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 to have the action tried in her presence, to dispute her opponent's case, to cross-examine her opponent's witnesses, to call her own witnesses and to give her own evidence: Grimshaw v Dunbar (1953) 1 QB 408 at 416.
(b)	It is necessary to consider how, if the applicant says some serious defence can be set up, it came about that the judgment was entered: Evans v Bartlam [1937] AC 473 at 482.
(c)	The explanation for the failure to take the procedural step (here: filing and delivery of a defence) which resulted in the entry of judgment may be important in considering whether there is a bona fide intention of defending the claim, but a mere finding that the explanation is insufficient does

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not mean that the set aside application should fail: Vann v Alford (1986) 130 SJ 682;

Kostokanellis v Allen [1974] VR 596 at 605.

(d)	There is a composite question whether the applicant has shown a bona fide defence on the merits: Adams v Kennick Trading (International) (1986) 4 NSWLR 503 at 507 per Hope JA, Glass JA agreeing. The defendant must produce evidence that she has a prima facie defence: Evans v Bartlam (above); and the defendant should establish her bona fides in setting up that defence: Simpson & Anor v Alexander (1926) 26 SR (NSW) 296 at 301, Adams v Kennick Trading (International) (1986) 4 NSWLR 503 at 506-507 per Hope JA, Glass JA agreeing. Bona fide in this context means that the defence is brought sincerely and in good faith.
(e)	The question whether there is a defence on the merits is the dominant feature to be weighed against the applicant's explanation both for the default and for any delay as well as against prejudice to the other party: Shocked v Goldschmidt (1998) 1 All ER 372 at 379.
(f)	It is necessary to consider whether any useful purpose would be served by setting aside the judgment; and no useful purpose would be served if there were no possible defence to the action: Evans v Bartlam at 482.
(g)	The defence on the merits may be on the defendant's version of the facts or a purely technical defence: e.g. Term Sales Pty Ltd v Joseph [1950] 67 WN (NSW) 44 at 49; Ampol Petroleum (Qld) Pty Ltd v Easton [1955] QWN 46.
(h)	"The Court does not have to be affirmatively satisfied by the defendant that she must succeed at the hearing … it is sufficient if there is material on oath from which it appears that she has a defence that is fairly arguable in law or fact and in respect to which it is desirable in the interests of justice that she should be allowed to obtain a decision from the appropriate tribunal after a hearing. Sometimes the court can be satisfied of this on quite scant material … It is enough for a defendant by affidavit to show the nature of the defence, not the whole of the evidence by which he hopes to establish it:" Reinehr Industrial Lease & Finance Pty Ltd v Jordan Unreported, NSWCA 4 June 1974, (NSWCA per Street ACJ, Hardie and Glass JJ agreeing) citing Cuttle v Brandt (1947) 64 WN (NSW) 96 at 98.

Background to the entry of the default judgment - the explanation for the failure to deliver a defence

6             The judgment was entered in default of the delivery of a defence. The writ was filed on 9 December 2022 and served on or about 15 December 2022, but prior to that, the plaintiff had provided the defendant's lawyers with medical reports, a histology report and some clinical records in late April 2022. The defendant filed a notice of appearance on or about 20 December 2022 and during the months that followed, the lawyers for the parties were in communication about the delivery of a statement of claim, which was served on 17 April 2023.

7             From December 2022 until a recent date when the defendant's legal advisers raised the issue of her professional indemnity with her, the defendant's legal advisors experienced very significant difficulty obtaining instructions from her. In May, June, August and October 2023, the plaintiff's lawyer, Mr Cocker, made enquiries of the defendant's lawyer, Ms Frost, about when a defence might be expected. During that period, Ms Frost had informed Mr Cocker about the difficulty she was having in getting instructions from the defendant. On 2 February 2024 Mr Cocker wrote to Ms Frost that he was instructed to enter judgment unless a defence was filed within seven days. Those seven days passed without any response from Ms Frost and without any defence being delivered. On 13 February 2024 at 10:22am, the interlocutory judgment was entered. At 12:29pm that day, Ms Frost asked Mr Cocker for a further 14 days to provide the defence on the basis that it had now been drafted and provided to her

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client and she was waiting for instructions. Mr Cocker told Ms Frost he had already filed the default
judgment.

8            This application was filed on 1 March 2024. The defendant swore an affidavit on 3 May 2024. It contained no comment on or explanation for her failure to deliver a defence. Such explanation as does exist is to be found in the affidavits of her legal practitioners. Ms Alexandra Darcey affirmed two affidavits: on 1 March 2024 and on 5 March 2024 and Ms Harriet Frost swore her affidavit on 3 May 2024. Ms Darcey states that Mr Wilkins had provided a draft defence to Dr Ahmed as early as 2 May 2023. That draft defence was prepared from the materials that were then available, which included Mr Hatton's medical records. However on 10 August 2023, Ms Frost informed Mr Cocker that she was "still in the process of finalising the defence". Ms Darcey's affidavit sworn 1 March 2024 deposes that between November 2023 and December 2023 she and Dr Ahmed tried unsuccessfully to find time to speak to one another in relation to Dr Ahmed's "response letter"[1] which I infer related at least in part to the plaintiff's claim and to the draft defence provided by Mr Wilkins. Ms Darcey deposed that on 29 January 2024 she spoke to Dr Ahmed about an unrelated matter and Dr Ahmed became upset with her and "ceased all contact" with both her and her medical indemnity insurer.[2] On the "unrelated matter", Dr Ahmed resumed contact with Ms Darcey on or about 12 February 2024. On 13 February 2024 Ms Darcey told Ms Frost that the defendant had resumed communications and so Ms Frost almost immediately contacted Mr Cocker but it was too late because the default judgment had already been entered earlier that same day.

[1] See annexure AD8 to Ms Darcey's affidavit affirmed 1 March 2024.

[2] At paragraph 29.

9   In her affidavit Ms Frost said, at par [16] and [17]:

"16	I did not pay sufficient attention to Mr Cocker's email given the history of acquiesced delays and my regular updates that I had provided to Mr Cocker regarding the difficulties in getting instructions from Dr Ahmed.
17	I had thought that Mr Cocker would have advised me prior to filing given the ongoing communication between the parties."

10           In her second and most recent affidavit affirmed 5 March 2024, Ms Darcey says that she had taken instructions from Dr Ahmed in relation to the draft defence annexed as "AD13", and that it is the defendant's intention to instruct her to file it ("the draft defence"). However, Ms Cuthbertson correctly observes that there is nothing in Dr Ahmed's affidavit that says anything to the effect that she had seen the draft defence and that she agreed with the factual matters contained within it. For that reason, Ms Cuthbertson submitted that close attention be paid to what is in the draft defence when considering whether it has merit. Having said that, it appears to be reasonably open to infer from what Dr Ahmed says in her affidavit, comparing that to what is in the draft defence, that the draft defence was indeed prepared on the basis of the material identified by Ms Darcey in her affidavit sworn 1 March 2024, together with the defendant's instructions as reflected in Dr Ahmed's affidavit. It would be unreasonable to approach what Ms Darcey says about the preparation of the draft defence on any other basis.

11           In conclusion, on 2 February 2024 Mr Cocker had communicated his instructions to Ms Frost in unequivocal terms, in relation to the defence which had been sought by the plaintiff since (at the latest) 9 May 2023. The time limit imposed by Mr Cocker had expired without Ms Frost providing any response. According to Ms Frost, prior to 2 February 2024, Mr Cocker had requested a defence on at least four earlier occasions without success. I infer that on 13 February 2024 when the default judgment was entered, the defendant's lawyers were still without instructions to deliver a defence, despite Dr Ahmed having had the draft defence for about nine months (since 2 May 2023).

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12           Having regard to the foregoing, in my view there has been no reasonable explanation advanced by Dr Ahmed in relation to the failure to deliver a defence. Nothing in Dr Ahmed's affidavit touches upon the delay or her response to her lawyers' statements about their efforts to draft and deliver a defence on her behalf. Even so, the absence of a reasonable explanation is but one factor to be taken into account. It is not per se decisive. But it is a weighty factor.

Mr Hatton's claim and Dr Ahmed's proposed draft defence

13           In essence, Mr Hatton alleges that Dr Ahmed breached her duty of care to him by failing to respond adequately to the results of the PSA tests she had ordered (paragraphs 1-5). Mr Hatton pleads that Dr Ahmed held herself out as capable and competent to provide proper and adequate medical advice and treatment to the public including as a General Practitioner, and with regard to diagnosis and management of a range of medical conditions (claim par 5). Dr Ahmed denies that, stating she held herself out as capable and competent to advise and treat the public only within the bounds of her qualifications and experience as a General Practitioner (draft defence par 5). In her affidavit (par 4), Dr Ahmed states that she was under direct one on one supervision by Dr Ian Almond because she was a non-vocationally registered General Practitioner, having not yet finished fellowship with the Royal Australian College of General Practitioners.

14           It is common ground that Dr Ahmed arranged for five PSA tests to be conducted. The normal reference range for the level of PSA is <2.9 µg/L. In this case, the level of PSA revealed by each test was as follows:

- firstly on 22 December 2015 – with a PSA level of 7.1 µg/L;

- secondly on 22 January 2016 – with a PSA level 6.4 µg/L;

- thirdly on 9 July 2016 – with a PSA level of 6.5 µg/L;

- fourthly on 21 August 2018 – with a PSA level of 17.5 µg/L; and

- fifthly on 12 December 2019 – with a PSA level of 25 µg/L.

15   It is also common ground that each of the pathology reports containing the results of the PSA

tests, stated:

"[a]n elevated PSA level <10 µg/L is associated with an increased risk of neoplasia. If indicated, suggest a confirmatory total PSA in 2 to 4 weeks together with a free/total PSA ratio."

The first PSA test

16        Paragraphs 6 to 8 of the statement of claim allege the acts and omissions by Dr Ahmed related to the first PSA test on 22 December 2015 by which Mr Hatton alleges Dr Ahmed breached her duty of care to him. Mr Hatton alleges that in view of his PSA level, Dr Ahmed should have conducted a repeat PSA test and a "free to total PSA percentage test" - within 2-4 weeks as per the reference in the first PSA test report - or within 1-3 months as recommended by the NHMRC "Clinical Practice Guidelines for PSA Testing and Early Management of Test Detected Prostate Cancer" ("the NHMRC guidelines"). At par 9 of the statement of claim, Mr Hatton pleads that when he consulted with Dr Ahmed on 22 January 2016, she failed to refer him for a further total PSA test.

17           Dr Ahmed's draft defence at par 8(a) pleads "reasonable medical practice on 24 December 2015 was to rule out prostatitis by facilitating the relevant tests and to review the plaintiff in 5 days time". Consistently, Dr Ahmed's draft defence admits par 8.2 of the statement of claim that she reviewed Mr Hatton on 29 December 2015, but denies that she ought to have heeded the recommendation in the NHMRC guidelines. Dr Ahmed admits she prescribed doxycycline to treat possible prostatitis. At par 9 of her draft defence, Dr Ahmed says that a free to total PSA test was not required and would have had little diagnostic value.

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18        In her affidavit at par 2 Dr Ahmed said she knew that the first PSA test result could have been a result of benign prostatic hyperplasia, infection in the prostate, or a developing prostatic lesion, and so she put Mr Hatton on a course of antibiotics and referred him for a further PSA test and for STI and urine testing. Paragraphs 12-14 of Dr Ahmed's affidavit are relevant to par 9 of the draft defence relating to the alleged failure to arrange a free to total PSA test for Mr Hatton. In those paragraphs Dr Ahmed asserts that there is no clear ratio of free to total PSA that reliably differentiates prostate cancer from other conditions. She states:

"12	PSA values require interpretation by the patient's General Practitioner, in the context of the individual patient's risk factors and consideration of the entirety of the patient's presentation and history.
13	Prostate cancer is associated with a lower percentage of free PSA in the serum as compared with benign conditions but there is no clear ratio of free to total PSA that reliably differentiates prostate cancer from other conditions.
14	It is my practice to take a patient-centric approach to the decision to test and retest and is made after discussion with the patient."

19           Dr Ahmed's affidavit does not refer to the diagnostic value of a free to total PSA test (she merely mentions that the urologist did not order one). Even so, it is open to conclude that par 13 – and to a lesser extent par 16 - forms the basis for the assertion in par 9 of the draft defence that a free to total PSA test would have little diagnostic value.

20           On this basis, Dr Ahmed's affidavit provides some evidence supporting the pleading in pars 8 and 9 of the draft defence, which respond directly to the merits of pars 8 and 9 of the statement of claim.

The second PSA test

21           It is common ground that on 8 January 2016 Mr Hatton consulted Dr Ahmed again by which time he had completed a course of doxycycline antibiotic; and that Dr Ahmed referred him for the second PSA test which (on 22 January 2016) returned a PSA level of 6.4 µg/L.[3] Paragraph 10 of the statement of claim pleads that on 22 January 2016 Mr Hatton consulted Dr Ahmed again and that she noted his raised PSA and recommended the second PSA test but failed to request a free to total PSA test. It is pleaded that Dr Ahmed recommended that Mr Hatton see Dr Almond for a digital rectal examination and ultrasound if the PSA was still raised. Paragraph 11 pleads that Dr Ahmed failed to take certain steps required by reasonable medical practice, in light of the second PSA test result, namely to:

[3] Para 9 of the Statement of Claim and Defence respectively.

(a)	arrange a free to total PSA test;
(b)	recognise that the NHMRC guidelines recommended that a biopsy was required;
(c)	recognise that a digital rectal examination and/or an ultrasound would not be determinative and that the plaintiff required a biopsy of the prostate; and
(d)	refer the plaintiff to a urologist for a biopsy of the prostate.

22           Dr Ahmed's draft defence at par 10(e) pleads that the pathology report from the first PSA test stated that "… other conditions such as benign prostatic hyperplasia, prostatitis and urinary tract infection may give similar total PSA values". Consistently, her affidavit at par 2 states that she knew the PSA level from the first test could have been the result of those conditions - or a developing prostatic

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lesion - and as a result she put Mr Hatton on a course of antibiotics and referred him for a second PSA
test and for STI and urine testing.

23           Dr Ahmed's draft defence, par 11(a) denies that reasonable medical practice required her to request the free to total PSA test after 22 January 2016 because the results of that test would have had little diagnostic value. Dr Ahmed's affidavit at par 13 deposes that there is no clear ratio of free to total PSA that reliably differentiates prostate cancer from other conditions. Paragraph 11(b) denies that a biopsy was required and pleads that a decision to conduct a biopsy was one to be made by a specialist urologist – consistently with par 15 of her affidavit. Paragraph 11(c) admits that she recognised that a digital rectal examination and/or ultrasound would not be determinative but denies that a biopsy was required. Dr Ahmed pleads at par 11(c) that a clinical decision as to whether a biopsy should be performed was one to be made by a specialist urologist (consistently with par 15 of her affidavit), and that she referred Mr Hatton to Dr Almond for a "second opinion in relation to the management of [Mr Hatton's] condition noting Dr Almond's seniority and extensive experience of dealing with prostate conditions in men". Dr Ahmed's affidavit at par 4 explains that Dr Almond was her supervisor. While par 11(c) of the draft defence links the denial that reasonable medical practice required her to refer Mr Hatton for a biopsy after the second PSA test with her referring Mr Hatton to Dr Almond, Dr Ahmed's affidavit does not expressly connect these acts or omissions. Both the draft defence and Dr Ahmed's affidavit state that after the second PSA test she immediately referred Mr Hatton to Dr Almond for review. Dr Ahmed's affidavit at par 3 states that when the second PSA test came back after he had completed the course of antibiotics, she immediately referred him to Dr Almond for review. At par 4, Dr Ahmed explains that she was conducting her medical practice under Dr Almond's direct one on one supervision because she was a non-vocationally registered General Practitioner, having not yet finished her fellowship with the Royal Australian College of General Practitioners.

24           As discussed below, at par 5 Dr Ahmed states what she knew about the result of Mr Hatton's consultation with Dr Almond (a slightly enlarged, smooth prostate) and the result of the ultrasound (mild prostatomegaly - but no other abnormality).

25           It appears sufficiently clear – although not expressly stated - that Dr Ahmed intends to defend the claim on the basis that the referral to Dr Almond was reasonable medical practice. The draft defence refers to a "second opinion" from Dr Almond, but the affidavit refers only to a "review". Even though pars 3 and 4 of the affidavit are vague, they are probably enough to show the nature of this aspect of Dr Ahmed's defence even though she does not state the whole of the evidence by which she hopes to establish it.[4]

Between the second and third PSA tests

[4] Reinehr Industrial Lease & Finance Pty Ltd v Jordan, unreported, NSWCA 4 June 1974. 5 Reinehr Industrial Lease & Finance Pty Ltd v Jordan , unreported, NSWCA 4 June 1974. 6 Civil Liability Act 2002, s11(1)(a). See SC/DD pars 36-39.

26           It is common ground that after the second PSA test on 29 January 2016, Dr Almond conducted a digital rectal examination of Mr Hatton and identified a slightly enlarged, smooth prostate. It is also common ground that Dr Almond referred Mr Hatton for an ultrasound, which took place on 1 February 2016 and detected mild prostatomegaly. It is also common ground that Mr Hatton subsequently consulted Dr Ahmed on 26 February 2016, who recorded that (a) she reviewed the ultrasound; and (b) that Mr Hatton was "to be referred" to urologist Dr Gogia.

27          The statement of claim at par 16 pleads that as a result of the second PSA test - as at 26 February 2016 - reasonable medical practice required Dr Ahmed to:

(a) regard Mr Hatton as having prostate cancer until proved otherwise, requiring specialist referral and review by a urologist;

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(b)	arrange a free to total PSA test;
(c)	recognise that the ultrasound did not exclude potential prostate cancer;
(d)	advise Mr Hatton of his elevated PSA levels, enlarged prostate, risk of neoplasia or cancer and that he required referral to a urologist;
(e)	refer Mr Hatton to Dr Gogia; and

(f) resubmit the plaintiff's file in one month to ensure the referral to a urologist took place. Dr Ahmed's draft defence admits par 16(c), denies 16(b) and does not admit (a), (d)-(f).

28

29           Paragraph 17 of the statement of claim pleads two propositions, which the draft defence does not admit: (a) that Dr Ahmed failed to undertake the steps in para 16; and (b) that she should have referred Mr Hatton to Dr Gogia. Nor does the draft defence admit pars 18 and 19 of the statement of claim which plead that on 11 March 2016 and 1 July 2016 respectively, Mr Hatton consulted Dr Ahmed again, on which occasions she took no steps to follow up the referral to Dr Gogia.

30           Dr Ahmed's affidavit does not refer to the draft defence, but pars 3-5 of Dr Ahmed's affidavit refer to supervision by – and referral of Mr Hatton to - Dr Almond. In par 16 of the draft defence where Dr Ahmed takes issue with what was required by way of reasonable medical practice, paras 12-14 of her affidavit would appear to be the only ones which could have any relevance. Those paragraphs have some relevance insofar as they state that the PSA level may not reliably differentiate prostate cancer from other conditions and that Dr Ahmed's practice was "to test and retest" and it involved "discussion with the patient". I infer that Dr Ahmed asserts that she treated Mr Hatton in accordance with that practice and it is therefore open to conclude that this statement is the evidentiary basis for the non- admissions of what is alleged as required by competent medical practice as at 29 January 2016 and/or 26 February 2016.

31           As stated above in relation to par 11 of the draft defence, pars 12-14 of the affidavit show the nature of Dr Ahmed's defence even though she does not state the whole of the evidence by which she hopes to establish it.5 It is open to infer that Dr Ahmed will point to evidence of steps that Dr Gogia took or did not take (as set out in pars 16 and 17 of her affidavit) to support the proposition that her treatment of Mr Hatton did not depart from the standard of care required of her in the circumstances.

The third PSA test

32           It is common ground that on 9 July 2016 Mr Hatton underwent the third PSA test, returning a PSA level of 6.5 µg/L: statement of claim par 20. The draft defence, par 20, pleads (a) that this result demonstrated a very small rise in the PSA level from the second PSA test (6.4 µg/L) and demonstrated "a sustained drop in PSA reported in the first PSA test" (7.1 µg/L); and (b) that "… other conditions such as benign prostatic hyperplasia, prostatitis and urinary tract infection may give similar total PSA values" (repeating the pleading in par 11 of the draft defence dealing with an identical statement in the pathology report containing the second PSA test result).

33           The statement of claim at par 21 pleads that following the third PSA test, reasonable medical practice required Dr Ahmed to: (a) follow up the referral to Dr Gogia; (b) recognise that Mr Hatton had not been reviewed by Dr Gogia; and (c) take the steps listed at pars 16 (a)-(d) of the statement of claim. Dr Ahmed's draft defence does not admit that reasonable medical practice required her to take any of those steps (see the comments made above in relation to pars 16 and 17 of the statement of claim and draft defence respectively).

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34           Paragraph 20 of the draft defence is supported in Dr Ahmed's affidavit, par 7 where she states that the results of this third test were "only marginally higher than the last test and still lower than the first test results". Paragraph 2 of Dr Ahmed's affidavit sets out the state of her knowledge that conditions such as benign prostatic hyperplasia, prostatitis and urinary tract infection may give similar total PSA values to those indicating prostate cancer, as pleaded at par 20 (b)(ii) of the draft defence.

35           I turn now to consider par 21 of the draft defence. In her affidavit at par 7, Dr Ahmed said she discussed the results of the third PSA test with Mr Hatton, but she does not say anything about what was discussed. Dr Ahmed says nothing about how or why she takes issue with the allegation that she failed to refer Mr Hatton for review by a urologist at pars 21 (a) and (b) of the statement of claim. Dr Ahmed says she discussed the result with Mr Hatton but does not say what was discussed.

36           Paragraph 2 of Dr Ahmed's affidavit is arguably relevant. Dr Ahmed's approach to the higher, first test result was that it could be consistent with benign prostatic hyperplasia, prostatitis or urinary tract infection. Noting that antibiotics had already been tried; and assuming that at least benign prostatic hyperplasia may alternatively give a similar total PSA value, Dr Ahmed's practice in pars 12-14 of her affidavit are somewhat responsive to the claim. While the evidence of Dr Ahmed's practice does not expressly engage with pars 16 (a)-(d), I infer that Dr Ahmed asserts that the PSA tests were not to be regarded as indicative of prostate cancer to the point where she would actually refer Mr Hatton to Dr Gogia at this point, even though she made the prior recommendation in February 2016. Whatever the ultimate merit of that proposition, it seems to be a question to be resolved at the trial of the action.

1. Dr Ahmed's affidavit material - while scant – indicates the nature of the defence to the pleaded claim relating to the circumstances as at 9 July 2016, although she does not state the whole of the evidence by which she hopes to establish it. Consistently with the analysis of the draft defence par 11, above, I infer that Dr Ahmed will argue that the evidence of steps taken or not taken by Dr Gogia (as set out in pars 16 and 17 of her affidavit) support the proposition that her treatment of Mr Hatton did not depart from the standard of care required of her in the circumstances.

38           It is common ground that Dr Ahmed initiated contact with Mr Hatton about the results of the third PSA test and that she consulted with him again on 10 August 2016. The statement of claim pleads that she again failed to undertake the steps referred to in par 21 and 16 (a)-(d) including failing to refer him to a urologist and to arrange a free to total PSA test. Dr Ahmed's draft defence at par 22(c) pleads variously that (i) during the consultation on 10 August 2016 Mr Hatton told her that he was going overseas the following week; and (ii) on about 9 December 2016, Mr Hatton called and said he was going to the UK the next day. Dr Ahmed's affidavit at par 8 refers to a call from Mr Hatton saying he was going to the UK the next day; and par 9 states that the next time she saw Mr Hatton was over six months later because he had been in the UK – I assume that to be 18 August 2018 (par 10 of her affidavit). Arguably therefore, pars 21 and 22 of the draft defence find some evidentiary support in Dr Ahmed's affidavit. Dr Ahmed says nothing material to any specific aspect of her treatment of Mr Hatton nor does she say anything about the content of any discussion or contact she had with Mr Hatton.

Fourth and Fifth PSA tests

39   It is common ground that:

(a)	on either 18 or 21 August 2018 Dr Ahmed examined Mr Hatton again and that the fourth PSA test was performed, returning a PSA level of 17.5 µg/L; and
(b)	on 12 December 2019 Dr Ahmed examined Mr Hatton again and as a result, the fifth PSA test was performed, returning a PSA level of 25 µg/L.

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40          In respect of the fourth PSA test, the statement of claim at par 24 pleads that in the circumstances, reasonable medical practice required Dr Ahmed to take certain steps, specifically to:

(a)	recognise that the fourth PSA test result was significantly higher than earlier PSA test results;
(b)	heed the recommendation of the fourth PSA test result that the plaintiff be referred to a urologist; and
(c)	undertake the step referred to in par 21 urgently.

41           Dr Ahmed's draft defence (par 24) does not admit that reasonable medical practice required her to take any of those steps. Dr Ahmed says nothing about the grounds upon which she does not admit that she ought to have recognised that the fourth PSA test result was significantly higher than earlier test results.

42          In respect of the results of the fifth PSA test dated 12 December 2019, the statement of claim, at par 27 pleads that reasonable medical practice required Dr Ahmed to:

(a)	recognise that the fifth PSA test result was significantly higher than earlier PSA test results; and
(b)	undertake the steps referred to in para 21 urgently (relating to the referral to Dr Gogia and the steps at 16(a)-(d) of the statement of claim).

43           Dr Ahmed provides no evidence to explain her non-admission that she was required to recognise that the fifth PSA test result was significantly higher than earlier PSA test results: the increase to 25µg/L in test 5 on 12 December 2019 from 17.5µg/L (test 4) and 6.5µg/L (test 3); and the fact that when Dr Ahmed referred Mr Hatton to Dr Gogia on 18 December 2019, she wrote that "the last two PSA readings have returned raised".

44           In relation to the draft defence to par 27(b) of the statement of claim - which incorporates pars 16 (a)-(d) and 21 of the statement of claim - Dr Ahmed at par 28 does not admit that any of the steps in pars 16 (a)-(d) and 21were required at this point in time. There is no evidence showing that she advances a prima facie defence to these particular allegations. However, it is common ground that on 18 December 2019 Dr Ahmed consulted with Mr Hatton about his increased PSA level from the fifth PSA test and that she referred him to Dr Gogia, with the referral letter stating that "the last two PSA readings have returned raised". The draft defence adds that the referral letter in fact contained a copy of each of the PSA tests 1-4. Paragraph 11 of Dr Ahmed's affidavit states that after she received the results of the fifth PSA test, she referred Mr Hatton to Dr Gogia and that was the last time she saw him. The statement of claim pleads that an urgent referral to a urologist was required. Even though Dr Ahmed does not admit pars 27-28 of the statement of claim, her evidence is - in effect - that this is exactly what she did.

45           While there is no evidence from Dr Ahmed about what she did or did not do following the fourth PSA test, her evidence supports her defence on the merits in relation to the fifth PSA test.

46           It is common ground that Dr Gogia reviewed the plaintiff on 11 February 2020 and ordered a biopsy. Dr Ahmed's draft defence at par 30 pleads (and Dr Ahmed's affidavit at pars 16 and 17 states) that: (i) Dr Gogia did not order a "free to total" PSA test or an immediate biopsy (it was not done until August 2022, after a course of medication was completed); (ii) Dr Gogia noted that Mr Hatton was not suffering from any bothersome obstructive or irritative lower tract symptoms; and (iii) Dr Gogia ordered an MRI scan. The draft defence par 30 asserts that Dr Gogia reviewed Mr Hatton on 10 March 2020 and Dr Gogia reported that the MRI demonstrated no sinister peripheral zone lesion to suggest underlying prostatic malignancy, he prescribed antibiotics and arranged to see Mr Hatton again in three months. Doing the best I can with the assertions in Dr Ahmed's affidavit at pars 16 and 17, I infer that

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she is saying that it was appropriate for her refer Mr Hatton to Dr Gogia when she did – or perhaps that it was not a breach of her duty of care to not refer him to Dr Gogia any earlier. Taking that approach, pars 16 and 17 of Dr Ahmed's affidavit are somewhat supportive of her draft defence at par 30.

The result of the biopsy

47           It is common ground (pars 31-32 of the statement of claim and draft defence respectively) that (a) the biopsy performed by Dr Gogia revealed invasive adenocarcinoma; (b) that the plaintiff underwent a prostatectomy and a partial resection of the left neurovascular bundle; and (c) that he underwent radiotherapy, chemotherapy and hormone suppression.

48           The statement of claim does not state with precision when its existence should have been discoverable. The draft defence does not admit that that adenocarcinoma was present at all material times. The draft defence does not admit that the adenocarcinoma was capable of diagnosis "with the appropriate investigations and specialist referrals" as pleaded in the statement of claim (par 34). Senior Counsel for the defendant dealt with these aspects of the defence in his oral submissions which I will separately address below.

Liability

49

The draft defence does not admit that if Dr Ahmed had treated Mr Hatton in the manner pleaded in the statement of claim, his cancer would have been diagnosed at a stage when curative treatment was available and could have been undertaken (par 35). The draft defence does not admit (pars 36-39) that the harm to the plaintiff (the adenocarcinoma) was foreseeable; and that it was "not insignificant" harm; nor does it admit that a reasonable person in Dr Ahmed's position would have taken precautions to avoid the risk of the harm - such precautions including proper diagnosis, testing and referral to specialists.6 The draft defence denies (par 40) that Dr Ahmed breached her duty of care to Mr Hatton and it is denied that Mr Hatton's pleaded loss was caused as a result (par 41). Senior Counsel for the defendant dealt with these aspects of the defence in his oral submissions which I will separately address below.

Claim in contract

50           Finally, the draft defence denies (pars 42-45) the plaintiff's claim in contract that Dr Ahmed failed to advise and treat Mr Hatton with reasonable care and skill (repeating the particulars of breach, loss and damage in pars 40 and 41 of the statement of claim).

Applicant's submissions

51           In relation to Dr Ahmed's alleged failure to refer Mr Hatton to Dr Gogia, Mr Read submitted that the statement of claim does not plead what was caused by that failure. He submitted that when Dr Gogia saw Mr Hatton in February 2020, he did not immediately take the steps which it is alleged the defendant failed to take: to order a biopsy and to order a free to total PSA test. Mr Read also submitted that it was reasonably open on the basis of Dr Ahmed's affidavit that Dr Almond, as a more experienced doctor, left Mr Hatton's treatment unchanged or "steady as she goes". It was submitted that this amounts to a prima facie defence on the basis that Dr Ahmed can be reasonably understood to say that she went to her supervisor, Dr Almond and that he did not tell her to do anything differently than she did. It was submitted that a reasonable reading of par 18 of Dr Ahmed's affidavit supports a defence of the nature that her treatment of Mr Hatton was appropriate at the time it was provided with the result that s 22 of the Civil Liability Act 2002 could be engaged.

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52           It was submitted that the material before the Court suggests that Dr Ahmed acted in a manner that (at the time the service was provided) was widely accepted in Australia by peer professional opinion as competent professional practice, for the purposes of the Civil Liability Act 2002 s 22.

53           Mr Read submitted that the allegation that Dr Ahmed should have referred Mr Hatton to Dr Gogia after the third PSA test may be dealt with on the pleadings because the statement of claim does not plead or allege that the failure to refer to Dr Gogia caused something. Further, it is submitted that it is open to infer from par 18 of Dr Ahmed's affidavit that it was her clinical decision not to refer Mr Hatton to Dr Gogia prior to 18 December 2019.

54           Mr Read submitted further that the statement of claim does not plead a date, or a range of dates, when it is alleged that the invasive carcinoma arrived and as such there is a possible defence on the basis that the statement of claim does not properly set up an allegation of a breach of duty on the facts pleaded.

55           Mr Read submitted that the materials before the Court show that there is a bona fide defence on the two bases set out above and that the defendant should be entitled to contest the action in the sense discussed in Grimshaw v Dunbar (1953) 1 QB 408 at 416. He submitted that there is nothing to suggest that Dr Ahmed is lying about her defence or that she is being dishonest in what she has raised.

Submissions in opposition

56          Ms Cuthbertson submitted that the application should be rejected because the evidence before the Court did not support the denials and claims made in Dr Ahmed's draft defence.

57          In relation to the question of whether Dr Ahmed can show a prima facie advanced on a bona fide basis, Ms Cuthbertson submitted:

"i	Dr Ahmed's affidavit does not say that she has seen the draft defence; nor does it say that she agrees with the factual matters contained in it. The affidavit does not state that it represents Dr Ahmed's view of the world, nor that she has given - or will give - any instructions to her solicitors to deliver the draft defence.
ii	References in Dr Ahmed's affidavit to the 'decisions' she made were too oblique: there is no evidence about what decisions she – or anyone else – made. Nor is there any evidence how any decision-making was conducted. It was submitted that the affidavit contained no evidence about what factors led to any particular decision. No inference can be drawn from what Dr Ahmed says about referring Mr Hatton to Dr Almond for review after the second PSA test came back because there is no evidence of any decision being made by Dr Almond. It can only be inferred that Dr Almond undertook the investigations requested by Dr Ahmed.
iii	Dr Ahmed's affidavit says nothing about her 26 February 2016 note (after the 2nd PSA test) that Mr Hatton was to be referred to a urologist - nor anything about that referral not happening until 18 December 2019 (after the 5th PSA test). Dr Ahmed's non-admissions (pars 16(a), (e), (f), 17, 21 and 27) that there was a failure to make a referral to a urologist between 22 January 2016 when the second PSA test result was known - or 26 February 2016 when Dr Ahmed recorded that Mr Hatton was to be referred to a urologist - and 18 December 2019, consistently with competent medical practice, do not amount to a bona fide dispute in the circumstances.
iv	Dr Ahmed's affidavit does not reveal the content of the discussion with Mr Hatton about the result of the fourth PSA test on 27 August 2018. Nor is there anything in Dr Ahmed's affidavit about what she meant, at par 18 of the affidavit, by 'Dr Almond and Dr Gogia's decisions in relation to Mr Hatton's treatment'; nor is there anything to show how those decisions related to any

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decisions Dr Ahmed made (noting that Dr Ahmed does not explain what decisions she actually made). Dr Ahmed does not say anything about what was discussed between her and Mr Hatton on either 9 July 2016 (par 7 of her affidavit) or on 27 August 2016 (par 10 of her affidavit). Nor does Dr Ahmed say anything about the subsequent decision to refer Mr Hatton to a urologist on 18 December 2019.

v	The reference in Dr Ahmed's affidavit to any of her decisions is unsupported by any factual material explaining what those decisions were or how they were arrived at.
vi	While the defendant positively denies the allegations at pars 41 and 45 of the statement of claim that she acted in a manner that fell short of reasonable medical practice, she has not provided any evidence in relation to the decisions she made in relation to her treatment of Mr Hatton. As such Dr Ahmed is unable to show that she has a bona fide defence."

Consideration

58          I turn now to the question whether, on the material that has been placed before me, there is a real likelihood that it would be unjust to the defendant to allow the judgment to stand.

59           I accept Ms Cuthbertson's submission that there is nothing in Dr Ahmed's affidavit to say that she agrees with – or that she has even seen - the draft defence. On the other hand, Ms Darcey deposes in her affidavit sworn 5 March 2024, pars 2 and 3 that she had taken instructions from Dr Ahmed "in relation to the draft defence" and that she spoke to Dr Ahmed on Sunday, 3 March 2024 and as a consequence of that discussion she made amendments to it. Firstly, Dr Ahmed's affidavit is responsive to the statement of claim only in a very general sense. Secondly, even though this state of affairs is obviously unsatisfactory in many respects, I am satisfied that the draft defence is a result of instructions provided by Dr Ahmed to her lawyers. To that extent, there is some - albeit scant - evidence that the draft defence is the basis upon which Dr Ahmed intends to defend the plaintiff's claim.

60           Dr Ahmed's affidavit acknowledges the results of each of the first three PSA tests during the period from 22 December 2015 to 9 July 2016. She deposes to excluding other conditions after the first test; and to immediately referring Mr Hatton to Dr Almond after the second test. In relation to the results of the third test Dr Ahmed says nothing except (a) Dr Almond had reported after the second PSA test that Mr Hatton had a slightly enlarged, smooth prostate and that there was "mild prostatomegaly" but no other abnormality detected via ultrasound and (b) that she discussed these results with Mr Hatton. She also points to the fact that Dr Gogia did not immediately perform a free to total PSA test or a biopsy either when he commenced treating Mr Hatton in March 2020.

61           In relation to the results of the fourth test result from 21 August 2018, Dr Ahmed says nothing at all other than that she discussed it with Mr Hatton. Dr Ahmed also points to the fact that Dr Gogia did not immediately perform a free to total PSA test or a biopsy when he commenced treating Mr Hatton in March 2020.

62 In a general statement Dr Ahmed vaguely outlines her approach to the treatment of prostate cancer at pars 12-15 which I infer is the approach she took with Mr Hatton and which she asserts is relevant to a defence under s 22 of the Civil Liability Act 2002, taking into account her assertion about what Dr Almond and Dr Gogia did in relation to Mr Hatton's treatment (i.e. to test and retest). A defence on the basis that Dr Ahmed made clinical decisions - and that they were appropriate at the time that they were made - is arguable.

63           It is not possible to reject Mr Read's submission that the material leaves open that Dr Ahmed asked Dr Almond to examine Mr Hatton and that the rectal examination and the ultrasound were the

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procedures indicated as being required by reasonable medical practice as at January 2016. It is also open to infer that Dr Ahmed deliberately decided not to refer Mr Hatton to a urologist given the results of those procedures. Paragraph 18 of Dr Ahmed's affidavit provides some evidentiary support for the draft defence.

64           In my view, Dr Ahmed deposes to facts which satisfactorily underpin the central inferences which the draft defence invites the Court to draw: that the standard of care she provided to Mr Hatton did not breach the duty she owed to him.

65          I also accept that there is at least an arguable point that the statement of claim does not plead sufficiently what was caused by the failure to refer Mr Hatton to Dr Gogia after the third PSA test.

66           A reasonable way of approaching what Dr Ahmed says in pars 12-19 of her affidavit is that while it is scant – it states something about of the nature of her defence to the pleaded claim - although she does not state the whole of the evidence by which she hopes to establish it. The affidavit provides some support for the proposition that her treatment of Mr Hatton did not depart from the standard of care required of her in the circumstances and that she did not breach the duty she owed to him.

67           Ms Cuthbertson referred to Dai v Zhu (above) as an example of the correct approach to the determination of this application. Relevantly in that case, judgment had been entered as a consequence of failure to comply with self-executing orders requiring the applicants to file a defence. The application to set aside the judgment was unsuccessful. At the hearing of the appeal in that case, an amended draft defence was provided, but without adequate particulars and without evidentiary support beyond (a) a bare assertion from one of the applicants that she believed that she had a good defence and (b) evidence on information and belief from the applicants' solicitor which took the matter no further. Sackville AJA remarked that it perhaps would not have taken a great deal of evidence to show an arguable defence, but the applicants simply had not filed any such evidence. In that sense, Dai v Zhu can be distinguished from the present case.

68          Upon the material placed before the court, I am satisfied that there is a real likelihood of injustice to the defendant if the judgment is permitted to stand.

69           While the defendant's failure to take the procedural step cannot be excused, the arguable defences on the merits discussed above are the dominant consideration on this application. Though the material before the Court on the defendant's application may fairly be described in some areas as scant, a reasonable assessment of all the material is that the defendant has placed material before the Court on oath showing the nature of her defence – but not the whole of the evidence by which she hopes to establish it. The combined effect of Ms Darcey's opinion and the defendant's version as expressed in her affidavit satisfies me that she has a defence or defences that are "fairly arguable in law or fact and in respect to which it is desirable that in the interests of justice she should be allowed to dispute her opponent's case" and have the matter heard and determined by the Court.

70           The defendant’s interlocutory application dated 1 March 2024 is granted. The default judgment entered on 13 February 2024 is set aside. I will hear the parties about what further orders ought to be made in light of these reasons.