RE RULES OF THE SUPREME COURT 1971 (WA); EX PARTE DWS [2026] WASC 315

[2026] WASC 315 Page 1 JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA IN CHAMBERS CITATION : RE RULES OF THE SUPREME COURT 1971 (WA); EX PARTE DWS [2026] WASC 315 CORAM : STRK J HEARD : 31 JULY 2026 DELIVERED : 3 AUGUST 2026 FILE NO/S : CIV 1987 of 2026 MATTER : An application under the Rules of the Supreme Court 1971 (WA) seeking leave to file and issue an originating process EX PARTE DWS Applicant Catchwords: Practice and procedure - Ex parte application for leave to file an originating process pursuant to the Rules of the Supreme Court 1971 (WA) O 67 r 5 - Whether action has reasonable prospects of success Legislation: Rules of the Supreme Court 1971 (WA) O 67 r 5 Result: Application for leave refused -- 1 of 10 -- [2026] WASC 315 Page 2 Category: B Representation: Counsel: Applicant : In Person Solicitors: Applicant : In Person Case(s) referred to in decision(s): Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256 Hospitals Contribution Fund of Australia v Hunt (1982) 44 ALR 365 Ives [2019] WASCA 86 Jones v Skyring [1992] HCA 39; (1992) 109 ALR 303 Middleton v The State Western Australia (1992) 8 WAR 256 Perpetual Trustees Victoria Ltd v Allen [2012] WASC 258 (S) Re City of Stirling; Ex Parte Tallot [2012] WASC 33 Re Magistrate Francine Walter; Ex Parte Tull [2016] WASC 271 Re Rules of the Supreme Court 1971 (WA); Ex Parte Gates [2018] WASC 213 Re Rules of the Supreme Court 1971 (WA); Ex Parte Kiefer [2025] WASC 45 Re Rules of the Supreme Court 1971 (WA); Ex Parte Papotto [2026] WASC 79 Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378 Wentworth v Rogers (No 5) (1985) 6 NSWLR 534 -- 2 of 10 -- [2026] WASC 315 STRK J Page 3 STRK J: Overview 1 On 20 July 2026 the applicant presented for filing an originating motion. By a letter dated 21 July 2026 the applicant was informed that the document had been reviewed by a registrar who had determined that the proposed proceeding appeared to be an abuse of the process of the court or a frivolous or vexatious proceeding, and that the document had not been accepted for filing. Among other things the applicant was informed that if he sought to have the document accepted for filing, he would have to apply to a judge for leave to file it pursuant to O 67 r 5 of the Rules of the Supreme Court 1971 (WA). 2 On 23 July 2026 the applicant applied for leave to file the originating motion that had been rejected for filing. The ex parte application was supported by an affidavit sworn by the applicant on the same date. The applicant attached to his affidavit a copy of the letter he had received from the court dated 21 July 2026, the rejected originating motion and a copy of a communication received from the Commonwealth Ombudsman on 28 July 2025. The applicant also filed and sought to rely upon correspondence that the applicant had received from the Commonwealth Attorney-General's Department dated 10 July 2025. 3 The application was listed for hearing on 31 July 2026. The applicant was heard in support of his application. Set out below are my reasons with respect to the same. Background 4 At the hearing of the application the applicant explained that he had been the subject of surveillance and electronic interference for many years, and that he and his family had suffered significant damage and distress as a result. I understood from the submissions made that the applicant had made many enquiries over many years of various agencies and bodies, and from the enquiries he had made of the Australian Federal Police, the Commonwealth Ombudsman, and the Commonwealth Attorney-General's Office, had come to understand that lawful telecommunication interceptions and use of surveillance devices are made under warrant issued by a judicial officer. 5 The document presented for filing by the applicant (a Form 64 (Notice of originating motion)) recorded that it was filed by 'The -- 3 of 10 -- [2026] WASC 315 STRK J Page 4 Plaintiff by Ex Parte'. In that part of the form where the applicant was required to state concisely the nature of the claim or the relief or remedy sought, the applicant recorded as follows: 1) The Australian Ombudsman has indicated that documents may exist that affect the applicants ongoing rights. This was confirmed verbally by the Australian Federal Police. 2) The applicant is involved in ongoing over extended legal situation where there rights are affected by documents not presently available to them, including the right to earn an income. 3) The applicant has previously engaged with the District Court with previous interactions suggesting the existence of material relevant to their legal position. 4) The applicant seeks disclosure to ensure procedural fairness, proper preparation and accurate understanding of any process that may affect them and their rights including terms of any specific court orders. 5) The applicant does not seek operational details, confidential information - Only confirmation and grounds. 6) The court grant leave to the applicant to inspect or obtain redacted copies of any such document. 7) That leave to inspect to inspect or obtain redacted copy may lead to a right to remedy, procedural fairness, a restoration of rights, both civil and human and relief from misconduct that the current situation has allowed. 6 As to the first paragraph reproduced above, the applicant had attached to his affidavit a copy of a communication received from the Commonwealth Ombudsman on 28 July 2025. He deposed that he had received the communication after he had made: …over 50 plus submissions over a one year period predominantly on misconduct directed towards by communication devices and my internet/internet services that also reference the Telecommunications (Interception and Access) Act 1979 7 By the attached communication received from the Commonwealth Ombudsman the applicant was advised, among other things, that the Commonwealth Ombudsman cannot request the Australian Federal Police to confirm nor deny whether the applicant is or has been a subject of interest and whether they have accessed his devices; and that -- 4 of 10 -- [2026] WASC 315 STRK J Page 5 further investigation by that office in relation to the issues raised by the applicant was not warranted and would not be pursued. In that communication it was also noted that 'lawful telecommunication interceptions and use of surveillance devices are made under warrant to a judicial officer, who is provided with a detailed affidavit about the grounds on which the law enforcement agency believes that such surveillance is warranted.' 8 In his affidavit the applicant also expressed his concern that the registrar refused the motion for filing. As to why leave ought be granted, he (among other things) deposed:1 I strongly disagree with the Registrars conclusion and believe incorrect. In the Originating Motion I expressly stated that documents presently withheld from me are preventing the provision of procedural fairness and denying myself the ability to obtain a lawful remedy. These are serious matters involving the denial of access of information necessary to exercise civil and legal rights The proceeding therefore raises substantive issues of fairness, transparency and the proper administration of justice. It is not and cannot be reasonably characterised as frivolous, vexatious or an abuse of process The Registrars refusal involved substantive assessment of the merits of the Originating Motion. I believe such an assessment is beyond the scope of administrative filing functions as is reserved exclusively for judicial officers … The Originating Motion concerns the existence, handling, and accessibility of documents that may affect my rights. These matters fall squarely within the court's jurisdiction and require judicial oversight. 9 The applicant separately filed a document (which was not attached to his affidavit) which recorded that the applicant was informed by an officer of the electronic surveillance section of the Commonwealth Attorney-General's Department of the following:2 Electronic surveillance in Australia is regulated by a combination of Commonwealth, State and Territory legislation. The interception of communications is prohibited by the Telecommunications (Interception 1 Affidavit sworn on 23 July 2026 pars 6 - 8, 14. 2 Letter to the applicant from the Electronic Surveillance Section, Australian Attorney-General's Department dated 10 July 2025. -- 5 of 10 -- [2026] WASC 315 STRK J Page 6 and Access) Act 1979 (Cth) (TIA Act), while the use of surveillance devices is prohibited by State and Territory laws. There are exceptions to these laws, for instance, Australian law enforcement and national security agencies can lawfully undertake electronic surveillance in limited circumstances (such as, to investigate serious crimes) when strict thresholds have been met. These agencies generally need to obtain a warrant issued by an independent issuing authority (such as a judge or magistrate). Legal principles 10 The Rules of the Supreme Court O 67 r 5 provides as follows: (1) If any writ, process, motion, application or commission, which is presented for filing, issue or sealing appears to the registrar to be an abuse of the process of the Court or a frivolous or vexatious proceeding, the registrar shall refuse to file or issue such writ, process, motion, application or commission without the leave of a judge or a master first had and obtained by the party seeking to file or issue it. (2) In the case of a motion or an application ordinarily returnable before a master in chambers, an application for leave to file or issue such motion or application shall be made to a master in chambers. (3) In all other cases, an application or commission shall be made to a judge in chambers. (4) Applications for leave under subrules (2) and (3) shall be made ex parte and shall be supported by affidavit. 11 The rule reinforces this court's inherent jurisdiction to protect itself from unwarranted wastage of time and resources and to avoid the loss that would otherwise be caused to those who are forced to defend actions which lack any substance.3 12 The Rules of the Supreme Court O 67 r 5(1) does not set out any criteria to be applied in determining whether to grant or refuse leave to file or issue a proposed writ, process, motion, application or commission. However, it is accepted that a judge should only refuse 3 Jones v Skyring [1992] HCA 39; (1992) 109 ALR 303, 312; Re Magistrate Francine Walter; Ex Parte Tull [2016] WASC 271 [3]. -- 6 of 10 -- [2026] WASC 315 STRK J Page 7 leave to file or issue the proposed claim if satisfied that it would be an abuse of process, or a frivolous or vexatious proceeding.4 13 What amounts to an abuse of the court's process is insusceptible to a formulation comprising closed categories.5 Proceedings are likely to constitute an abuse of process if they are clearly foredoomed to fail,6 or are plainly unsustainable.7 14 The remarks of Vaughan J in Re Rules of the Supreme Court 1971 (WA); Ex Parte Gates made in the context of an application for leave to file and issue a proposed writ, are of assistance. At [31], his Honour stated:8 An action is frivolous when it is not worthy of serious consideration, is insupportable in law, discloses no cause of action or is groundless. So too a matter that is without substance or is fanciful is frivolous. The term is apt to describe proceedings in which the plaintiff's claim is so obviously untenable that it cannot possibly succeed or in which there is no serious question to be tried. An action is vexatious if it has no reasonable prospects of success. The term has also been said to be apt to describe an action which is a sham and which cannot possibly succeed. (citations omitted) 15 I approach the application cognisant of the fact that the exercise of a power which denies a potential plaintiff the opportunity to have their matter heard is a power which should not be exercised lightly. I am particularly aware that a court at first instance should be astute not to risk stifling the development of the law by summarily dismissing actions in respect of which there is a reasonable possibility that, in the development of the law, a cause of action may be found to lie.9 Disposition 16 The applicant prepared the originating motion and the application for leave without the assistance of a legal representative. I therefore approach the proposed originating motion with some flexibility to 4 Perpetual Trustees Victoria Ltd v Allen [2012] WASC 258 (S) [23]; Re Rules of the Supreme Court 1971 (WA); Ex Parte Gates [2018] WASC 213 [20]. 5 Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256 [9]. 6 Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378, 393; Re City of Stirling; Ex Parte Tallot [2012] WASC 33. 7 Perpetual Trustees Victoria Ltd v Allen [23]. 8 Re Rules of the Supreme Court 1971 (WA); Ex Parte Gates [31] was referred to with approval in Ives [2019] WASCA 86 [50]. Re Rules of the Supreme Court 1971 (WA); Ex Parte Gates has been approved consistently, and most recently in Re Rules of the Supreme Court 1971 (WA); Ex Parte Papotto [2026] WASC 79. 9 Hospitals Contribution Fund of Australia v Hunt (1982) 44 ALR 365, 373 - 374; Middleton v The State Western Australia (1992) 8 WAR 256, 264. -- 7 of 10 -- [2026] WASC 315 STRK J Page 8 assess whether it discloses a viable basis upon which the motion could be granted, or could be put into proper form with appropriate amendment and a little assistance from the court.10 17 Allowing for the applicant's status as a self-represented litigant, the proposed motion as presently drafted does not comply with O 54 r 5(3) of the Rules of the Supreme Court in that it does not contain a concise statement of the nature of the claim made or the relief or remedy sought. To the extent it does so, it is not sufficiently clear. 18 In the motion the applicant records that: The applicant seeks disclosure to ensure procedural fairness, proper preparation and accurate understanding of any process that may affect them and their rights including terms of any specific court orders 19 Without the benefit of the applicant's submissions, the relief sought by the applicant cannot readily be discerned from the motion. 20 It is sufficiently clear that by the motion the applicant seeks 'disclosure'. However, there is no clear statement of the class or classes of documents that the applicant seeks to inspect and copy; there is no clear statement from whom the applicant seeks disclosure (and a person or entity was not named as the proposed defendant to the originating motion); the applicant does not identify the power pursuant to which the court might compel disclosure from that unnamed person or entity, or provide disclosure from any records it holds; and it is not clear as to whether the applicant is concerned to identify whether he was the subject of an application by law enforcement officers under the Surveillance Devices Act 1998 (WA), or some other legislation. 21 Giving all due allowance for the applicant's status as a self-represented litigant, the application is vague, does not disclose with requisite precision the relief sought or against whom it is sought, and does not disclose the basis for relief. The motion cannot be accepted in its current form. 22 I then turn to consider whether the motion could be put into proper form with appropriate amendment and a little assistance from the court. 23 At the hearing the applicant explained that he seeks from the court an indication as to whether he had in fact been the subject of an 10 Re Rules of the Supreme Court 1971 (WA); Ex Parte Kiefer [2025] WASC 45 [15], citing Wentworth v Rogers (No 5) (1985) 6 NSWLR 534, 536, 543. -- 8 of 10 -- [2026] WASC 315 STRK J Page 9 application to the court for a warrant permitting surveillance, and information concerning the same. 24 The applicant did not identify in the originating process (nor in his affidavit or submissions) a basis for the applicant to secure such confirmation or disclosure from the court. 25 As is noted above, it is unclear as to whether the applicant is concerned to identify whether he was the subject of an application by law enforcement officers under the Surveillance Devices Act, or some other legislation. If the application is directed towards warrants issued under the Surveillance Devices Act, then I note that that Act contains specific and onerous confidentiality provisions in relation to such applications: see s 23 and s 33. 26 In any event, applications made under the Surveillance Devices Act are not filed electronically nor stored on the court's Electronic Case Management System. The court's records do not include (as the court does not retain) copies of any warrant, affidavit and other documents or things (if any) on which an applicant for a warrant under the Surveillance Devices Act relied.11 There is no search that can be undertaken of the court's records that would identify or confirm the identity of those persons who had been the subject of an application for a warrant. 27 In light of the above, even if the application were to be drafted with greater precision, the applicant has no reasonable prospects of success in securing the information he seeks from the court by motion or otherwise. 28 For these reasons, leave to file the originating motion is refused. 11 Supreme Court of Western Australia's Consolidated Practice Directions PD 9.9. -- 9 of 10 -- [2026] WASC 315 STRK J Page 10 I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia. CR Associate to the Honourable Justice Strk 3 AUGUST 2026 -- 10 of 10 --