Jaworski v Chartered Accountants Australia and New Zealand (No 2)

By Summons filed on 28 June 2024, the Plaintiff, Mr Jaworski, sought relief described as:

By my judgment delivered on 19 August 2024 (“Earlier Judgment”), I determined the question whether Mr Jaworski should be required to serve the Summons on CAANZ before any determination of any question as to whether he should be entitled to pursue the proceedings further at CAANZ’s cost. I referred to the lengthy affidavit on which he relied and the basis on which he submitted, primarily in reliance on the decision in Wallersteiner v Moir (No 2) [1975] 1 QB 373 (“Wallersteiner”) that the Court should order that CAANZ pay his costs of the proceedings before CAANZ was served with the proceedings and allowed an opportunity to be heard. I concluded (at [28]-[29]) that:

I then made the following orders:

By written submissions made on 30 August 2024, Mr Jaworski took up the possibility to which I referred in paragraph 29 of the Earlier Judgment and requested that leave be granted for the judgment to be reopened on the basis of further submissions, which were largely structured as a response to the conclusions which I had reached in the Earlier Judgment.

Mr Jaworski did not identify a basis in the case law for his application to reopen, but I should address the applicable principles before turning to the broad nature of his submissions. Rule 36.16(1) of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) permits the Court to set aside or vary a judgment or order if a notice of motion to set it aside or vary it is filed before entry of that judgment or order. Rule 36.16(3A) of the UCPR provides that, if a notice of motion to set aside or vary a judgment or order is filed within 14 days after the judgment, the Court may determine the matter and (if appropriate) set aside or vary the judgment or order. Mr Jaworski brings this application, although not by notice of motion, within that 14 day period.

The power to reopen is more often exercised in respect of an application to lead further evidence rather than make further submissions. In Urban Transport Authority (NSW) v Nweiser (1992) 28 NSWLR 471 at 478, Clarke JA observed that:

In Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300 at 302; [1993] HCA 6 (“Autodesk”), Mason J observed that “the jurisdiction is to be exercised with great caution, having regard to the importance of the public interest in the finality of litigation” and that “generally speaking it will not be exercised unless the applicant can show that by accident and without fault on his part he has not been heard”. His Honour also observed at 303 that:

In De L v Director-General, Department of Community Services (NSW) (No 2) (1997) 190 CLR 207 at 215; [1997] HCA 14, Toohey, Gaudron, McHugh, Gummow and Kirby JJ pointed to the considerations involved in a Court’s determination whether to reopen a judgment or orders, noting that:

In New Cap Reinsurance Corporation Ltd v AE Grant [2009] NSWSC 950 (“New Cap”) at [20]), Barrett J (as his Honour then was) observed that:

In Big Money World Pty Ltd v Red Hair Entertainment Pty Ltd [2018] NSWSC 1837, Ward CJ in Eq (as the President then was) observed that:

I also bear in mind that my Earlier Judgment was interlocutory in character, in the sense that it did not finally resolve the proceedings. In that context, as I observed in Re Anne Lewis Pty Ltd (In Liq) [2018] NSWSC 1727 at [10]:

Mr Jaworski refers, first, to my observation that his application was not supported by an opinion of Counsel, a possible course noted in Wallersteiner, and that was a matter that supported allowing CAANZ an opportunity to be heard before an order requiring it to pay his costs of the proposed proceedings was made. Mr Jaworski submits that:

I accept that it may be necessary for the Court to reach a decision as to that question, if it is placed in a position that it can fairly determine it; however, the conclusion that I reached in my Earlier Judgment was that, where the Court did not have the assistance of a Counsel’s opinion in support of Mr Jaworski’s application, then allowing CAANZ an opportunity to be heard will likely promote a just and fair determination of the question. Mr Jaworski also submits that there is a “Catch 22” element, if his application is “criticised” for the lack of a Counsel’s opinion, when the point of his application is to seek an order that CAANZ pay his costs of the proceedings so that he can obtain legal representation to conduct them at CAANZ’s cost. I note, first, that the application is not “criticised” on that basis; instead, I simply found that, at least absent a Counsel opinion, it would be preferable that CAANZ be allowed an opportunity to be heard in respect of it. There is also no “Catch 22” in that proposition, since Mr Jaworski is not prevented from continuing his application, but is only required to give CAANZ the opportunity to be heard as to whether the orders he seeks should be made. It seems to me that Mr Jaworski’s submissions as to these matters do not identify any error of fact or law in my conclusion, as distinct from the fact that Mr Jaworski holds a different view to my view.

Mr Jaworski also submits that his affidavit is a good faith attempt to reflect all the facts and arguments presented by both parties over many years of correspondence and a parliamentary inquiry and it is “unlikely” that any surprises remain. I proceed on the basis that Mr Jaworski has summarised matters as he understands them; but I also recognise that experience teaches that a party against which relief is sought may have a different perception of events to the party seeking that relief. Mr Jaworski then turns to submissions as to the correctness, or otherwise, of my understanding of the decision in Wallersteiner; he submits that the matter is not complex, despite the length of his affidavit; and the large part of his further submissions assume the correctness of the position for which he contends and do not address the possibility that CAANZ may put submissions or lead evidence which casts matters in a different light. Again, it seems to me that Mr Jaworski’s submissions as to these matters do not identify any error of fact or law in my conclusion, as distinct from the fact that, understandably, Mr Jaworski is satisfied that his position is correct and any position that CAANZ might put, if allowed the opportunity to do so, would not prevail.

Mr Jaworski also points to the “misapprehensions” which exist in other aspects of my judgment, which would be displaced, implicitly, if I accepted his view of events without allowing CAANZ an opportunity to be heard, and he refers to earlier disputes with CAANZ as to the conduct of its affairs in other forums. I express no view as to whether Mr Jaworski’s understanding of those events will ultimately be established, where the conclusion that I reached was only that the Court would likely be better able to reach a just and fair determination of that matter if Mr Jaworski were required to serve the application and allow CAANZ an opportunity to be heard. It seems to me that Mr Jaworski’s submissions as to these matters again do not identify any error of fact or law in my conclusion, although Mr Jaworski is entitled to take a different view.

I am conscious, as Barrett J noted in New Cap, that it is undesirable for a first instance judge to hear what amounts to an appeal against his or her own decision. With that qualification, it does not seem to me that Mr Jaworski has shown that I proceeded according to some misapprehension of the facts or the relevant law. While I recognise that I took some time to recognise, in the oral hearing, the extent to which the approach urged by Mr Jaworski, by reference to Wallersteiner, differed from that which is now more commonly seen in statutory derivative actions, I took full account of that matter in the Earlier Judgment. I would likely have permitted reopening had such a misapprehension emerged but it seems to me, without any criticism of Mr Jaworski, that to do so here would allow Mr Jaworski to reargue his case in the manner which Mason J warned against in Autodesk.

For these reasons, I do not allow Mr Jaworski’s application to reopen my judgment requiring that his application be served on CAANZ before it is heard and determined.