Jaworski v Chartered Accountants Australia and New Zealand

[2025] NSWCA 177

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Jaworski v Chartered Accountants Australia and New Zealand [2025] NSWCA 177

Hearing dates:

4 August 2025

Date of orders:

7 August 2025

Decision date:

07 August 2025

Before:

Stern JA

Decision:

(1)   The appeal is dismissed as incompetent.

(2)   Mr Jaworski is to pay Chartered Accountants Australia and New Zealand’s costs of the proceedings.

Catchwords:

CIVIL PROCEDURE — Court of Appeal — objections to competency of appeal — where appeal purportedly brought as of right from interlocutory decision and from decision as to costs — where appeal dismissed as incompetent

Legislation Cited:

Corporations Act 2001 (Cth), s 237

Supreme Court Act 1970 (NSW), ss 46(2), 101(2)(c), 101(2)(e), 101(2)(r)

Cases Cited:

Carr v Finance Corporation of Australia Ltd [No 1] (1981) 147 CLR 246; [1981] HCA 20

Gerald Jaworski v Chartered Accountants Australia and New Zealand (No 4) [2025] NSWSC 457

Gerald Jaworski v Chartered Accountants Australia and New Zealand (No 5) [2025] NSWSC 590

Jaworski v Chartered Accountants Australia and New Zealand(No 2) [2024] NSWSC 1134

Jaworski v Chartered Accountants Australia and New Zealand (No 3) [2024] NSWSC 1214

Jaworski v Chartered Accountants Australia and New Zealand [2024] NSWSC 1052

Licul v Corney (1976) 180 CLR 213; [1976] HCA 6

Macatangay v State of New South Wales (No 2) [2009] NSWCA 272

McEvoy v Caplan [2010] NSWCA 115; 78 ACSR 167

Oates v Consolidated Capital Services Pty Ltd (2009) 76 NSWLR 69; [2009] NSWCA 183

Wallersteiner v Moir (No 2) [1975] 1 QB 373

Category:

Principal judgment

Parties:

Gerald Jaworski (Appellant / Respondent on the Motion)
Chartered Accountants Australia and New Zealand (Respondent / Applicant on the Motion)

Representation:

Counsel:
In person (Appellant / Respondent on the Motion)
SD Puttick (Respondent / Applicant on the Motion)

Solicitors:
Maddocks (Respondent / Applicant on the Motion)

File Number(s):

2024/362807

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Supreme Court

Jurisdiction:

Equity — Corporations List

Citation:

[2025] NSWSC 457;

[2025] NSWSC 590

Date of Decision:

13 May 2025;
10 June 2025

Before:

Black J

File Number(s):

2024/238672

JUDGMENT

1. By order of 13 May 2025 (13 May 2025 Order), Black J dismissed an amended summons filed on 24 February 2025 by Mr Jaworski (Amended Summons): Gerald Jaworski v Chartered Accountants Australia and New Zealand (No 4) [2025] NSWSC 457 (“Jaworski (No 4)”). In the Amended Summons, Mr Jaworski sought the following relief:

“Order that on the Court being satisfied that Mr Jaworski has a prima facie claim to be brought in the name of Chartered Accountants Australia and New Zealand (CAANZ) against its officers, CAANZ pay the future legal costs of Mr Jaworski’s conduct of that claim.”

2. The “claim” referred to in the Amended Summons is a claim that CAANZ’s “controlling officers” breached their duties to CAANZ in four identified respects and more generally. The application by Mr Jaworski for an order that CAANZ, in effect, indemnify him for the future legal costs of that proposed claim was the only proceeding before Black J as at 13 May 2025. Mr Jaworski had not (and still has not) commenced a derivative claim such as that referred to in the Amended Summons.

3. On 10 June 2025, having given the parties an opportunity to make submissions, Black J ordered that Mr Jaworski was to pay the costs of the proceedings (Costs Order): Gerald Jaworski v Chartered Accountants Australia and New Zealand (No 5) [2025] NSWSC 590 (“Jaworski (No 5)”).

4. Also on 10 June 2025, Mr Jaworski filed a lengthy narrative notice of appeal against both orders. By motion filed on 16 July 2025, CAANZ seeks orders dismissing Mr Jaworski’s appeal as incompetent because leave is required under s 101(2)(c), (e) and/or (r) of the Supreme Court Act 1970 (NSW), and/or striking out the notice of appeal with leave to re-file an amended notice of appeal, and costs.

5. For the reasons set out below, the appeal should be dismissed as incompetent because the 13 May 2025 Order is an interlocutory order, such that leave to appeal is required under s 101(2)(e) of the Supreme Court Act, and the Costs Order is an order as to costs only which are in the discretion of the Court, such that leave to appeal is required under s 101(2)(c).

Background

6. CAANZ is a body politic and corporate with perpetual succession founded by Royal Charter. It has no shareholders, but it does have members. The proceedings before Black J were conducted, in this context, on the assumption that a derivative action at general law by a member on behalf of CAANZ could be available to an applicant, here Mr Jaworski, provided always that the necessary requirements for such an action are met.

7. By summons filed on 28 June 2024, but not served on the defendant, CAANZ, Mr Jaworski sought the following relief:

“Grant of leave for derivative action per Request in attached Affidavit: Jaworski Chartered Accountants Australia and New Zealand”.

8. As explained by Black J when dealing with that application, the relief sought was framed as the grant of leave to bring a derivative action in accordance with the general law: Jaworski v Chartered Accountants Australia and New Zealand [2024] NSWSC 1052 (“Jaworski (No 1)”) at [2]. His Honour also noted that:

“However, Mr Jaworski rightly pointed out that the leave which he sought was not required to commence the proceedings but, on the case law, went to the question whether he would be entitled to retain legal representation at the cost of CAANZ.”

9. That position reflects that in Oates v Consolidated Capital Services Pty Ltd (2009) 76 NSWLR 69; [2009] NSWCA 183 at [105], where Campbell JA (Spigelman CJ and Allsop P agreeing) held that there is no requirement for leave to be obtained before a plaintiff seeks to bring a derivative action under the general law, but that:

“[A] plaintiff who seeks to bring a derivative action under the general law must allege, in the initiating process, facts that show that he or she falls within a recognised exception to the prima facie rule that the proper plaintiff in an action in respect of a wrong alleged to be done to a corporation is the corporation itself.”

10. In Jaworski (No 1), Black J rejected Mr Jaworski’s contention, which relied on the English Court of Appeal’s decision in Wallersteiner v Moir (No 2) [1975] 1 QB 373 (“Wallersteiner (No 2)”), that his application should be determined ex parte. Black J observed that “it is not apparent that every person who wishes to bring a derivative action against a body other than a corporation, irrespective of the merits of the allegations to be made, should be funded by that body in doing so”: at [18]. His Honour held that it was preferable in a matter as complex as that before him that CAANZ have the opportunity to be heard as to whether it should be ordered to pay the costs of Mr Jaworski acting on its behalf in the proposed proceedings: at [25]. His Honour ordered that the proceedings should be stayed until they were served upon CAANZ: at [30].

11. On 30 August 2024 Mr Jaworski sought leave to reopen Jaworski (No 1). Black J refused leave on the grounds that Mr Jaworski had not identified a basis in the case law for his application to reopen: Jaworski v Chartered Accountants Australia and New Zealand(No 2) [2024] NSWSC 1134 (“Jaworski (No 2)”) at [5], and had not shown that his Honour had “proceeded according to some misapprehension of the facts or the relevant law”: at [16].

12. On 23 September 2024 Mr Jaworski filed a further motion, which appeared not to have been served on CAANZ. This sought orders that costs in respect of the preliminary stage of the process be limited to nil and that CAANZ be required to take certain steps in certain circumstances: Jaworski v Chartered Accountants Australia and New Zealand (No 3) [2024] NSWSC 1214 (“Jaworski (No 3)”) at [2]. At Mr Jaworski’s request this motion was dealt with in Chambers: at [3]-[4]. Black J struck the motion from the court file.

13. Mr Jaworski did not seek leave to appeal or to appeal against any of Jaworski (No 1), Jaworski (No 2) or Jaworski (No 3).

14. He did, however, amend his summons, initially to seek, instead of leave to bring a derivative action, directions from the Court that he was justified in proceeding with a derivative action based on the circumstances set out in an affidavit of 28 June 2024, and that if his case was reasonable in the legal sense (as that term is used in Wallersteiner (No 2)), further orders including that the future legal costs of prosecuting the proceedings be paid for by CAANZ (an amended summons in this form was not, however, filed). On 24 February 2025 he again amended his summons and the Amended Summons was filed in the form set out at [1] above and served on CAANZ.

15. The matter proceeded to hearing before Black J on 2 May 2025. The only originating process before Black J was the Amended Summons. It is apparent that, in his submissions and at that hearing, Mr Jaworski again expressed concern that CAANZ had been permitted to appear and make submissions in the proceedings, represented by counsel and solicitors instructed by its current board. Black J held, in an ex tempore judgment, that CAANZ should be allowed the opportunity to be heard on Mr Jaworski’s motion. In Jaworski (No 4) at [10], Black J explained that Mr Jaworski’s submission that CAANZ should not have been heard was incorrect for at least three reasons:

“First, this hearing comprises an application by Mr Jaworski to be funded by CA ANZ in his proposed conduct of the proceedings in CA ANZ’s name. He brings that application in his personal capacity, to seek an order against CA ANZ, and not on CA ANZ’s behalf. Second, and importantly, the fact that Mr Jaworski alleges wrongdoing against CA ANZ’s ‘controlling officers’ does not establish the fact of that wrongdoing or any consequential ‘conflict of interest’. Third, and importantly, this submission neglects, as much of Mr Jaworski’s case neglected, the facts that the ‘controlling officers’ to which he refers are the directors or officers of CA ANZ over a period of ten years; unsurprisingly, there has been significant change in the membership of CA ANZ’s board over that ten year period, although it appears that several directors have remained in office for significant parts of that period; and the allegations that Mr Jaworski seeks to make on CA ANZ’s behalf largely relate to conduct of persons who are no longer directors of CA ANZ, although I appreciate that Mr Jaworski seeks to extend those allegations to the current directors of CA ANZ. I recognise that, in my first judgment, I noted that it would be open to CA ANZ to appoint an independent board committee to consider the position in respect of the allegations; I do not know whether it has done so; but any question of conflict affecting the present board of CA ANZ must be considered in the context that the allegations largely relate to the conduct of previous boards of CA ANZ, involving many different people, over a period of at l[e]ast ten years.”

16. His Honour then considered the claims made by Mr Jaworski in some detail and ultimately found at [75]:

“Mr Jaworski has not satisfied me that he has a prima facie claim to be brought in the name of CA ANZ against its officers or that CA ANZ should pay the future legal costs of such a claim, in respect of the particular claims that I have addressed above or his claims taken as a whole. The matters to which I have referred above in respect of the particular claims are such that there is here no room for the whole to be stronger than the sum of its parts. I also bear in mind that, as I have noted above, many current and former officers of CA ANZ would be joined as defendants to the proposed proceedings, where they focus on events over that 10 year period and there has been significant change in the identity of CA ANZ’s directors from year to year. Where those many defendants may be, but would not necessarily be, commonly represented, the costs involved in the conduct of those proceedings are potentially substantial and CA ANZ would have exposure not only [to] Mr Jaworski’s costs of pursuing the claim, but also to the Defendants’ costs under a constitutional indemnity potentially available to them under its by-laws, and by way of an adverse costs order against it if the proceedings brought by Mr Jaworski were unsuccessful. This matter also tends strongly against making the order that he seeks.”

17. As to the consequences of this, his Honour held at [76]:

“For all of these reasons, Mr Jaworski’s Amended Summons filed 24 February 2025 should be dismissed. Mr Jaworski did not suggest he wished to, or could, continue the proceedings at his own cost unless such funding was available [from] CA ANZ, and, in any event, the relief that he sought did not extend beyond the order for funding to any substantive relief against CA ANZ or its officers, directors or former officers or directors, so the determination of this question determines the whole of the proceedings. For these reasons, the proceedings generally should also be dismissed.”

18. The substantive order that his Honour made was:

“Subject to paragraphs 2-4 below [as to costs], the Amended Summons filed 24 February 2025 and the proceedings be dismissed.”

19. Having granted Mr Jaworski leave to make submissions regarding costs, Black J made the Costs Order on 10 June 2025. Counsel for CAANZ informed this Court that his client’s costs the subject of this order were likely to exceed $100,000.

Preliminary matters

20. Mr Jaworski raised two preliminary concerns about this Court determining CAANZ’s motion.

21. First, he contended as a “threshold issue” that to do so would be to run the risk of repeating what he described as a fundamental error made by Black J in allowing counsel and solicitors to be heard on the application when they are instructed by some of the “controlling officers” of CAANZ against whom Mr Jaworski (on behalf of CAANZ) complains. This, he submitted, was “aiding and abetting a law under the equity court or under the equity rules” as the directors instructing counsel and solicitors were necessarily in a position of conflict. Thus, he submitted, this Court should deal with his appeal in Chambers, on the papers, on an ex parte basis.

22. This contention should be rejected. Mr Jaworski’s submission that the proceedings before Black J should have been conducted ex parte was rejected by his Honour: Jaworski (No 1) and Jaworski (No 2) and again in an ex tempore judgment of Black J, with further reasons given in Jaworski (No 4). Whilst Mr Jaworski seeks to agitate a complaint about that course in the notice of appeal that he has filed, the fact of the matter is that the proceedings below were heard inter partes. In these circumstances, CAANZ, as a party to the proceedings below and as the respondent to the proposed appeal, is entitled to be heard on an application that the appeal be dismissed as incompetent. Whilst it is possible that the issue whether Black J erred in refusing to hear the proceedings below ex parte could be ventilated in properly constituted appellate proceedings (and I express no view as to this), the matters which Mr Jaworski raises do not suggest that the appellate proceedings should themselves be conducted ex parte.

23. Second, Mr Jaworski contended that there was procedural unfairness in this Court hearing CAANZ’s motion on Monday 4 August 2025 when CAANZ’s submissions had been received by him only around noon on the Friday before the hearing. One fundamental difficulty with this contention is that on 28 July 2025 the Court of Appeal Registrar had directed that submissions be exchanged on 1 August 2025 at noon, as in fact they were, and that CAANZ’s motion be heard on 4 August 2025. Prior to his oral submissions at the hearing of the motion, Mr Jaworski made no complaint about that timetable. Nor did he seek any amendment to the timetable to give him additional time to prepare for the hearing of the motion or seek an adjournment of the hearing of the motion.

24. Moreover, as Mr Jaworski accepted during the hearing, the three bases upon which CAANZ contended that the appeal was incompetent were apparent from the notice of motion filed by CAANZ on 16 July 2025, and the written submissions of CAANZ elaborated upon those bases to only a limited extent by referring to four key relevant cases. As regards the key issue whether the appeal is incompetent because the 13 May 2025 Order is interlocutory, only one case, McEvoy v Caplan [2010] NSWCA 115; 78 ACSR 167, was relied upon by CAANZ in its written submissions and it was apparent from Mr Jaworski’s oral submissions on the appeal that he had read and understood that judgment; indeed he relied upon it.

25. In the circumstances, there is no procedural unfairness in the Court determining the matter on the basis of the written submissions of both parties exchanged on 1 August 2025, and the oral submissions of both Mr Jaworski and Mr Puttick, counsel instructed by CAANZ, at the hearing on 4 August 2025.

26. Mr Jaworski also submitted that it was relevant to the motion brought by CAANZ that he was not seeking to vindicate any personal interest or rights but was simply seeking to bring general law derivative proceedings on behalf of CAANZ, as he put it, as a “mere vessel for the corporation”. As to this, however, as Black J observed, in the Amended Summons Mr Jaworski sought an order that was for his own personal benefit, namely that any future legal costs that he incurred in derivative proceedings would be borne by CAANZ. In any event, the character of Mr Jaworski’s interest in the proceedings does not impact upon the competence of the appeal.

Is the appeal incompetent?

27. As regards the 13 May 2025 Order, it is interlocutory such that leave to appeal is required under s 101(2)(e) of the Supreme Court Act.

28. An order of that nature is not final in legal effect as it does not finally determine the rights of the parties or create res judicata estoppels: Licul v Corney (1976) 180 CLR 213 at 225 (Gibbs J); [1976] HCA 6; Macatangay v State of New South Wales (No 2) [2009] NSWCA 272 (“Macatangay”) at [11] (Allsop P, Tobias JA and Handley AJA); McEvoy v Caplan at [4] (Macfarlan JA, Allsop P and Beazley JA agreeing). The 13 May 2025 Order leaves it open to Mr Jaworski, notwithstanding what may be very real practical obstacles, to make a further application seeking to bring derivative proceedings in the name of CAANZ against its “controlling officers” and/or seeking an order that CAANZ indemnify Mr Jaworski against the costs of such application. As a matter of legal effect, the 13 May 2025 Order is not final, notwithstanding that it might be seen to have a degree of finality in practical effect. The test in Licul v Corney focusses upon “the legal rather than the practical effect of the judgment”: Carr v Finance Corporation of Australia Ltd [No 1] (1981) 147 CLR 246 at 248 (Gibbs CJ); [1981] HCA 20. Thus, the court does not enquire as to the prospects of a further application succeeding but asks whether the orders finally determine the rights of the parties.

29. My conclusion that the 13 May 2025 Order is interlocutory is consistent with the decision of Macfarlan JA (Allsop P and Beazley JA agreeing) in McEvoy v Caplan at [4] that an order dismissing an application for leave to bring a derivative proceeding under s 237 of the Corporations Act 2001 (Cth) is interlocutory. In both situations, the practical effect of the order is to bring the proceedings to an end but the order does not finally determine the legal rights of the parties.

30. As Black J said in Jaworski (No 4) at [76], the dismissal of the Amended Summons had the effect that the proceedings as a whole were dismissed. But that was because that was the only originating process before the Court. It inevitably followed that the dismissal of the Amended Summons amounted to a dismissal of the proceedings as a whole. Whilst Mr Jaworski explained to the Court that his understanding was that he had instituted a derivative proceeding which remained on foot, the only originating process, or extant application, before Black J as at 13 May 2025 was the Amended Summons.

27. It necessarily follows that, as CAANZ submitted, Mr Jaworski can only appeal against the 13 May 2025 Order with leave: Supreme Court Act, s 101(2)(e). The appeal is incompetent. I have power to make such an order having regard to the terms of s 46(2) of the Supreme Court Act, as was confirmed in Macatangay at [15] (Allsop P, Tobias JA and Handley AJA) and more recently in Fokas v Mansfield (No 3) [2017] NSWCA 315 at [24] (Basten, Meagher, and Payne JJA).

28. The Costs Order plainly falls within s 101(2)(c) of the Supreme Court Act. Leave to appeal is required. The appeal against that order is thus also incompetent.

29. Given these conclusions, it is unnecessary to consider the other bases upon which CAANZ contended that the appeal was incompetent, nor the further relief sought by CAANZ in the motion.

Conclusion

34. The orders of the Court are:

1. The appeal is dismissed as incompetent.

2. Mr Jaworski is to pay Chartered Accountants Australia and New Zealand’s costs of the proceedings.

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Decision last updated: 07 August 2025