PERTH DAY HOSPITAL PTY LTD -v- FITNESS CARTEL WESTERN AUSTRALIA PTY LTD [2026] WASC 313

[2026] WASC 313 Page 1 JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA IN CIVIL CITATION : PERTH DAY HOSPITAL PTY LTD -v- FITNESS CARTEL WESTERN AUSTRALIA PTY LTD [No 2] [2026] WASC 313 CORAM : LUNDBERG J HEARD : 13 - 17 JULY 2026 DELIVERED : 14 JULY 2026 PUBLISHED : 4 AUGUST 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 FITNESS CARTEL OSBORNE PARK PTY LTD Third Defendant Catchwords: Practice and procedure – Claim in private nuisance brought by plaintiff hospital against gymnasium business - Application by defendants to amend their defence -- 1 of 25 -- [2026] WASC 313 Page 2 during trial – Defendants proposing to add plea that the building was unsuitable for the construction of the hospital within Unit 10 of the Strata Plan and that reasonable steps were available to the plaintiff to mitigate the effects of the conduct on the part of the defendants – Application allowed subject to adjournment – Turns on own facts Evidence - Documents tendered by consent - Whether power to revisit tender of document - Turns on own facts Evidence - Cross-examination on part of prior affidavit of witness - Whether necessary to permit tender of whole affidavit in re-examination - Turns on own facts Legislation: Evidence Act 1906 (WA), s 21, s 22, s 79C(2a), s 79C(3) Rules of the Supreme court 1971 (WA), O 1 r 4A, O 1 r 4B, O 21 r 5 Result: Leave granted to defendants to amend pleadings on terms. Evidentiary rulings made as detailed in these reasons. Category: B Representation: Counsel: Plaintiff : M L Bennett First Defendant : S J Davis Second Defendant : S J Davis Third Defendant : S J Davis Solicitors: Plaintiff : Bennett First Defendant : MGD Law Second Defendant : MGD Law Third Defendant : MGD Law -- 2 of 25 -- [2026] WASC 313 Page 3 Case(s) referred to in decision(s): AEI Insurance Group Pty Ltd v Martin (No 4) [2024] FCA 1110 Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 Assafiri v Horne [2004] WASCA 40 Attorney-General of Botswana v Aussie Diamond Products Pty Ltd [No 3] [2010] WASC 141 Commissioner of Taxation v Bosanac (No 7) [2021] FCA 249; (2021) 390 ALR 74 Hightime Investments Pty Ltd v Lungan [No 2] [2010] WASC 296 Hunt Leather Pty Ltd v Transport for NSW [2025] HCA 53; (2025) 100 ALJR 89 Mann v Bankwest – A Division of Commonwealth Bank of Australia [2020] WASCA 35 McKay v Commissioner of Main Roads [No 2] [2010] WASC 153 O'Meara v The State of Western Australia [2013] WASCA 228 R v Bedington [1970] Qd R 353 R v Steffan (1993) 30 NSWLR 633; (1993) 67 A Crim R 506 R v Walker (1993) 61 SASR 260 Rhodes v De Castro [No 2] [2023] WASC 93 UBS AG v Tyne [2018] HCA 45; (2018) 265 CLR 77 Wimpole v McIlrwaith [1923] VLR 553 Zamora v OCS Services Pty Ltd [2025] WASCA 117 -- 3 of 25 -- [2026] WASC 313 Page 4 Table of Contents Introduction ................................................................................................................................ 5 Application to amend the defence made on 14 July 2026 .......................................................... 5 Course of the pleadings.......................................................................................................... 6 Relevant principles ................................................................................................................ 7 Is the defendants' proposed pleading reasonably arguable? .................................................. 8 Applicable case management considerations ...................................................................... 11 Evidentiary rulings made on 16 July 2026 ............................................................................... 16 Proposed Exhibit 214 – affidavit of Ms du Plooy sworn 4 June 2026 ................................ 17 Proposed Exhibit 215 – affidavit of Ms du Plooy sworn 29 May 2026 .............................. 21 Proposed Exhibits 47, 48, 49, 50 and 51 – handwritten diary entries by Hospital staff ...... 22 Proposed Exhibits 56, 57 and 59 – emails from Hospital staff............................................ 23 -- 4 of 25 -- [2026] WASC 313 LUNDBERG J Page 5 LUNDBERG J: Introduction 1 These reasons address two interlocutory matters which arose during the course of the trial. These reasons should be read together with the court's substantive reasons published following trial. 2 The first issue concerns an application to amend the defence. On 14 July 2026, the court delivered the reasons set out at [4] to [56] of these reasons ex temporaneously in relation to the defendants' application to amend their defence. The reasons have been edited by the court to insert case references, headings and address typographical errors. As noted in the substantive reasons, the application to amend, although granted, was ultimately withdrawn and the court proceeded with the trial thereafter on the basis it was not open for the defendants to raise the matters which had been the subject of the proposed amendment. 3 The second issue concerns several evidentiary rulings made on 16 July 2026 in response to objections raised by the defendants to the tender by the plaintiff of several documents. The court indicated it would publish reasons for the rulings in due course, which are set out at [57] to [90] of these reasons. Application to amend the defence made on 14 July 2026 4 The defendants to the action have sought leave to amend their defence in terms of the minute of proposed further amended defence dated 13 July 2026. That draft pleading was provided to the plaintiff and to the court last night. I will refer to that pleading as the Proposed FAD. The preceding pleading is the amended defence dated 8 July 2026. 5 The draft pleading was provided in response to an objection from the counsel for the plaintiff which was made following the defendants' oral opening address yesterday (ts 39). During the address, counsel for the defendants identified two issues which the plaintiff says were not apparent on the pleaded defence. 6 The first is that the building in question was unsuitable for the construction of the Perth Day Hospital within Unit 10. The second, and related point, is that the defendant says there are reasonable steps -- 5 of 25 -- [2026] WASC 313 LUNDBERG J Page 6 available to the plaintiff to mitigate the effects of the conduct on the part of the defendants which are the subject of this nuisance action. 7 It is certainly correct to say that neither of these matters are expressly identified in the pleaded defence. However, both matters find voice in the written opening submissions which were served by the defendants on Friday, 10 July 2026. Course of the pleadings 8 Before I address the application itself, I will say something about the course of the pleadings, so far as is relevant to this application. 9 I note that a plea of hypersensitivity on the part of the plaintiff was raised by the defendants in their original defence when it was filed on 29 June 2026 (Folio 29). That is, the defendants asserted that the plaintiff's use of the land constituted 'an exceptionally delicate trade and an abnormally sensitive use' (at [29(d) of the original defence]. 10 An amended defence was filed on Thursday, 8 July 2026 (Folio 48) which incorporated further pleas concerning the mitigatory steps taken by the defendants. However, the amended defence did not incorporate pleas as to the suitability of the building or as to mitigatory steps which might be taken by the plaintiff. 11 The Proposed FAD now identifies these matters in [13], [26] and [29]. These allegations are particularised by reference to the expert report of Mr Andrew van der Meer dated 10 July 2026 (Folio 55). That expert report was served by the defendants on Friday last week (the same day on which the amended defence was served). 12 At [13] of the statement of claim (FASOC), it is alleged that 'The planning of the Hospital revolved around ensuring it would provide best-practice clinical care, patient comfort and streamlined workflow for health professionals'. In response, [13] of the original defence had been confined to a non-admission. The proposed pleading now intends to assert that 'the building in which the day hospital has been constructed is and was at all material times unsuitable for the construction of, and to house, the Hospital in Unit 10'. 13 At [26] of the FASOC, it is alleged that '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'. The original non-admission -- 6 of 25 -- [2026] WASC 313 LUNDBERG J Page 7 response to this plea (in the original defence) is now proposed to incorporate the new plea as to the unsuitability of the building. 14 At [29] of the FASOC, the claim in nuisance is asserted. That has always been denied by the defendants. It is now proposed to incorporate, by way of response, the new plea as to the unsuitability of the building, said to be relevant to whether 'the Plaintiff's use of Unit 10 as a day hospital is ordinary'. The defendants assert this (that is the ordinary use of the hospital) is a matter which the plaintiff must prove. Further, the defendants propose to assert by way of response to the nuisance plea a contention that reasonable steps are available to the plaintiff, consistent with its use of Unit 10, 'to mitigate the effects of the conduct on the part of the defendants that is complained of'. Relevant principles 15 The Court has a discretion to grant leave to permit an amendment of pleadings. The express power is found in O 21 r 5 of the Rules of the Supreme Court 1971 (WA) (RSC). 16 There are essentially two broad matters for consideration. 17 The first, in the context of this case which involves a proposed amendment to a defence, is whether the proposed pleading demonstrates an arguable defence or response to the claim. 18 The second issue is to assess the relevant case management considerations. This second issue is important, as is clear from the goal and objects in O 1 r 4A and r 4B of the RSC and given the High Court's pronouncement some years ago now that the presence of a proposed arguable pleading does not afford a party an entitlement to leave in respect of that pleading. In Aon Risk Services Australia Ltd v Australian National University,1 the court stated the following principle: An application for leave to amend a pleading should not be approached on the basis that a party is entitled to raise an arguable claim, subject to payment of costs by way of compensation. There is no such entitlement. All matters relevant to the exercise of the power to permit amendment should be weighed. The fact of substantial delay and wasted costs, the concerns of case management, will assume importance on an application for leave to amend. 1 Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175. -- 7 of 25 -- [2026] WASC 313 LUNDBERG J Page 8 Is the defendants' proposed pleading reasonably arguable? 19 Turning to the first issue, that is whether the pleading is arguable, I accept the contention of the defendants' counsel that the proposed pleading raises matters which are fairly arguable. 20 That is not to say they will be successful at trial. The analysis of the court at this stage is to assess whether the pleading is not likely to be struck out and discloses a reasonably arguable contention. 21 I accept that the inherent suitability of these premises for the construction of a Hospital in Unit 10 is relevant to an assessment as to whether the plaintiff's use of the land is 'an ordinary use in the relevant locality', which is the phrase identified by Gordon and Edelman JJ in the High Court decision of Hunt Leather Pty Ltd v Transport for NSW.2 Their Honours explained in that case (at [94]) that this assessment 'involves consideration of both the purpose of the use and the means by which the purpose is achieved'. 22 It is accepted that the necessary enquiry is a fact-sensitive one. In Hunt Leather, Gageler CJ made the following observations in this respect (at [30] – [33]): [30] Part of the difficulty is conceptual indeterminacy. The common law is nothing if it does not learn from experience. As again pointed out by Windeyer J in Gartner, the concept of "common and ordinary use" of land employed by Baron Bramwell in his formulation in Bamford was strikingly similar to the concept of "non-natural" or "not ordinary" use of land employed by Lord Cairns just a few years later in the formulation of the rule in Rylands v Fletcher. To be remembered is that one of the main reasons given in Burnie Port Authority v General Jones Pty Ltd for assimilating the rule in Rylands v Fletcher into the law of negligence within the common law of Australia was that its concept of "non-natural" or "not ordinary" use of land had been shown by experience to be so much lacking in "objective content" that its practical application was "likely to degenerate into an essentially unprincipled and ad hoc subjective determination of whether the particular facts of the case fall within undefined notions of what is 'special' or 'not ordinary'. [31] The greater part of the difficulty in treating the "principle" distilled by Baron Bramwell in Bamford as a criterion of liability in accordance with the approach of the majority in Fearn lies in its displacement of any inquiry into whether the 2 Hunt Leather Pty Ltd v Transport for NSW [2025] HCA 53; (2025) 100 ALJR 89 [12] (Hunt Leather). -- 8 of 25 -- [2026] WASC 313 LUNDBERG J Page 9 interference with a plaintiff's "common and ordinary" use and enjoyment of land that results from a defendant's use of land that is not "common and ordinary" is objectively greater than a normal person in the position of the plaintiff ought reasonably have to put up with in the totality of the circumstances. [32] The potential breadth of the requisite inquiry was explained by McLure P in Southern Properties (WA) Pty Ltd v Executive Director of the Department of Conservation and Land Management: To constitute a nuisance, the interference must be unreasonable. In making that judgment, regard is had to a variety of factors including: the nature and extent of the harm or interference; the social or public interest value in the defendant's activity; the hypersensitivity (if any) of the user or use of the claimant's land; the nature of established uses in the locality (eg residential, industrial, rural); whether all reasonable precautions were taken to minimise any interference; and the type of damage suffered. [33] There is no novelty in this approach. Historically: [C]ourts have insisted that the finding of a nuisance is a contextual, fact rich, determination dependent on a long list of considerations: the time of the alleged nuisance, its length, its intensity, the neighbourhood in which it takes place, the number of people affected, the respective benefits of the competing activities, and so on. Though these factors can be stated in the abstract, they manifest themselves very differently in different cases and so taking them into account rails against any attempt to conclusively prioritise certain activities as more fundamental than others. (citations and footnotes omitted) 23 The defendants also propose to deploy the new pleading to assert that reasonable mitigation steps are available to the plaintiff concerning its use of the land. The defendants refer in this regard to the expert report of Mr van der Meer and the report of the conference between Mr van der Meer and the plaintiff's structural engineering expert, Mr Sander. That conference occurred during the first day of the trial (Monday, 13 July 2026). In that report, (Folio 59) the following matters are stated: 2(c) I predicted that the addition of structural columns to the soffit of level 1 would reduce the slab 1 vibration response amplitude. Mr Sander agreed with my statement. 2(d) Mr Sander has reviewed my report and agree with its contents. He noted that the proposed solution of adding extra columns -- 9 of 25 -- [2026] WASC 313 LUNDBERG J Page 10 would reduce deflection in the slab, but would not alter the impact of air-borne vibration or noise. 24 I understand the contention to be advanced by the defendants is that Mr van der Meer will express the opinion that additional of structural columns beneath level 1 (the 'soffit' referred to by Mr van der Meer being the exposed underside of level 1 of the building) would have the effect of reducing the vibration response amplitude in the concrete slab upon which the Hospital has been located. 25 This is further apparent from the expert report of Mr van der Meer, in which he expressed the following opinions, among others: 18. The first floor of the building supporting Unit 10 is partially supported by a one-way suspended slab on beams and the two- way suspended slab with small capitals. The suspended slabs span about 10 metres. The slab plan is shown on Figure 2. The beam and slab photographs are shown in Plate 1 and 2. This system exists between grids 1 and 5. The two way suspended flat slabs are shown in Plates 3 and 4. This floor system exists between grids 5 and 11. 19. The 10 metre span is a relatively large span for a suspended slab. Large span suspended slabs are more likely to suffer from deflection and vibration issues than smaller span slabs. 20. The amplitude of dynamic response of a suspended slab system is largely dependent on the span of the slabs. … 22. It is my conclusion that because of the large concrete slab spans supporting Unit 10 the selection of Unit 10 for a day hospital containing very sensitive apparatus was fraught with danger and therefore an unsound selection. … 28. I believe this vibration problem of the day hospital slab can be reduced by the addition of some columns under the first floor suspended slab within the carpark area 26 The defendants say it is permissible in response to a claim advanced in nuisance for a defendant to point to the existence of reasonable steps available to the plaintiff, consistent with the plaintiff's common and ordinary use of the land, which may mitigate the effects of the defendant's conduct. My attention has been drawn to the observations of Beech-Jones J in the Hunt Leather decision in this -- 10 of 25 -- [2026] WASC 313 LUNDBERG J Page 11 regard (at [274]). Those observations support the basis of the proposed plea, at least as a matter of principle. 27 In response, I understand the plaintiff says the plea is unsustainable in its present form as it is bereft of particulars. There is some force in that observation. I think in the context of the present case, however, the absence of particulars should not stand in the way of the assessment as to the arguability of the plea. The asserted deficiency can be remedied by the provision of particulars. 28 For these reasons, I accept that the defendants' proposed pleading is reasonably arguable. Applicable case management considerations 29 I turn then to the case management considerations. There are several matters to consider in this regard. The broad range of matters which are commonly assessed by the court were summarised by Beech J (as his Honour then was) in Hightime Investments Pty Ltd v Lungan [No 2],3 namely: (a) the effect of an amendment on the court and on other litigants is relevant; (b) there is no right to amend to introduce an arguable case and it is wrong to say that only in extreme circumstances would a party be shut out from litigating an arguable case; (c) justice requires that parties have a proper opportunity to plead their case, but limits may be placed on repleading when delay and cost are taken into account; (d) a just resolution does not mean that a party will always be permitted to raise any arguable case at any point in the proceedings, on payment of costs, even indemnity costs; (e) the inevitable strains of litigation must be taken into account in weighing the adverse consequences of delay - this applies to natural persons and other litigants; (f) the nature and importance of the amendment to the party amending must be taken into account; 3 Hightime Investments Pty Ltd v Lungan [No 2] [2010] WASC 296. -- 11 of 25 -- [2026] WASC 313 LUNDBERG J Page 12 (g) attention must be given to the extent of the delay, and the costs associated with it, the prejudice which might reasonably be assumed to follow from it and any prejudice that is shown; (h) the point in the litigation relative to the trial may be an important consideration; (i) where a discretion is sought to be exercised in favour of a party, an explanation will be called for; and (j) the point can be reached where a party has had a sufficient opportunity to put its case. 30 The present application requires a careful consideration of these issues given the rapidity with which this trial has been brought on, and the manner in which the new pleaded issues have emerged. 31 To be clear, I recognise this is an expedited trial, and so the usual time available to the parties and lawyers to prepare their cases has been reduced. The process of engaging experts has been heavily truncated, evident in some respects by the provision of the defendants' structural engineering expert report on Friday, the last working day before the trial, and the fact the two structural engineering experts only met to confer on the first day of the trial. 32 The context of this case means that the application for amendment of the defence was raised on the first day of trial and has been argued on the second day of trial. 33 Ordinarily, where such an application is made so late in the day, and where it may lead to dates that have been set down for trial being vacated, the applicant for leave bears a heavy burden to show why leave should be granted. In such a case the public interest in the timely and efficient resolution of legal proceedings and the effective use of court resources is a relevant consideration: Mann v Bankwest – A Division of Commonwealth Bank of Australia.4 34 These considerations are echoed by the statement of the plurality in the High Court's decision of UBS AG v Tyne5 that the 'timely, cost effective and efficient conduct of modern civil litigation takes into account wider public interests than those of the parties to the dispute'. 4 Mann v Bankwest – A Division of Commonwealth Bank of Australia [2020] WASCA 35. 5 UBS AG v Tyne [2018] HCA 45; (2018) 265 CLR 77. -- 12 of 25 -- [2026] WASC 313 LUNDBERG J Page 13 35 Further, Murphy J (as his Honour then was) in Attorney-General of Botswana v Aussie Diamond Products Pty Ltd [No 3],6 explained that the principles in Aon Risk require that in cases where an indulgence is sought, particularly in or close to the trial where there is an obvious potential for serious disruption to the litigation, there should be a proper explanation for the application, showing that it is brought in good faith and bringing to the court's attention, in a candid way, the circumstances giving rise to the application. 36 I do not see this as a case in which the full weight of the foregoing observations is applicable, given the expedited nature of the case, meaning this is not a situation in which the litigant seeking leave has delayed in raising a point against a backdrop of months or years of litigation. The writ of summons in this case was filed on 29 May 2026, which is less than two months ago. A lot has happened since then, and both sets of parties have moved industriously to prepare their respective cases for trial. 37 For my part, I do not consider the defendants have delayed in raising these matters which, on the face of the court papers, appears to have arisen late last week, on the eve of trial. I accept there is a fair explanation from the defendants' camp to contextualise why this amendment is being sought today. 38 The features of the application which thus emerge as being particularly cogent, having heard from counsel, are the importance of the new issues to the defendants' overall response to the nuisance claim, the prejudice to the plaintiff if the issue is allowed to be litigated in this trial, and the effects on the court, the parties and other litigants if the trial is delayed by reason of the amendments. 39 Inherent in this assessment is a consideration of the continuing effects of the interlocutory injunction which was granted on the application of the plaintiff. That injunction presently proscribes certain conduct on the part of the defendants which constrains its otherwise lawful business activity. It is important to ensure the final determination of this action is not unnecessarily delayed and the impact of the court's interlocutory assessment of the issue, which led to the injunction, is kept to a reasonable period. 40 Turning to the importance of the proposed pleadings to the defendant's case, the court has heard from counsel for the defendants 6 Attorney-General of Botswana v Aussie Diamond Products Pty Ltd [No 3] [2010] WASC 141. -- 13 of 25 -- [2026] WASC 313 LUNDBERG J Page 14 that these two new aspects of the defence are important to its position. The importance of the pleading is a relevant feature to which the court ought to give consideration. There is thus a degree of prejudice to the defendants which would arise if leave were not now granted, namely the defendants would not be able to fully articulate defences to the claim. 41 There is further prejudice which arises if leave is granted, and an adjournment of the trial is required. There is a continuing prejudice to the defendants in that the interlocutory injunction presently constrains the defendant's business. That is a relevant feature to consider and is an additional matter to examine when considering whether the matter should be adjourned. 42 In response to the prejudice issue, it is noted by the defendants that the plaintiff already has the report of Mr Sander. The defendants emphasise that Mr Sander has not only considered the issue raised by Mr van der Meer but he has agreed in certain respects with the opinions expressed by Mr van der Meer. This includes, it is said, the matters which are the subject of the proposed amendments. 43 As to the plaintiff's position, there is an evident and competing prejudice to the plaintiff which arises if leave is granted, in that the plaintiff would not be able to lead evidence to address and respond to the new plea from the defendants. Counsel for the plaintiff points to the need for further structural engineering evidence, as well as the potential for expert evidence from regulatory authorities. The plaintiff may need to issue subpoenas to the Health Department (in particular, to the LARU Unit). 44 I must say I am not yet certain that all of this evidence is directly relevant to the questions raised by the new plea, or is necessary in order to fairly permit the plaintiff an opportunity to address the emerging issues. 45 However, I accept there is a risk the plaintiff would be prejudiced if the case were forced on, without any opportunity to marshal additional evidence on this issue. 46 Plainly, the issues in the litigation are important to both parties and the court must give consideration to the risk of prejudice to the plaintiffs if it is required to present the entirety of its case within the boundaries of the trial as listed this week. -- 14 of 25 -- [2026] WASC 313 LUNDBERG J Page 15 47 The potential, flexible approach to adopt in this regard is to assess whether the trial might be heard in two parts, with the structural engineering expert evidence and any additional evidence to be led in response to the two issues I have mentioned being corralled and led at a second phase of the trial. The court would then proceed to use the available trial time this week to conclude such evidence as may be able to be led, including from the acoustic and vibration experts and the various lay witnesses. 48 It is also relevant to consider the presence of the injunction and the undertaking to damages. The plaintiff has the benefit of the injunction but the potential burden of the undertaking if the claim is refused at trial. That is a relevant feature of the case and of the application to amend, in the context of an expedited trial. 49 It must consider the prospect of an adjournment and the reality that this trial could not be recommenced until around late September or early October. That creates flow-on impacts for other litigants in the court, but I accept that those impacts are lessened if the trial time this week can usefully be used. 50 Putting all that together, the view that I take is that leave should be granted to the defendants to make the reasonably arguable amendments which have been proposed. There will be a question as whether further particulars should be provided, in relation to which the parties should confer. 51 In essence, in my view, the pleading is reasonably arguable as it stands, and I accept that the defendant's position is that this represents a potentially important feature of its response to the nuisance claim. 52 I recognise that the ultimate relief that is sought is a permanent injunction against the defendants which would constrain its business, and on balance the defendants should be permitted an opportunity to assert an arguable defence subject to the case management considerations which I have mentioned. As to those case management considerations, I do not assess those as providing a cogent reason against the grant of leave and I accept there is a reasonable explanation for the pleading amendment given the course of the litigation. 53 The real question then is the impact on the overall trial process and whether the process can be adjusted to ameliorate the perceived prejudice to the plaintiff. It seems to me it can, provided the trial time this week is used as best as possible. There has been an indication by -- 15 of 25 -- [2026] WASC 313 LUNDBERG J Page 16 the defendants of the potential for an application to vary the injunction. I say nothing about that in the course of these reasons other than to say any application can be made and heard possibly next week, assuming the parties are unable to agree some adjustment to the present regime so as to cater for the changed circumstance. 54 The changed circumstance may be shortly stated. When the injunction was granted, it was on the predicate that there would be an expedited trial and a prompt determination of the matter. It was not granted on the basis that there would be an injunction running until early October. As I say, that is a matter which would need to be considered separately. It is a device which I recognise is relevant to consider in the context of the continuing prejudice flowing from the injunction. 55 I therefore propose to order as follows: 1. To grant leave to the defendants to amend the defence in the form which was circulated last night. 2. To make directions to the effect that the structural engineering expert evidence not be led this week, but be adjourned to a later date when the trial resumes. 3. The trial be given additional days commencing on Wednesday, 30 September 2026, subject to hearing from the parties further. 56 I will reserve the costs of the amendment application. Evidentiary rulings made on 16 July 2026 57 The court made several evidentiary rulings on 16 July 2026 in response to objections raised by the defendants to the tender by the plaintiff of several documents. The court indicated that its reasons for those rulings would be provided in due course. 58 The table of the rulings is set out below and the reasons for the rulings follow thereafter. -- 16 of 25 -- [2026] WASC 313 LUNDBERG J Page 17 No. Description of Document Ruling of the Court 1 Exhibit 214 Affidavit of Ms Hesther du Plooy sworn on 4 June 2026 Tender of whole affidavit re-opened. Ruling that the affidavit will be received only in relation to paragraphs 20, 21 and 22. 2 Exhibit 215 Affidavit of Ms Hesther du Plooy sworn on 29 May 2026 Tender of whole affidavit re-opened. Ruling is that the affidavit will be received only in relation to paragraphs 45, 46, 51, 53 and 54. 3 Exhibits 47, 48, 49, 50 and 51 Handwritten diary entries made by hospital staff dated 17 to 23 April 2026 Tender of the documents as business records pursuant to s 79C(2a) of the Evidence Act is rejected on the basis the documents are not business records as defined, alternatively the discretion in s 79C(6) would otherwise be exercised to reject the admission. Ruling is that documents will not be received for their testimonial effect. 4 Exhibits 56, 57 and 59 Emails from hospital staff to Ms du Plooy sent on 26 and 28 May 2026 (authors of emails are Kirsten Belletty, Alysa McQuade and Christina Smith) Tender of the documents as business records pursuant to s 79C(2a) of the Evidence Act is rejected on the basis the documents are not business records as defined, alternatively the discretion in s 79C(6) would otherwise be exercised to reject the admission. Alternative basis for tender that the documents are relevant to Ms du Plooy's state of mind is rejected. Ruling is that documents will not be received for their testimonial effect. Proposed Exhibit 214 – affidavit of Ms du Plooy sworn 4 June 2026 59 On 14 July 2026, the second day of the trial, Ms du Plooy was cross-examined on the affidavit she swore on 4 June 2026, which had been filed in support of the interlocutory injunction application.7 The cross-examination was confined to the conversation Ms du Plooy had identified in [20], [21] and [22] of the affidavit, being a conversation on 4 June 2026 with Mr Sander, the structural engineer engaged by the plaintiff. 7 ts 154. -- 17 of 25 -- [2026] WASC 313 LUNDBERG J Page 18 60 In [20] of the affidavit, Ms du Plooy identifies Mr Sander. In [21] and [22], Ms du Plooy deposes that: [21] Mike informed me, and I verily believe, that in relation to the front of the building, specifically Zones 2 and 3, which are located directly above the hospital on the second floor, any weight dropped on the concrete slab of that floor would cause vibrations to travel through the slab and steel frames. These vibrations would then transmit into the space below into the Hospital, creating a direct linear pathway for the vibration to propagate, which would then be felt within that section of the Hospital. [22] Mike informed me, and I verily believe, that in relation to the back of the building, where the Fitness Cartel premises do not sit directly above the Hospital, the slab and steel beams of the building would allow the vibrations to travel to the back of the building in a similar way. Whilst the vibrations would be dampened due to a different travel direction, they are still be capable of being felt within the rear section of the hospital. 61 The cross-examination was directed to whether Ms du Plooy was aware of the matters conveyed by Mr Sander prior to the conversation she had on 4 June. 62 In re-examination of Ms du Plooy, counsel for the plaintiff tendered the entire affidavit sworn on 4 June. There was no objection to that course.8 Soon thereafter, counsel for the defendants changed that position, and it became apparent the defendants opposed the admission of the entirety of the affidavit, counsel accepting that the relevant paragraphs the subject of the cross-examination might, however, be admitted. The court heard argument on the issue on 15 and 16 July,9 and the defendants filed brief written submissions on the matter.10 63 The court gave a ruling on the issue on 16 July, to the effect that the court had power to revisit the admission of the affidavit, which had been admitted without objection, and the power should be exercised in this case.11 Further, having considered the tender afresh, the court would admit the affidavit only in respect of the identified paragraphs on which there had been cross-examination. The reasons for adopting this course are as follows. 8 ts 171. 9 ts 244 - 249. 10 Defendants' submissions on evidence issues dated 16 July 2026. 11 ts 355. -- 18 of 25 -- [2026] WASC 313 LUNDBERG J Page 19 64 First, the court has power to revisit the admission of a documentary exhibit into evidence, even where that admission has occurred without objection. That power exists by analogy with the accepted power of the court to reverse or alter a previous evidentiary ruling giving by the court in the course of a trial: see, by way of example, R v Steffan12 and Assafiri v Horne.13 65 Second, the power to revisit the tender of a document should be exercised in this case given the failure to object was a matter of oversight which was promptly corrected by counsel, and as the admission of the document occasioned no material prejudice to the position of the plaintiff. Even if the witness in question had to be recalled, that could have been achieved with little inconvenience to the witness, the plaintiff, or the course of the trial.14 66 Third, it was necessary to rule on the disputed tender of the whole of the affidavit. This required the court to address the question whether cross-examination of a witness on part of a prior affidavit, other than in the limited manner identified in cases such as R v Bedington,15 exposes the whole of the affidavit to tender by the opponent. In the circumstances of this case, the answer to this question is to be found, at least by analogy, in the brief decision of the Supreme Court of Victoria in Wimpole v McIlrwaith.16 67 In Wimpole, it was submitted by counsel appearing for the plaintiff (Mr Owen Dixon KC, as his Honour then was) that the plaintiff was entitled to tender separate paragraphs of an affidavit without putting in the whole of the affidavit. Counsel had sought to prove certain facts as admissions contained in four paragraphs of an affidavit which had been filed in interlocutory proceedings. Counsel for the defendant (Mr John Latham KC, as his Honour then was) objected to the tender unless the whole affidavit was admitted. 68 Mann J agreed with the plaintiff's submission and allowed the admissions to go in but also permitted the defendant's counsel to refer 12 R v Steffan (1993) 30 NSWLR 633; (1993) 67 A Crim R 506 (639, 511) (Hunt CJ at CL, Grove and Sharpe JJ). 13 Assafiri v Horne [2004] WASCA 40 [46]-[49] (Roberts-Smith J). 14 Counsel raised the need to recall Ms du Plooy at ts 357, to which course the court indicated it would be receptive, but the issue was not progressed given the ultimate agreement to the tender of the diary entries by the parties. 15 R v Bedington [1970] Qd R 353, 359 (Lucas, Hoare and Campbell JJ). 16 Wimpole v McIlrwaith [1923] VLR 553 (Mann J) (Wimpole). -- 19 of 25 -- [2026] WASC 313 LUNDBERG J Page 20 the judge to 'any passage affecting or qualifying the admissions without thereby being treated as calling evidence'.17 69 This approach has been favourably referred to in subsequent Australian authorities.18 The simple proposition derived from these authorities, at common law, is that a statement by a party in an affidavit filed by him may be tendered by the opposing party as an admission, though the tenderer cannot prevent reference to other statements in the affidavit providing a qualifying context. 70 It is necessary to also have regard to the Evidence Act 1906 (WA) (Evidence Act), in particular s 21 and s 22 thereof, bearing in mind the law of evidence governing the cross-examination of witnesses on a prior inconsistent statement is derived in part from statute and in part from common law.19 In particular, s 21 regulates the independent proof of a prior inconsistent written or oral statement. Section 22 regulates the cross-examination of a witness on a prior inconsistent written statement or deposition.20 71 There is strong dicta in a decision of the Full Court of South Australia which supports the approach urged upon the court by the defendants' counsel, in the matter of R v Walker.21 In that case, Duggan J favoured the view that the court had a discretion, by reason of the South Australian provision which is equivalent to s 22 of the Evidence Act, to decide how much of a statement would be tendered. 72 In my view, the approach adopted by counsel in this case was consistent with the procedure in s 22 of the Evidence Act, which is intended to ensure procedural fairness to a witness in the course of their evidence.22 73 There being no additional paragraphs of the affidavit which were required to qualify the matters in the paragraphs to which counsel referred, I concluded that the tender of the affidavit should be confined to the paragraphs which were the subject of cross-examination. 17 Wimpole (554). 18 See, for example, AEI Insurance Group Pty Ltd v Martin (No 4) [2024] FCA 1110 [21] (Thawley J); Commissioner of Taxation v Bosanac (No 7) [2021] FCA 249; (2021) 390 ALR 74 [30]-[32] (McKerracher J), not disturbed on appeal to the High Court. 19 O'Meara v The State of Western Australia [2013] WASCA 228 [30] (Buss JA as his Honour then was). 20 O'Meara v The State of Western Australia [35]. 21 R v Walker (1993) 61 SASR 260, 267 – 268 (Duggan J). 22 Zamora v OCS Services Pty Ltd [2025] WASCA 117 [92]. -- 20 of 25 -- [2026] WASC 313 LUNDBERG J Page 21 Proposed Exhibit 215 – affidavit of Ms du Plooy sworn 29 May 2026 74 Ms du Plooy was also cross-examined on the affidavit she swore on 29 May 2026, which had similarly been filed in support of the interlocutory injunction application.23 The cross-examination was confined to [45], [46], [51], [53] and [54], which concern the timing of Ms du Plooy's awareness as to when a fitness gymnasium business would commence within Unit 8, her concerns in this regard, and the impact of the gymnasium business on the Hospital after 25 November 2025. 75 The paragraphs of the affidavit in question are as follows: [45] I became aware that the first defendant would be operating a fitness gymnasium out of Unit 8 in or around March 2025. [46] I was immediately concerned that potential noises and vibrations from the fitness gymnasium may affect the Hospital's sensitive equipment. … [50] From on or around 25 November 2025, when the fitness gymnasium commenced operating, the Hospital has experienced: [50.1] excessive noise emanating from Fitness Cartel namely music and the sound of falling or dropped weights; and [50.2] vibrations caused when I assume heavier weights were being dropped immediately above key Hospital treatment areas [51] The excessive noise and vibrations was such that, in my opinion, will impact the ability of the Hospital to carry out procedure and surgeries. … [53] The noise and vibrations will affect the specialist doctors ability to carry out the procedures which require the required high level of precision and focus. [54] The vibrations from the fitness gymnasium will also damage the sensitive equipment being used by the specialist doctors, which 23 ts 164. -- 21 of 25 -- [2026] WASC 313 LUNDBERG J Page 22 will result in expensive recalibrations or replacement of equipment. 76 In re-examination of Ms du Plooy, counsel for the plaintiff tendered the entire affidavit sworn on 29 May. Again, there was no objection to that course.24 As explained above in relation to the affidavit of 4 June, counsel for the defendants made clear his intention to object to the affidavit soon thereafter and further argument then ensued. 77 For the same reasons I have expressed in relation to the 4 June affidavit, I ruled that the affidavit of 29 May should be received only with respect to the identified paragraphs which were the subject of cross-examination, there being no other paragraphs which qualified those paragraphs. 78 In relation to the affidavit of 29 May, there was a further reason to adopt this course, namely that the defendants had given written notice prior to the trial of their objection to several documents which were attached to the affidavit of Ms du Plooy. It would not have been in the interests of justice to allow those additional documents to be received in evidence through the tender of the whole affidavit, by reason of the oversight of counsel, promptly corrected, during the course of this busy trial. Proposed Exhibits 47, 48, 49, 50 and 51 – handwritten diary entries by Hospital staff 79 The court ruled that the handwritten diary entries made by several unnamed Hospital staff members were not 'business records' for the purposes of s 79C(2a) of the Evidence Act, but in any event the tender of the documents would be rejected on prejudice grounds.25 80 Subsequent to that ruling, counsel for the plaintiff gave notice he would call the authors of the diary entries.26 This led to further discussion between the parties and resulted in an agreement to the tender of the diary entries, annotated to reflect their authors.27 81 Ultimately, the court received the diary entries as Exhibits 47, 48, 49, 50 and 51, for their testimonial effect but subject to submissions as 24 ts 171. 25 ts 356. 26 ts 357. 27 ts 358. -- 22 of 25 -- [2026] WASC 313 LUNDBERG J Page 23 to their weight.28 In these circumstances, the parties would not be assisted by, and there would otherwise be no utility resulting from, the court providing its reasons for the ruling it made, to which I have referred above, and I do not propose to do so. Proposed Exhibits 56, 57 and 59 – emails from Hospital staff 82 These documents are emails sent by Hospital staff to Ms du Plooy in late May 2026. The authors of the emails are Ms Kirsten Belletty (Administration Manager), Ms Alysa McQuade (her role was not identified), and Ms Christina Smith (her precise role was not identified but her signature block described her as having an 'admin' role). 83 Each of the emails refers to concerns on the part of the author as to the noise and vibration originating from the gymnasium. The first two emails were sent within a short time of each other on Tuesday 26 May, and the third email was sent on Thursday, 28 May. The third email refers to the 'constant banging' from the gymnasium, which the author of the email believes led to an 'intense headache' on her part. The emails are descriptive of the sounds and vibrations the authors experienced in the Hospital, although the precise locations are not indicated in each of the emails, only in Exhibit 57 which referred to the 'reception area and administration office'. 84 The emails were attached to the affidavit of Ms du Plooy, sworn on 29 May 2026, which was relied upon by the plaintiff for the purposes of seeking the interlocutory injunction. 85 The plaintiff submitted the emails were 'business records' within the meaning of s 79C(2a) of the Evidence Act, which provision permits hearsay evidence to be admitted,29 subject to compliance with the legislative requirements and subject to the discretion to reject which is found in s 79C(6). 86 To the extent it was submitted that the emails sent by these staff members to Ms du Plooy were 'prepared' in the ordinary course of business (which is one of the two alternative limbs in the definition), I respectfully disagreed. In forming this view, I had regard to the principles concerning this legislation which were collected and 28 ts 358. 29 Evidence Act, s 79C(3). -- 23 of 25 -- [2026] WASC 313 LUNDBERG J Page 24 summarised in McKay v Commissioner of Main Roads [No 2]30 and in Rhodes v De Castro [No 2].31 87 In my view, the emails were not prepared by these administrative staff members as part of the business of the administration of the Hospital, even accepting that the role of administrative staff may be broadly conceptualised. Given the timing of the preparation of the documents, it may be inferred that the emails were prepared for the purposes of the litigation which was by that time being prepared by the plaintiff's solicitors and which was ultimately commenced by the plaintiff through the filing of a writ in this court on Friday, 29 May 2026. 88 That is far from the ordinary course of the business of a day hospital. 89 In any event, given the central role in these proceedings of the issues purportedly addressed by the emails, as to the noise and vibrations experienced by the administrative staff and the health effects they suffered, it would have been highly prejudicial for the emails to be received in evidence for their testimonial effect, in the absence of the authors being called. While the emails are probative of a matter in issue in the proceedings, the prejudicial impact on the defendants of being unable to test and evaluate the noise and vibrations experienced by the several authors of the emails was significant enough for the court to conclude that the discretion to reject would have been exercised had the documents properly engaged the business records provision, which they did not. 90 For these reasons, I declined to receive the documents under s 79C(2a).32 30 McKay v Commissioner of Main Roads [No 2] [2010] WASC 153 (Beech J, as his Honour then was). 31 Rhodes v De Castro [No 2] [2023] WASC 93 (Solomon J). 32 ts 356. -- 24 of 25 -- [2026] WASC 313 LUNDBERG J Page 25 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 4 AUGUST 2026 -- 25 of 25 --