Citation: Cattell v State of New South Wales [2026] NSWDC 11
Court: District Court of New South Wales
Date: 20 February 2026
Judge(s): Cole DCJ
Background
A self-represented plaintiff brings a malicious prosecution claim against the State of New South Wales arising from two sets of proceedings initiated by NSW Police. The first set involved an apprehended violence order and four assault charges, all dismissed in the Cooma Local Court in April 2024 with a costs order against NSW Police. The second set involved a fresh AVO filed the very next day, which was later withdrawn following an abuse of process application.
The plaintiff alleges that officers were directed by senior colleagues to proceed despite inadequate evidence, that the prosecutions lacked reasonable and probable cause, and that the timing of the proceedings was connected to ongoing family law litigation.
In October 2025, the plaintiff filed two notices of motion seeking leave to administer interrogatories. The first (NOM A) targeted the defendant, the State of New South Wales. The second (NOM B) targeted five non-parties: the former Commissioner of Police, three sitting or former Ministers of the Crown, and a Magistrate.
Legal Issues
- Whether the court should grant leave to serve interrogatories on the defendant under UCPR r 22.1, including whether the "special reasons" test in r 22.1(3) applied to the plaintiff's claim for emotional and psychological harm.
- Whether, even if the special reasons test did not apply, the proposed interrogatories were appropriate and necessary under r 22.1(4).
- Whether the court had power under s 61 of the Civil Procedure Act 2005 (NSW) to order non-parties to answer interrogatories.
- Whether interrogatories directed to non-parties had a sufficient nexus to the proceedings.
Decision
NOM A (Interrogatories to the Defendant)
Cole DCJ noted some uncertainty about whether the special reasons test in UCPR r 22.1(3) applied at all. That rule limits interrogatory orders in claims for "damages arising out of bodily injury," and the judge observed it is contestable whether a claim for emotional and psychological harm falls within that description. Both parties had argued the special reasons test applied, but the judge left the question open.
Regardless of the applicable threshold, the judge refused the application on the merits. The proposed interrogatories were found to be insufficiently relevant, with many questions irrelevant entirely, some seeking opinions or summaries (which interrogatories cannot require), and others improperly seeking the production of documents rather than answers to questions. Many questions were also framed as if directed to an identified individual, when in fact they were addressed to NSW Police as an organisation. The judge concluded that no special reasons had been established and that discovery or other document-production procedures would be a more appropriate avenue. An interrogatory order at this stage would not be conducive to the just, quick, and cheap resolution of the real issues in dispute.
NOM B (Interrogatories to Non-Parties)
The judge rejected the plaintiff's argument that s 61 of the Civil Procedure Act 2005 authorised interrogatory orders against non-parties. Section 61 concerns orders made between parties to proceedings and does not extend to non-parties. None of the five intended recipients were parties to the proceedings. The court held that the proposed interrogatories also lacked a sufficient nexus to the proceedings in any event.
Procedural Note on Late Evidence
The defendant filed an affidavit thirteen days after the court-ordered deadline and only six days before the hearing. Cole DCJ acknowledged the plaintiff's objection but admitted the affidavit on the basis that the factual matters it contained were not controversial. The late filing did not affect the ultimate outcome.
Orders Made
- Notice of Motion dated 27 October 2025 (NOM A, Interrogatories A) refused and dismissed.
- Notice of Motion dated 27 October 2025 (NOM B, Interrogatories B) refused and dismissed.
Key Takeaways
- Under UCPR r 22.1(4), an interrogatory order must be necessary at the time it is made. The District Court found this threshold was not met where discovery or other document-production processes could adequately serve the plaintiff's legitimate informational needs.
- Whether a claim for emotional and psychological harm constitutes a claim for "bodily injury" under UCPR r 22.1(3), thereby triggering the "special reasons" requirement, remains an open question following this decision.
- Interrogatories cannot require a party to produce documents, provide opinions, or prepare summaries. Questions framed in those terms fall outside the permissible scope of the procedure.
- The power to order interrogatories under UCPR r 22.1 is confined to parties to the proceedings. Section 61 of the Civil Procedure Act 2005 does not extend that power to non-parties.
- Proposed interrogatories directed to an organisation such as NSW Police must be framed accordingly. Questions that presuppose an identified individual as the respondent are likely to be defective when no such individual is named.
Legislation and Cases Referenced
Legislation
- Civil Procedure Act 2005 (NSW), ss 56–61
- Uniform Civil Procedure Rules 2005, rr 1.3, 21.1(3), 22.1
Cases
- A v New South Wales [2007] HCA 10
- American Flange and Manufacturing Company Inc v Rheem (Australia) Pty Ltd No 2 [1965] NSWR 193
- Boyle v Downs [1979] 1 NSWLR 192
- Chong v Nguyen [2005] NSWSC 588
- Edwards v Hornsby Shire Council [2014] NSWSC 600
- HD v State of New South Wales [2016] NSWCA 85
- Moore v State of New South Wales [2022] NSWSC 636
- O'Brien v Little [2007] NSWSC 64
- O'Meara v Dr Arianayagam [2006] NSWSC 797
- Priest v State of New South Wales [2006] NSWSC 12
- Ring-Grip (Australasia) Pty Ltd v HPM Industries Pty Ltd [1971] NSWLR 798
- Toth v State of New South Wales [2023] NSWCA 206
- Venacom Pty Ltd v Morgan Brooks Pty Ltd [2006] NSWSC 46
- White & Co v Credit Reform Association and Credit Index Ltd [1905] 1 KB 653