Jaworski v Chartered Accountants Australia and New Zealand

1. [1]

   By summons filed on 30 June 2025, Mr Jaworski claims relief against Chartered Accountants Australia and New Zealand (CA ANZ) in the following terms:

2. [2]

   By a notice of motion filed on 13 February 2026, CA ANZ seeks an order that the proceedings be stayed until Mr Jaworski pays to it amounts owing in respect of two costs orders that were made in its favour, in respect of earlier proceedings that were pursued unsuccessfully by Mr Jaworski against CA ANZ. There is an alternative application by CA ANZ for security for costs, which it would pursue if the proceedings were not otherwise stayed.

3. [3]

   Mr Jaworski resists the applications on the basis that they are brought to seek to thwart or stifle the substantive proceedings in circumstances where the persons controlling CA ANZ have a conflict of interest. Mr Jaworski contends that the proceedings are adverse to the personal interests of those giving instructions in the proceedings, and that a stay is not in the best interests of CA ANZ, its members, or the public.

4. [4]

   For the reasons given below, the proceedings will be stayed until Mr Jaworski meets the two costs orders.

Procedural history

1. [5]

   Mr Jaworski commenced earlier proceedings against CA ANZ by a summons filed on 28 June 2024. By that summons, he sought relief in the following terms:

2. [6]

   In Jaworski v Chartered Accountants Australia and New Zealand [2024] NSWSC 1052, Black J considered whether Mr Jaworski should be required to serve the summons before determining any question as to whether he should be entitled to pursue the proceedings further at CA ANZ’s cost. His Honour stayed the proceedings until the summons was served on CA ANZ.

3. [7]

   In Jaworski v Chartered Accountants Australia and New Zealand (No 2) [2024] NSWSC 1134, Black J declined Mr Jaworski’s application to reopen the first judgment.

4. [8]

   In Jaworski v Chartered Accountants Australia and New Zealand (No 3) [2024] NSWSC 1214, Black J struck from the file a further notice of motion that had been filed (but not served) by Mr Jaworski, by which he sought relief as to costs and to compel CA ANZ to take certain steps.

5. [9]

   After Mr Jaworski served the summons, the substantive proceedings were heard by Black J. Mr Jaworski relied on an amended summons, by which he sought the following relief:

6. [10]

   There are various aspects of his Honour’s reasons in Jaworski (No 4) that are relevant to the present application.

7. [11]

   Black J noted (at [9]) that Mr Jaworski expressed a concern that CA ANZ had been permitted to appear in the proceedings, represented by counsel and solicitors instructed by its current board, to express a position which, he contended, had the consequence that “the alleged controlling officers have been allowed to influence the proceedings which would be plainly prejudicial to the CA ANZ entity, and also a breach of their duty to avoid a conflict of interest”. Black J held that he had earlier rejected that contention (in his first judgment) and that it was wrong for at least three reasons, as follows (at [10]):

8. [12]

   Black J noted (at [11]) that the question that ultimately emerged for determination was whether Mr Jaworski should be funded to bring proceedings in the name of CA ANZ against its officers. Black J noted that Mr Jaworski did not seek declaratory or other relief against CA ANZ as to the validity of the challenged actions, which would have been available to him, at least in respect of several issues, in his personal capacity. That is the relief that Mr Jaworski now seeks by the new proceedings.

9. [13]

   Black J considered the various claims that Mr Jaworski sought to bring, in CA ANZ’s name, against CA ANZ’s officers. His Honour did so in considering whether there was a prima facie case and whether it was in CA ANZ’s interests to bring the claim.

10. [14]

    Black J recorded (at [32]) that the first claim that Mr Jaworski sought to bring against CA ANZ’s officers (as a collective group) related to the circumstances in which CA ANZ declined to put 38 resolutions proposed by several of its members, including Mr Jaworski, at an annual general meeting in 2020. After considering the evidence and submissions, Black J concluded (at [45]) that Mr Jaworski had not established a prima facie case in respect of the proposed claim or that it was in CA ANZ’s interests to bring the claim.

11. [15]

    Black J came to the same conclusion (at [56]) about the second claim, which related to an amendment of CA ANZ’s by-laws in 2021 to increase the minimum number of members required to bring a motion or business before a meeting from 10 members to 100 members.

12. [16]

    In relation to the third claim, which concerned payments of directors’ fees by CA ANZ between 2015 and 2025, which Mr Jaworski contended lacked authorisation (by reference to by-law 136A of CAANZ’s by-laws), Black J was not satisfied that it would be in CA ANZ’s interests to bring the claim (at [63]).

13. [17]

    The fourth claim that Mr Jaworski sought to bring (see [64]) was a claim that CA ANZ published financial reports which did not present a “true and fair” view and/or did not comply with Australian Accounting Standards. Mr Jaworski contended that CA ANZ’s financial reports were not complaint with CA ANZ’s by-law 154. In respect of this claim, Black J expressed the following conclusions (at [70]):

14. [18]

    Black J also dealt “for completeness” with Mr Jaworski’s allegations concerning “disenfranchisement of members’ rights and eschewing accountability”, which involved a range of wider criticisms as to the structure established by CA ANZ’s by-laws. Black J noted (at [71]) that Mr Jaworski, rightly, placed less weight on those matters in his submissions, “where it is not apparent that compliance with the structure created by CA ANZ’s by-laws could support a claim by CA ANZ against its current or former directors and officers”.

15. [19]

    Black J proceeded to address Mr Jaworski’s claims as a whole (at [72]ff). His Honour concluded as follows (at [75]):

16. [20]

    Black J subsequently made orders on 10 June 2025 that Mr Jaworski pay CA ANZ’s costs of and incidental to the proceedings, as agreed or assessed: see Jaworski v Chartered Accountants Australia and New Zealand (No 5) [2025] NSWSC 590.

17. [21]

    Mr Jaworski filed a notice of appeal against the orders made by Black J to dismiss the proceedings and to award costs in CA ANZ’s favour. On 7 August 2025, Stern JA dismissed the appeal as incompetent on the basis that the relevant orders were interlocutory and leave was required: Jaworski v Chartered Accountants Australia and New Zealand [2025] NSWCA 177. Her Honour ordered that Mr Jaworski pay CA ANZ’s costs (at [34]).

18. [22]

    Mr Jaworski sought special leave to appeal to the High Court from the decision of Stern JA. In detailed submissions in support of his application, Mr Jaworski attacked the reasons of Black J in Jaworski (No 4). The application was late. On 6 November 2025, the High Court refused to grant an extension of time within which to seek special leave and, after referring to the reasons in Jaworski (No 4), refused special leave on the basis that the application did not raise any questions of law of public importance and the proposed appeal had no prospects of success: Jaworski v Chartered Accountants Australia and New Zealand [2025] HCADisp 247.

19. [23]

    On 19 December 2025, Black J made orders by consent fixing the sum of Mr Jaworski’s costs liability under the orders made in Jaworski (No 5) at $101,000. On the same day, Stern JA made orders by consent fixing the sum of Mr Jaworski’s costs liability under the orders made by her Honour at $13,600.

20. [24]

    Mr Jaworski has not paid any amount on account of those costs orders and has indicated that he does not propose to do so.

The current proceedings

1. [25]

   In the current proceedings, Mr Jaworski seeks declaratory relief against CA ANZ (not any of its current or former directors or officers) concerning the same underlying complaints that were the subject of his application that was dismissed in Jaworski (No 4). The relief he seeks in his summons is set out at [1] above. Paragraphs 1A-1D of his summons closely mirror the 4 claims addressed by Black J in Jaworski (No 4). Paragraph 1E appears to reflect the matter Black J considered “for completeness”. The matter raised by [1F] of the summons appears to be new, but is related to allegations that Mr Jaworski made in the earlier proceedings.

2. [26]

   In the earlier proceedings, Mr Jaworski failed to convince the Court that there are prima facie claims to be brought in the name of CA ANZ against its officers, or that it was in CA ANZ’s interests to pay the future legal costs of those claims. With the addition of a new but related claim, Mr Jaworski seeks to make the same allegations against CA ANZ in his own name. He is not a current member of CA ANZ.

Should the proceedings be stayed?

1. [27]

   CA ANZ brings its application for a stay pursuant to s 67 of the Civil Procedure Act 2005 (NSW) or the Court’s inherent power to stay proceedings that are an abuse of process. Section 67 confers power, subject to the rules of the Court, to stay any proceedings before it, either permanently or until a specified day.

2. [28]

   CA ANZ relied on the reasons of Giles JA (Spigelman CJ and Basten JA agreeing) in CGU Insurance Ltd v Watson [2007] NSWCA 301. His Honour made the following observations:

3. [29]

   In the earlier proceedings, the central issue was whether Mr Jaworski should be funded to bring proceedings on 4 main claims in the name of CA ANZ against its current and former officers. By the current proceedings, Mr Jaworski seeks relief in his own name against CA ANZ. The new case is different to the previous one in that the new proceedings seek relief against CA ANZ, whereas the previous proceedings contemplated relief against its current and former officers by way of a derivative action brought for the benefit of CA ANZ. However, the underlying conduct that is said to justify the relief in the new proceedings is essentially the same conduct that Mr Jaworski advanced to justify the relief sought in the earlier proceedings.

4. [30]

   By his summons in the current proceedings, Mr Jaworski seeks, as a matter of substance, to advance in his own name the claims that he wished previously to advance in CA ANZ’s name against current and former officers of CA ANZ. In Jaworski (No 4), Black J held that the claims against current and former officers did not have a prima facie evidentiary basis (at [56]). His Honour’s reasons indicate that this conclusion was not drawn merely because the prospective plaintiff was CA ANZ, rather than Mr Jaworski in his own capacity. The relief that Mr Jaworski seeks by the fresh proceedings against CA ANZ relies on the same underlying alleged wrongdoing by its officers. That underlying misconduct, on Mr Jaworski’s case, vitiates various things done by CA ANZ.

5. [31]

   It is not necessary to engage in a close consideration of what is meant by proceedings “in the same cause”. Mr Jaworski has had an opportunity in proceedings against CA ANZ to show, on a prima facie basis, that his claims of wrongdoing have substance, and has failed. He now wishes to make the same claims of wrongdoing (together with a closely related claim) in new proceedings against CA ANZ.

6. [32]

   In the submissions before me, Mr Jaworski was critical of the reasons delivered by Black J In Jaworski (No 4). He submitted that their cogency “is very difficult to fathom”. He drew specific attention to the final sentence of [41] of his Honour’s reasons, which concerned Mr Jaworski’s first proposed claim. For context, [40] and [41] of those reasons read:

7. [33]

   When the final sentence of [41] is read in the context of the judgment as a whole, it is unremarkable and not open to any reasonable criticism. Black J was merely acknowledging that there may be an open question about whether CA ANZ’s charter has the consequence that the usual position that applies to companies does not apply to CA ANZ, but noting that it was not a matter that had to be determined on the application. When the reasons are read as a whole (see [32]-[45], particularly [44]), it is apparent that a conclusion on that question would not have made any difference to his Honour’s conclusion that Mr Jaworski had failed to establish a prima facie claim, or that it was in CA ANZ’s interests to bring the claim. There was a more fundamental difficulty with Mr Jaworski’s claim, being that he had not identified the steps taken by current or former officers of CA ANZ that were said to have breached their duties. That fundamental difficulty meant that it was unnecessary to resolve the question that his Honour identified at [41].

8. [34]

   Mr Jaworski did not seek leave to appeal the decision of Black J. His attempt to appeal as of right was dismissed as incompetent, and special leave to appeal against that decision was refused.

9. [35]

   In the circumstances where this Court has concluded that the claims that Mr Jaworski wishes to bring have no prima facie evidentiary basis, Mr Jaworski is making vexatious use of the processes of this Court in seeking to agitate the same claims when he has failed to meet outstanding costs orders of this Court and the Court of Appeal. So long as he has failed to pay those costs, it is unreasonable for him to pursue the current proceedings, and it is an abuse of the processes of this Court. Similar reasons justified a stay in Graham v Sutton, Carden & Co [1897] 2 Ch 367.

10. [36]

    I acknowledge that a stay pending the payment of costs may stifle the proceedings. The significance of that concern is considerably diminished once it is appreciated that Mr Jaworski has tried, but failed, to persuade the Court in earlier proceedings that there is a prima facie basis for the claims he wishes to advance. He has had an opportunity to advance his contentions as to wrongdoing.

11. [37]

    I also appreciate that in determining whether it is appropriate to make an order that a plaintiff give security for costs, a matter that may be relevant is whether the order would stifle the proceedings: see Uniform Civil Procedure Rules 2005 (NSW) r 42.21(1A)(f). There is an important difference between the potential for a costs order in proceedings that have been commenced, and an actual costs order for earlier proceedings that have been concluded. Security is given for a prospective costs order. Here, CA ANZ seeks that Mr Jaworski honour costs orders that it has already secured as a successful litigant. I do not consider that there is a relevant analogy between an application for security for costs of a prospective costs order, and an application for a stay pending payment of previous costs orders.

12. [38]

    Subject to what is addressed below, this is a clear case where the proceedings should be stayed pursuant to s 67 of the Civil Procedure Act, or the Court’s inherent power, until the day Mr Jaworski pays the costs that he is obliged to pay to CA ANZ pursuant to the orders of Black J and Stern JA made on 19 December 2025.

Should the stay be refused because the controllers of CA ANZ are in a position of conflict?

1. [39]

   Mr Jaworski submitted that the current directors of CA ANZ, as well as its current Chief Executive Officer and General Counsel, are affected by a conflict that prevents them having any involvement in giving instructions to CA ANZ’s external lawyers. He submitted that I should decline to consider the application for the stay. Mr Jaworski made similar arguments without success before Black J. I have set out the (cogent) reasons why Black J did not accept these arguments.

2. [40]

   There is evidence that the Chief Executive Officer and the General Counsel of CA ANZ hold authority to give instructions in these proceedings, and that they report to the board of directors through the Audit and Risk Committee. Mr Jaworski contended that a finding of unlawful conduct would have a detrimental impact on the careers of CA ANZ directors, the Chief Executive Officer and the General Counsel, and would have financial implications. Mr Jaworski pointed out that the Chief Executive Officer earns more than the Australian Prime Minister and the General Counsel earns more than a Supreme Court judge, and suggested that their interest in maintaining these “high” salaries conflicts with an interest in exposing earlier wrongdoing by other officers of CA ANZ. He submits that there is a conflict because the current officers are covering up earlier wrongdoing.

3. [41]

   Mr Jaworski relied on the following passage from the judgment of Lord Cranworth in Aberdeen Railway Co v Blaikie Brothers (1854) 1 Macq 426, HL (Sc) at [471]-[472]:

4. [42]

   A more contemporary statement of principle is found in the reasons of Deane J in Chan v Zacharia (1984) 154 CLR 178; [1984] HCA 36. When dealing with a fiduciary’s liability to account, his Honour observed (at 199):

5. [43]

   As Lord Cranworth observed in Aberdeen Railway, a corporate body can only act by its agents. Putting aside the question of the precise character of CA ANZ’s legal personality, it can only act through its agents. Acting through its agents, it has successfully defeated Mr Jaworski’s earlier proceedings and has the benefit of two costs orders. In dealing with the new proceedings, CA ANZ must again act through its agents. It does so through external lawyers who are taking instructions from senior executives of CA ANZ. Mr Jaworski has failed to point to anything pertaining to those giving instructions to CA ANZ’s external lawyers to cause me to conclude that there is anything improper or inappropriate in CA ANZ’s application for a stay pending the payment of the costs owed to it by Mr Jaworski, such that the Court should not entertain the stay. Mr Jaworski has not identified anything that indicates a conflict or a significant possibility of conflict on the part of those making the decisions for CA ANZ in the prosecution of the notice of motion now before the Court.

6. [44]

   As a matter of substance, Mr Jaworski is attacking the retainer of CA ANZ’s external lawyers, who advance the application for a stay on CA ANZ’s behalf. The evidence he relies on falls well short of what is required to persuade me that the application to stay the proceedings, and the submissions made on behalf of CA ANZ, are tainted and should not be entertained, or should be dismissed, on the grounds that the external lawyers are taking instructions from individuals who cannot properly give them on behalf of CA ANZ.

7. [45]

   There is no proper reason for me to conclude that either the current Chief Executive Officer or the General Counsel is doing anything other than taking the responsible step of seeking to avoid the inevitable cost and distraction of legal proceedings, in circumstances where Mr Jaworski has already agitated the underlying claims without success and is refusing to pay the amounts he owes to CA ANZ for past costs. Neither the current Chief Executive Officer nor the General Counsel is specifically alleged to have engaged in any of the underlying wrongdoing. Mr Jaworski accuses them of seeking to cover up earlier wrongdoing. Generalised references to a cover up are not sufficient to undermine the application now made by CA ANZ through its external lawyers. Nor does reference to what is said to be their “high” salaries. The possibility of conflict appears to me to be remote and tenuous.

8. [46]

   It may be that on a fully contested hearing, all of Mr Jaworski’s allegations would be established. It may be that they would all fail. Either way, it is reasonable and responsible for the current senior executives to seek a stay of the proceedings until Mr Jaworski has paid the costs that he owes to CA ANZ arising from the earlier proceedings. The possibility that Mr Jaworski will succeed is not a sufficient basis for me to decline to entertain or accept the submissions now advanced on CA ANZ’s behalf. Mr Jaworski appears to be motivated by a deep sense that the litigation is in the public interest. But that does not absolve him from his liability to pay costs or justify him continuing to pursue the claim before he has met that obligation.

9. [47]

   If Mr Jaworski pays the costs, the stay will lift and he can pursue these proceedings in the ordinary way. In saying that, I do not foreclose any steps that CA ANZ might take in these proceedings. It has, for example, foreshadowed an application that challenges Mr Jaworski’s standing to bring these proceedings. If the stay is lifted, any applications in these proceedings will be considered on their merits. In the meantime, Mr Jaworski should not be permitted to advance these proceedings while he continues to refuse to pay the costs of his previous failures.

10. [48]

    I reject Mr Jaworski’s contentions that the stay should be declined because of an asserted conflict of interest.

Conclusion

1. [49]

   The summons should be stayed until the day Mr Jaworski pays the costs that are the subject of the orders of Black J and Stern JA of 19 December 2025. That stay is to be made in the exercise of power under s 67 of the Civil Procedure Act and pursuant to the Court’s inherent power. For so long as the costs remain outstanding, the current proceedings are an abuse of this Court’s processes.

2. [50]

   I do not need to consider CA ANZ’s alternative claim for security for costs.

Orders

1. [51]

   I make the following orders:

   1. (1)

      The proceedings are stayed until the Plaintiff pays the Defendant:

   2. (2)

      The Plaintiff is to pay the Defendant’s costs of the notice of motion filed on 13 February 2026.