogatories on former Commissioner of Police, Karen Webb. The plaintiff also seeks leave to serve interrogatories on Kate Washington MP, Jennifer Aitchison MP and Timothy Crakanthorp MP, all of whom are Ministers or former Ministers of the Crown in right of the State of New South Wales and to Magistrate Clisdell (as he then was). Again, the proposed interrogatories are annexed to the notice of motion. The plaintiff seeks orders that the interrogatories be answered within 28 days of service.

Background

4. By amended statement of claim filed on 29 May 2025, the plaintiff pleads (in part) as follows:

12. On 14 August 2023, the Defendant, through NSW Police Force officers, commenced proceedings against the Plaintiff by issuing a provisional and enforceable Apprehended Violence Order (AVO) in relation to allegations from 2016 and 2017.

13. The AVO was immediately enforceable on an interim basis, named the Plaintiff’s children as persons in need of protection, despite the historic nature of the allegations and no prior concern or allegations about contact with the children.

14. On 30 October 2023, NSW Police charged the Plaintiff with four counts of common assault based on the same historical allegations.

15. The officer in charge of the initial investigation and proceedings was Constable Holt. The Plaintiff was informed by Constable Holt that his supervisor or a senior officer directed him to proceed with charges against his personal recommendation.

16. On 5 April 2024, the AVO and charges were dismissed in the Cooma Local Court, and a costs order was made against NSW Police.

17. On 6 April 2024, NSW Police again initiated proceedings by filing a second AVO application based on historical allegations from 2017 and 2018. The investigation was undertaken by Constable Spence, with oversight from an Inspector and Domestic Violence Officer.

18. On 23 May 2024, the second AVO was withdrawn by NSW Police following the Plaintiff’s application to the Court to have the matter dismissed on the grounds of abuse of process.

19. The Plaintiff alleges that NSW Police, through its officers and relevant supervising sergeant(s), maliciously prosecuted the Plaintiff on both occasions without reasonable and probable cause.

20. The Plaintiff was never given an opportunity to respond to the allegations prior to the initial AVO being filed, and requests to review or withdraw proceedings were repeatedly denied despite admissions from officers that there was insufficient evidence.

21. Particulars of malice:

a. Officers admitted believing the Plaintiff and indicated internal pressure to prosecute despite lack of evidence.

b. NSW Police continued to prosecute the Plaintiff after being made aware that there was insufficient evidence and despite numerous formal requests for the matter to be withdrawn.

c. NSW Police initiated a second set of proceedings immediately after the first was dismissed.

d. The actions were taken in the context of ongoing family law proceedings and appear to have been used to influence those proceedings.

The Plaintiff’s submissions on the notices of motion

5. In his written submission, the plaintiff set out in some detail the procedural history of this matter, and the impact upon him of delays in the course of the proceedings. The plaintiff also set out the context in which the proceedings taken against him by the defendant occurred, including family court proceedings and the present proceedings, and referred to the impact upon his life and financial position of the numerous appearances required before the Local Court, the Family Court and this Court. The plaintiff submitted that the defendant’s opposition to the service of interrogatories should be viewed in the context of its conduct in the procedural steps which have been taken in this matter.

6. The plaintiff objected to the defendant seeking to rely on the affidavit of Ms Stephanie Koch of 27 November 2025. The orders made by the judicial registrar on 29 October 2025 allowed affidavits to be served by the defendant in relation to the notices of motion before 14 November 2025. The affidavit of Ms Koch was served thirteen days late and six days before the hearing of the notices of motion.

7. The plaintiff submitted that he had insufficient time to respond to Ms Koch’s affidavit and insufficient time to seek legal advice. The plaintiff was able to file his own affidavit on 1 December 2025, but submitted that “it could not comprehensively address all the new matters raised by the Defendant due to the late service”. The plaintiff argued that, as a self-represented litigant, he relied upon strict adherence to Court timetables to prepare for his case, and that the defendant’s failure to adhere to the timetable had deprived him of “that fairness”.

8. I will consider the factual matters set out in both Ms Koch’s affidavit and Mr Cattell’s affidavit of 1 December 2025 as those factual matters are not controversial.

9. The plaintiff argued that the Civil Procedure Act 2005 (NSW) (‘the CPA’), in ss 56-60 and Uniform Civil Procedure Rules 2005 (‘UCPR’) r 1.3 “emphasise timely compliance and avoidance of undue delay”. The plaintiff argued that a party who breaches timetable orders cannot expect to rely on late evidence where prejudice has resulted.

10. The plaintiff referred to UCPR r 22.1, which provides, relevantly:

22.1 Interrogatories

(1) At any stage of the proceedings, the court may order any party to answer specified interrogatories.

(2) An application for such an order must be accompanied by a copy of the proposed interrogatories.

(3) In the case of proceedings on—

(a) a claim for damages arising out of the death of, or bodily injury to, any person, or

(b) a claim for contribution in relation to damages so arising,

such an order is not to be made unless the court is satisfied that special reasons exist that justify the making of the order.

(4) In any case, such an order is not to be made unless the court is satisfied that the order is necessary at the time it is made.

(5) An order to answer interrogatories—

(a) may require the answers to be given within a specified time, and

(b) may require the answers, or any of them, to be verified by affidavit, and

(c) in circumstances in which rule 35.3 authorises someone other than the party to whom the order is addressed to make the relevant affidavit, may specify the person to make the affidavit, or the persons from whom the person to make the affidavit may be chosen, in relation to the interrogatories or any of them.

11. The plaintiff, in his statement of claim, seeks “General damages for emotional and psychological harm, reputational damage, and consequential loss arising from malicious prosecution. The UCPR, in r 22.1(3) provides that special reasons must exist to justify an order under r 22.1 in relation to a claim for “damages arising out of the death of, or bodily injury to, any person”. Both parties have addressed the special reasons test, presumably on the basis that the plaintiff’s claim for emotional and psychological harm is a claim for bodily injury. This is contestable. The special reasons test may not apply.

12. The plaintiff submitted, in his written submissions, that, in a malicious prosecution claim, interrogatories are especially appropriate because:

a. the identity of the decision-maker(s) is often disputed,

b. the reasons, motives and subjective beliefs of police officers are central,

c. documents alone (such as police narratives) do not reveal internal reasoning,

d. decision-making pathways within NSW Police are hierarchical and structured.

13. The plaintiff, in his written submissions, referred to A v N**ew South Wales [2007] HCA 10 (‘A v New South Wales’) and submitted that the High Court, in that case, “emphasised the importance of the prosecutor’s state of mind, information available and the organisational context”.

14. The plaintiff also referred to HD v State of New South Wales [2016] NSWCA 85 (‘HD v State of New South Wales’), and said that, in that case, the Court “reiterated that internal knowledge and motivation are probative and can be inferred from circumstances where direct evidence is missing”.

15. The plaintiff argued that the proposed interrogatories would seek exactly the kind of information referred to in A v New South Wales and HD v State of New South Wales.

16. In his written submissions, the plaintiff argued that special reasons exist, in this case, for permitting the service of interrogatories for the following reasons:

a. the Defendant has refused to disclose the key documents voluntarily;

b. the Defendant did not comply with the Notice to Produce;

c. the Defendant served late evidence without leave;

d. the subpoenas have been delayed due to Registry backlog;

e. the Plaintiff cannot otherwise ascertain which officers made the relevant decisions;

f. interrogatories will narrow the issues and facilitate efficient trial preparation.

17. The plaintiff argued that, without the answers to interrogatories, he cannot:

a. identify key witnesses,

b. particularise allegations,

c. understand the decision-making process,

d. cross-examine on belief, motive and information relied upon,

e. assess whether proper policy was followed.

18. The plaintiff argued that, if he is denied leave to serve interrogatories, it would significantly prejudice his ability to “prove essential elements of his case”.

19. With respect to the application for leave to serve interrogatories on non-parties, the plaintiff submitted that their involvement is directly relevant to the decisions in issue and interrogatories are appropriate to elicit explanations “beyond what documents can reveal”.

20. The plaintiff rejects the defendant’s characterisation of the interrogatories as oppressive. The plaintiff submitted that they are “specific, targeted and confined to the acts and decisions relevant to the prosecution”. He rejected the defendant’s submission that they are a “fishing expedition”. He rejects the claim that material sought is available elsewhere.

21. The plaintiff submitted that CPA ss 56-60 are relevant, and that the service of the interrogatories would facilitate the “just, quick and cheap” resolution of the proceedings.

The defendant’s submissions

22. The defendant submitted, in its written submissions, that the onus of establishing that the order requiring the answering of interrogatories is necessary, or that special reasons exist, rests with the plaintiff (O’Meara v Dr Aranayagam [2006] NSWSC 797 at [2] (‘O’Meara’)).

23. The defendant submitted that interrogatories must not exceed the legitimate requirements of the particular occasion (White & Co v Credit Reform Association and Credit Index Ltd [1905] 1 KB 653). The defendant further submitted that it is not permissible to interrogate as to matters beyond the issues disclosed in the pleadings and particulars (Ring-Grip (Australasia) Pty Ltd v HPM Industries Pty Ltd [1971] NSWLR 798).

24. The defendant submitted that the word “necessary” in UCPR r 22.1(4) means necessary in the interests of a fair trial. (Edwards v Hornsby Shire Council [2014] NSWSC 600 at [16]).

25. In relation to the “special reasons” test, the defendant submitted that there must be something unusual or different to take the matter out of the ordinary course (Priest v State of New South Wales [2006] NSWSC 12 at [127]).

The defendant’s submissions in respect of NOM A

26. The defendant relied on the decision of Patten J in O’Brien v Little [2007] NSWSC 64 in relation to the corporate mind. Patten J said, at [20]:

20. There is a further principle which, in my opinion, is relevant to interrogatory 1. It is also relevant to a number of other interrogatories and flows from what Street J said in Tooth & Co Ltd v Lane Cove Municipal Council (No 4) (1968) 2 NSWLR 17 at page 19:

Interrogatory 19 is in the following terms: “What factors did the defendant take into account in defining the local area in respect of which the said local rate was paid and levied?” This interrogatory proceeds from the allegations in the statement of claim upon which issue is taken in the statement of defence, charging that the defendant took into account inadmissible considerations and failed to take into account relevant considerations in connexion with the passing of the resolution mentioned in para 5 of the statement of claim.

I am of the view that the interrogatory should not be allowed. It is directed in its terms to ascertaining what may have been a particular mental process on the part of the defendant. The defendant, being a municipal corporation, has itself no mind. There are, of course, many occasions on which it is necessary to attribute to a municipal corporation attitudes of mind such as purpose, opinion, intention, and the like. These attitudes of mind are, however, fictional, in that they proceed upon the assumption, which is made in each instance that a municipal corporation has a mind. Where a suit raises as a relevant issue the state of mind of an individual, then a properly framed interrogatory directed to the ascertainment of ingredients in that state of mind would no doubt be allowed. Where, however, the suit concerns the act of a municipal corporation it appears to me to be unreal to direct to that corporation an interrogatory upon what matters were present to its mind in relation to a particular event. The inferences drawn and conclusions reached by courts upon purpose, intention or opinion on the part of municipal corporations are drawn and reached as a result of evidence of objective facts. But the fact that in those cases decisions are made that a municipal corporation had a particular mental state does not travel to the extent of raising the fiction that the corporation has in truth a mind, the processes of which can be examined through medium of interrogatories, as is the case with a personal party.

27. The defendant opposed the making of an order requiring it to answer interrogatories in this matter for the following reasons:

28. The plaintiff has failed to demonstrate that there are special reasons or that the interrogatories are necessary at this point in time.

29. Many of the interrogatories are improper, because they seek answers to opinions, or matters outside the issues in dispute, or because they seek the identification of documents rather than answers as to facts.

30. Many of the interrogatories are vexatious or oppressive, contrary to UCPR r 22.2.

31. The defendant submitted that there are no special reasons for the answering of interrogatories. One of the three recognised heads of damage in malicious prosecution actions is a loss of reputation (see Toth v State of New South Wales [2023] NSWCA 206), so the pleading of loss of reputation in this matter does not take it out of the ordinary, and does not constitute special reasons.

32. Reliance upon the fact that psychological or emotional injury is pleaded as constituting special reasons is circular because that pleading is the reason that r 21.1(3) applies in the first place. The special reason must be something other than the alleged injury.

33. In response to the plaintiff’s contention that factual and policy matters, such as “policy application, authorisation of proceedings and handling of withdrawal requests” are within the exclusive knowledge of the defendant, the defendant submitted that many of the proposed interrogatories seek documents and opinions from the defendant as to the compliance with or departure from those policies. These are impermissible because, with respect to the policy documents, they are a substitute for discovery.

34. With respect to the authorisation of each of the proceedings against the plaintiff, the identity of the prosecutors is known. The defendant submitted “The Plaintiff may adduce evidence in cross-examination as to other persons who may or may not have “directed” the prosecutor to make certain decisions. Interrogatories are not an occasion for the Plaintiff to pre-emptively cross-examine”.

35. Concerning the handling of requests to withdraw the proceedings, whilst that may be within the knowledge of the defendant, the defendant submitted that it does not rise to the level of special reasons. There is nothing out of the ordinary about information as to the decisions not to withdraw the charges or AVO against the plaintiff.

36. The defendant submitted that this was not an unusually complex matter of its type and that, in the context of the legislative intention that the administering of interrogatories in personal injury cases will be rare, the plaintiff has not discharged the onus of establishing special reasons.

37. As to the requirement that the order be necessary at the time that it is made, the defendant emphasised that this means necessary for a fair trial (see [24] above).

38. The defendant addressed the suggestion that the interrogatories are necessary in relation to the issue of systemic bias in the NSW Police. The defendant said that the plaintiff may issue subpoenas to obtain NSW Police policies, or establish cultural attitudes to prosecutorial decisions via cross-examination.

39. The defendant submitted that, in so far as the interrogatories sought to elicit opinion evidence, they are improper.

40. As to the plaintiff’s submission that the interrogatories would narrow factual disputes, the defendant said that the application is premature. The plaintiff does not know yet what evidence the defendant will serve.

41. The defendant, in its written submissions, submits:

… many of the 252 interrogatories against the Defendant are plainly a fishing expedition designed to enable the Plaintiff to investigate whether he has a case about matters such as systemic bias, attitudes to domestic violence, policies surrounding Family Court related matters, and alleged policy failures. Such a basis is improper.

39. The defendant submitted that many of the interrogatories address matters which are not the subject of any dispute between the parties. For example, PI 19 asks “Where there any conflicts between state-level directives and your Local Area Command’s local policies? If so, identify each conflict and specify which policy was followed and why”. PI 47 asks “Do official NSW Police training materials, awareness campaigns, or internal communications depict victims primarily as female and perpetrators primarily as male?”. Other interrogatories ask for an opinion about what the future procedure should be in a variety of specified hypothetical fact situations.

40. The defendant submitted that an interrogatory is improper if it seeks the expression of an opinion (see American Flange and Manufacturing Company Inc v Rheem (Australia) Pty Ltd No 2 [1965] NSWR 193).

41. The defendant submitted that the number of interrogatories, and the breadth of the interrogatories, shows that the application is oppressive and a fishing expedition, especially given that the interrogatories are not directed at any particular person.

42. The defendant submitted that the interrogatories in relation to the defendant are oppressive. There are 252 questions. The cost of dealing with them would be disproportionate to the benefit of the answers.

43. The defendant submitted that many of the interrogatories seek facts or documents which would be privileged.

44. In the context of ss 56-60 of the CPA, the defendant submitted that the application in respect of requiring the defendant to answer the interrogatories should be refused.

The defendant’s submissions on NOM B

45. The defendant argues that UCPR r 22.1 empowers the Court to order “any party” to answer specified interrogatories. This does not include non-parties, such as the proposed recipients of the interrogatories the subject of NOM B.

46. In Moore v State of New South Wales [2022] NSWSC 636, Rothman J said, at [15]:

So, it is a question of form rather than substance. I am not dealing with the substance, or any technical objection to the interrogatories at this stage. Only to the fact that, at the moment, those interrogatories, for which leave has been sought, are directed to non-parties; and, pursuant to the provisions of the Uniform Civil Procedure Rules to which I just referred, namely UCPR Part 22, Rule 22.1, interrogatories can be ordered only against parties to the proceedings, and none of the persons to whom the interrogatories are directed are at this stage parties to the proceedings and, therefore, the current request for interrogatories are struck out.

47. The defendant addressed the provisions of the CPA and submitted that s 56 does not confer power upon the court to order a non-party to answer interrogatories.

48. The defendant also addressed s 61 of the CPA, which the plaintiff relied upon. The CPA, in s 61, provides:

61 Directions as to practice and procedure generally

(1) The court may, by order, give such directions as it thinks fit (whether or not inconsistent with rules of court) for the speedy determination of the real issues between the parties to the proceedings.

(2) In particular, the court may, by order, do any one or more of the following—

(a) it may direct any party to proceedings to take specified steps in relation to the proceedings,

(b) it may direct the parties to proceedings as to the time within which specified steps in the proceedings must be completed,

(c) it may give such other directions with respect to the conduct of proceedings as it considers appropriate.

(3) If a party to whom such a direction has been given fails to comply with the direction, the court may, by order, do any one or more of the following—

(a) it may dismiss the proceedings, whether generally, in relation to a particular cause of action or in relation to the whole or part of a particular claim,

(b) it may strike out or limit any claim made by a plaintiff,

(c) it may strike out any defence filed by a defendant, and give judgment accordingly,

(d) it may strike out or amend any document filed by the party, either in whole or in part,

(e) it may strike out, disallow or reject any evidence that the party has adduced or seeks to adduce,

(f) it may direct the party to pay the whole or part of the costs of another party,

(g) it may make such other order or give such other direction as it considers appropriate.

(4) Subsection (3) does not limit any other power the court may have to take action of the kind referred to in that subsection or to take any other action that the court is empowered to take in relation to a failure to comply with a direction given by the court.

49. The defendant argued that, even if s 61 could be read as authorising an order requiring a third party to answer interrogatories, to use it in that way in this matter would be contrary to ss 56-60 of the CPA in that it would not facilitate the just, quick and cheap resolution of the real issues in the proceedings.

50. The defendant submitted that none of the interrogatories proposed to be served upon non-parties are necessary for a fair trial. They are directed to broad policy issues and not to the decisions made in the matters the subject of these proceedings.

51. The defendant submitted that there are no special reasons to the interrogatory the subject of NOM B, even if there is power to order that they be answered.

52. The defendant argued that the non-party interrogatories do not relate directly to a matter in issue between the parties and are oppressive and vexatious.

Consideration

NOM A

53. The interrogatories the subject of NOM A are directed at the NSW Police Force (State-Level Policy and Guidance), (State-Level Policy and Culture), (State-Level Training and Policy), (Documentation and Oversight), (State-Level Policy and Legal Awareness), (Institutional Accountability) NSW Police Force (Professional Standards and Oversight) and Local Area Command (Port Stephens-Hunter/Newcastle Practice and Implementation). Section 6 of the interrogatories is entitled “Interaction and Evidence” and many of the questions within it refer to “you”, without naming the person who is expected to respond. Many of the questions in the interrogatories are directed at obtaining information regarding policy. Some of the questions seek opinions.

54. The onus of establishing that an order requiring the answering of interrogatories is necessary, or that special reasons exist, is on the plaintiff (see O’Meara).

55. Pursuant to r 22.1 UCPR, it must be established that the order is necessary at the time it is made and special reasons must be shown to exist. “Necessary” means necessary for the fair disposition of the proceedings or necessary in the interests of a fair trial (Boyle v Downs [1979] 1 NSWLR 192 at p 204-205 and Chong v Nguye**n [2005] NSWSC 588 at [12]-[16]). “Special” means out of the ordinary (see [25], above).

56. The subject matter of interrogatories must not go beyond the subject matter of the pleadings (Ring-Grip (Australasia) Pty Ltd v HPM Industries Pty Ltd [1971] NSWLR 798).

57. The proceedings allege malicious prosecution in two applications for an apprehended violence order (AVO) against the plaintiff. It is stated, in the amended statement of claim, that the first application for an AVO was made by Constable Holt. It is alleged that Constable Holt told Mr Cattell that “his supervisor or a senior officer directed him to proceed with charges against his personal recommendation”. The second application for an AVO was made by Constable Spence.

58. In A v New South Wales, the High Court set out the four elements of the tort of malicious prosecution at [1]:

1. GLEESON CJ, GUMMOW, KIRBY, HAYNE, HEYDON AND CRENNAN JJ. …. For a plaintiff to succeed in an action for damages for malicious prosecution the plaintiff must establish:

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

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

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

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

59. In A v New South Wales, the High Court said, “malice is a broader concept than ill-will or spite, and means an improper purpose”.

60. In A v New South Wales, the High Court said, at [38]-[43]:

38. For the reasons explained by the House of Lords in Glinski v McIver [19], justice requires that the prosecutor, the person who effectively sets criminal proceedings in motion, accept the form of responsibility, or accountability, imposed by the tort of malicious prosecution. Insofar as one element of the tort concerns reasonable and probable cause, the question is not abstract or purely objective. The question is whether the prosecutor had reasonable and probable cause to do what he did; not whether, regardless of the prosecutor's knowledge or belief, there was reasonable and probable cause for a charge to be laid. The question involves both an objective and a subjective aspect.

39. The standard form of pleading alleges that the defendant acted (maliciously and) without reasonable and probable cause. A plaintiff who sets out to prove that allegation may, or may not, endeavour to establish, by direct evidence (including admissions), or inference, something about a defendant's belief. In a jury trial that may raise an issue for the jury. At a trial without a jury, that may raise for the judge's decision a specific question of fact. The nature of the question may depend upon what, in the circumstances of the case, is said to demonstrate that a defendant did not have reasonable and probable cause to prosecute. Those circumstances, in turn, may be affected by the nature of the allegations, and the prosecutor's capacity to form an opinion about their strength and reliability.

40. Similarly, where a plaintiff alleges that a prosecutor acted maliciously, that is, for an improper purpose, not for the purpose of carrying the law into effect, the circumstances of the prosecution may determine the nature of the case the plaintiff will seek to make. Absence of reasonable and probable cause may, in a given case, be evidence of malice; but there are two separate issues to be decided.

41. In the case of a public prosecution, initiated by a police officer, or a Director of Public Prosecutions or some other authority, 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.

42. In the present case, which is not unusual, the second respondent's conduct was being overseen by other authorities (that, indeed, is said to be part of the problem), and he must have been aware that, soon after the charges were laid, the proceedings could be taken over by an independent prosecuting authority and, presumably, discontinued if the view were taken that there was not a proper case to go forward. 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 scrutiny and to potential review.

43. At a jury trial, where a question relevant to the issue of reasonable and probable cause is left to a jury, it is usual for that question to precede a question concerning malice, which is always a question for the jury. That is because of a concern that an adverse conclusion about malice could, in effect, swamp the other issues. It is convenient, in this case, first to deal with the issue of reasonable and probable cause and, in that connection, the nature of the belief that is relevant, and then to consider the issue of malice.

61. Mr Cattell submitted that the High Court’s decision supports his application for an order requiring answers to interrogatories which enquire into a range of institutional policies and training programs in the NSW Police. However, it seems to me that the reference to the “organisational setting” in A v New South Wales relates to the question of whether the officer who initiated the proceedings made the decision to initiate the proceedings themselves or was acting under direction. The reference also refer to the possibility that the officer who initiated the proceedings may not be the officer who decides, subsequently, whether or not to maintain the proceedings. The High Court, in A v New South Wales, does not support the use of pre-trial procedures in malicious prosecutions to engage in a wide-ranging enquiry into the possibility of systemic gender bias in the organisational culture. Proceedings for malicious prosecution are focussed on the decision to initiate the proceedings in issue and, where any subsequent decision to maintain them is alleged to have been made maliciously or without reasonable and probable cause, that decision. Pre-trial information gathering processes must also be focussed on those decisions, consistently with the authorities cited in [55]-[56], above.

62. The plaintiff is seeking to obtain information from the defendant by means of an order requiring answers to the 252 questions which are the subject of NOM A.

63. Many of the interrogatories the subject of NOM A actually seek the disclosure of documents. Mr Cattell says, in his affidavit, that he has sought to have Notices to Produce issued by the Registry, but that the Registry has not yet issued those Notices. The UCPR, in r 21.2 also provides for the seeking of an order for discovery. Mr Cattell said, in his affidavit, that discovery has not been provided. Discovery is not provided by a party spontaneously. It is for the plaintiff to seek an order for discovery if documents are sought. In A v New South Wales, at [58]-[59], the High Court says that the material before the officer who made the impugned decision “… must be assessed in two ways. What did the prosecutor make of it? What should the prosecutor have made of it?”. Interrogatories 25 – 29 may be attempting to address this subject matter without having the benefit of knowing what it is and what it says. An order requiring that answers be given to those interrogatories is not necessary at this time, and the interrogatories are not sufficiently focussed on the relevant evidence, but more targeted interrogatories may become necessary when the material has been provided to the plaintiff.

64. The defendant argued that the time at which interrogatories may be necessary may be a time after each party has served its evidence. This ignores the fact that the plaintiff requires more information before his evidence can be formulated. The defendant argued that some of the information sought by the interrogatories would be more appropriately sought in cross-examination. I reject this submission in the context of this matter. The plaintiff does not know who the defendant will call to give evidence, and cannot rely upon cross-examination to make his case. The decision by Campbell J in Venacom Pty Ltd v Morgan Brooks Pty Ltd [2006] NSWSC 46 at [12] that it is premature for interrogatories to be delivered prior to the service of the plaintiff’s evidence related to interrogatories sought to be delivered by the defendant, not, as here, the plaintiff. Clearly, one factor which will be relevant to the time at which interrogatories may be “necessary” is whether the party seeking to deliver them bears the onus of proof.

65. The interrogatories the plaintiff seeks to serve are oppressive. They ask a range of questions about matters which are not sufficiently relevant to these proceedings, and many of the questions are not relevant at all to the proceedings. Some of the questions seek opinions, or the preparation of summaries, which is not permissible. As I have said, many of the questions seek the provision of documents, which is not the function of interrogatories, but can conveniently be sought by way of discovery. The questions are directed to the NSW Police Force, but many of them require information predicated upon the respondent to the question being an individual in circumstances where that individual is not identified.

66. At present, no special reasons have been established for the making of an order under r 22.1 of the UCPR with respect to the interrogatories the subject of NOM A. A discovery process or other procedure for the obtaining of documents may provide the plaintiff with the material relevant to his claim.

67. An order under r 22.1 of the UCPR at this time in relation to the interrogatories the subject of NOM A would not be conducive to the just, quick and cheap resolution of the real issues in the proceedings.

NOM B

68. The power to order a party to answer specified interrogatories in r 22.1 of the UCPR is limited to an order to a party to the proceedings. None of the intended recipients of the interrogatories the subject of NOM B are parties to these proceedings.

69. The plaintiff argued that s 61 of the CPA (see [48] above) authorised an order with respect to the answering of interrogatories by non-parties.

70. I reject the submission that s 61 of the CPA gives the Court power to make an order with respect to non-parties. Section 61 deals, generally, with orders to be made between parties. It does not refer specifically to non-parties.

71. In any event, the interrogatories sought to be served upon the non-parties do not have a sufficient nexus to the proceedings to be the subject of an order under r 22.1 of the UCPR.

Conclusion and orders

72. For the reasons stated above, the applications in NOM A and NOM B in relation to the interrogatories provided with those notices of motion will be refused.

73. The following orders will issue:

74. Notice of Motion dated 27 October 2025 at 10:42am and labelled NOM – Interrogatories A is refused and dismissed.

75. Notice of Motion dated 27 October 2025 at 11:15am and labelled NOM – Interrogatories B is refused and dismissed.

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