PERTH DAY HOSPITAL PTY LTD -v- FITNESS CARTEL WESTERN AUSTRALIA PTY LTD [2026] WASC 228

[2026] WASC 228 Page 1 JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA IN CHAMBERS CITATION : PERTH DAY HOSPITAL PTY LTD -v- FITNESS CARTEL WESTERN AUSTRALIA PTY LTD [2026] WASC 228 CORAM : LUNDBERG J HEARD : 29 MAY 2026, 2, 4 & 8 JUNE 2026 DELIVERED : 8 JUNE 2026 FILE NO/S : CIV 1718 of 2026 BETWEEN : PERTH DAY HOSPITAL PTY LTD Plaintiff AND FITNESS CARTEL WESTERN AUSTRALIA PTY LTD First Defendant PHR HOLDINGS (WA) PTY LTD Second Defendant Catchwords: Interlocutory injunction - Private nuisance claim - Allegation of excessive noise and vibrations emanating from a neighbouring business in strata complex - Whether an expedited trial should be ordered - Proposal for court to inspect premises - Turns on own facts -- 1 of 19 -- [2026] WASC 228 Page 2 Legislation: Environmental Protection (Noise) Regulations 1997 (WA) Private Hospitals and Health Services Act 1927 (WA), s 26D Rules of the Supreme Court 1971 (WA), O 37 Result: Interlocutory injunction granted in terms sought by the plaintiff. Leave given to plaintiff to rely on affidavit of Felicity Marie Minchin sworn 8 June 2026, in part only. Defendants' application to vary injunction refused. Directions made for an expedited trial. Orders made to facilitate inspection of the premises by the defendants' expert. Orders made to facilitate a view of the premises by the court. Category: B Representation: Counsel: Plaintiff : M L Bennett (on 29 May and 2 & 4 June) and D Banda (on 8 June) First Defendant : J J Allison (on 2, 4 & 8 June 2026) Second Defendant : J J Allison (on 2, 4 & 8 June 2026) Solicitors: Plaintiff : Bennett First Defendant : Thomsons Second Defendant : Thomsons Case(s) referred to in decision(s): Ammon v Colonial Leisure Group Pty Ltd [2017] WASC 332 Ammon v Colonial Leisure Group Pty Ltd [2018] WASC 280 Ammon v Colonial Leisure Group Pty Ltd [2019] WASCA 158; (2019) 55 WAR 366 Enkelmann v Stewart [2026] QCA 67 Evans v The Queen [2007] HCA 59; (2007) 235 CLR 521 Hunt Leather Pty Ltd v Transport for NSW [2025] HCA 53; (2025) 100 ALJR 89 -- 2 of 19 -- [2026] WASC 228 Page 3 Mineralogy Pty Ltd v Sino Iron Pty Ltd [2016] WASCA 105 Scott v The President, Councillors and Ratepayers of the Shire of Numurkah (1954) 91 CLR 300 -- 3 of 19 -- [2026] WASC 228 Page 4 Table of Contents Introduction ................................................................................................................................ 5 Factual background..................................................................................................................... 5 The plaintiff's claim in nuisance ................................................................................................. 7 Application for interlocutory injunctive relief............................................................................ 9 Defendants' application to vary the injunction ......................................................................... 10 Serious question to be tried ...................................................................................................... 13 Inadequacy of damages ............................................................................................................ 14 Balance of convenience ............................................................................................................ 14 Proposed site inspection ........................................................................................................... 17 Conclusion and orders .............................................................................................................. 19 -- 4 of 19 -- [2026] WASC 228 LUNDBERG J Page 5 LUNDBERG J: Introduction 1 The plaintiff, which I will refer to as the Perth Day Hospital, asserts in this proceeding, filed on 29 May 2026, a claim in private nuisance against the defendants, arising from the excessive noise and vibrations alleged to emanate from the neighbouring gymnasium business operated by the first defendant, the Fitness Cartel. The plaintiff seeks interlocutory and final injunctive relief. There is no claim for damages. 2 On 2 June 2026, the court imposed interlocutory restraints on the operation of the first defendant's gymnasium business, pending trial. The defendants have sought to vary the restraints. For the following brief reasons, I will refuse the application to vary the injunction and make orders to list the action for a four day expedited trial commencing on Monday, 13 July 2026, which will include a site inspection by the court of the plaintiff's and the defendants' premises. Factual background 3 I will commence by briefly describing the premises and the factual issues in dispute. It is not appropriate or possible at this stage to resolve any of the contested factual issues. The affidavit evidence which has been presented has been assembled at short notice and may be preliminary in nature.1 It is also evident that the parties will adduce expert evidence as to the noise and vibration issues at trial, so a final consideration of those matters must await that evidence. 4 The businesses all operate from the same building, situated at 454 Scarborough Beach Road in Osborne Park. The building has three stories, which are occupied by five different businesses. The building consists of several strata units. The ground floor houses an audio-visual equipment supplier and wellness spa. The first floor houses the Perth Day Hospital (which is Unit 10), a health clinic and the first defendant's gymnasium business (which is Unit 8). The second floor is exclusively used by the first defendant, and includes mezzanine floors. The first defendant leases the Unit 8 premises from the second defendant. 1 The plaintiff relies on two affidavits of its chief executive officer, Ms Hesther Cathrine (Carine) du Plooy sworn 29 May 2026 and 4 June 2026 (the First du Plooy Affidavit and the Second du Plooy Affidavit). The defendants rely on the affidavit of its solicitor, Mr James Jordan Allison sworn 2 June 2026, and the affidavit of its director, Mr Matthew Theng, affirmed on 3 June 2026 (the Theng Affidavit). -- 5 of 19 -- [2026] WASC 228 LUNDBERG J Page 6 5 The Perth Day Hospital leases its premises from a related company. The plaintiff has recently begun to operate a day hospital from the premises, as the name of the plaintiff suggests. The hospital premises have been constructed and fitted-out at an approximate cost of $16 million, according to the plaintiff. 6 The plaintiff has received approval under the Private Hospitals and Health Services Act 1927 (WA) to operate from these premises, and the plaintiff has been granted a licence to conduct the hospital as a 'Day Hospital – Class B' pursuant to s 26D of that legislation. The licence permits the plaintiff to treat a maximum of 42 adult patients at any one time, in the classes of pain management and endoscopy. 7 The Perth Day Hospital has retained several specialist doctors to practice at the premises, namely 11 pain specialists and three gastroenterologists. 8 The plaintiff describes its pain management procedures as involving the insertion of needles into the spine or nerves of patients. The procedures are performed under local anaesthetic or light sedation, and require 'advanced imaging such as fluoroscopic (X-Ray) or ultrasound guidance to ensure that the procedure is carried out with maximum precision and safety'.2 9 The endoscopic procedures are carried out under light sedation using the latest technology. The endoscopic services include gastroscopy and colonoscopy.3 10 The plaintiff asserts that, to enable these procedures to be carried out, the four theatres within the premises have been equipped with various ceiling mounted equipment, namely 'pendants, which contain surgical lighting and gas lines', and 'sophisticated visual monitors in conjunction with imaging equipment'.4 Further, the ceilings of the operating theatres have been 'specially designed to accommodate the weight of the pendants and other equipment necessary to perform the operations carried out at the Hospital', and the equipment mounted on the ceiling is 'required to be ceiling mounted and cannot be placed on the floor or any other configuration within the theatres'.5 2 Statement of Claim [22]; First du Plooy Affidavit [38] - [39]. 3 Statement of Claim [23]; First du Plooy Affidavit [40]. 4 Statement of Claim [24]; First du Plooy Affidavit [41]. 5 Statement of Claim [25] and [26]; First du Plooy Affidavit [42] - [43]. -- 6 of 19 -- [2026] WASC 228 LUNDBERG J Page 7 11 The Fitness Cartel business operates in four zones across the leased premises, which are used for different purposes. There is a contested factual issue as to which zones are situated above the Perth Day Hospital, but it would seem that at least some of the gymnasium's operations take place above the hospital. 12 The members of the gymnasium use the premises for bodybuilding, light weightlifting, Hyrox and Pilates classes, and heavy weightlifting. I was informed by counsel that Hyrox is a popular form of fitness training which combines running and various functional workouts. 13 According to the first defendant, the overwhelming majority of the members at the Fitness Cartel (indeed, around 85%) use the gymnasium for weight training. The weight training varies, from very heavy barbells, to weight machines (using light and extremely heavy weights), medicine balls, and kettlebells. The plaintiff's claim in nuisance 14 By these proceedings, the plaintiff asserts a claim in the tort of nuisance against the defendants, and seeks injunctive relief to impose restraints on the defendants from causing noise or vibration at the neighbouring property operated by the first defendant. The regulatory criteria identified by the plaintiff are the noise levels identified in the Environmental Protection (Noise) Regulations 1997 (WA) and the vibration restrictions in the Australian Standard AS 2670.2 – 1990. 15 The general indorsement in the writ of summons describes the essence of the cause of action as follows: … the defendants allowing or causing excessive noise and vibrations emanating from the Defendant’s Property, commencing on or around December 2025, causing disturbance and interfering with the plaintiff’s use of the Plaintiff’s Premises; … the defendants, by their conduct … causing a private nuisance, interfering with the plaintiff’s right to use the Plaintiff’s Premises; and … permitting the continuation of the ongoing noise and vibration constituting nuisance. 16 Within the statement of claim, filed on 4 June, the plaintiff alleges it has experienced, from around November 2025 when the gymnasium -- 7 of 19 -- [2026] WASC 228 LUNDBERG J Page 8 commenced operations, excessive noise from the defendants' property, namely 'music and the sound of falling or dropped weights'.6 17 Further, the plaintiff alleges it has experienced 'vibrations within the Hospital, and in particular the theatres, caused by heavier weights being dropped or equipment immediately above or near key Hospital treatment areas'.7 18 The plaintiff has adduced expert reports from Herring Storer Acoustics and Reverberate Consulting which provide some preliminary exposition of the noise and vibration impacts on the hospital.8 Diary records have also been maintained by the staff at the hospital which provide a log of the instances of noise and vibration effects at the hospital, between 17 and 23 April 2026.9 An extract of one of the diary entries recorded by a staff member at the hospital appears below:10 19 Of course, the cogency of these expert reports and the above diary entries has not yet been subjected to critical examination by the defendants. 6 Statement of Claim [27.1]. 7 Statement of Claim [27.2]. 8 First du Plooy Affidavit, Attachments HCDP-11 and HCDP-25. 9 First du Plooy Affidavit [87] – [89], Attachments HCDP-20 to HCDP-24. 10 First du Plooy Affidavit, Attachment HCDP-21, pg 67. -- 8 of 19 -- [2026] WASC 228 LUNDBERG J Page 9 Application for interlocutory injunctive relief 20 At the same time the action was filed, that is, on the afternoon of 29 May, the plaintiff requested an urgent hearing before a Judge of this court in order to secure interim and interlocutory restraints, given the looming date for the commencement of the plaintiff's operations and treating patients, being Tuesday, 2 June. 21 At a hearing at 4.00pm that afternoon, which was the last day before the WA Day long weekend, the plaintiff sought orders to impose interim restraints on the defendants, on an urgent basis. There was no appearance at the hearing by either defendant, understandably given the short notice. 22 At that hearing, I raised with counsel for the plaintiff a concern that there had been a delay in commencing the proceedings, bearing in mind the parties had been communicating about the noise and vibration issues for many months. Indeed, commencing in December 2025, the plaintiff and the defendants had been exchanging communications concerning the noise and vibrations which the plaintiff asserts have emanated from the fitness gymnasium premises. In January 2026, for example, the chief executive officer of the plaintiff, Ms du Plooy, emailed a representative of the first defendant regarding the 'constant vibration' which she said was 'causing damage and noise' which was 'unacceptable' and was 'impacting our business'.11 23 Counsel for the plaintiff explained the delay in part by reference to the receipt by the plaintiff of a report from a vibration expert on 28 May (which required a period of time for the monitoring to be undertaken). Following receipt, the plaintiff says it acted promptly to commence the proceedings. The expert, Mr Martii Warpenius of Reverberate Consulting, had been instructed by the plaintiff on 14 April to conduct vibration monitoring, which he conducted over the week commencing on 16 April. 24 Additionally, counsel explained that the plaintiff had attempted to resolve the matter on a commercial basis through negotiations and communications. 25 Further, counsel explained the urgency of the application on the basis the hospital was due to commence its operations, including the treatment of patients for pain management and gastroenterology, on Tuesday, 2 June. In the absence of restraints, counsel for the plaintiff 11 First du Plooy Affidavit [61], Attachment HCDP-9. -- 9 of 19 -- [2026] WASC 228 LUNDBERG J Page 10 adverted to the risk of cancelled surgeries and delayed treatment for patients. That position was ultimately modified at the initial hearing of this matter, with the opening of the hospital delayed to Wednesday, 3 June. Accordingly, as matters developed, it was not necessary to impose any restraints at the initial hearing and the proceeding was adjourned to the morning of Tuesday, 2 June. Procedural directions were made to accommodate that hearing. 26 At that second hearing, on 2 June, at which counsel appeared for the defendants, the court imposed interim restraints with the matter then listed for further hearing on 4 June. The interim restraints were in the following terms: Upon the plaintiff's undertaking to the court filed 29 May 2026 and pending the hearing and determination of the action, or until further order, the defendants be restrained and an injunction be granted restraining them by themselves or by their servants or agents during the hours of 6:30am - 8:00pm, Monday to Friday, from: (a) the playing of music at a volume audible in the plaintiff's premises; and (b) the use of weights, including medicine balls and kettlebells, at Unit 8, 454 Scarborough Beach Road, Osborne Park WA. 27 The form of these orders was structured by reference to the proscribed conduct, rather than its effects, following observations made by the court at the initial hearing. My preliminary view was that the restraints would suffer from unacceptable uncertainty if drafted by reference to the excessive noise levels in the Environmental Protection (Noise) Regulations 1997 (WA) or the vibration restrictions in the Australian Standard AS 2670.2 – 1990. This is an issue which will require further consideration at trial. Defendants' application to vary the injunction 28 At the hearing on 4 June 2026, the defendants proposed a modification of the terms of the injunction. The defendants relied on affidavit evidence of Mr Theng, a director of Fitness Cartel. Mr Theng provided a comprehensive overview of the gymnasium business and its operations, and also explained that, following the interim restraint imposed on 2 June, the first defendant had made the decision to close its -- 10 of 19 -- [2026] WASC 228 LUNDBERG J Page 11 business, given the high proportion of its members who use the premises for weight training.12 29 Flowing from this closure, Mr Theng deposed to the financial losses the first defendant would suffer going forward, being around $14,450 in lost revenue per day, as well ongoing weekly expenses.13 Mr Theng also deposed to the 'reputational damage, reduced member confidence, a loss of referrals for new members and a decline in future membership growth', stemming from the closure.14 I accept it will be difficult to financially compensate the defendants for some of these impacts, pursuant to the undertaking as to damages, but I also note that there is now evidence before the court (see [32] to [34] below) that the gymnasium business has not been wholly closed as a result of the injunction. 30 Counsel for the defendants proposed a variation which would narrow the restraints, in relation to the use of weights, as follows (bearing in mind there was no application to vary the injunction in terms of the playing of music): (b) the use of weights within the 'Hyrox Room' otherwise described as 'Zone 2' in the affidavit of Matthew Theng sworn 3 June 2026; and (c) the use of free weights (including medicine balls and kettlebells) that exceed 100kg. 31 I understood that a variation in this form would permit the defendants to continue to conduct its business during the injunction period (or put another way, would cause the first defendant to change its decision to close the business pending trial). 32 At the hearing on 8 June, the plaintiff sought leave to rely on the affidavit of Ms Felicity Marie Minchin sworn 8 June, for two purposes. The first concerned the mass of objects being dropped at the gymnasium and whether it was possible to determine the cause of the vibrations being experienced at the hospital. The plaintiff sought to rely on a further email exchange with Mr Warpenius in this regard. The second purpose was to adduce evidence from the first defendant's Instagram account to show that the first defendant's business has remained open, within the limits of the injunction, since last week. This evidence was said to be highly 12 Theng Affidavit [30] – [33]. 13 Theng Affidavit [34] – [35]. 14 Theng Affidavit [38]. -- 11 of 19 -- [2026] WASC 228 LUNDBERG J Page 12 relevant given the statement of the director of the first defendant in his affidavit that the first defendant had made a decision to close the gym.15 33 The defendants opposed any reliance on the fresh affidavit, given the delay in producing the material. Counsel noted that two of the Instagram stories had been captured on 3 and 4 June, and could have been adduced much earlier. That said, the third Instagram story was only captured on the morning of 8 June. 34 Given the lateness of the affidavit material, I have approached the reception of the evidence with some caution. On balance, I consider I should receive the affidavit only with respect to the second purpose identified by counsel for the plaintiff. That evidence is highly relevant to the question before the court, and responds directly to the first defendant's assertion that it has closed the gym. I understand the evidence to show, at least on a preliminary basis, that the Fitness Cartel gymnasium business continues to operate using weights, as permitted by the initial injunction, at hours prior to 6.30am and after 8.00pm. Further, the gymnasium continues to provide non-weight based sessions, such as Pilates and Reformer classes, as normal. This evidence provides a significant clarification to the material before the court as at 4 June, and it is appropriate to have regard to the evidence in considering the defendants' variation application. The evidence is relevant to the court's assessment of the balance of convenience. 35 For the following brief reasons, I will refuse the application to vary the injunction and make orders to list the action for an expedited trial commencing on 13 July. In explaining this refusal, it is necessary to address the essential elements of the injunction application, in respect of which I had given brief oral reasons at the hearing on 2 June. 36 In assessing the plaintiff's application for interlocutory injunctive relief on 2 June, I recognised it was necessary:16 (a) for the plaintiff to demonstrate there was a serious question to be tried or a prima facie case; (b) to assess whether the plaintiff would suffer irreparable injury for which damages would not be adequate compensation; and 15 Theng Affidavit [30]. 16 Mineralogy Pty Ltd v Sino Iron Pty Ltd [2016] WASCA 105 [87]. -- 12 of 19 -- [2026] WASC 228 LUNDBERG J Page 13 (c) to assess whether the balance of convenience favours the grant of the restraints. 37 The first and third of these questions are related, not independent. Serious question to be tried 38 As to the first issue, I am satisfied the plaintiff has demonstrated a serious question to be tried, namely that a tortious nuisance has occurred and continues to occur at the premises, arising by reason of the operation of the defendant's gymnasium business. 39 That is evident from the affidavit evidence of Ms du Plooy, the chief executive officer of the plaintiff, and her observations (as well as the observations of staff members) as to the noise and vibrations experienced within the leased premises. The plaintiff also relies on the expert report of Mr Warpenius, in which he refers to the floor vibration levels he recorded at the plaintiff's premises and in which he concluded that 'high levels of vibration on the floor of the Hospital were attributable to the operation of a Gymnasium on the floor above'. 40 There is, on this evidence, a sufficient likelihood of success in the plaintiff's case to justify the preservation of the status quo pending the trial. I will return to the status quo issue in due course. 41 In assessing the strength of the plaintiff's case, I have had regard to the principles expressed by the High Court in Hunt Leather Pty Ltd v Transport for NSW,17 as subsequently summarised by Doyle JA in the very recent decision of the Queensland Court of Appeal in Enkelmann v Stewart.18 42 In summary, this analysis will first require a consideration as to whether the use of the defendants' land has caused a substantial interference with the plaintiff's ordinary use of its land. The 'ordinary use of the land' means the ordinary uses of land in the relevant locality, which involves consideration of both the purpose of the use, and the means by which the purpose is achieved. At this point in the analysis, consideration of whether the defendants' use is, or is not, ordinary or unreasonable does not arise. Rather, the focus is on the impact on the plaintiff's use of the land. 17 Hunt Leather Pty Ltd v Transport for NSW [2025] HCA 53; (2025) 100 ALJR 89 (Hunt Leather) 18 Enkelmann v Stewart [2026] QCA 67. -- 13 of 19 -- [2026] WASC 228 LUNDBERG J Page 14 43 Next, it will be necessary to consider whether the defendants have a justification or excuse for causing that substantial interference if the defendants establish that they were using their land for a common and ordinary purpose, by means which involved it being 'conveniently done'. The phrase 'conveniently done' means a use that reasonably minimised the extent of the interference. As explained in Hunt Leather, the expression 'common and ordinary' refers to a use which is 'reasonable according to the ordinary usages of mankind living in society, or more correctly in a particular society'. 44 Plainly, questions of fact and degree will be involved in this analysis and require a consideration of the relative interests of each of the parties in all the circumstance. Further, as Doyle JA observed, difficult questions may arise as to the appropriate level of generality at which to identify the common and ordinary usage. 45 As the factual material presently stands, there is a serious question to be tried that the Fitness Cartel business has caused, and will cause if unrestrained, a substantial interference in the operation of the Perth Day Hospital's business of treating patients, through the noise and vibrations. There may nonetheless be issues at trial as to whether the operation of a day hospital within this building, in this locality, constitutes an ordinary use of the land. 46 As to the second issue in the nuisance analysis identified above, the available evidence indicates the Fitness Cartel has taken certain steps to ameliorate the impact of its business on the plaintiff. There remains a serious question to be tried as to whether the Fitness Cartel is using the Unit 8 premises for a common and ordinary purpose, by means which involve it being 'conveniently done', so as to reasonably minimise the extent of the interference. Inadequacy of damages 47 Moving to consider whether the plaintiff would suffer irreparable injury for which damages would not be adequate compensation, I am satisfied in this case that this has been demonstrated. The plaintiff's claim is for final injunctive relief, not damages. The plaintiff points to what it says are fundamental difficulties in the operation of its hospital if the asserted nuisance continues. Balance of convenience 48 That leaves the balance of convenience question. -- 14 of 19 -- [2026] WASC 228 LUNDBERG J Page 15 49 This is finely balanced, given the impact each business appears at this stage to have on each other, which at one level might suggest the businesses are incompatible if co-located in the present manner. 50 Ultimately, I have given more weight to the operations of the Perth Day Hospital given the delicate nature of the services to be performed on patients, and the likely risk of injury to patients if the Fitness Cartel operations were to continue unrestrained while pain management and endoscopy services are being delivered. The plaintiff's proposal is, on my present analysis, likely to achieve a greater degree of protection for the health and safety of patients receiving specialist treatment at the hospital. 51 The Perth Day Hospital was also in the process of being fitted out prior to the arrival of the Fitness Cartel business, at a considerable cost running to many millions. In this regard, I accept the analysis of the status quo in this case is not straightforward. The plaintiff has expended considerable funds in developing its business, over some time, commencing its fit out works in around November 2024. However, the plaintiff did not in fact commence its operations until 3 June 2026, in terms of treating patients. The Fitness Cartel commenced its fit out works in March 2025, and commenced the gymnasium business in around November or December 2025. 52 On balance, it seems to me the status quo analysis in this case favours the plaintiff, but it is not overwhelming. One might contrast this more finely balanced position to that which confronted Master Sanderson when considering the interlocutory injunction application in Ammon v Colonial Leisure Group.19 That case concerned noise complaints emanating from The Raffles Hotel in Applecross. The plaintiff had acquired a nearby apartment, forming part of the same strata complex as the hotel. Master Sanderson concluded:20 Clearly the status quo favours the defendant. The Raffles Hotel has been in almost continuous operation since the 1890s. It enjoys iconic status. True it is it was refurbished in 2014 and on the plaintiff's evidence it is from that date that the noise problem began. But to limit the operation of the hotel in the way proposed by the plaintiff would represent a 19 Ammon v Colonial Leisure Group Pty Ltd [2017] WASC 332 (Master Sanderson). The court ultimately dismissed the nuisance claim at trial: Ammon v Colonial Leisure Group Pty Ltd [2018] WASC 280. An appeal to the Court of Appeal was subsequently dismissed: Ammon v Colonial Leisure Group Pty Ltd [2019] WASCA 158; (2019) 55 WAR 366. 20 Ammon v Colonial Leisure Group [2017] WASC 332 [13] (Master Sanderson). -- 15 of 19 -- [2026] WASC 228 LUNDBERG J Page 16 significant shift in the status quo. Overwhelmingly this issue favoured the defendant. 53 At the hearing on 4 June, it was asserted that the limits on the use of weights in the gymnasium had led to the closure of the business for the time being, with considerable financial and non-financial implications for the first defendant. As I have observed above, the fresh affidavit of Ms Minchin casts a new and important light on this position, such that it appears the gymnasium business is not wholly closed, but is operating on a reduced basis, as permitted by the terms of the injunction ordered on 2 June. I have considered these matters. I also recognise that the plaintiff has proffered an undertaking as to damages which provides a measure of relief to the defendants should the plaintiff's claim ultimately fail at trial. There was no suggestion the plaintiff was other than a company of substance with appropriate financial standing. 54 I have earlier mentioned my concern at the delay in the commencement of the proceedings. I have given consideration to this, in assessing the balance of convenience, and as a discretionary issue which might point against the grant of equitable relief on an interlocutory basis. At this stage, while it would no doubt have been preferable for the plaintiff to have initiated the proceedings much earlier, I have received an explanation from the plaintiff which explicates the delay to some extent, including the late receipt of the expert report on 28 May. The criticism of the plaintiff's delay is not so significant to warrant refusal of the relief given the available evidence as to the risks to the plaintiff's operations and the consideration of patient health and safety (or the cancellation of scheduled operations). 55 The assessment of the balance of convenience favours the formulation of the interim restraints in a manner which, in my view, wholly precludes the use of weights, including medicine balls and kettlebells, within the first defendant's premises. 56 As I have noted, the defendants proposed a variation which would narrow the restraints, in relation to the use of weights. There are several difficulties with the defendants' proposal, primarily: (a) it would allow for the use of weights in other zones where there remains a contested factual issue as to the location of the zones relative to the theatres within the hospital; -- 16 of 19 -- [2026] WASC 228 LUNDBERG J Page 17 (b) even where the weights are not used directly above the hospital (or above operating theatres in the hospital) there may still be vibrational effects on the plaintiff's operations; and (c) the use of weights less than 100kgs may nonetheless, on the plaintiff's case, cause the noise and vibrations about which it complains (and the limit of 100kgs seems somewhat arbitrary and lacks any evidentiary or scientific basis, at least at this stage). 57 The defendants' proposal would continue to expose the patients to the risks I have earlier mentioned, on the assumption the Perth Day Hospital continues to provide the pain management and endoscopy services during the period of the injunction. There seems to me to remain an appreciable risk that the hybrid proposal advanced by the defendants would achieve no mitigation of the effects asserted by the plaintiff as causing concerns for patient health and safety. 58 A further consideration, although not an overwhelming one, is the need for certainty in the formulation of the injunctive relief. The plaintiff's proposal has greater certainty and allows the parties to better understand the limits on conduct during the period of the injunction. 59 The balance of convenience is also to be weighed in the context of the likely length of the injunction. In this case, all parties seem prepared to commit to an expedited trial process, with a trial being possible in the week commencing 13 July. Although that week falls within the court's two-week winter recess, the court can accommodate a listing in that period. 60 The imposition of restraints on the defendants for a period of some six weeks (together with any judicial writing time) is a factor which weighs in favour of the grant of the injunction in the terms proposed by the plaintiff. I therefore consider the form of the restraints imposed on 2 June should remain in effect, as proposed by the plaintiff. Proposed site inspection 61 The plaintiff has proposed there be an inspection by the court of the premises in question, pursuant to the power in O 34 r 7(1) of the Rules of the Supreme Court 1971 (WA) (RSC). I did not apprehend that the proposal was seriously opposed by the defendants. -- 17 of 19 -- [2026] WASC 228 LUNDBERG J Page 18 62 Order 34 r 7 RSC states: 7. Inspection by judge or jury (1) The judge before whom any cause or matter is heard or tried may inspect any property, place or thing concerning which a question arises in the cause or matter. 63 A view or an inspection of a location involves an out of court examination of a location when not in operation and without witnesses providing further explanation of the events.21 At common law, the process does not permit the Court to gather anything in the nature of extraneous evidence and apply it to the determination of the issues.22 64 I consider the factual issues arising in the action, even at this early stage, can be seen as likely to benefit from the court undertaking a personal view of the premises. The fact an on-site inspection would be of considerable assistance to the court having regard to the issues arising in the action is a necessary, but not a sufficient, condition to grant an application to inspect. 65 In order for the court to accede to such an application, the court must have regard to all the prevailing circumstances of the litigation. This will include case management considerations. Given the premises are situated in the Perth metropolitan area, not far from the court, the timing and cost considerations will not stand in the way of the proposal. There are no other case management considerations which point against the proposal, in my view. 66 Given the urgency of the proceedings, it seems most appropriate to conduct the inspection on the first day of trial, at which point the court will have the benefit of the parties' pleadings, the expert evidence and opening submissions, to frame the issues in the case. 67 I am comfortably satisfied that a view of the premises is appropriate and there is a reasonable likelihood of that process being of benefit to the court. I will make orders accordingly. 21 Evans v The Queen [2007] HCA 59; (2007) 235 CLR 521 [193] (Heydon J). 22 Scott v The President, Councillors and Ratepayers of the Shire of Numurkah (1954) 91 CLR 300, 313 (Dixon CJ, Webb, Kitto and Taylor JJ). -- 18 of 19 -- [2026] WASC 228 LUNDBERG J Page 19 Conclusion and orders 68 I will refuse the defendants' application to vary the interlocutory injunction, such that the restraints imposed on 2 June will continue until further order. 69 I will make orders to admit the action to the CMC List and will now make directions as proposed by the plaintiff for the listing of the expedited trial to commence on 13 July 2026 (for four days), generally in accordance with the timetable proposed by the plaintiff. This will include the facility for an inspection of the premises by the court. The directions will also allow for the defendants' expert to attend at the premises in short order to undertake any necessary inspection and testing (in respect of which the defendants have informed the court that the earliest date such an inspection can occur is Saturday, 20 June and Sunday, 21 June). 70 I will hear further from counsel as to the form of the orders. I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia. LM Associate to the Honourable Justice Lundberg 8 JUNE 2026 -- 19 of 19 --