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[2025] NSWCA 177
procedural. The appeal was dismissed as incompetent. Mr Jaworski was ordered to pay CAANZ’s costs of the proceedings.
Jaworski’s original application asked CAANZ to pay the future legal costs of a proposed claim he said he would bring in CAANZ’s name against its officers. The application was dismissed, and he was later ordered to pay CAANZ’s costs. He appealed both orders without leave. The Court of Appeal held that the dismissal order was interlocutory because it did not legally prevent a further application, even though it ended the proceedings then before the Court. It also held that the costs order required leave to appeal. As leave had not been obtained, the appeal was dismissed as incompetent. The Court did not decide whether the proposed derivative claim had merit.
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2,380 words · generated 06/10/2026
The judgment concerns the threshold question of whether Gerald Jaworski could appeal without first obtaining leave. It does not decide whether the officers of Chartered Accountants Australia and New Zealand (CAANZ) breached duties, or whether CAANZ should fund a derivative claim against them.
4 cited instruments linked from this judgment.
Jaworski’s amended summons asked for an order that, once the Court was satisfied he had a prima facie claim to bring in CAANZ’s name against its officers, “CAANZ pay the future legal costs” of his conduct of that claim [1]. The proposed claim alleged wrongdoing by CAANZ’s “controlling officers” in four identified respects and more generally [2]. As Stern JA explained, Jaworski had not commenced that derivative claim. The application before Black J was the funding application alone [2].
The history matters because the Court treated the amended summons as the only originating process before Black J when he made the order under appeal. Jaworski had earlier filed a summons seeking leave for a derivative action. Black J had explained that, under the general law, the leave Jaworski sought was not required to commence proceedings, but related to whether he could retain legal representation at CAANZ’s cost [8]. The application was subsequently amended, and the version filed on 24 February 2025 sought an order for future legal costs [14].
Black J dismissed the amended summons on 13 May 2025. He concluded that Jaworski had not established a prima facie claim for the proposed proceedings or a basis for CAANZ to pay their future costs. He also noted the potential scale of the costs exposure, including the costs of the proposed defendants and possible indemnity obligations [16]. The order dismissed the summons and the proceedings then before the Court [17]-[18]. Black J later ordered Jaworski to pay the costs of the proceedings on 10 June 2025 [3].
Jaworski filed a notice of appeal against both orders on 10 June 2025. CAANZ applied to have the appeal dismissed as incompetent, contending that leave was required under s 101(2)(c), (e) and/or (r) of the Supreme Court Act 1970 (NSW) [4]. Stern JA decided that leave was required under ss 101(2)(e) and 101(2)(c), making it unnecessary to decide CAANZ’s other arguments [33].
The final orders were that the appeal be dismissed as incompetent and that Jaworski pay CAANZ’s costs of the proceedings [34]. The judgment reports that CAANZ’s costs under the earlier costs order were likely to exceed $100,000, according to counsel’s information to the Court [19]. That reported estimate is not a determination of the final amount payable.
The decisive issue was the legal character of the order made on 13 May 2025. Section 101(2)(e) required leave to appeal an interlocutory order. The judgment applied the distinction between an order that finally determines legal rights and one that does not. Practical finality, such as bringing the current proceeding to an end, was not enough by itself to make an order final.
At [28], Stern JA relied on Licul v Corney and Carr v Finance Corporation of Australia Ltd [No 1] for the proposition that the inquiry focuses on “the legal rather than the practical effect of the judgment”. The Court therefore did not ask whether a further application would likely succeed. It asked whether the order finally determined the parties’ rights [28].
The answer was no. Although dismissing the amended summons ended the only proceeding then before Black J, the order did not legally prevent Jaworski from bringing a further application for derivative proceedings or seeking an order concerning funding [28]. Stern JA acknowledged that there might be “very real practical obstacles” to such a further application, but those obstacles did not alter the order’s legal effect [28]. That distinction explains why the order could end the proceedings in practice while still being interlocutory for appeal purposes.
The identity of the only process before Black J was important to that analysis. Jaworski had said his understanding was that a derivative proceeding remained on foot. Stern JA found that, as at 13 May 2025, the only originating process or extant application before Black J was the amended summons [30]. Its dismissal therefore disposed of the proceedings then before the Court, but did not itself finally determine the legal rights associated with any possible later application.
The Court also considered McEvoy v Caplan, where an order dismissing an application for leave to bring a derivative proceeding under s 237 of the Corporations Act 2001 (Cth) had been held to be interlocutory [29]. Stern JA considered that decision consistent with the result here: in both situations the practical effect might be to end the current proceedings, while the order did not finally determine legal rights [29]. The judgment uses McEvoy as an analogy; it does not hold that the statutory application and Jaworski’s general-law funding application were identical.
The costs order presented a separate and more direct issue. Stern JA held that the order requiring Jaworski to pay CAANZ’s costs plainly fell within s 101(2)(c), which required leave to appeal an order as to costs only that was in the Court’s discretion [32]. The appeal against that order was also incompetent without leave.
Finally, the Court rejected objections to hearing CAANZ’s motion. Jaworski argued that CAANZ’s representation involved a conflict because some of the people he criticised were connected with its board, and that the matter should be heard ex parte. Stern JA noted that the proceedings below had been heard inter partes and that CAANZ, as a party below and respondent to the proposed appeal, was entitled to be heard on the competency motion [22]. The Court did not decide whether Black J had erred by refusing to hear the earlier proceedings ex parte; Stern JA expressly left that question open [22].
Jaworski also alleged unfairness because he received CAANZ’s submissions shortly before the hearing. The Court relied on the Registrar’s timetable, the fact that the competency grounds had been apparent from the notice of motion, and Jaworski’s failure to seek more preparation time or an adjournment before the hearing [23]-[25]. Those circumstances did not prevent the Court from deciding the motion.
The judgment does not purport to change the law governing appeal rights. It applies existing statutory provisions and appellate authorities to the particular orders made below.
Before this decision, the judgment identifies the governing approach to finality through Licul v Corney and Carr v Finance Corporation of Australia Ltd [No 1]. The key distinction is between legal and practical effect. An order is not necessarily final merely because it ends the proceeding currently before the court; the question is whether it finally determines the parties’ legal rights [28]. The Court also refers to Macatangay v State of New South Wales (No 2) in relation to the Court’s power to dismiss an incompetent appeal under s 46(2) of the Supreme Court Act [31].
As to derivative proceedings, the judgment records the earlier decision in Oates v Consolidated Capital Services Pty Ltd. It explains that, under the general law, leave is not required before a plaintiff seeks to bring a derivative action, although the plaintiff must allege facts showing that they fall within a recognised exception to the usual rule that the corporation is the proper plaintiff [9]. That discussion supplies procedural context for Jaworski’s earlier application. Stern JA did not decide the requirements for such a claim or whether Jaworski could meet them.
After this decision, the legal significance of the particular orders was that neither could be appealed without leave. The 13 May order was interlocutory under s 101(2)(e), and the costs order fell within s 101(2)(c) [31]-[32]. The appeal’s dismissal therefore resolved the competency question, not the underlying proposed derivative claim.
The judgment does not state that it overrules or modifies the authorities it cites. It treats McEvoy as consistent with its conclusion about the interlocutory character of an order that ends proceedings in practical effect but does not finally determine legal rights [29]. Its contribution in this case is the application of those principles to a funding application that was the only originating process before the primary judge.
At [28], Stern JA states that the test focuses on “the legal rather than the practical effect of the judgment”. In plain English, an order’s effect on the current litigation is not the whole inquiry. Even if the order stops the present case, it may remain interlocutory if it does not finally settle legal rights.
Also at [28], the judgment says the Court does not assess the prospects of a further application; it asks whether the existing orders finally determine the parties’ rights. This matters because the Court did not need to decide whether Jaworski could realistically obtain a different result in a later proceeding. The possibility of a further application was relevant to finality as a matter of law, not a prediction that it would succeed.
At [29], the Court describes the result as consistent with McEvoy v Caplan. The comparison is limited: both orders could end the proceedings in practical terms, but neither necessarily finally determined the relevant legal rights. The judgment does not say the applications in the two cases had identical legal foundations.
At [30], Stern JA records that the amended summons was the only originating process or extant application before Black J. In plain English, the appellate court assessed the order against the actual case that was before the primary judge, not against Jaworski’s understanding that a separate derivative proceeding remained on foot.
At [31], Stern JA concludes that the appeal against the 13 May order could only proceed with leave under s 101(2)(e). At [32], he separately concludes that the costs order required leave under s 101(2)(c). These were independent grounds for finding the appeal incompetent: one concerned the character of the dismissal order, and the other concerned the statutory treatment of discretionary costs orders.
At [33], the Court says it was unnecessary to consider CAANZ’s other grounds for alleging incompetency or the further relief it sought. The decision should therefore not be read as resolving those unaddressed grounds.
The decision is relevant to appeal-competency questions where an order has ended the proceedings currently before a court but may not have finally determined the parties’ legal rights. The key factual feature here was that dismissal of the amended summons ended the only process then before Black J, while a further application was not legally foreclosed [28]-[30].
The reasoning is particularly useful where a party argues that an order must be final because it has a decisive practical effect. The judgment requires attention to the legal effect of the order, including whether it creates final determination of rights, rather than relying solely on whether the immediate proceeding has stopped [28].
The decision also addresses an appeal against a discretionary costs order. Where the challenged order is an order as to costs only, the judgment states that s 101(2)(c) requires leave [32]. The case does not determine every possible question about costs appeals; its stated conclusion concerns the costs order before it.
A further relevant feature is the status of the underlying process. Jaworski believed a derivative proceeding remained on foot, but the Court found that the only originating process or extant application before Black J was the amended summons [30]. The case therefore illustrates why identifying the precise orders and processes actually before the primary judge can matter to the classification of an order.
The judgment does not decide the merits of a derivative claim, establish a general entitlement to funding, or determine whether a particular proposed claim satisfies substantive requirements. It should not be treated as a ruling that a later application would be available in every case. Stern JA said that a further application remained possible as a matter of legal effect, while acknowledging practical obstacles [28].
The supplied judgment contains no account of decisions issued after 7 August 2025 that have applied, followed, distinguished, or otherwise treated Jaworski. It is therefore not possible, on the material provided, to describe subsequent judicial treatment.
Within the judgment itself, the reasoning is presented as an application of existing authority rather than a departure from it. Stern JA relies on Licul v Corney and Carr v Finance Corporation of Australia Ltd [No 1] for the legal-effect approach [28], and treats McEvoy v Caplan as consistent with classifying the 13 May order as interlocutory [29]. Macatangay and Fokas v Mansfield (No 3) are cited concerning the Court’s power to dismiss the appeal as incompetent [31].
For later use, the distinction should be maintained between the authorities applied in this judgment and subsequent treatment of Jaworski itself. The former is documented at [28]-[31]; the latter cannot be established from the judgment text provided.
The judgment leaves the merits of Jaworski’s proposed derivative claim undecided. Stern JA did not determine whether the alleged conduct occurred, whether any officer breached a duty, or whether a court would order CAANZ to fund a claim [2], [16]-[18]. Those matters were not before the Court of Appeal as substantive questions.
The decision also does not decide whether Black J was wrong to refuse to hear the earlier proceedings ex parte. Stern JA stated that such an issue might be ventilated in properly constituted appellate proceedings but expressed no view on it [22]. The present appeal was disposed of on competency grounds.
Nor does the judgment assess whether a further application by Jaworski would succeed. The Court expressly said that its finality inquiry did not require it to consider the prospects of a further application [28]. Its observation that such an application remained legally possible is not a finding that it would be procedurally available in every form or succeed on its merits.
Finally, the Court did not need to decide CAANZ’s other asserted bases for incompetency or the further relief sought in its motion [33]. The reasons establish that leave was required under ss 101(2)(e) and 101(2)(c), which was sufficient to dispose of the appeal.
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on or relying on this analysis, have a qualified Australian lawyer check it.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
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
“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.”
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.
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 (N**o 5*)”).*
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.
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).
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.
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”.
“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.”
“[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.”
In Jaworski (N**o 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].
On 30 August 2024 Mr Jaworski sought leave to reopen Jaworski (N**o 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 (N**o 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].
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 (N**o 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.
Mr Jaworski did not seek leave to appeal or to appeal against any of Jaworski (N**o 1*), Jaworski (N**o 2)* or Jaworski (N**o 3*)*.
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 ), 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.
“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.”
“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.”
“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.”
“Subject to paragraphs 2-4 below [as to costs], the Amended Summons filed 24 February 2025 and the proceedings be dismissed.”
Mr Jaworski raised two preliminary concerns about this Court determining CAANZ’s motion.
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.
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 (N**o 1*)* and Jaworski (N**o 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.
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.
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, [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.
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.
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.
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.
As Black J said in Jaworski (N**o 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.
The orders of the Court are:
The appeal is dismissed as incompetent.
Mr Jaworski is to pay Chartered Accountants Australia and New Zealand’s costs of the proceedings.
**********
Jaworski
Chartered Accountants Australia and New Zealand [2025] NSWCA 177
(1981) 147 CLR 246
(1976) 180 CLR 213
(2009) 76 NSWLR 69
The appeal was dismissed as incompetent. Mr Jaworski was ordered to pay CAANZ’s costs of the proceedings.
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 (N**o 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:
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.
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.
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).
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.
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.