GSA -v- CHIEF EXECUTIVE OFFICER, DEPARTMENT OF COMMUNITIES [No 3] [2026] WASCA 47 (7 April 2026)

1. The appellant's application for leave pursuant to r 10A(1) is being determined by the Court of Appeal, constituted by two judges of appeal, rather than a single judge of appeal. Anything that a single judge may do under the Rules may ordinarily be done by the Court of Appeal: Rules, r 5A(2). It is appropriate for the application for leave to be determined by the Court of Appeal, rather than a single judge, as this is the first time that r 10A has arisen for consideration.
2. Rule 10A is modelled on, and fulfils the same function as, O 67 r 5 of the Rules of the Supreme Court 1971 (WA). Rule 10A(1) prohibits the acceptance for filing of any document that appears to be either: (1) an abuse of process; or (2) frivolous or vexatious. Where it appears to a registrar that one or both of those criteria are met, the document must not be accepted for filing unless the party seeking to file the document first obtains leave under r 10A(1). The application for leave must be supported by affidavit.
3. This court has accepted the summary of principles collected in Re Rules of the Supreme Court 1971 (WA); Ex parte Gates[1] in the context of O 67 r 5 of the Rules of the Supreme Court: Ives;[2] Chin.[3] The principles as collected in Gates [19] ‑ [21], [24] ‑ [33], [68] apply equally for the purpose of an application for leave under r 10A(1) of the Rules. There is no need to repeat those applicable principles in these reasons.
4. The acting Court of Appeal registrar accepted that the application and affidavit in support thereof should be treated as an application for leave pursuant to r 10A(1) of the Rules. The appellant's affidavit sworn 19 March 2026 deposed to the basis on which the appellant sought leave and in so doing met the jurisdictional requirement under r 10A(2) of the Rules. By notice dated 23 March 2026 the acting Court of Appeal registrar referred the question of leave to the Court of Appeal. The court ordered that the question of leave be determined on the basis of the documents without listing the question for an oral hearing. The appellant was afforded an opportunity to make written submissions.
5. The question for determination is whether the appellant's proposed application would be an abuse of process or a frivolous or vexatious proceeding: Gates [21].
6. There are two aspects to the appellant's proposed application. First, the appellant seeks leave to issue two summonses to produce documents (one to the Commissioner of Police and one to a person, HB, who was a witness at the trial of the primary proceedings). The proposed summons to the Commissioner seeks all police records relating to the appellant's sister and niece, including metadata, from 1 January 1988 (as to the sister) and 1 January 2003 (as to the niece). The proposed summons to HB seeks production of three video recordings and associated metadata. The videos were played at the trial of the primary proceedings: GSA v Chief Executive Officer, Department of Communities.[4] Second, the appellant seeks the appointment of an 'independent digital forensic commissioner' to analyse the material produced in response to the summonses. The appellant proposes a two‑page scope of work for the digital forensic commissioner (appellant's affidavit sworn 19 March 2026, annexure 'D').
7. The two aspects of the appellant's proposed application are connected. The appellant deposes that he 'would not be willing to trust the integrity of the summoned material ... if it is provided without the oversight of an independent digital forensic commissioner'. The appellant also deposes that his distrust is such that, 'without the appointment of a digital forensic commissioner, I would simply not risk summoning the material at all, as it would likely be provided in a form that further substantiates the "unfounded beliefs" narrative' (appellant's affidavit sworn 19 March 2026, par 21(d) - see also appellant's submissions, par 9(a)).
8. The appellant's proposed application arises in the context of an existing appeal - being a further appeal, under div 3 of pt 2 to the Criminal Appeals Act 2004 (WA), from a single judge appeal. The further appeal has already been the subject of two written decisions in this court: GSA v Chief Executive Officer, Department of Communities;[5] and GSA v Department of Communities.[6] The background to the further appeal is described in those earlier decisions and need not be repeated in these reasons. See GSA [No 1] [1] - [32] (see also [37] ‑ [48]); GSA [No 2] [4] ‑ [8].
9. Importantly, however, the appellant has already sought, and been refused, leave to issue summonses to produce documents - including summonses to the Commissioner of Police: GSA [No 1] [38](a), [48].
10. We have considered the scope of the documents that the appellant seeks to obtain under summons from the Commissioner of Police (appellant's affidavit sworn 19 March 2026, par 22(b); annexure 'B'). Those documents include, and generally cover the same subject matter as, the documents sought by proposed summonses directed to the Commissioner considered and rejected in GSA [No 1] (see the appellant's affidavit sworn 16 December 2025, annexure 'SG‑Summons‑1' and annexure 'SG‑Summons‑2').
11. Similarly, in seeking to review the decision in GSA [No 1] the appellant sought leave to issue a summons to produce documents to HB and the appointment of a 'court‑appointed digital forensic expert'. What is now sought, through the appellant's proposed application, is in substance the same as (as to the videos relating to HB) or a sub‑set of (as to the independent digital forensic commissioner) what the appellant sought through the review application. See: (1) the appellant's affidavit sworn 26 February 2026, pars 4(c), 11(d), 19(c), 29 - 32, 42(v), 46, 51, 62; annexure 'K'; annexure 'V'; and (2) the appellant's affidavit sworn 19 March 2026, pars 8(b), 16 ‑ 21, 22(c) ‑ (d); annexure 'C'; annexure 'D'.
12. There has been no material change in circumstances since GSA [No 1] and GSA [No 2]. Accordingly, it is strongly arguable that the appellant's proposed application is an abuse of process on the basis that the appellant seeks to re-litigate the applications already determined in GSA [No 1] and GSA [No 2]. Separately, having regard to what is deposed to in the appellant's affidavit sworn 19 March 2026, there is an arguable basis to consider whether the appellant seeks to invoke the court's process for an illegitimate or improper purpose. In particular, in his affidavit sworn 19 March 2026 the appellant deposes that:
    1. [T]he fundamental issue of alleged sexual abuse of [the second respondent] by [the appellant's sister], and the alleged suppression of evidence related to this, remains a paramount concern for [the second respondent's] safety and well-being.
    2. This application is made with extreme urgency to obtain crucial evidence directly relevant to the alleged sexual abuse of [the second respondent], which goes to the heart of [the second respondent's] safety and best interests.
13. The appellant also argues that the second respondent, when she turns 18 years of age, may well use the decision as a 'major part' of her 'likely future case' seeking compensation for the harm she has suffered: appellant's submissions, par 14.
14. It is not necessary to form a concluded view on either of the matters raised at [14] above. It suffices to conclude, as we do, that the appellant's proposed application has no reasonable prospect of succeeding. As such the proposed application is vexatious: Gates [31]. Moreover, the proposed application, being clearly doomed to fail and plainly unsustainable, amounts to an abuse of process: Gates [29].
15. The appellant's proposed application for the issue of the summons to produce documents to the Commissioner of Police has no reasonable prospect of succeeding for the same reasons that the similar application the subject of GSA [No 1] failed: GSA [No 1] [37] ‑ [48] (being approved in GSA [No 2] [49] ‑ [50]). In short, for reasons already stated in GSA [No 1] and upheld in GSA [No 2], this aspect of the proposed application will inevitably fail. Separately, the appellant asserts that the alleged suppression of these police records is directly relevant to grounds 2, 7, 8 and 13 of his grounds of appeal. Those grounds are summarised at GSA [No 1] [8], [11], [15]. The documents sought, if they exist, are not capable of establishing error on the part of the primary judge of the kind alleged by those grounds.
16. The video recordings made by HB are already part of the trial record. It may be inferred that the appellant's proposed application for the issue of the summons to HB is largely concerned with the metadata. The appellant alleges that 'two of these videos ... may have contained crucial information that was deliberately cut' (emphasis added). He says that the digital forensic commissioner's analysis is required to determine the true content and integrity of the recordings. See appellant's affidavit sworn 19 March 2026, par 16 (see also par 17). The appellant's expressed concern is entirely speculative and is incapable of grounding a conclusion that it is in the interests of justice to issue a summons to HB in the terms sought. Nor, so far as the appellant claims that the alleged suppression or manipulation of the videos is relevant to ground 8 of the grounds of appeal, are we satisfied that the documents sought are capable of establishing alleged error of that kind which could result in the appeal being allowed.
17. In any event, both proposed summonses - and the proposed summons to HB in particular - are tied to the appellant's proposed application for the appointment of an 'independent digital forensic commissioner'. That proposed application does not have a reasonable prospect of succeeding. The appellant submits that the appointment may be made under s 40(1)(f) of the Criminal Appeals Act. That presupposes that there is some 'question in the appeal' involving a 'scientific or local investigation' that cannot be done conveniently before the court. No such question is identified. The distrust asserted by the appellant does not mean that any real question arises that enlivens the power under s 40(1)(f). As was made clear in GSA [No 2], it cannot be suggested that the power in s 40(1)(f) is potentially exercisable in the circumstances of the present appeal: GSA [No 2] [56]. In any event there are practical difficulties which mean that this aspect of the proposed application will inevitably fail. No proposed digital forensic commissioner is identified for appointment. Nor is any provision made for the costs of such an expert. It appears to be the appellant's position that the court will itself fund the digital forensic commissioner. The court will not fund such an appointment.
18. For these reasons the appellant's proposed application would be an abuse of process or a frivolous or vexatious proceeding. The application for leave under r 10A(1) of the Rules must be refused. We will so order.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] Re Rules of the Supreme Court 1971 (WA); Ex parte Gates [2018] WASC 213.

[2] Ives [2019] WASCA 86 [50].

[3] Chin [2019] WASCA 116 [10] - [14], [17].

[4] GSA v Chief Executive Officer, Department of Communities [2025] WASC 375 [233].

[5] GSA v Chief Executive Officer, Department of Communities [2025] WASCA 196 (GSA [No 1]).

[6] GSA v Chief Executive Officer, Department of Communities [2026] WASCA 36 (GSA [No 2]).