Jaworski v Chartered Accountants Australia and New Zealand (No 3)

[2024] NSWSC 1214

Supreme Court

New South Wales

Medium Neutral Citation:

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

Hearing dates:

Determined on the papers, 26 September 2024

Date of orders:

26 September 2024

Decision date:

26 September 2024

Jurisdiction:

Equity - Corporations List

Before:

Black J

Decision:

Notice of motion struck from the file; hearing date vacated.

Catchwords:

PRACTICE AND PROCEDURE – where determination of notice of motion would be inconsistent with stay proceedings – where notice of motion not served on other party to proceedings whose legal rights would be affected by the relief sought.

Cases Cited:

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

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

Category:

Consequential orders

Parties:

Gerald Jaworski (Plaintiff)
Chartered Accountants Australia and New Zealand (Defendant)

Representation:

Gerald Jaworski (Plaintiff - self-represented)
The Defendant has not yet been served.

File Number(s):

2024/238672

Judgment

1. I have delivered two previous judgments in two applications made by Mr Jaworski in these proceedings, on 19 August 2024 ([2024] NSWSC 1052) and on 4 September 2024 ([2024] NSWSC 1134). I have made orders, following delivery of those judgments, that the proceedings are stayed until they are served upon the Defendant, Chartered Accountants Australia and New Zealand (“CAANZ”); Mr Jaworski is to notify my Associate within 2 days of serving the proceedings, to permit their relisting; and the proceedings are again listed on 16 December 2024, with a view to their dismissal for want of prosecution if they have not been served on CAANZ by that date.

2. Notwithstanding that the proceedings have been stayed, Mr Jaworski has now filed a Notice of Motion dated 23 September 2024. He identifies the relief sought in that Notice of Motion as, first, “[s]ee paragraph 1(a) of attached document”, which appears to seek an order that costs in relation to the “preliminary stage of the process” be limited to nil, although that order is combined with a lengthy submission. The second order sought is described as “[s]ee paragraph 1(b) of attached document”, which appears to be an order directed to require CAANZ, which it appears has not been served with the proceedings, to take certain steps in certain circumstances. That order is also combined with a lengthy submission.

3. By email dated 25 September 2024, the Registry advised Mr Jaworski that the Motion would be listed on 14 October 2024; the Motion should be served; and, if Mr Jaworski wished to have the Motion dealt with in Chambers, he should approach Chambers with reasons for that request. By email dated 25 September 2024, Mr Jaworski advised that:

“I’ve invited the Court to consider the motions on the papers in Chambers, and since I’ve also suggested that by its nature the [Notice of Motion] should not be served, I am wondering if it is still necessary to have a directions hearing, especially when there is a convenience of timing in relation to my request for an order which could be combined with a CAANZ AGM scheduled for 25 October 2024?”.

4. I am content to deal with the matter in Chambers, since it is not desirable that Mr Jaworski or the community be exposed to the risk of wasted time in respect of a hearing of the application. I consider that the Notice of Motion filed 23 September 2024 should be struck from the file and the hearing date for it vacated for several reasons. First, there has been no change of circumstances that would warrant any reconsideration by me of the stay of the proceedings, until they are served on CAANZ, even if Mr Jaworski had sought such a reconsideration. Second, Mr Jaworski does not suggest that he has sought or obtained leave to appeal from the stay of the proceedings, until they are served on CAANZ, still less that that stay has been set aside by the Court of Appeal. Third, any hearing or determination of the Motion would be inconsistent with the fact that the proceedings are stayed, until they are served on CAANZ. Fourth, it appears that Mr Jaworski has not served and will not serve the Motion upon CAANZ, notwithstanding that the orders that he seeks plainly adversely affects its legal rights, and cannot be made without allowing it procedural fairness. I recognise that Mr Jaworski is, likely correctly, concerned that he would be exposed to a risk of adverse costs orders, if CAANZ were given an opportunity to be heard as to the relief that he seeks against it and incurred costs in that regard; but that risk cannot be avoided by Mr Jaworski claiming relief that adversely affects CAANZ’s legal rights, and then declining to serve the proceedings on CAANZ to allow it the opportunity to be heard as to whether that relief should be granted.

5. For these reasons I order that:

1. The Notice of Motion filed 23 September 2024 by Mr Jaworski be struck from the Court file.

2. The listing of the Notice of Motion on 14 October 2024 be vacated.

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Decision last updated: 26 September 2024