Ex-CA ANZ member loses another case in prolonged campaign against body

He also challenged CA ANZ’s decision not to put 38 resolutions to an AGM in 2020, and a 2021 amendment to its by-laws to increase the minimum number of members required for a motion from 1o to 100.

In June 2024, Jaworski sought to have the regulator fund the court action but was unsuccessful. According to Justice Ashley Black’s judgment, Jaworski intended to bring the proceedings on CA ANZ’s behalf against its own controlling officers.

Justice Black concluded Jaworski had either not established a prima facie case or that it was in CA ANZ’s interests to bring the claim. Orders were made for Jaworski to pay CA ANZ’s costs.

In March this year, Jaworski attempted to make the same allegations against CA ANZ in his own name, but the point of difference was that those new proceedings sought relief against CA ANZ while the previous proceedings contemplated relief against its current and former officers by way of a derivative action brought for the benefit of CA ANZ.

Jaworski owed over $114,000 in unpaid cost orders during this time, due to which CA ANZ sought an order that the proceedings be stayed until Jaworski pays the amount owing in respect of the cost orders.

The judge in that case found that as long as Jaworski’s $114,700 cost orders remain outstanding, “it is unreasonable” for him to pursue new action.

In September this year, the Court of Appeal rejected Jaworski’s request to challenge this previous ruling to have his lawsuit against CA ANZ stayed, with the judge ruling that the challenge was an “abuse of power” since Jaworski had not paid outstanding legal costs from a previous, similar lawsuit.

Following this ruling, Jaworski sent an email to the presiding judge’s associate attaching what were described as his costs submissions. They sought an order under the Uniform Civil Procedure Rules (UCPR) 2005 (NSW) to set aside and vary the orders made in the previous leave judgment by allowing his application for leave to appeal and by not ordering costs against him.

In the current proceedings, Jaworski’s argument to reopen the case was claims that the judge made multiple errors, mischaracterised his arguments, ignored conflicts of interest, and showed bias against him.

In response, CA ANZ filed an official motion asking the court to decide on a specific lump-sum dollar amount (gross sum costs order) for their legal bills to avoid prolonged battles over the exact cost, and in the interests of justice “that neither further time nor cost be spent and that the matter be brought to finality”.

Jaworski’s request was refused, with the court ruling that he had no valid grounds to reopen the case.

While Jaworski said the court had incorrectly treated his allegations against the primary judge as alleging apprehended bias when he was alleging actual bias or a closed mind, the court said this distinction did not help him.

“The fact that the primary judge (on Mr Jaworski’s contention) made an error of law… does not of itself evidence actual bias; nor does it raise a reasonable argument of actual bias,” the court said in its judgment.

The court also clarified that rules allowing a case to be reopened as per the UPCR are intended to fix genuine factual or legal misunderstandings rather than offering another chance to a losing party who does not agree with the outcome. The court said the rule “is not a mechanism for re-agitating such matters”.

Jaworski argued that there should be no costs order because the litigation was in the public interest, CA ANZ was a self-regulatory professional body, and he was unable to pay the costs.

The court rejected his arguments, stating that public interest litigation is not automatically cost-free. While Jaworski asserted that he is “impecunious”, the court ruled that impecuniosity does not prevent a cost order.

“It simply means that the costs order may ultimately prove to be worthless (a consideration to take into account when considering whether a gross sum costs order should be made,” the court said in its judgment.

As such, on 14 October, the court dismissed Jaworski’s application.

The court also rejected Jaworski’s application for the judge in the current proceedings to recuse herself, stating that it found no strong reason to believe Justice Julie Ward would decide the case other than on its merits.

It ordered him to pay CA ANZ a discounted figure of $30,000 for the leave-to-appeal recusal proceedings, and a further $6,000 for the costs application.