ABRAHAM -v- EAST METROPOLITAN HEALTH SERVICE [2026] WASC 247

[2026] WASC 247 Page 1 JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA IN CIVIL CITATION : ABRAHAM -v- EAST METROPOLITAN HEALTH SERVICE [2026] WASC 247 CORAM : WHITBY J HEARD : 11 MAY 2026 DELIVERED : 18 JUNE 2026 FILE NO/S : CIV 2407 of 2025 BETWEEN : ARUN ABRAHAM Applicant AND EAST METROPOLITAN HEALTH SERVICE Respondent Catchwords: Administrative law - Judicial review - Limitation period - Application for leave to seek review out of time - Rules of the Supreme Court 1971 (WA) O 56 r 5(2)(a) - Whether delay is substantial - Whether a reviewable decision has been made - Procedural fairness - Whether discovery should be ordered Legislation: Administrative Decisions (Judicial Review) Act 1977 (Cth) Health Services Act 2016 (WA) Rules of the Supreme Court 1971 (WA) -- 1 of 18 -- [2026] WASC 247 Page 2 Result: Application for leave to proceed outside of the limitation period refused Application dismissed Category: B Representation: Counsel: Applicant : ML Bennett Respondent : JM Carroll Solicitors: Applicant : Bennett Respondent : State Solicitor's Office Case(s) referred to in decision(s): Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541 Day v Harness Racing New South Wales [2014] NSWCA 423; (2014) 88 NSWLR 594 Disorganised Developments Pty Ltd v The State of South Australia [2023] HCA 22; (2023) 280 CLR 515 Evans v Friemann (1981) 53 FLR 229 Hall v City of Burnside [2006] SASC 282 Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 516 Patole v Child & Adolescent Health Service [2014] WASCA 126 Pervan v Frawley [2011] TASSC 27 Re Piper; Ex parte Meloney (1996) 63 IR 473 Sakkara Investment Holdings Pty Ltd as trustee for Sakkara Landings Trust v Residents Committee, The Landings [2014] NSWSC 610 Simonsen v Legge [2010] WASCA 238 South Australia v O'Shea [1987] HCA 10; (1987) 163 CLR 378 -- 2 of 18 -- [2026] WASC 247 WHITBY J Page 3 WHITBY J: 1 Dr Arun Abraham is a cardiologist. Since 2010 he has been employed at Royal Perth Hospital as a consultant cardiology physician. In approximately 2012, Dr Abraham began practising in radiology - cardiac imaging at Royal Perth Hospital. 2 In around 2016, the East Metropolitan Health Service (EMHS) (the respondent) was established and Dr Abraham was employed by the respondent in radiology - cardiac imaging at Royal Perth Hospital. From 26 January 2025 to 25 January 2026, Dr Abraham was employed as a Consultant Physician Cardiology (Radiology - Cardiac Imaging) at Royal Perth Hospital by the respondent pursuant to an employment contract dated 8 January 2025. 3 On 12 December 2024, Professor Grant Waterer of the respondent suspended Dr Abraham from duty on full pay with immediate effect pursuant to s 164(1)(a) of the Health Services Act 2016 (WA) (Act) (First Decision). 4 On 24 December 2024, the respondent confirmed its decision to suspend Dr Abraham's employment on full pay (Second Decision). 5 On 11 June 2025, Professor Waterer wrote to Dr Abraham providing him with an update about the disciplinary process (Third Decision). 6 Dr Abraham now applies for judicial review of the First and Second Decision on the ground that Dr Abraham was denied procedural fairness and of the Third Decision on the grounds that the respondent ignored relevant considerations, that the decision was so irrational that no authority could have made that decision and that the respondent denied Dr Abraham procedural fairness. 7 Dr Abraham requires leave to proceed out of time with his application for judicial review of each of the decisions (Leave Application). The respondent, represented by the State Solicitor's Office, opposes the Leave Application. 8 The Leave Application was programmed to be heard and determined as a preliminary matter, prior to the hearing of the substantive application for judicial review. If leave is not granted, that is the end of the matter. However, if leave is granted, then Dr Abraham -- 3 of 18 -- [2026] WASC 247 WHITBY J Page 4 applies for orders for discovery. That application is also opposed by the respondent. 9 For the reasons that follow, I refuse the Leave Application in relation to each of the First, Second and Third Decisions. 10 In these reasons I consider: (1) the application for judicial review; (2) the evidence and material relied upon by the parties; (3) the factual background; (4) the legal principles applicable to an extension of time for judicial review; and (5) my determination of the Leave Application in relation to each of the First, Second and Third Decisions. Application for Judicial Review 11 By his amended application for judicial review dated 11 July 2025, Dr Abraham seeks judicial review of: (1) the First and Second Decisions on the ground that Dr Abraham was denied procedural fairness because: A. Dr Abraham was not provided with an opportunity to be heard before the respondent made its decision to suspend the applicant on 12 December 2024. B. By letter to Dr Abraham dated 12 December 2024 the respondent stated that the applicant may have committed breaches of discipline within the meaning of s 161 of the Act, that it had decided to suspend Dr Abraham with immediate effect pursuant to s 164(1)(a) of the Act, and that Dr Abraham had until 19 December 2024 to provide submissions in relation to his suspension. C. At no time prior to 19 December 2024 did the respondent disclose to Dr Abraham how he may have committed breaches of discipline or why it decided to suspend him. -- 4 of 18 -- [2026] WASC 247 WHITBY J Page 5 (2) the Third Decision on the grounds that the respondent ignored relevant considerations, that the decision was so irrational that no reasonable authority could have made that decision and/or that the respondent denied Dr Abraham procedural fairness because: A. By letter to Dr Abraham dated 20 December 2024 the respondent, inter alia, provided particulars of alleged misconduct by the applicant, being allegations that the applicant was negligent and/or careless in the performance of his functions. B. By letter to the respondent dated 16 January 2025 and enclosures to that letter, the applicant's solicitors, inter alia, comprehensively responded to the allegations in the respondent's letter dated 20 December 2024 and requested that the respondent reconsider its suspension of the applicant. C. By letter to the applicant's solicitors dated 2 February 2025, the respondent, inter alia, did not make any finding as to the allegations of misconduct, opined that it was necessary to hold a Disciplinary Investigation into the allegations, and declined to remove the applicant's suspension. D. On 26 February 2025 and 17 March 2025 the respondent provided the applicant with further material to enable the applicant to respond to the allegations of misconduct. E. By letter to the applicant's solicitors dated 12 May 2025, the respondent extended the time for the applicant to respond to allegations of misconduct to 6 June 2025. F. By letter to the respondent dated 6 June 2025 the applicant's solicitors, inter alia, provided further responses to the allegations of misconduct, including two independent expert reports. G. By email to the applicant's solicitors dated 11 July 2025, the respondent, inter alia, did not accept the independent expert reports provided by the applicant answered the allegations against the applicant because, inter alia, the -- 5 of 18 -- [2026] WASC 247 WHITBY J Page 6 respondent alleged that the reports were not independent as the reports were commissioned by the applicant and/or because, inter alia, the respondent relied on a complaint from the Department of Cardiology at Royal Perth Hospital. Further, the respondent did not provide a copy of that complaint to Dr Abraham prior to requiring Dr Abraham's responses to the allegations of misconduct on 16 January 2025 or 6 June 2025. H. It was not open to the respondent to decline to make a finding on the allegations and to decline to remove the applicant's suspension. I. It is to be inferred that the respondent ignored or failed to give appropriate weight to the responses given by the applicant in the letter from his solicitors dated 16 January 2025. 12 By way of relief, Dr Abraham seeks a writ of certiorari, a writ of mandamus and a declaration. 13 Dr Abraham requires leave to proceed with the application for judicial review in respect of each of the decisions as it is made outside the limitation period of 6 months.1 Evidence and materials relied upon 14 The following materials were relied upon by the applicant in support of the application for leave out of time and for discovery: (1) affidavit of Arun Abraham in support of application for leave, affirmed 5 December 2025 (Abraham Affidavit) save for the privileged communications in Attachment 'AA-20'2 and 'AA-19'3; and (2) affidavit of Mark Bradley Donaldson, affirmed 20 February 2026. 15 The following materials were relied upon by the respondent in opposing the application for leave out of time and discovery: (1) affidavit of Grant William Waterer, sworn 12 March 2026; 1 Rules of the Supreme Court 1971 (WA) (RSC) O 56 r 2(4). 2 Abraham Affidavit, Attachment 'AA-20'; portions of the communication on pages 373-374. 3 Abraham Affidavit, Attachment 'AA-19'; from the second last paragraph on page 372. -- 6 of 18 -- [2026] WASC 247 WHITBY J Page 7 (2) affidavit of Jack Ashton, affirmed 12 March 2026; and (3) supplementary affidavit of Jack Ashton, affirmed 22 April 2026. 16 In addition, the following written submissions were made: (1) Applicant's submissions in support of application for leave to proceed with amended application for judicial review outside of the limitation period, dated 10 April 2026; (2) Applicant's submissions in support of application for leave to require the respondent to give discovery, dated 10 April 2026; (3) Respondent's submissions opposing applicant's applications for leave to proceed out of time and for discovery orders, dated 23 April 2026: and (4) Applicant's submissions in reply to the respondent's submissions opposing applicant's application for leave to proceed out of time and for discovery orders, dated 1 May 2026. Factual background 17 The facts were not contested for the purposes of the Leave Application. None of the deponents of the affidavits were cross-examined. The Leave Application turns upon an application of the legal principles to the facts. 18 For the purposes of determining the Leave Application, I set out the relevant facts below. 19 In December 2024, Professor Waterer became aware of an independent review commissioned by Associate Professor Troupis in relation to the quality of Dr Abraham's MRI studies and reports (Troupis Report). 20 On 12 December 2024, Professor Waterer met with Dr Abraham and advised him that he was suspended on full pay with immediate effect as provided by s 164(1)(a) of the Act. Professor Waterer provided Dr Abraham with a letter confirming this decision. This is the First Decision. 21 By letter dated 19 December 2024, Panetta McGrath (the then solicitors for Dr Abraham) advised the respondent, amongst other -- 7 of 18 -- [2026] WASC 247 WHITBY J Page 8 things, that the decision to suspend Dr Abraham was punitive in effect, rather than protective, and did not align with the principles of procedural fairness. 22 On 20 December 2024, Professor Waterer provided Dr Abraham with a letter of allegation and a copy of the Troupis Report and invited his response by 16 January 2025. 23 By letter dated 24 December 2024 to Dr Abraham's then solicitors, Professor Waterer confirmed the decision to suspend Dr Abraham on full pay while the matter continued to be investigated. This is the Second Decision. 24 By letter dated 16 January 2025 sent by email, the current solicitors for Dr Abraham wrote to the respondent stating:4 The purpose of this email is to provide that response [to the 20 December 2025 letter]. It is important to stress how seriously Dr Abraham regards the conduct of [EMHS] in suspending him from practice for suspected breaches of discipline. Your decision to suspend Dr Abraham occurred without adequate notice or representation for Dr Abraham. On 12 December 2024 Dr Abraham … was given less than 2 hours' notice to attend. The action of suspending him lacked any procedural fairness and as subsequently now demonstrated by this response, failed to take account of the numerous flaws in the review process that led to that decision. … The response (as you will observe from the attachments) is a detailed response. At great personal cost Dr Abraham has spent more than 100 hours preparing his response. 25 By letter dated 12 May 2025, the respondent wrote to Dr Abraham noting that it was still waiting on a response to the 20 December 2024 letter and requested it be provided by 6 June 2025. 26 By letter dated 6 June 2025, the solicitors for Dr Abraham further responded to the respondent's letter of 20 December 2024 by providing correspondence from the Australian Health Practitioner Regulation Agency (AHPRA) and two reports commissioned by Dr Abraham (Independent Reports). 4 Abraham Affidavit [24]; Attachment 'AA-6'. -- 8 of 18 -- [2026] WASC 247 WHITBY J Page 9 27 On 11 July 2025, Professor Waterer, on behalf of the respondent, sent an email to the solicitors for Dr Abraham stating:5 While I accept that the reports provided by Dr Abraham from two specialists with expertise in cardiac MRI reporting cast doubt on the findings of the [Troupis Report], I cannot accept that they exonerate him as 1. I have the original complaint from the Department of Cardiology at RPH which includes MRI imaging experts 2. I have the [Troupis Report] 3. The positive reviews were commissioned by Dr Abraham, and therefore not independent. .. I am therefore left in the same position, requiring a further review (at [the respondent's] expense) by a mutually agreed panel of independent experts if Dr Abraham wants to have concerns around his competency in reporting MRI's sufficiently resolved to allow him to return to work at RPH. 28 Dr Abraham alleges this is the Third Decision - that being a failure to make a decision and a decision not to remove Dr Abraham's suspension. Legal principles applicable to an extension of time for leave to apply for judicial review 29 Order 56 rule 5(2)(a) of the RSC provides that, if an application is made outside the limitation period for the application, the court may give or refuse the applicant leave to proceed with the application. Pursuant to O 56 r 1(1) RSC, the limitation period means six months after the later of the date on which the decision is made or the date upon which the applicant became aware of the decision. 30 In considering whether leave should be granted to extend time, factors to be considered include the length of the delay and any explanation for the delay, the applicant's prospects of success, and the consequences of the grant or refusal of an extension on the parties, including any prejudice to the respondent and third parties as a result of the delay.6 5 Abraham Affidavit [41]; Attachment 'AA-18'. 6 Simonsen v Legge [2010] WASCA 238 [8]. -- 9 of 18 -- [2026] WASC 247 WHITBY J Page 10 31 The limitation period is not just an arbitrary cutoff date by which the application must be commenced. In Brisbane South Regional Health Authority v Taylor, McHugh J said:7 [A limitation period] represents the legislature's judgment that the welfare of society is best served by causes of action being litigated within the limitation period, notwithstanding that the enactment of that period may often result in a good cause of action being defeated. 32 The applicant for leave to extend time has the onus of establishing that their case is a justifiable exception to the general rule that the welfare of society is best served by the imposition of the limitation period.8 The delay is measured by the time from which an applicant was informed of the decision to the date of commencement of proceedings, although the time from the expiry of the limitation period to the commencement of proceedings is also a relevant factor.9 33 When considering the prospects of success of the application for judicial review, the court does not conduct a summary hearing of the substantive application. All that is required is to assess the merits at an impressionistic level. It is also important to consider the practical utility of the relief sought.10 Further, it is not the case that every application with prospects of success should be granted leave to be made out of time - it is just one of the factors to consider with all other factors. As contemplated by McHugh J in Brisbane South Regional Health Authority v Taylor, it may be that leave will not be granted even if the applicant has a good cause of action. 34 What is clear from the extensive authorities to which I was referred by both parties is that it is a balancing exercise to decide whether to grant leave to bring an application out of time. While the limitation period is one which will not be overlooked lightly, there is no delay which can arbitrarily be characterised as inordinate (or not inordinate, as the case may be). Such a characterisation will depend upon the facts of each case. 7 Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541, 553 (McHugh J). 8 Brisbane South Regional Health Authority v Taylor 553 - 554 (McHugh J). 9 Hall v City of Burnside [2006] SASC 282 [86] (Doyle CJ). 10 Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 516 [9] (Brennan CJ and McHugh J); Sakkara Investment Holdings Pty Ltd as trustee for Sakkara Landings Trust v Residents Committee, The Landings [2014] NSWSC 610 [38] (Sackar J). -- 10 of 18 -- [2026] WASC 247 WHITBY J Page 11 Determination of the Leave Application The First Decision 35 I refuse the Leave Application in relation to the First Decision for the following six reasons. 36 Firstly, the delay of 11 months and 23 days from the date Dr Abraham was informed of the First Decision to the date he commenced these proceedings was substantial. The delay must be viewed in the context of an employment dispute and an ongoing employment relationship. It is for the general benefit of society that such disputes are resolved expeditiously. 37 Secondly, Dr Abraham's reasons for the delay are inadequate having regard to the length of the delay. Dr Abraham submits that the delay was reasonable because: (1) the respondent wrote to Dr Abraham on 12 May 2025 requesting he provide a written response to the allegations against him by 6 June 2025; (2) on 6 June 2025, Dr Abraham provided the respondent with correspondence attaching the AHPRA findings and Independent Reports; (3) the limitation period for the First Decision expired on 12 June 2025; (4) the respondent provided its response to the 6 June 2025 correspondence on 11 July 2025; (5) by email dated 9 July 2025 from the solicitors for Dr Abraham to the respondent, a dispute arose in relation to Dr Abraham's eligibility for permanency with the respondent; (6) on 1 September 2025, the respondent sent a letter to Dr Abraham advising him that his employment would be terminated if he did not apply to be recredentialed and this delayed Dr Abraham's opportunity to commence these proceedings; (7) Dr Abraham was in Spain from 28 August 2025 to 9 September 2025; -- 11 of 18 -- [2026] WASC 247 WHITBY J Page 12 (8) on 22 September 2025, Dr Abraham commenced proceedings in the Industrial Magistrates Court in relation to his application for permanency (IMC Proceedings); (9) by letter dated 7 October 2025, the respondent informed Dr Abraham that, while the IMC Proceedings were on foot, any disciplinary investigation would not be finalised before Dr Abraham's contract ended on 25 January 2026 and that the respondent did not intend to renew Dr Abraham's contract;11 (10) on 15 October 2025, Dr Abraham discontinued the IMC Proceedings; and (11) it was then that Dr Abraham properly considered making the judicial review application. Dr Abraham met with his solicitors on 7 and 10 November 2025 to receive advice in relation to a judicial review application. Dr Abraham commenced these proceedings on 10 December 2025, after he had considered that advice. 38 In all these circumstances, Dr Abraham submits that it was not unreasonable for him to delay commencing proceedings seeking judicial review until he had fully explored the prospect of resolution, dealt with applying to be recredentialed and resolved the IMC Proceedings. 39 However, I do not accept Dr Abraham has adequately explained his delay in making an application for judicial review of the First Decision. On 19 December 2024, Dr Abraham's then solicitors wrote to Professor Waterer regarding his suspension stating '…the decision to suspend is punitive in effect, rather than protective, and does not align with the principles of procedural fairness' (emphasis added)12. This letter raised the issue of a denial of procedural fairness with the respondent only one week after Dr Abraham was notified of the First Decision. 40 In January 2025, Dr Abraham engaged his current solicitors to act for him in relation to his employment with the respondent.13 On 16 January 2025, Dr Abraham current solicitors wrote to the respondent again raising the issue of denial of procedural fairness in relation to the 11 ts 14. 12 Abraham Affidavit [19]; Attachment 'AA-3'. 13 Abraham Affidavit [22]. -- 12 of 18 -- [2026] WASC 247 WHITBY J Page 13 First Decision, stating 'the action of suspending him [on 12 December 2024] lacked any procedural fairness.'14 41 As evident from this correspondence, Dr Abraham was aware of allegations of denial of procedural fairness in relation to the First Decision from a very short time after being notified of the First Decision. Yet Dr Abraham does not provide any explanation for why an application for judicial review was not considered at that time. On his own admission, Dr Abraham did not seek any legal advice in relation to a judicial review application until October 2025, approximately 10 months after the First Decision. 42 The fact that Dr Abraham elected to pursue measures to resolve the dispute other than applying for judicial review of the First Decision, while understandable, did not prevent him from commencing these proceedings within the 6-month limitation period. Dr Abraham could have commenced these proceedings within the limitation period, and the court could have exercised control over the progress of proceedings having regard to the other measures pursued by Dr Abraham. 43 Thirdly, the respondent has suffered prejudice because of Dr Abraham's delay in seeking review of the First Decision. Dr Abraham was suspended on full pay for the remaining period of his contract of employment with the respondent. The respondent did not receive any services from Dr Abraham during the suspension period. If Dr Abraham had sought review of the First Decision within the limitation period and the First Decision had been quashed, Dr Abraham would have been required to supply his services to the respondent for the remainder of his term of employment. Further, Dr Abraham travelled to Spain from 28 August to 9 September 2025 - during his period of suspension on full pay - without taking annual leave. According to counsel for the respondent, Dr Abraham received a benefit of approximately $6,500 (calculated by reference to his pro-rata salary for the period he was in Spain) and the respondent suffered a corresponding detriment. The prejudice suffered by the respondent in not receiving services and in paying Dr Abraham for a period that he was on leave cannot now be cured. 44 Fourthly, in my view, Dr Abraham does not have good prospects of success on the judicial review application of the First Decision, noting again that this view is at a reasonably impressionistic level. 14 Abraham Affidavit [23] - [24]; Attachment 'AA-6'. -- 13 of 18 -- [2026] WASC 247 WHITBY J Page 14 45 Dr Abraham submits he has an arguable case that the respondent fell into jurisdictional error by failing to afford Dr Abraham procedural fairness in relation to the First Decision. The respondent concedes that Dr Abraham was not given an opportunity to be heard prior to the First Decision. 46 Dr Abraham's contention that he was not afforded procedural fairness in relation to the First Decision raises the issue of whether the valid exercise of the respondent's power to suspend Dr Abraham on full pay with immediate effect pursuant to s 164(1)(a) of the Act was subject to a condition of compliance with the rules of procedural fairness. 47 It is necessary to construe the statute conferring power on the decision maker to determine the limits of, and conditions for, a valid exercise of that power.15 The construction of the Act may be informed by the strong presumption that procedural fairness is an implied requirement of public bodies when making decisions which may adversely affect a person's interests.16 However, the presumption is just that - it may be displaced by the particular statutory scheme. It is particularly the case that powers which affect individuals in an undifferentiated way from the general public may not attract an obligation of procedural fairness.17 48 I have some reservations about the strength of Dr Abraham's case that procedural fairness was owed in relation to the First Decision. There is a strong case to be made, in my view, that the presumption of procedural fairness is displaced when the decision to suspend an employee on full pay is made as the first step in a decision to investigate an employee.18 That is particularly so when the urgent administrative action is required to protect the public, as is alleged by the respondent in this case.19 It is also arguable that procedural fairness may be satisfied by the process of the decision making viewed as a 15 Patole v Child & Adolescent Health Service [2014] WASCA 126 [26], [28] (Patole) (Quinlan CJ and Mitchell JA). 16 Patole [7]. 17 Disorganised Developments Pty Ltd v The State of South Australia [2023] HCA 22; (2023) 280 CLR 515 [33] - [34] (Kiefel CJ, Gageler, Gleeson and Jagot JJ). 18 See Pervan v Frawley [2011] TASSC 27 [59] and the cases cited therein (Porter J). 19 Day v Harness Racing New South Wales [2014] NSWCA 423; (2014) 88 NSWLR 594, 615 [105] (Leeming JA, McColl & Mcfarlan JJA agreeing). -- 14 of 18 -- [2026] WASC 247 WHITBY J Page 15 whole, and is not required to be afforded at each stage of a multi-stage disciplinary process.20 49 While it is a matter of overall impression and depends upon statutory construction of the provisions of the Act, the statutory power to suspend an employee on full pay pending an employment disciplinary process is protective in nature, rather than punitive, which is a factor weighing against implying an obligation to afford procedural fairness.21 50 Fifthly, even if Dr Abraham could establish that jurisdictional error was made out in relation to the First Decision, the respondent made a decision on 5 February 2025, after Dr Abraham was given an opportunity to respond to the First Decision, to confirm Dr Abraham's suspension on full pay. The 5 February 2025 decision is not the subject of an application for judicial review. There is a strong argument that the respondent's decision of 5 February 2025 'cured' any failure to provide procedural fairness in relation to the First Decision. 51 Sixthly, given Dr Abraham is no longer suspended from employment, no longer employed by the respondent and suffered no loss of pay for the term of his employment, there is no practical utility in granting the relief sought by Dr Abraham. 52 For the sake of clarity, I note that I would have refused the Leave Application on the basis of the inordinate delay and inadequate explanation for the delay, in circumstances where Dr Abraham was suspended on full pay. Even if Dr Abraham does have an arguable case (or even a strongly arguable case), I do not consider that would outweigh those other factors. The Second Decision 53 I refuse the Leave Application in relation to the Second Decision for the same reasons I outlined in relation to the First Decision. Dr Abraham was informed of the Second Decision on 24 December 2024 - making the delay 11 months and 11 days from the date Dr Abraham was informed of the Second Decision to the date he commenced these proceedings - only 12 days less than in relation to the First Decision. In my view, there is no material difference between 20 South Australia v O'Shea [1987] HCA 10; (1987) 163 CLR 378Error! Bookmark not defined., 389 (Mason CJ). 21 Re Piper; Ex parte Meloney (1996) 63 IR 473, 477 (Rowland J ). -- 15 of 18 -- [2026] WASC 247 WHITBY J Page 16 delay in commencing this proceeding from the First Decision or the Second Decision. The Third Decision 54 A threshold issue arises as to whether the email dated 11 July 2025 from Professor Waterer to Dr Abraham is a decision susceptible to judicial review. 55 Dr Abraham contends that, by the 11 July 2025 email, the respondent failed to make a decision in relation to the allegations against Dr Abraham and made a decision not to remove Dr Abraham's suspension of employment. Dr Abraham says that this constitutes a statutory reviewable decision pursuant to s 163(1)(c) of the Act, it being a decision which determined the procedure to be followed in the disciplinary process. 56 Alternatively, Dr Abraham says that the Third Decision is a reviewable decision because the decision not to make a final determination: (1) was final and conclusive for immediate purposes (no final determination was made); (2) emanated from the respondent, a responsible source; and (3) materially affected Dr Abraham by subjecting him to further delay in obtaining a final determination.22 57 The respondent says that the 11 July 2025 email did not involve, or purport to involve, the exercise by the respondent of any statutory power or any determination under the Act. Nor did it decide anything or determine the rights or liabilities of Dr Abraham. The respondent says the 11 July 2025 email was simply an update of the process and a proposal to consider a further review by an independent expert at the respondent's expense, in order to progress the process. 58 The first point to make is this: the amended application for judicial review in relation to the Third Decision does not correspond with the submission of Dr Abraham that the Third Decision is one made pursuant to s 163(1)(c) of the Act. 59 Section 163 (1)(c) of the Act provides: 22 Relying upon Evans v Friemann (1981) 53 FLR 229 (Evans) 223. -- 16 of 18 -- [2026] WASC 247 WHITBY J Page 17 (1) In dealing with a disciplinary matter under this Division an employing authority - … (c) may, subject to this Division and the relevant regulations, determine the procedure to be followed. 60 The amended application for judicial review in relation to the Third Decision seeks review of the respondent's failure to make a decision in relation to allegations against Dr Abraham and a decision not to remove Dr Abraham's suspension. Dr Abraham does not seek judicial review of a decision of the respondent to determine the procedure to be followed in the disciplinary process. 61 Assuming however that Dr Abraham now seeks to review a decision which he says the respondent made to determine the procedure to be followed, there is no practical utility in the relief that he seeks. The process has been completed in a manner favourable to Dr Abraham, with no findings against him.23 62 The submission that the decision not to make a final determination was final, is a contradiction in terms. It does not make sense. By the 11 July 2025 email, the respondent did not decide not to make a final determination. In fact, the respondent did later make a final determination. Neither did the respondent's email of 11 July 2025 have any impact on the substantive rights of Dr Abraham. 63 In any event, the case of Evans, which Dr Abraham relied upon in his reply submissions as authority for the proposition that the Third Decision was a decision susceptible to judicial review, determined the meaning of 'decision' in the context of the Administrative Decisions (Judicial Review) Act 1977 (Cth), as opposed to the common law.24 64 To the extent that Dr Abraham seeks to characterise the respondent's failure to make a decision as a 'reviewable decision', I do not agree that it is. To make good that characterisation, the respondent must have a duty to make a decision by a certain time. Counsel for Dr Abraham did not refer the court to any legislative provision or case law as authority for such a proposition. 65 I therefore find that the 11 July 2025 email cannot be characterised as a decision that is subject to judicial review. 23 Respondent's submissions dated 23 April 2026 [13]. 24 Patole [138] (Vaughan JA). -- 17 of 18 -- [2026] WASC 247 WHITBY J Page 18 66 I therefore refuse the Leave Application in relation to the Third Decision. Discovery 67 Given I have refused the Leave Application, it is not necessary to determine Dr Abraham's discovery application. However, if I am wrong about the Leave Application, discovery can be dealt with succinctly. The matters in issue between the parties on the application for judicial review are not matters of fact. The facts are not in dispute - the particulars of each of the grounds are either accepted facts or matters of law. Documents of which discovery are sought are not relevant to that determination. I would have refused the application for discovery. Final Orders 68 I make the following orders: 1. The applicant's application for leave to proceed with the Amended Application for Judicial Review filed 11 February 2026 (Application) is refused. 2. The Application is dismissed. 69 In my view it is appropriate that costs follow the event, that is that the applicant pay the respondent's costs to be taxed if not agreed. In the event that either party proposes alternate costs orders they should confer and provide a minute of proposed orders within 7 days of these reasons. I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia. SF Associate to the Hon Justice Whitby 18 JUNE 2026 -- 18 of 18 --