Perth Day Hospital Pty Ltd v Fitness Cartel Western Australia Pty Ltd [No 2]

[2026] WASC 313

Supreme Court of Western Australia

Built by Barristers,
For Australian Law.

1. Practice and procedure – Claim in private nuisance brought by plaintiff hospital against gymnasium business
1. Application by defendants to amend their defence 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
1. Documents tendered by consent
1. Whether power to revisit tender of document

A court may revisit the admission of a documentary exhibit tendered without objection, by analogy with the accepted power to reverse or alter a previous evidentiary ruling, where the failure to object was a promptly corrected oversight and no material prejudice resulted.
Cross-examination on discrete paragraphs of a prior affidavit does not automatically expose the whole affidavit to tender by the opponent; the court has discretion under s 22 of the Evidence Act 1906 (WA) and at common law (following Wimpole v McIlrwaith) to confine admission to the paragraphs cross-examined upon, plus any qualifying passages.
Emails prepared by staff for the apparent purpose of anticipated litigation are not documents 'prepared in the ordinary course of business' within s 79C(2a) of the Evidence Act 1906 (WA), and even if they were, the discretion under s 79C(6) to reject on prejudice grounds may be exercised where the authors are not called and the content goes to central issues in dispute.