Cattell v State of New South Wales - [2025] NSWDC 116

District Court

New South Wales

Medium Neutral Citation: Cattell v State of New South Wales [2025] NSWDC 116
Hearing dates: 12 March 2025
Date of orders: 9 April 2025
Decision date: 09 April 2025
Jurisdiction: Civil
Before: Cole DCJ
Decision:
(1) 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).

Catchwords:
CIVIL PROCEDURE — Default judgment — Setting aside

Legislation Cited:
Civil Procedure Act 2005
Crown Proceedings Act 1988
Evidence Act 1995
Family Law Act 1975
Uniform Civil Procedure Rules 2005

Cases Cited:
A v State of New South Wales [2007] HCA 10
Dunwoodie v Teachers Mutual Bank Ltd [2014] NSWCA 24
HD v State of New South Wales [2016] NSWCA 85
J & M McNamee Holdings Pty Ltd v Mungerie Vale Pty Ltd trading as Greenwood Group Realtors [2019] NSWCA 283

Category: Principal judgment
Parties: Lucas Cattell (Plaintiff/Respondent) (Self-represented)
State of New South Wales (NSW Police Force) (Defendant/Applicant)
Representation:
Counsel:
W Bruffey (Defendant/Applicant)
Solicitors:
Crown Solicitor’s Office (Defendant/Applicant)

File Number(s): 2024/318181
Publication restriction: Nil

JUDGMENT

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

These proceedings were commenced by the filing of a statement of claim on 26 July 2024.
In the proceedings, Mr Cattell alleges that the State has committed the tort of malicious prosecution against him. Mr Cattell seeks damages.
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Cattell v State of New South Wales

Details

AGLC: Cattell v State of New South Wales [2025] NSWDC 116
Case: [2025] NSWDC 116
Decision Date: 09 April 2025

CaseChat Overview and Summary

The parties involved in this case are Cattell, the plaintiff, and the State of New South Wales, the defendant. The dispute revolves around a default judgment entered against the defendant, which the plaintiff seeks to have set aside. The matter was heard in the Supreme Court of New South Wales. The plaintiff, Cattell, applied to set aside a default judgment entered against the defendant, the State of New South Wales, on 12 November 2024. The defendant had filed an application dated 9 December 2024, seeking to have the default judgment set aside. The legal issues before the court involved determining whether the defendant had a real prospect of successfully defending the plaintiff's claim and whether there were any other compelling reasons to set aside the default judgment. The court had to consider the principles set out in the Uniform Civil Procedure Rules 2005 (NSW) and the relevant case law.

The court examined the application and the supporting affidavits provided by both parties. It assessed whether the defendant had demonstrated a real prospect of successfully defending the plaintiff's claim and whether there were any other compelling reasons to set aside the default judgment. The court noted that the defendant had provided a satisfactory explanation for its delay in filing the application and had shown that it had a real prospect of defending the claim. Additionally, the court considered the public interest in ensuring that disputes are resolved on their merits rather than through default judgments. Based on these considerations, the court concluded that the defendant had met the criteria for setting aside the default judgment. The court granted the defendant's application and set aside the default judgment entered against it on 12 November 2024, pursuant to rule 36.16(2)(a) of the Uniform Civil Procedure Rules 2005 (NSW).

Orders

Orders of the court

(1) 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).

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Cattell v State of New South Wales [2025] NSWDC 116
Hearing dates:	12 March 2025
Date of orders:	9 April 2025
Decision date:	09 April 2025
Jurisdiction:	Civil
Before:	Cole DCJ
Decision:	(1) 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).
Catchwords:	CIVIL PROCEDURE — Default judgment — Setting aside
Legislation Cited:	Civil Procedure Act 2005 Crown Proceedings Act 1988 Evidence Act 1995 Family Law Act 1975 Uniform Civil Procedure Rules 2005
Cases Cited:	A v State of New South Wales [2007] HCA 10 Dunwoodie v Teachers Mutual Bank Ltd [2014] NSWCA 24 HD v State of New South Wales [2016] NSWCA 85 J & M McNamee Holdings Pty Ltd v Mungerie Vale Pty Ltd trading as Greenwood Group Realtors [2019] NSWCA 283
Category:	Principal judgment
Parties:	Lucas Cattell (Plaintiff/Respondent) (Self-represented) State of New South Wales (NSW Police Force) (Defendant/Applicant)
Representation:	Counsel: W Bruffey (Defendant/Applicant) Solicitors: Crown Solicitor’s Office (Defendant/Applicant)
File Number(s):	2024/318181
Publication restriction:	Nil