Hatton v Ahmed - [2024] TASSC 44

[2024] TASSC 44

COURT:	SUPREME COURT OF TASMANIA
CITATION:	Hatton v Ahmed [2024] TASSC 44
PARTIES:	HATTON, Adrian Paul
v
AHMED, Sophia
FILE NO:	3377/2022
DELIVERED ON:	23 July 2024
DELIVERED AT:	Hobart
HEARING DATE:	8 May 2024
JUDGMENT OF:	Daly AsJ
CATCHWORDS:

Practice and Procedure – Judgment and execution – Judgments and orders – Judgments entered without trial –

Default judgments – Failure to file a defence – Setting aside judgment - Defence on the merits.

Aust Dig Practice and Procedure [1316-1318]

REPRESENTATION:

Counsel:

Plaintiff: K Cuthbertson SC
Defendant: K Read SC

Solicitors:

Plaintiff: Blumers Personal Injury Lawyers
Defendant: Page Seager Lawyers

Judgment Number:	[2024] TASSC 44
Number of paragraphs:	70

Serial No 44/2024 File No 3377/2022

ADRIAN PAUL HATTON v SOPHIA AHMED

REASONS FOR JUDGMENT	DALY AsJ 23 July 2024
Introduction

1             By interlocutory application dated 1 March 2024, the defendant, Dr Sophia Ahmed ("Dr Ahmed") has applied for an order setting aside the default judgment which was entered against her on 13 February 2024 because of her failure to file or deliver a defence.
2             The plaintiff, Mr Hatton, claims damages for personal injuries suffered as a result of negligent medical diagnosis, medical advice, investigation and treatment provided by the defendant from about 22 December 2015.
3             The dispute on this application is whether the defendant has "pledged her oath to facts which, if proved at trial, could constitute a defence", in the sense referred to in cases such as Jade Holdings Pty Ltd v Allison [2013] TASSC 68 at [3]. Mr Read SC for the applicant submits that there is sufficient material before the Court to satisfy that test; having regard to the evidence and to the draft defence which Dr Ahmed relies upon (which was annexed to Ms Darcey's affidavit sworn 5 March 2024 at annexure AD13). Ms Cuthbertson SC for the respondent says that Dr Ahmed's affidavit in support of the application is insufficient, supporting the conclusion that she does not have a bona fide defence. Ms Cuthbertson submits that Dr Ahmed's affidavit does not aver to facts which support the draft defence which she relies upon (which was annexed to Ms Darcey's affidavit sworn 5 March 2024 at annexure AD13). Ms Cuthbertson submits that Dr Ahmed's failure to adduce evidence demonstrating that she has a bona fide defence to the claim deprives her of the exercise of the discretion to set aside the default judgment in her favour: Dai v Zhu [2013] NSWCA 412.

Rule 355 and applicable legal principles

4 The Supreme Court Rules 2000, r 355 is in the following terms:
"355 Judgment by default set aside
Any judgment by default under these rules may be set aside or varied by the Court or a judge either unconditionally or on any terms the Court or a judge considers appropriate."

5 On this particular application under r 355, the following legal principles are relevant:

(a)

Prima facie, the defendant is entitled…

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 Hatton v Ahmed

Details

AGLC: Hatton v Ahmed [2024] TASSC 44
Case: [2024] TASSC 44
Decision Date: 23 July 2024

CaseChat Overview and Summary

The case of Hatton v Ahmed was before the court where the plaintiff sought to enforce a default judgment entered against the defendant. The defendant subsequently applied to set aside the default judgment, arguing that there were meritorious grounds to defend the claim. The nature of the dispute was primarily procedural, focusing on the enforcement of a judgment and the circumstances under which a default judgment may be set aside.

The central legal issue before the court was whether the defendant's application to set aside the default judgment was valid and whether there were substantial grounds for the defendant to defend the action. The court had to consider the circumstances under which a default judgment may be set aside and whether the defendant had established a bona fide defence on the merits. Additionally, the court needed to assess the defendant's explanation for the failure to file a defence and determine if it was satisfactory.

The court examined the defendant's application and the evidence provided, including the affidavits and supporting documents. It was noted that the defendant had not filed a defence within the required time, leading to the entry of a default judgment. The court considered the defendant's reasons for the delay and the merits of the defence presented. After evaluating the evidence, the court found that the defendant had a plausible defence on the merits and that the delay in filing the defence was reasonably explained. Consequently, the court decided to set aside the default judgment and allow the defendant to file a defence. The court also provided directions for the further progress of the case.

Orders

Orders of the court

See [70].

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Plaintiff:	Blumers Personal Injury Lawyers
Defendant:	Page Seager Lawyers